Digitized by the Internet Archive
in 2007 with funding from
IVIicrosoft Corporation
http://www.archive.org/details/familiarexpositiOOstorrich
FAMILIAR
EXPOSITION OF THE CONSTITUTION .
UNITED STATES
CONTAINING
A BRIEF COMMENTARY
ON EVERY CLAUSE, EXPL-^INING THE TRUE NATURE, REASONS, AND OBJECTS
THEREOF; DESIGNED FOR THE USE OF SCHOOL
AND GENERAL READERS.
AN APPENDIX,
CONTAINING IMPORTANT PUBLIC DOCUMENTS, ILLUSTRATIVE OP
THE CONSTITUTION.
' BY JOSEPH STORY, LL. D.
DANE PROFESSOR OP LAW IN HARYAHD UNIVERSITY.
" This Government, the offspring of our own choice, uninfluenced and unawed,
adopted upon full investigation and mature deliberation, completely free in its
principles, m the distribution of its powers uniting security with energy, and
containing, within itself, a provision for its own amendment, has a just claim to
your confidence and respect." — President Washington's Farewell Address to tht
People of the United States.
NEW YORK:
HARPER A; BROTHERS, PUBLISHERS,
82 CLIFF STREET.
18 47.
n<\0'Sy
Eatered according to Act of Congress, in the year 1840, by
Marsh, Capen, Lyon, and Webb,
in the Clerk's Office of the District Court of Massachusetts.
TO
THE PEOPLE
OF THE
COMMONWEALTH OF MASSACHUSETTS
THIS WORK,
DESIGNED TO AID
THE CAUSE OF EDUCATION,
AND
TO PROMOTE AND ENCOURAGE THE STUDY
OF THE
CONSTITUTION OF THE UNITED STATES,
BY HER INGENUOUS YOUTH,
IS RESPECTFULLY DEDICATED,
BY ONE
WHO GRATEFULiLY ACKNOWLEDGES, THAT HSR
TERRITORY IS
THE LAND OF HIS BIRTH,
AND THE
HOME OF HIS CHOICE,
THE AUTHOR.
Cambridge, January 1, 1840.
PREFACE.
The present Work is designed, not only for private
reading, but as a text book for the highest classes in our
Common Schools and Academies. It is also adapted
to the use of those, who are more advanced, and have
left school, after having passed through the common
branches of education. It may also be studied with ad-
vantage by those, who have arrived at maturer years,
but whose pursuits have not allow^ed them leisure to ac-
quire a thorough knowledge of the Republican Consti-
tution of Government, under which they live. Some
of the subjects, which are here treated of, may seem
remote from those topics, which ordinarily engage the
attention of our youth, and some of them may seem to
be of such an abstract political nature, that the full value
of them can scarcely be felt, except by persons, who have
had some experience of the duties and difficulties of so-
cial life. But, I think, that it will be found, upon closer
examination, that an objection of this sort can properly
apply to very few passages in the Work ; and that even
those, which fall within the scope of the objection, will
furnish sources of reflection, and means of knowledge,
which will essentially aid the student in his future progress,
and place him, as it were, upon the vantage ground, to
master the leading principles of politics, and public policy.
The Work has been framed upon the basis of my larger
I*
6 PREFACE.
Commentaries on the Constitution, which are already be-
fore the Pubhc. And one of the advantages, which it
possesses, is, that the reader will find every one of the
topics here discussed, examined almost in the same order,
far more completely in those Commentaries, if his curi-
osity or his leisure shall prompt him to more thorough
researches. I have endeavored, as far as practicable, to
make the remarks intelligible to every class of readers, by
embodying them in plain and unambitious language, so as
to give the Work a just claim to the title of being " A
Famihar Exposition of the Constitution of the United
States." If it shall tend to awaken in the bosoms of
American Youth, a more warm and devoted attachment
to the National Union, and a more deep and firm love of
the National Constitution, it will afibrd me very sincere
gratification, and be an ample compensation for the time,
which has necessarily been withdrawn from my other
pressing avocations, in order to prepare it.
An Appendix has been added, containing some im-
portant public Documents, which may serve to confirm
or illustrate the Text.
With these few suggestions, I submit the Work to the
indulgent consideration of the Public, adopting the ex-
pressive motto of the poet, —
'* Content, if here Ih' unlearned their wantg may view,
The learned reflect on what before they knew."
Joseph Story,
Cambridge, January 1, 1840.
CONTENTS
Page
Dedication, 3
Preface, 5
CHAPTER I.
History of the Colonies, 11
CHAPTER n.
Colonial Governments, 17
CHAPTER in.
Origin of the Revolution, 22
CHAPTER IV.
Revolutionary Government, 26
CHAPTER V.
History of the Confederation, 28
CHAPTER VI.
Origin of the Constitution,- 33
CHAPTER VII.
Exposition of the Constitution. — The Preamble, . 36
CHAPTER VIII.
Distribution of Powers. — The Legislative Depart-
ment, 46
CHAPTER IX.
The House of Representatives, 60
8 CONTENTS.
CHAPTER X.
The Senate, 64
CHAPTER XI.
Impeachments, 76
CHAPTER XII.
Elections, and Meetings of Congress, .... 89
CHAPTER XIII.
Powers and Privileges of both Houses, .... 90
CHAPTER XIV.
Mode of Passing Laws, 96
CHAPTER XV.
Powers of Congress. — Taxation, 101
CHAPTER XVI.
Power to borrow Money and regulate Commerce, 107
CHAPTER XVII.
Naturalization, Bankruptcy, and Coinage of Mon-
ey, 113
CHAPTER XVIII.
Post Office and Post Roads. — ^Patents for Inven-
tions, 117
CHAPTER XIX.
Punishment of Piracies and Felonies. — Declaration
of War, 119
CHAPTER XX.
Power as to Army and Navy, 122
CHAPTER XXI.
Power over Militia, 125
CHAPTER XXII.
Seat of Government, and other Ceded Places, . . 128
CONTENTS. 9
CHAPTER XXIII.
General Power to make Necessary and Proper
Laws, 131
CHAPTER XXIV.
Punishment of Treason. — State Records, . . . 134
CHAPTER XXV.
Admission of New States. — Government of Territo-
ries, 137
CHAPTER XXVI.
Prohibitions on the United States, 142
CHAPTER XXVII.
Prohibitions on the States, 146
CHAPTER XXVIII.
The Executive Department, 158
CHAPTER XXIX.
Powers and Duties of the President, 170
CHAPTER XXX.
The Judicial Department, 179
CHAPTER XXXI.
Powers and Jurisdiction of the Judiciary, . , . 186
CHAPTER XXXII.
Trial by Jury, and its Incidents. — Definition of
Treason, 228
CHAPTER XXXIII.
Privileges of Citizens. — Fugitive Criminals and
Slaves, , . . . 242
CHAPTER XXXIV.
Guaranty of Republican Government. — Mode of
making Amendments, 244
10 CONTENTS.
CHAPTER XXXV.
Public Debt. — Supremacy of the Constitution and
Laws, 248
CHAPTER XXXVI.
Oath of Office. — Religious Test. — Ratification of
the Constitution, 251
CHAPTER XXXVII.
Amendments to the Constitution, 254
CHAPTER XXXVIII.
Concluding Remarks, 267
APPENDIX.
Declaration of Rights by the Continental
Congress, 1774, 271
Declaration of Independence, 275
Articles op Confederation, 279
Constitution of the United States, .... 289
Washington's Farewell Address, 306
Definitive Treaty of Peace between the Uni-
ted States of America and his Britannic
Majesty, 3.24
An Ordinance for the Government of the Ter-
ritory OF THE United States, Northwest of
THE River Ohio, 329
Glossary, . . . • 339
Index, 351
I^^^'..>.?f-.^.\W'
A
FAMILIAR EXPOSITION
CONSTlTUTIOxN OF THE UNITED STATES.
CHAPTER I.
History of the Colonies,
§ 1. Before entering upon the more immediate ob-
ject of this work, which is, to present to the general
reader a famihar exposition of the nature and objects of
the different provisions of the Constitution of the United
States, it seems proper to take a brief review of the
origin and setdement of the various States, originally
composing the Union, and their political relations to each
other at the time of its adoption. This will naturally
conduct us back to the American Revolution, and to the
formation of the Confederation of the States, consequent
thereon. But if we stop here, we shall still be surround-
ed by difficulties, unless we understand the political
organization of the various colonies during their common
dependence upon the sovereignty of Great Britain, and we
are in some degree made acquainted with the domestic
institutions, pohcy, and legislation, which impressed upon
each of them some pecuKar habits, interests, opinions,
attachments, and even prejudices, which may still be
traced in the actual jurisprudence of each State, and are
openly or silently referred to in some of the provisions
of the Constitution of Government, by which they are
12 CONSTITUTION OF THE UNITED STATES,
now united. This review will, however, contain but a
rapid glance at these various important topics, and the
reader must be left to satisfy his further inquiries by the
study of works of a more large and comprehensive char-
acter.
§ 2. The Thirteen American Colonies which, on the
fourth day of July, 1776, declared themselves free and
independent States, were New Hampshire, Massachu-
setts, Rhode Island, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia. All
these colonies were originally settled by British subjects,
under the express or implied authority of the government
of Great Britain, except New York, which was originally
settled by emigrants from Holland, and Delaware, which,
although at one time an appendage to the Government
of New York, was at first principally inhabited by the
Dutch and Swedes. The British government, however,
claimed the territory of all these colonies by the right of
original discovery, and at all times resisted the claim of
the Dutch to make any settlement in America. The
Colony of New York became, at an early period, subject
to British authority by conquest from the Dutch. Del-
aware was soon separated from New York, and was
afterwards connected with, and a dependency upon, the
proprietary government of Pennsylvania. The other
States, now belonging to the Union, had no existence at
the time of the Declaration of Independence ; but have
since been established within the territory, which was
ceded to the United States by the Treaty of Peace with
Great Britain in 1783, or within the territory, which has
been since acquired by the United States, by purchase
from other nations.
§ 3. At the time of the discovery of America, towards
the close of the fifteenth century, (1492,) the various
Indian tribes, which then inhabited it, maintained a claim
to the exclusive possession and occupancy of the terri-
tory within their respective limits, as sovereign proprie-
tors of the soil. They acknowledged no obedience, nor
allegiance, nor subordination to any foreign nation whatso-
HISTORY OF THE COLONIES. 13
ever ; and, as far as they have possessed the means,
they have ever since constantly asserted this full right of
dominion, and have yielded it up only, when it has been
purchased from them by treaty, or obtained by force of
arms and conquest. In short, like all the civihzed na-
tions of the earth, the Indian tribes deemed themselves
rightfully possessed, as sovereigns, of all the territories,
within which they were accustomed to hunt, or to exer-
cise other acts of ownership, upon the common principle,
that the exclusive use gave them an exclusive right to
the soil, whether it was cultivated or not.
§ 4. It is difficult to perceive, why their title was not,
in this respect, as well founded as the title of any other
nation, to the soil within its o^vn boundaries. How,
then, it may be asked, did the European nations acquire
the general title, which they have always asserted to the
whole soil of America, even to that in the occupancy of
the Indian tribes ? The only answer, which can be
given, is, their own assertion, that they acquired a gen-
eral title thereto in virtue of their being the first discover-
ers thereof, or, in other words, that their title was founded
upon the right of discovery. They estabhshed the doc-
trine, (whether satisfactorily or not is quite a different
question,) that discovery is a sufficient foundation for the
right to territory. As between themselves, with a view
to prevent contests, where the same land had been visit-
ed by the subjects of different European nations, each of
which might claim it as its own, there was no inconve-
nience in allowing the first discoverer to have the priority
of right, where the territory was at the time desert and un-
inhabited. But as to nations, which had not acceded to
the doctrine, and especially as to countries in the posses-
sion of native inhabitants and tribes at the time of the
discovery, it seems difficult to perceive, what ground of
right any discovery could confer. It would sefem strange
to us, if, in the present times, the natives of the South
Sea Islands, or of Cochin China, should, by making a
voyage to, and a discovery of, the United States, on that
account set up a right to the soil within our boundaries.
§ 5. The truth is, that the European nations paid not
2 xin.
14 CONSTITUTION OF THE UNITED STATES.
the slightest regard to the rights of the native tribes. They
treated them as mere barbarians and heathens, whom,
if they were not at hberty to extirpate, they were entitled
to deem mere temporary occupants of the soil. They
might convert them to Christianity ; and, if they refus-
ed conversion, they might drive them from the soil, as
unworthy to inhabit it. They affected to be governed
by the desire to promote the cause of Christianity, and
were aided in this ostensible object by the whole in-
fluence of the Papal power. But their real object was,
to extend their own power, and increase their own wealth,
by acquiring the treasures, as well as the territory, of the
New World. Avarice and ambition were at the bottom
of all their original enterprises.
§ 6. The right of discovery, thus asserted, has be-
come the settled foundation, on which the European na-
tions rest their title to territory in America ; and it is a
right, which, under our governments, must now be deem-
ed incontestable, however doubtful in its origin, or unsat-
isfactory in its principles. The Indians, indeed, have
not been treated as mere intruders, but as entitled to a
qualified right of property in the territory. They have
been deemed to be the lawful occupants of the soil, and
entitled to a temporary possession thereof, subject to the
superior sovereignty of the particular European nation,
which actually held the title of discovery. They have
not, indeed, been permitted to alienate their posses-
sory right to the soil, except to the nation, to whom they
were thus bound by a quahfied dependence. But in
other respects, they have been left to the free exercise of
internal sovereignty, in regard to the members of their own
tribe, and in regard to their intercourse with other tribes ;
and their title to the soil, by way of occupancy, has been
generally respected, until it has been extinguished by
purchase, or by conquest, under the authority of the na-
tion, upon which they were dependent. A large portion
of the territory in the United States, to which the Indian
title is now extinguished, has been acquired by purchase ;
and a still larger portion by the irresistible power of arms,
over a brave, hardy, but declining race, whose destiny
HISTORY OF THE COLONIES. 15
seems to be, to perish as fast as the white man advances
upon their footsteps.
§ 7. Having thus traced out the origin of the title to the
soil of America, asserted by the European nations, we may
now enter upon a brief statement of the times and man-
ner, in which the different settlements were made, in the
different colonies, which originally composed the Union, at
the time of the Declaration of Independence. The first
permanent settlement made in America, under the aus-
pices of England, was under a charter granted by King
James I., in 1606. By this charter, he granted all the
lands lying on the seacoast between the thirty-fourth and
the forty-fifth degrees of north latitude, and the islands
adjacent, within one hundred miles, which were not then
belonging to, or possessed by, any Christian prince or peo-
ple. The associates were divided into two companies ;
one, the First, or Southern Colony, to which was grant-
ed all the lands between the thirty-fourth and forty-first
degrees of north latitude ; and the other, the Second, or
Northern Colony, to which was granted all the lands be-
tween the thirty-eighth and forty-fifth degrees of north lat-
itude, but not within one hundred miles of the prior Col-
ony. Each Colony was declared to have the exclusive
propriety or title in all the territory within fifty miles from
the seat of its first plantation. The name of Virginia
was in general confined exclusively to the Southern Col-
ony ; and the name of the Plymouth Company (from the
place of residence of the original grantees in England)
was assumed by the Northern Colony. From the for-
mer, the States south of the Potomac may be said to have
had their origin ; and from the latter, the States of New
England.
§ 8. Some of the provisions of this charter desferve a
particular consideration, from the light, which they throw
upon the civil and pohtical condition of the persons, who
should become inhabitants of the Colonies. The two
companies were authorized to engage, as colonists, any of
the subjects of England, who should be disposed to emi-
grate. All persons, being English subjects, and inhabit-
ants in the Colonies, and their children born therein, were
16 CONSTITUTION OP THE UNITED STATES.
declared to have and possess all liberties, franchises, and
immunities of subjects within any dominions of the Crown
of England, to all intents and purposes, as if they were
born and abiding within the realm or other dominions of
that Crown. The original grantees, or patentees, were to
hold the lands and other territorial rights in the Colonies,
of the King, his heirs and successors, in the same manner
as the manor of East Greenwich, in the county of Kent,
in England, was held of him, in free and common socage,
and not in capite, (as it was technically called,) that is
to say, by a free and certain tenure, as contradistinguished
from a mihtary and a servile tenure, — a privilege of ines-
timable value, as those, who are acquainted with the his-
tory of the feudal tenures, well know.* The patentees
were also authorized to grant the same lands to the inhab-
itants of the Colonies in such form and manner, and for
such estates, as the Council of the Colony should direct.
These provisions were, in substance, incorporated into all
the charters subsequently gi'anted by the Crown to the dif-
ferent Colonies, and constituted also the basis, upon which
all the subsequent settlements were made.
§ 9. The Colony of Virginia was the earliest in its
origin, being settled in 1606. The Colony of Plymouth
(which afterwards was united with Massachusetts, in 1692)
was settled in 1620 ; the Colony of Massachusetts in
1628 ; the Colony of New Hampshire in 1 629 ; the Col-
ony of Maryland in 1632 ; the Colony of Connecticut in
1635 ; the Colony of Rhode Island in 1636 ; the Colony
of New York in 1662 ; the Colonies of North and South
Carolina in 1663 ; the Colony of New Jersey in 1664 ;
the Colony of Pennsylvania in 1681 ; the Colony of Del-
aware in 1682 ; and the Colony of Georgia in 1732. En
using these dates, we refer not to any sparse and discon-
nected settlements in these Colonies, (which had been
made at prior periods,) but to the permanent settlements
made under distinct and organized governments.
* On this subject, the reader can consult the history of the ancient
and modern English tenures in Blackstone's Commentaries, vol. iL
chs. 5 and 6, p. 59 to p. 103.
COLONIAL GOVERNMENTS. 17
CHAPTER II.
Colonial Governments.
§ 10. Let us next proceed to the consideration of the
political Institutions and forms of Government, which
were estabhshed in these different Colonies, and existed
here at the commencement of the Revolution. The
governments originally formed in these different Colonies
may be divided into three sorts, viz., Provincial, Propri-
etary, and Charter, Governments. First, Provincial
Governments. These establishments existed under the
direct and immediate authority of the King of England,
without any fixed constitution of government ; the organ-
ization being dependent upon the respective commissions
issued from time to time by the Crown to the royal gov-
ernors, and upon the instructions, which usually accompa-
nied those commissions. The Provincial Governments
were, therefore, wholly under the control of the King,
and subject to his pleasure. The form of government,
however, in the Provinces, was at all times practically the
same, the commissions being issued in the same form.
The commissions appointed a Governor, who was the
King's representative, or deputy ; and a Council, who,
besides being a part of the Legislature, were to assist the
Governor in the discharge of his official duties ; and both
the Governor and the Council held their offices during the
pleasure of the Crown. The commissions also contained
authority to the Governor to convene a general assembly
of the representatives of the freeholders and planters in
the Province ; and under this authority, Provincial As-
semblies, composed of the Governor, the Council, and
the Representatives, were, from time to time, constituted
and held. The Representatives composed the lower
house, as a distinct branch ; the Council composed the
upper house ; and the Governor had a negative upon all
their proceedings, and the power to prorogue and dis-
3*
18 CONSTITUTION OF THE UNITED STATES.
solve them. The Legislature, thus constituted, had
power to make all local laws and ordinances not repug-
nant to the laws of England, but, as near as might conve-
niently be, agreeable thereto, subject to the ratification or
disapproval of the Crown. The Governor appointed the
judges and magistrates, and other officers of the Province,
and possessed other general executive powers. Under
this form of government, New Hampshire, New York,
Virginia, North Carolina, South Carolina, and Georgia,
were governed, as provinces, at the commencement of the
American Revolution ; and some of them had been so
governed from an early period of their settlement.
§ 11. Secondly, Proprietary Governments. These
were grants by letters patent (or open, written grants un-
der the great seal of the kingdom) from the Crown to
one or more persons as Proprietary or Proprietaries, con-
veying to them not only the rights of the soil, but also
the general powers of government within the territory so
granted, in the nature of feudatory principahties, or de-
pendent royalties. So that they possessed within their
own domains nearly the same authority, which the Crown
possessed in the Provincial Governments, subject, how-
ever, to the control of the Crown, as the paramount sov-
ereign, to whom they owed allegiance. In the Proprie-
tary Governments, the Governor was appointed by the
Proprietary or Proprietaries ; the Legislature was organ-
ized and convened according to his or their will ; and the
appointment of officers, and other executive functions and
prerogatives, were exercised by him or them, either per-
sonally, or by the Governors for the time being. Of
these Proprietary governments, three only existed at the
time of the American Revolution, viz., Maryland, held
by Lord Baltimore, as Proprietary, and Pennsylvania
and Delaware, held by William Penn, as Proprietary.
§ 12. Thirdly, Charter Governments. These were
great political corporations, created by letters patent, or
grants of the Crown, which conferred on the grantees
and their associates not only the soil within their territorial
limits, but also all the high powers of legislation and gov-
ernment. The charters contained, in fact, a fundamental
COLONIAL GOVERNMENTS. 19
constitution for the Colony, distributing the powers of
government into three great departments, legislative,
executive, and judicial ; providing for the mode, in which
these powers should be vested and exercised ; and se-
curing to the inhabitants certain political privileges and
rights. The appointment and authority of the Governor,
the formation and structure of the Legislature, and the es-
tabhshment of courts of justice, w^ere specially provided
for ; and generally the powers appropriate to each were
defined. The only Charter Governments existing at the
time of the American Revolution, were Massachusetts,
Rhode Island, and Connecticut.
§ 13. The Charter Governments differed from the
Provincial, principally in this, that they were not imme-
diately under the authority of the Crown, nor bound by
any of its acts, which were inconsistent with their char-
ters ; whereas the Provincial Governments were entirely
subjected to the authority of the Crown. They differed
from the Proprietary Governments in this, that the latter
were under the control and authority of the Proprietaries,
as substitutes of the Crown, in all matters, not secured
from such control and authority by the original grants ;
whereas, in the Charter Governments, the powers were
parcelled out among the various departments of govern-
ment, and permanent boundaries were assigned by the
charter to each.
§ 14. Notwithstanding these differences in their ori-
ginal and actual political organization, the Colonies, at the
time of the American Revolution, in most respects, enjoy-
ed the same general rights and privileges. In all of them,
there existed a Governor, a Council, and a Representative
Assembly, composed of delegates chosen by the people, by
whom the legislative and executive functions were exer-
cised according to the particular organization of the
Colony. In all of them, the legislative power extended to
all local subjects, and was subject only to this restriction,
that the laws should not be repugnant to, but, as far as con-
veniently might be, agreeable to, the laws and customs of
England. In all of them, express provision was made,
that all subjects, and their children, inhabiting in th«
20 CONSTITUTION OF THE UNITED STATES.
Colonies, should be deemed natural-born subjects, and
should enjoy all the privileges and immunities thereof.
In all of them, the common law of England, as far as it
was applicable to their situation, was made the basis of
their jurisprudence ; and that law was asserted at all times
by them to be their birthright and inheritance.
§ 15. It may be asked, how the common law of
England came to be the fundamental law of all the Col-
onies. It may be answered in a kw words, that, in all
the Proprietary and Charter Governments, there was an
express restriction, that no laws should be made repug-
nant to those of England, but, as near as they might
conveniently be, should be consonant and conformable
thereto, and, either expressly or by necessary implication,
it was provided, that the law of England, so far as it was
applicable to the state of the Colonies, should be in force
there. In the Provincial Governments the same pro-
visions were incorporated into all the royal commissions.
It may be added, that the common law of England was
emphatically the law of a free nation, and secured the
public and private rights and hberties of the subjects
against the tyranny and oppression of the Crown. Many
of these rights and liberties were proclaimed in Magna
Charta, (as it is called,) that instrument containing a de-
claration of rights by the peers and commons of England,
wrung from King John, and his son, Henry III., by the
pressure of stern necessity. But Magna Charta would
itself have been but a dead letter, if it had not been sus-
tained by the powerful influences of the common law, and
the right of trial by jury. Accordingly, our ancestors at
all times strenuously maintained, that the common law
was their birthright, and (as we shall presently see) in
the first revolutionary Continental Congress, in 1774,
unanimously resolved, that the respective Colonies are
entitled to the common law, and more especially to the
great and inestimable privilege of being tried by their
peers of the vicinage according to the course of that law.
§ 16. Independently, however, of the special recog-
nitions of the Crown, there is a great conservative prin-
ciple in the common law of England, which would have
COLONIAL GOVERNMENTS. 21
insured to our ancestors the right to partake of its pro-
tection, its remedial justice, and its extensive blessings.
It is a well-settled doctrine of that law, that, if an unin-
habited country is discovered and planted by British
subjects, the laws of England, so far as they are ap-
plicable, are there held immediately in force ; for, in all
such cases, the subjects, wherever they go, carry those
laws with them. This doctrine has been adopted, to
save the subjects, in such desert places, from being left
in a state of utter insecurity, from the want of all laws to
govern them, and from being thus reduced to a mere state
of nature. On the contrary, where new countries are
obtained by cession or conquest, a different rule exists.
The Crown has the sole and exclusive right to abrogate the
existing laws, and to prescribe, what new laws shall prevail
there ; although, until the pleasure of the Crown is made
known, the former laws are deemed to remain in force.
Attempts were made to hold the American Colonies to
be in this latter predicament, that is, to be territories
ceded by or conquered from the Indians. But the pre-
tension was always indignantly repelled ; and it was in-
sisted, that the sole claim of England thereto being
founded on the mere title of discovery, the colonists
brought thither all the laws of the parent country, which
were applicable to their situation.
§ 17. We may thus see, in a clear light, the manner,
in which the common law was first introduced into the
Colonies, and also be better enabled to understand the
true nature and reason of the exceptions to it, which are
to be found in the laws and usages of the different Col-
onies. The general basis was the same in all the Colo-
nies. But the entire system was not introduced into any
one Colony, but only such portions of it, as were adapted
to its own wants, and were applicable to its own situation.
Hence the common law can hardly be afiirraed to have
been exactly, in all respects, the same in all the Colonies.
Each Colony selected for itself, and judged for itself,
what was most consonant to its institutions, and best
adapted to its civil and political arrangements ; and, while
the main principles were every where the same, there
22 CONSTITUTION OF THE UNITED STATES.
were endless minute usages and local peculiarities, in
which they differed from each other.
§ 18. Thus limited and defined by the colonists
themselves, in its actual application, the common law
became the guardian of their civil and political rights ; it
protected their infant liberties ; it watched over their
maturer growth ; it expanded with their wants ; it nour-
ished in them that spirit of independence, which checked
the first approaches of arbitrary power ; it enabled them
to triumph in the midst of dangers and difficulties ; and
by the good providence of God, we, their descendants,
are now enjoying, under its bold and manly principles, the
blessings of a free and enlightened administration of public
justice.
§ 19. Having made these preliminary observations,
we may now advance to the consideration of the political
state of the Colonies at the time of the Revolution ; and
trace its origin and causes. The natural inquiries here
are ; What, at this period, were their admitted rights and
prerogatives ? What were their civil and political relations
with the parent country ? To what extent were they
dependent upon the parent country ? What were the
limits of the sovereignty, which either Parliament, or the
King, might rightfully exercise over them ? These are
questions of deep importance ; but they are more easily
put, than answered. A full explanation of them is incom-
patible with the narrow limits prescribed to the present
work ; but a brief summary of some of the leading views
may not be without use.
CHAPTER Hi.
Origin of the Revolution.
§ 20. The Colonies, at the time of the Revolution,
considered themselves, not as parcel of the realm of
Great Britain, but as dependencies of the British Crown,
and owing allegiance thereto, the King being their su-
ORIGIN OP THE REVOLUTION. 23
preme and sovereign lord. In virtue of this supremacy,
the King exercised the right of hearing appeals from the
decisions of the courts of the last resort in the Colonies ;
of deciding controversies between the Colonies as to their
respective jurisdictions and boundaries ; and of requiring
each Colony to conform to the fundamental laws and con-
stitution of its own estabhshment, and to yield due obedi-
ence in all matters belonging to the paramount sovereignty
of the Crown.
§ 21. Although the Colonies had a common origin
and common right, and owed a common allegiance, and
the inhabitants of all of them were British subjects, they
had no direct political connection with each other.
Each colony was independent of the others ; and there
was no confederacy or alliance between them. The
legislature of one could not make laws for another, nor
confer privileges to be enjoyed in another. They were
also excluded from all pohtical connection with foreign
nations ; and they followed the fate and fortunes of the
parent country in peace and in war. Still the colonists
were not wholly alien to each other. On the contrary,
they were fellow subjects, and, for many purposes, one
people. Every colonist had a right to inhabit, if he
pleased, in any other Colony ; to trade therewith ; and to
inherit and hold lands there.
§ 22. The nature and extent of their dependency
upon the parent country is not so easily stated ; or, rather,
it was left in more uncertainty ; the claims on either side
not being always well defined, nor clearly acquiesced in.
The Colonies claimed exclusive.authority to legislate on
all subjects of local and internal interest and pohcy.
But they did not deny the right of Parliament to regulate
their foreign commerce, and their other external concerns,
or to legislate upon the common interests of the whole em-
pire. On the other hand, the Crown claimed a right to ex-
ercise many of its prerogatives in the Colonies ; and the
British Parliament, although it practically interfered little
with their internal affairs, yet theoretically maintained the
right to legislate over them in all cases whatsoever.
§ 23. As soon as any systematic effort was made by
24 CONSTITUTION OF THE UNITED STATES.
the British Parliament practically to exert over the Colo-
nies the power of internal legislation and taxation, as was
attempted by the Stamp Act, in 1765, it was boldly re-
sisted ; and it brought on the memorable controversy,
which terminated in their Independence, first asserted by
them in 1776, and finally admitted by Great Britain by
the Treaty of 1783. At an early period of that contro-
versy, the first Continental Congress, in 1774, drew up
and unanimously adopted a declaration of the rights of
the Colonies, the substance of which is as follows : (1.)
That they are entitled to life, liberty, and property ; and
they have never ceded to any sovereign power, whatever,
a right to dispose of either without their consent. (2.)
That our ancestors, who first settled the 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 within the realm of England.
(3.) That by such emigration they by no means forfeited,
surrendered, or lost any of those rights ; but that they
were, and their descendants now are, entitled to the ex-
ercise and enjoyment of all such of them, as their local
and other circumstances enable them to exercise and en-
joy. (4.) That the foundation of Enghsh hberty is a
right in the people to participate in their legislative coun-
cils ; and as the Enghsh colonists are not represented,
and, from their local and other circumstances, cannot
properly be represented, in the British Parliament, they
are entitled to a free and exclusive power of legislation
in their several provincial assembhes, where their right of
representation can alone be preserved, in all cases of tax-
ation and internal polity, subject only to the negative of
their sovereign, in such manner as has been heretofore
used and accustomed. But from the necessity of the
case, and a regard to the mutual interests of both coun-
tries, they cheerfully consent to the operation of such
acts of the British Parliament, as are bona fide restrain
ed to the regulation of their external commerce, for the
purpose of securing the commercial advantages of the
whole empire to the mother country, and the commercial
benefits of its respective members, excluding every action
ORIGIN OF THE REVOLUTION. . 25
of taxation, internal or external, for raising a revenue on
the subjects in America without their consent. (5.) That
the respective Colonies are entitled to the common law
of Engknd, and more especially, the great and inestima-
ble privilege of being tried by their peers of the vicinage,
according to the course of that law, (meaning the trial by
jury.) (6.) That the Colonies are entitled to the ben-
efit of such of the Enghsh statutes, as existed at the
time of their colonization, and which they have, by ex-
perience, respectively found applicable to their several
local and other circumstances. (7.) That they are like-
wise entitled to all the immunities and privileges granted
and" confirmed to them by royal charters, or secured to
them by their several codes of provincial law. (8.) That
they have a right peaceably to assemble, consider of their
grievances, and petition the King ; and that all. prosecu-
tions, prohibitory proclamations, and commitments for
the same, are illegal. (9.) That the keeping of a stand-
ing army in these Colonies in times of peace, without
the consent of the legislature of that Colony, in wdiich
such army is kept, is against law. (10.) That it is in-
dispensably necessary to good government, and rendered
essential by the English constitution, that the constituent
branches of the legislature be independent of each other ;
that, therefore, the exercise of legislative power in several
Colonies by a Council appointed during pleasure by the
Crown, is unconstitutional, dangerous, and destructive to
the freedom of American legislation.
§ 24. Such is, in substance, the Bill of Rights claim-
ed in behalf of all the Colonies by the Continental Con-
gress, the violation of which, constituted the main grounds,
upon which the American Revolution w-as founded ; and
the grievances, under w^hich the Colonies labored, being
persisted in by the British government, a resort to arms
became unavoidable. The result of the contest is w^ell
known, and has been already stated ; and it belongs to
the department of history, and not of constitutional law,
to enumerate the interesting events of that period.
^ XIII.
26 CONSTITUTION OF THE UNITED STATES.
CHAPTER IV.
Revolutionary Government.
§ 25. But it may be asked, and it properly belongs
to this work to declare ; What was the political organiza-
tion, under which the Revolution was carried on and ac-
compHshed ? The Colonies being, as we have seen,
separate and independent of each other in their original
establishment, and down to the eve of the Revolution, it
became indispensable, in order to make their resistance
to the British claims either formidable or successful, that
there should be harmony and unity of operations under
some common head. Massachusetts, in 1774, recom-
mended the assembling of a Continental Congress at
Philadelphia, to be composed of delegates chosen in all
the Colonies, for the purpose of deliberating on the com-
mon good, and to provide a suitable scheme of future
operations. Delegates were accordingly chosen in the
various Colonies, some by the legislative body, some by
the popular representative branch thereof, and some by
conventions of the people, according to the several means
and local circumstances of each Colony. This first great
Continental Congress assembled on the 4th of Septem-
ber, 1774, chose their own officers, and adopted certain
fundamental rules to regulate their proceedings. The
most important rule then adopted was, that each Colony
should have onfe vote only in Congress, whatever might be
the number of its delegates ; and this became the establish-
ed course throughout the whole Revolution. They adopted
such other measures, as the exigency of the occasion seem-
ed to require ; and proposed anotlier Congress, to be as-
sembled for the like purpose, in May, 1775, which was
accordingly held. The delegates of this last Congress
were chosen in the same manner as the preceding ; but
principally by conventions of the people in the several
Colonies. It was the same Congress, which, after vot-
REVOLUTIONARY GOVERNMENT. 27
ing other great measures, all leading to open war, finajly,
in 1776, made the Declaration of Independence, which
was unanimously adopted by the American people. Un-
der the recommendations of the same Congress, suitable
arrangements were made to organize the State govern-
ments, so as to supply the deficiencies in the former es-
tablishments ; and henceforth the delegates to the Conti-
nental Congress from time to time assembled, were ap-
pointed by the State legislatures.
§ 26. The Continental Congress, thus organized by a
voluntary association of the States, and continued by the
successive appointments of the State legislatures, con-
stituted, in fact, the National Government, and conducted
the national affairs until near the close of the Revolution,
when, as we shall presently see, the Articles of Confeder-
ation were adopted by all the States. Their powers were
no where defined or limited. They assumed, among
others, the power to declare war and make peace, to
raise armies and equip navies, to form treaties and allian-
ces whh foreign nations, to contract pubhc debts, and to
do all other sovereign acts essential to the safety of the
United Colonies. Whatever powers they assumed were
deemed legitimate. These powers originated from ne-
cessity, and were only limited by events ; or, in other
words, they were revolutionary powers. In the exercise
of these powers, they were supported by the people, and
the exercise of them could not, therefore, be justly ques-
tioned by any inferior authority. In an exact sense, then,
the powers of the Continental Congress might be said to
be coextensive with the exigencies and necessities of the
public affairs ; and the people, by their approbation and
acquiescence, justified all their acts, having the most en-
tire reliaix^e upon their patriotism, their integrity, and their
political wisdom.
§ 27. But it was obvious to reflecting minds, upon the
slightest consideration, that the union thus formed, was
but of a temporary nature, dependent upon the consent
of all the Colonies, now become States, and capable of
being dissolved, at any time, by the secession of any one
of them. It grew out of the exigencies and dangers of
28 CONSTITUTION OF THE UNITED STATES.
the times ; and, extending only to the maintenance of the
public liberties and independence of all the States during
the contest with Great Britain, it would naturally termi-
nate with the return of peace, and the accomplishment of
the ends of the revolutionary contest. As little could it
escape observation, how great would be the dangers of
the separation of the confederated States into indepen-
dent communities, acknowledging no common head, and
acting upon no common system. Rivalries, jealousies,
real or imaginary wrongs, diversities of local interests
and institutions, would soon sever the ties of a common
attachment, which bound them together, and bring on a
state of hostile operations, dangerous to their peace, and
subversive of their permanent interests.
CHAPTER V.
History of the Confederation.
§ 28. One of the first objects, therefore, beyond that
of the immediate public safety, which engaged the atten-
tion of the Continental Congress, was to provide the means
of a permanent union of all the Colonies under a General
Government. The deliberations on this subject were co-
eval with the Declaration of Independence, and, after va-
rious debates and discussions, at different sessions, the
Continental Congress finally agreed, in November, 1777,
upon a frame of government, contained in certain Articles
of Confederation, which were immediately sent to all the
States for their approval and adoption. Various delays
and objections, however, on the part of some of the
States, took place ; and as the government was not to go
into efi:ect, until the consent of all the States should be
obtained, the Confederation was not finally adopted until
March, 1781, when Maryland (the last State) acceded
to it. The principal objections taken to the Confedera-
tion were ; to the mode j)rescribed by it for apportioning
taxes among the States, and raising the quota or propor-
HISTORY OF THE CONFEDERATION. 29
tions of the public forces ; to the power given to keep up
a standing army in time of peace ; and, above all, to the
omission of the reservation of all the public lands, owned
by the Crown, within the boundaries of the United States,
to the National Government, for national purposes. This
latter subject was one of a perpetually recurring and in-
creasing irritation ; and the Confederation would never
have been acceded to, if Virginia and New York had not
at last consented to make liberal cessions of the territory
within their respective boundaries for national purposes.
§29. The Articlesof Confederation had scarcely been
adopted, before the defects of the plan, as a frame of
national government, began to manifest themselves. The
instrument, indeed, was framed under circumstances very
little favorable to a just survey of the subject in all its
proper bearings. ' The States, while colonies, had been
under the controlling authority of a foreign sovereignty,
whose restrictive legislation had been severely felt, and
whose prerogatives, real or assumed, had been a source
of incessant jealousy and alarm. Of course, they had
nourished a spirit of resistance to all external authority ;
and having had no experience of the inconveniences of
the want of some general government to superintend
their common affairs and interests, they reluctantly yield-
ed any thing, and deemed the least practicable delegation
of power quite sufficient for national purposes. Notwith-
standing the Confederation purported on its face to con-
tain articles of perpetual union, it was easy to see, that
its principal powers respected the operations of war, and
were dormant in times of peace ; and that even these
were shadowy and unsubstantial, since they were stripped
of all coercive authority. It was remarked, by an eminent
statesman, that by this political compact the Continental
Congress have exclusive power for the following purposes,
without being able to execute one of them : — They may
make and conclude treaties ; but can only recommend
the observance of them. They may appoint ambassa-
dors ; but they canriaJt defray even the expenses of their
tables. They may borrow money in their own nam#, on
the faith of the Union ; but they cannot pay a dollar.
3*
30 CONSTITUTION OF THE UNITED STATES.
They may coin money ; but they cannot import an ounce
of bullion. They may make war, and determine what
number of troops are necessary ; but they cannot raise a
single soldier. In short, they may declare every thing,
but they can do nothing. And, strong as this description
may seem, it was Hterally true ; for Congress had httle
more than the power of recommending their measures to
the good will of the States.
§ 30. The leading defects of the Confederation were
the following : In the first place, there was an utter want
of all coercive authority in the Continental Congress, to
carry into effect any of their constitutional measures.
They could not legislate directly upon persons ; and,
therefore, their measures were to be carried into effect
by the States ; and of course, whether they were execu-
ted or not, depended upon the sole pleasure of the legis-
latures of the latter. And, in point of fact, many of the
measures of the Continental Congress were silently disre-
garded ; many were slowly and reluctantly obeyed ; and
some of them were openly and boldly refused to be exe-
cuted.
§ 31. In the next place, there was no power in the
Continental Congress to punish individuals for any breach-
es of their enactments. Their laws, if laws they might
be called, were without any penal sanction ; the Conti-
nental Congress could not impose a fine, or imprisonment,
or any other punishment, upon refractory officers, or even
suspend them from office. Under such circumstances,
it might naturally be supposed, that men followed their
own interests, rather than their duties. They obeyed,
when it was convenient, and cared little for persuasions,
and less for conscientious obligations. The wonder is, not
that such a scheme of government should fail ; but, that it
should have been capable even of a momentary existence.
§ 32. In the next place, the Continental Congress had
no power to lay taxes, or to collect revenue, for the pub-
lic service. AH that they could do was, to ascertain the
sums necessary to be raised for the public service, and to
apportion its quota or proportion upon each State. The
power to lay and collect die taxes was expressly and ex-
HISTORY OF THE CONFEDERATION. 31
clusively reserved to the States. The consequence was,
that great delays took place in collecting the taxes ; and
the evils from this source were of incalculable extent,
even during the Revolutionary War. The Continental
Congress were often wholly without funds to meet the
exigencies of the pubhc service ; and if it had not been
for their good fortune, in obtaining money by some loans
in foreign countries, it is far from being certain, that this
dilatory scheme of taxation would not have been fatal to
the cause of the Revolution. After the peace of 1783,
the States relapsed into utter indifference on this subject.
The requisitions of the Continental Congress for funds,
even for the purpose of enabling them to pay the inter-
est of the public debt, were openly disregarded ; and,
notwithstanding the most affecting appeals, made from
time to time by the Congress, to the patriotism, the sense of
duty, and the justice of the States, the latter refused to
raise the necessary supplies. The consequence was,
that the national treasury was empty ; the credit of the
Confederacy was sunk to a low ebb ; the public bur-
dens were increasing ; and the public faith was prostrated
and openly violated.
§ 33. In the next place, the Continental Congress had
no power ^ to regulate commerce, either with foreign na-
tions, or among the several States composing the Union.
Commerce, both foreign and domestic, was left exclu-
sively to the management of each particular State, accord-
ing to its views of its own interests, or its local prejudices.
The consequence was, that the most opposite regulations
existed in the different States ; and, in many cases, and
especially between neighboring States, there was a per-
petual coiyse of retaliatory legislation, from their jealous-
ies and rivalries in commerce, in agriculture, or in man-
ufactures. Foreign nations did not fail to avail them-
selves of all the advantages accruing to themselves from
this suicidal pohcy, tending to the common ruin. And
as the evils grew more pressing, the resentments of the
States against each other, and the consciousness, that
their local interests were placed in opposition to each
other, were daily increasing the mass of disaffection, until
32 CONSTITUTION OF THE UNITED STATES.
it became obvious, that the dangers of immediate warfare
between some of the States were imminent ; and thus,
the peace and safety of the Union were made dependent
upon measures of the States, over which the General
Government had not the shghtest control.
§ 34. But the evil did not rest here. Our foreign
commerce was not only crippled, but almost destroyed,
by this want of uniform laws to regulate it. Foreign na-
tions imposed upon our navigation and trade just such
restrictions, as they deemed best to their own interest and
poHcy. All of them had a common interest to stint our
trade, and enlarge their own ; and all of them were well
satisfied, that they might, in the distracted state of our
legislation, pass whatever acts they pleased on this sub-
ject, with impunity. They did not fail to avail themselves,
to the utmost, of their advantages. They pursued a sys-
tem of the most rigorous exclusion of our shipping from
all the benefits of their own commerce ; and endeavored
to secure, with a bold and unhesitating confidence, a mo-
nopoly of ours. The effects of this system of operations,
combined with our pohtical weakness, were soon visible.
Our navigation was ruined ; our mechanics were in a
state of inextricable poverty ; our agriculture was with-
ered ; and the little money still found in the country was
gradually finding its way abroad, to supply our immediate
wants. In the rear of all this, there was a heavy public
debt, which there was no means to pay ; and a state of
alarming embarrassment, in that most difficult and delicate
of all relations, the relation of private debtors and cred-
itors, threatened daily an overthrow even of the ordinary
administration of justice. Severe, as were the calamities
of the war, the pressure of them was far less mischievous,
than this slow but progressive destruction of all our re-
sources, all our industry, and all our credit.
§ 35. There were many other defects in the Con-
federation, of a subordinate character and importance.
But these were sufficient to establish its utter unfitness, as
a frame of government, for a free, enterprising, and in-
dustrious people. Great, however, and manifold as the
evils were, and, indeed, so glaring and so universal, it
ORIGIN OF THE CONSTITUTION. 33
was yet extremely difficult to induce the States to con-
cur in adopting any adequate remedies to redress them.
For several years, efforts were made by some of our
wisest and best patriots to procure an enlargement of
the powers of the Continental Congress ; but, from the
predominance of State jealousies, and the supposed in-
corapatibihty of State interests with each other, they all
failed. At length, however, it became apparent, that
the Confederation, being left without resources and with-
out powers, must soon expire of its own debility. It
had not only lost all vigor, but it had ceased even to be
respected. It had approached the last stages of its de-
cline ; and the only question, which remained, was,
whether it should be left to a silent dissolution, or an
attempt should be made to form a more efficient govern-
ment, before the great interests of the Union were buried
beneath its ruins.
CHAPTER VI.
Origin of the Constitution.
§ 36. In 1785, commissioners were appointed by
the legislatures of Maryland and Virginia, to form a
compact, relative to the navigation of the rivers Potomac
and Roanoke, and the Chesapeake Bay. The com-
missioners met, accordingly, at Alexandria, in Virginia ;
but, feeling the want of adequate powers, they recommend-
ed proceedings of a more enlarged nature. The legis-
lature of Virginia accordingly, in January, 1786, pro-
posed a convention of commissioners from all the States,
for the purpose of taking into consideration the state of
trade, and the propriety of a uniform system of com-
mercial relations, for their permanent harmony and com-
mon interest. Pursuant to this proposal, commissioners
were appointed by five States, who met at Annapolis,
in September, 1786. They framed a Report, to be
laid before the Continental Congress, advising the latter
34 CONSTITUTION OF THE UNITED STATES.
to call a General Convention, of commissioners from all
the States, to meet in Philadelphia, in May, 1787, for a
more effectual revision of the Articles of Confederation.
§ 37. Congress adopted the recommendation of the
Report, and in February, 1787, passed a resolution for
assembling a Convention accordingly. All the States,
except Rhode Island, appointed delegates ; and they
met at Philadelphia. After very protracted deliberations,
and great diversities of opinion, they finally, on the 17th
of September, 1787, framed the present Constitution of
the United States, and recommended it to be laid by the
Congress before the several Sxates, to be by them con-
sidered and ratified, in conventions of the representa-
tives of the people, to be called for that purpose. The
Continental Congress accordingly took measures for this
purpose. Conventions were accordingly called in all
the States, except Rhode Island, and, after many warm
discussions, the Constitution was ratified by all of them,
except North Carolina and Rhode Island.
§ 38. The assent of nine States only being required
to put the Constitution into operation, measures were ta-
ken for this purpose, by Congress, in September, 1788,
as soon as the requisite ratifications . were ascertained.
Electors of President and Vice President were chosen,
who subsequently assembled and gave their votes ; and
the necessary elections of Senators and Representatives
being made, the first Congress under the Constitution as-
sembled at New York, (the then seat of government,) on
Wednesday, the 4th day of March, 1789, for com-
mencing proceedings under the Constitution. A quorum,
however, of both Houses, for the transaction of business
generally, did not assemble until the Gth of April follow-
ing, when, the votes of the Electors being counted, it
was found, that George Washington was unanimously
elected President, and John Adams was elected Vice
President. On the 30th of April, President Washington
was sworn into office ; and the government immediately
went into full operation. North Carolina afterwards,
in a new convention, held in November, 1789, adopted
the Constitution ; and Rhode Island, also, by a con-
HISTORY OF THE CONS^flTUTION. 35
vention, held in May, 1790. So that all the thirteen
States, by the authority of the people thereof, finally be-
came parties under the new government.
^ 39. Thus was achieved another, and still more
glorious, triumph, in the cause of liberty, even than that,
by which we were separated from the parent country.
It was not achieved, however, without great difficulties
and sacrifices of opinion. It required all the wisdom,
the patriotism, and the genius of our best statesmen, to
overcome the objections, which, from various causes,
were arrayed against it. The history of those times is
full of melancholy instruction, at once to admonish us of
the dangers, through which we have passed, and of the
necessity of incessant vigilance, to guard and preserve,
what has been thus hardly earned. The Constitution
was adopted unanimously in New Jersey, Delaware, and
Georgia. It was supported by large majorities in Con-
necticut, Pennsylvania, Maryland, and South Carolina.
In the remaining States, it was carried by small majori-
ties ; and especially, in Massachusetts, New York, and
Virginia, by little more than a mere preponderating vote.
What a humiliating lesson is this, after all our sufferings
and sacrifices, and after our long and sad experience of
the evils of disunited councils, and of the pernicious
influence of State jealousies, and local interests ! It
teaches us, how slowly even adversity brings the mind to
a due sense of what political wisdom requires. It teach-
es us, how liberty itself may be lost, when men are found
ready to hazard its permanent blessings, rather than sub-
mit to the wholesome restraints, which its permanent
security demands.
§ 40. To those great men, who thus framed the
Constitution, and secured the adoption of it, we owe a
debt of gratitude, which can scarcely be repaid. It was
not then, as it is now, looked upon, from the blessings,
which, under the guidance of Divine Providence, it has
bestowed, with general favor and affection. On the
contrary, many of those pure and disinterested patriots,
who stood forth, the firm advocates of its principles, did
so at the expense of their existing popularity. They
36 CONSTITUTION OF THE UNITED STATES.
felt, that they had a higher duty to perform, than to flat-
ter the prejudices of the people, or to subserve selfish, or
sectional, or local interests. Many of them went to their
graves, without the soothing consolation, that their ser-
vices and their sacrifices were duly appreciated. They
scorned every attempt to rise to power and influence by
the common arts of demagogues ; and they were content
to trust their characters, and their conduct, to the de-
liberate judgement of posterity.
§41. If, upon a close survey of their labors, as de-
veloped in the actual structure of the Constitution, we
shall have reason to admire their wisdom and forecast, to
observe their profound love of liberty, and to trace their
deep sense of the value of political responsibihty, and their
anxiety, above all things, to give perpetuity, as well as
energy, to the republican institutions of their country ;
then, indeed, will our gratitude kindle into a holier rev-
erence, and their memories will be cherished among those
of the noblest benefactors of mankind.
CHAPTER VII.
Exposition of the Constitulion. — The Preamble.
§42. Having given this general sketch of the origin
of the Colonies, of the rise and fall of the Confederation,
and of the formation and adoption of the Constitution of
the United States, we are now prepared to enter upon an
examination of the actual structure and organization of
that Constitution, and the powers belonging to it. Wo
shall treat it, not as a mere compact, or league, or confed-
eracy, existing at the mere will of any one or more of the
States, during their good pleasure ; but, (as it purports
on its face to be,)tis a Constitution of Government, framed
and adopted by the people of the United States, and
obligatory upon all the States, until it is altered, amended,
or abolished by the people, in the manner pointed out in the
instrument itself. It is to be interpreted, as all other solemn
EXPOSITION OF PREAMBLE. 37
instruments are, by endeavoring to ascertain the true sense
and meaning of all the terms ; and we are neither to nar-
row them, nor to enlarge them, by straining them from their
just and natural import, for the purpose of adding to, or
diminishing its powers, or bending them to any favorite
theory or dogma of party. It is the language of the peo-
ple, to be judged of according to common sense, and not
by mere theoretical reasoning. It is not an instrument for
the mere private interpretation of any particular men. The
people have established it and spoken their will ; and their
will, thus promulgated, is to be obeyed as the supreme law. J
Every department of the Government must, of course, in
the first instance, in the gxercise of its own powers and
duties, necessarily construe the instrument. But, if the
case admits of judicial cognizance, every citizen has a
right to contest the vahdity of that construction before the
proper judicial tribunal ; and to bring it to the test of the
Constitution. And, if the case is not capable of judicial
redress, still the people may, through the acknowledged
means of new elections, or proposed amendments, check
any usurpation of authority, whether wanton, or uninten-
tional, and thus relieve themselves from any grievances
of a political nature.
§ 43. For a right understanding of the Constitution of
the United States, it will be found most convenient to
examine the provisions, generally, in the order, in which
they are stated in the instrument itself ; and thus, the dif-
ferent parts may be made mutually to illustrate each other.
This order will, accordingly, be adopted in the ensuing
commentaries.
§ 44. We shall begin then, with the Preamble, which
is in the following words : —
"JIVe, tliej^eople of the United States, in order to form
a more perfect union, establish justice, insure domestic
tranquillity, provide for the common defence, promote
the general welfare, and secure the blessings of liberty
to ourselves and our posterity, do ordain and establish
this Constitution for the United States of America."
§ 45. This Preamble is very important, not only as
explanatory of the motives and objects of framing the
4 xiii.
38 CONSTITUTION OF THE UNITED STATES.
Constitution ; but, as affording the best key to the true
interpretation thereof. For it may well be presumed,
that the language used will be in conformity to the motives,
which govern the parties, and the objects to be attained
by the Instrument. Every provision in the instrument
may therefore fairly be presumed to have reference to
one or more of these objects. And consequently, if
any provision is susceptible of two interpretations, that
ought to be adopted, and adhered to, which best harmo-
nizes with the avowed intentions and objects of the au-
thors, as gathered from their declarations in the instrument
itself.
§ 46. The first object is, i' to form a more perfect
union. " From what has been already stated, respecting
the defects of the Confederation, it is obvious, tliat a
further continuance of the Union was impracticable, un-
less a new government was formed, possessing more
powers and more energy. That the Union of the States
is in the highest degree desirable, nay, that it is almost
indispensable to the political existence of the States, is a
proposition, which admits of the most complete moral
demonstration, so far as human experience and general
reasoning can estabhsh it. If the States were wholly
separated from each other, the very inequahty of their
population, territory, resources, and means of protecting
their local interests, would soon subject them to injuri-
ous rivalries, jealousies, and retaliatory measures. The
weak would be wholly unable to contend successfully
against the strong, and would be compelled to submit to
the terms, which the policy of their more powerful neigh-
bors should impose upon them. What could Rhode
Island, or New Jersey, or Delaware, accomplish against
the will, or the resentments, of the formidable States,
which surround them ? But, in a more general view,
the remark of the Abbe J-Iably may be appealed to, as
containing the result of all human experience. ' ' Neighbor-
ing states (says he) are naturally enemies of each other,
unless their common weakness forces them to league in a
confederative republic, and their Constitution prevents the
differences, that neighborhood occasions, extinguishing
EXPOSITION OF PREAMBLE. 39
that secret jealousy, which disposes all states to aggran-
dize themselves, at the expense of their neighbors."
§ 47. On the other hand, if the States should separate
.nto distinct confederacies, there could scarcely be less
than three, and most probably, there would be four ; an
Eastern, a Middle, a Southern, and a Western Confed-
eracy. The lines of division would be traced out by
geographical boundaries between the slave-holding and
the non-slave-holding States, a division, in itself, fraught
with constant causes of irritation and alarm. There
would also be marked distinctions between the commer-
cial, the manufacturing, and the agricultural States, which
would perpetually give rise to real or supposed grievan-
ces and inequalities. But the most important considera-
tion is, that, in order to maintain such confederacies, it
would be necessary, to clothe the government of each of
them with summary and extensive powers, almost incom-
patible with liberty, and to keep up large and expensive
establishments, as well for defence as for offence, in order
to guard against the sudden inroads, or deliberate aggres-
sions of their neighbors and rivals. The evils of faction,
the tendencies to corrupt influence, the pressure of taxa-
tion, the necessary delegation of arbitrary powers, and the
fluctuations of legislation, would thus be immeasurably
increased. Foreign nations, too, would not fail to avail
themselves, in pursuit of their own interests, of every
opportunity to foster our intestine divisions, since they
might thus more easily command our trade, or monopo-
lize our products, or crush our manufactures, or keep us in
a state of dependence upon their good will for our security.
§ 4S. The Union of the States, " the more perfect
union" of them, under a National Government, is, then,
and for ever must be, invaluable to the whole country, in
respect to foreign and domestic concerns. It will dimin-
ish the causes of war, that scourge of the human race ; it
will enable the National Government to protect and secure
the rights of the whole people ; it will diminish public ex-
penditures ; it will insure respect abroad, and confidence
at home ; and it will unite in one common bond the in-
terests of agriculture, of commerce, and of manufactures.
40 CONSTITUTION OF THE UNITED STATES.
§49. The next object is, *'to establish justice."
This, indeed, is the first object of all good and rational
forms of government. Without justice being fully, free-
ly, and impartially administered, neither our persons,
nor our rights, nor our property, can be protected. Call
the form of government whatever you may, if justice
cannot be equally obtained by all the citizens, high and
low, rich and poor, it is a mere despotism. Of what
use is it to have wise laws to protect our rights or prop-
erty, if there are no adequate means of enforcing them ?
Of what use are constitutional provisions or prohibitions,
if they may be violated with impunity ? If there are no
tribunals of justice established to administer the laws with
firmness and independence, and placed above the reach
of the influence of rulers, or the denunciations of mobs,
what security can any citizen have for his personal safety
or for his public or private rights ? It may, therefore,
be laid down as a fundamental maxim of all govern-
ments, that justice ought to t)e administered freely and
fully between private persons ; and it is rarely departed
from, even in the most absolute despotisms, unless under
circumstances of extraordinary poHcy or excitement.
Doubtless, the attainment of justice is the foundation, on
which all our State governments rest ; and, therefore,
the inquiry may naturally present itself, in what respects
the formation of a National Government would better tend
to establish justice.
§ 50. The answer may be given in a few words. In
the administration of justice, citizens of the particular
State are not alone interested. Foreign nations, and
their subjects, as well as citizens of other States, may be
deeply interested. They may have rights to be protect-
ed ; wrongs to be redressed ; contracts to be enforced ;
and equities to be acknowledged. It may be presumed,
that the States will provide adequate means to redress
the grievances, and secure the rights of their own citizens.
But, it is far from being certain, that they will at all times,
or even ordinarily, take the like measures to redress the
grievances, and secure the rights of foreigners, and citi-
zens of other States. On the contrary, one of the rarest
EXPOSITION OF PREAMBLE. 41
occurrences in human legislation is, to find foreigners,
and citizens of other States, put upon a footing of equali-
ty with the citizens of the legislating State. The natural
tendency of every government is, to favor its own citi-
zens ; and unjust preferences, not only in the administra-
tion, but in the very structure of the laws, have often
arisen, and may reasonably be presumed hereafter to
arise. It could not be expected, that all the American
States, left at full Hberty, would legislate upon the sub-
ject of rights and remedies, preferences and contracts,
exactly in the same manner. And every diversity would
soon bring on some retaliatory legislation elsewhere.
Popular prejudices and passions, real or supposed injuries,
or inequalities, the common attachment to pei*sons, whom
we know, as well as to domestic pursuits and interests, and
the common indifference to strangers and remote objects,
are often found to interfere with a liberal policy in legis-
lation. Now, precisely, what this reasoning would lead
us to presume as probable, actually occurred, not only
while we were colonies of Great Britain, but also under
the Confederation. The legislation of several of the
States gave a most unjust preference to the debts of
their own citizens in cases of insolvency, over those due "
to the citizens of other States and to foreigners.
§51. But there were other evils of a much greater mag-
nitude, which required a National Government, clothed
with powers adequate to the more effectual establishment
of justice. There were territorial disputes between the
States, as to their respective boundaries and jurisdiction,
constandy exciting mutual irritations, and introducing bor-
der warfare. Laws were perpetually made in the States,
interfering with the sacred rights of private contracts, sus-
pending the remedies in regard to them, or discharging
them by a payment or tender in worthless paper money,
or in some depreciated or valueless property. Thedebt^ ^
/due to foreigners w^re,.. notoriously, refused ^.^lajoaeot^ )\ ^
C ^nd many obstructions were put in the way of the recov--^
^ry of them. The public debt w^as left wholly unpro-
vided for ; and a disregard of the public faith had become
so common a reproach among us, tliat it almost ceased
4*
42 CONSTITUTION OF THE UNITED STATES.
to attract observation. Indeed, in some of the States,
the operation of private and public distresses was felt so
severely, that the administration, even of domestic jus-
tice, was constantly interfered with ; the necessity of
suspending it was boldly vindicated ; and in some cases,
even a resort to arms was encouraged to prevent it.
Nothing but a National Government, capable, from its
powers and resources, of overawing the spirit of rebel-
lion, and of aiding in the establishment of a sound curren-
cy, just laws, and sohd pubhc credit, could remedy the
existing evils.
§ 52. The next object is, *'to insure domestic tran-
quillity." From what has been already stated, it is ap-
parent, how essential an efficient National Government
is, to the security of the States against foreign influence,
domestic dissensions, commercial rivalries, legislative re-
taliations, territorial disputes, and the perpetual irritations
of a border warfare, for privileges, or exemptions, or
smuggling. In addition to these considerations, it is well
known, that factions are far more violent in small than
in large communities ; and that they are even more dan-
gerous and enfeebling ; because success and defeat more
rapidly succeed each other in the changes of their local
affairs, and foreign influences can be more easily brought
into play to corrupt and divide them. A National Gov-
ernment naturally tends to disarm the violence of domes-
tic factions in small states, by its superior influence.
It diminishes the exciting causes, and it leaves fewer
chances of success to their operations.
§ 53. The next object is, " to provide for the common
defence." One of thesurest means of preserving peace
is always to be prepared for war. One of the safest re-
liances against foreign aggression is the possession of
numbers and resources, capable of repelling any attack.
A nation of narrow territory, and small population, and
moderate resources, can never be formidable ; and must
content itself with being feeble and unenviable in its con-
dition. On the contrary, a nation or a confederacy, which
possesses large territory, abundant resources, and a dense
population, can always command respect, and is almost
EXPOSITION OF PREAMBLE. 43
incapable, if true to itself, of being conquered. In pro-
portion to the size and population of a nation, its general
resources will be ; and the same expenditures, which
may be easily borne by a numerous and industrious peo-
ple, would soon exhaust the means of a scanty popula-
tion. What, for instance, would be more burdensome
to a State hke New Jersey, than the necessity of keep-
ing up a large body of troops, to protect itself against the
encroachments of the neighboring States of Pennsylvania
and New York ? The same military force, which would
hardly be felt in either of the latter States, would press
heavily upon the resources of a small State, as a perma-
nent establishment. The ordinary expenditures, neces-
sary for the protection of the whole Union with its pres-
ent limits, are probably less than would be required for a
single State, surrounded by jealous and hostile neigh-
bors.
§ 54. But, in regard to foreign powers, the States
separately would sink at once into the insignificance of
the small European principalities. In the present situa-
tion of the world, a few great powers possess the com-
mand of commerce, both on land and at sea. No effect-
ual resistance could be offered by any of the States singly,
against any monopoly, which the great European Pow-
ers might choose to establish, or any pretensions, which
they might choose to assert. Each State would be com-
pelled to submit its own commerce to all the burdens
and inequalities, which they might impose ; or purchase
protection, by yielding up its dearest rights, and, perhaps,
its own independence. A National Government, con-
taining, as it does, the strength of all the States, affords
to all of them a competent protection. Any navy, or
army, which could be maintained by a single State, would
be scarcely formidable to any second-rate power in Eu-
rope ; and yet it would be an intolerable public burden
upon the resources of that State. A navy, or army,
competent for all the purposes of our home defence, and
even for the protection of our commerce on the ocean, is
within the compass of the actual means of the General
Government, without any severe exaction upon its finances.
44 CONSTITUTION OF THE UNITED STATES.-
§55. The next object is, ''to promote the general
welfare." If it should be asked, why this may not be
effectually accomplished by the States, it may be an-
swered ; first, that they do not possess the means ; and
secondly, if they did, they do not possess the powers ne-
cessary to carry the appropriate measures into execution.
The means of the several States will rarely be found to
exceed their actual domestic wants, and appropriations
to domestic improvements. Their resources by internal
taxation must necessarily be limited ; and their revenue
from imports would, if there were no national government,
be small and fluctuating. Their whole system would be
defeated by the jealousy, or competitions, or local interests
of their neighbors. The want of uniformity of duties in
all the States, as well as the facility of smuggling goods,
imported into one State, into the territory of another, would
render any efficient collection of duties almost impracti-
cable. This is not a matter of mere theory. It was
established by our own history and experience under the
Confederation. The duties imposed upon the importation
of goods by Massachusetts, were completely evaded or
nullified by their free admission into the neighboring State
of Rhode Island.
§ 56. But, if the means were completely within the
reach of the several States, the jurisdiction would still
be wanting, completely to carry into effect any great or
comprehensive plan for the welfare of the whole. The
idea of a permanent and zealous co-operation of all the
States in any one scheme for the common welfare, is vis-
ionary. No scheme could be devised, which would not
bear unequally upon some particular sections of the coun-
try ; and these inequalities could not be, as they now are,
meliorated and corrected under the general government,
by other correspondent benefits. Each State would ne-
cessarily legislate singly ; and it is scarcely possible, that
various changes of councils should not take place, before
any scheme could receive the sanction of all of them.
Infinite delays would intervene, and various modifications
of measures would be proposed, to suit particular local
interests, which would again require reconsideration.
EXPOSITION OF PREAMBLE. 45
After one or two vain attempts to accomplish any great
system of improvements, there would be a general aban-
donment of all efforts to produce a general system for the
regulation of our commerce, or agriculture, or manufac-
tures ; and each State would be driven to consult its own
peculiar convenience and policy only, in despair of any
common concert. And even if it were practicable, from
any pecuhar conjuncture of circumstances, to bring about
such a system at one time, it is obvious, that it would be
liable to be broken up, without a moment's warning, at the
mere caprice, or pleasure, or change of pohcy, of a single
State.
§ 57. The concluding object, stated in the Preamble,
is, " to secure the blessings of hberty to us, and our pos-
terity." And surely nothing of mere earthly concern
is more worthy of the profound reflection of wise and
good men, than to erect structures of government,
which shall permanently sustain the interests of civil, po-
litical, and rehgious liberty, on solid foundations. The
great problem in human governments has hitherto been,
how to combine durability with moderation in powers,
energy with equality of rights, responsibility with a sense
of independence, steadiness in councils with popular elec^
tions, and a lofty spirit of patriotism with the love of per-
sonal aggrandizement ; in short, how to combine the great-
est happiness of the whole with the least practicable
restraints, so as to insure permanence in the public insti-
tutions, intelligent legislation, and incorruptible private
virtue. The Constitution of the United States aims at the
attainment of these ends, by the arrangements and distri-
butions of its powers ; by the introduction of checks and
balances in all its departments ; by making the existence
of the State governments an essential part of its own organ-
ization ; by leaving with the States the ordinary powers of
domestic, legislation ; and, at the same time, by drawing to
itself those powers only, which are strictly national, or con-
cern the general welfare. Its duties and its powers thus
naturally combine to make it the common guardian and
friend of all the States ; and in return, the States, while
they may exercise a salutary vigilance for their own self-
46 CONSTITUTION OF THE UNITED STATES.
protection, are persuasively taught, that the blessings of
liberty, secured by the national government, are far
more certain, more various, and more extensive, than
they would be under their own distinct and independent
sovereignties.
§ 58. Let us now enter upon a more close survey of
the structure and powers of the national Constitution,
that we may see, whether it is as wisely framed as its
founders behoved ; so as to justify our confidence in its
durability, and in its adaptation to our wants, and the great
objects proposed in the Preamble. If it be so wisely
framed, then, indeed, it will be entitled to our most pro-
found reverence ; and we shall accustom ourselves to re-
pel with indignation every attempt to weaken its powers,
or obstruct its operations, or diminish its influence, a?
involving our own degradation, and, ultimately, the ruin of
the States themselves.
CHAPTER VIII.
Distribution of Poioers. — The Legislative Departmen
§ 59. In surveying the general structure of the Const
tulion of the United States, w6 are naturally led to i <
examination of the fundamental principles, on which it -i
organized, for the purpose of carrying into effect the o)>-
jects disclosed in the Preamble. Every government must
include within its scope, at least if it is to possess suitabb
stability and energy, the exercise of the three great pow-
ers, upon w^hich all governments are supposed to rest,
viz., the executive, the legislative, and the judicial powers.
The manner and extent, in which these powers are to be
exercised, and the functionaries, in whom they are to be
vested, constitute the great distinctions, which are known
in the forms of government. In absolute governments,
the whole executive, legislative, and judicial powers are,
at least in their final result, exclusively confided to a sin-
gle individual ; and such a form of government is apnomi-
LEGISLATIVE DEPARTMENT. 47
nated a Despotism, as the whole sovereignty of the State
is vested in him. If the same powers are exclusively
confided to a few persons, constituting a permanent sove-
reign council, the government may be appropriately de-
nominated an absolute or despotic Aristocracy. If they
are exercised by the people at large in their original sove-
reign assemblies, the government is a pure and absolute
Democracy. But it is more common to find these pow-
ers divided, and separately exercised by independent
functionaries, the executive power by one department, the
legislative by another, and the judicial by a third ; and in
these cases the government is properly deemed a mip^ed
one ; a mixed monarchy, if the executive power is he-
reditary in a single person ; a mixed aristocracy, if it is
hereditary in several chieftains or families ; and a mixed
democracy or republic, if it is delegated by election, and
is not hereditary. In mixed monarchies and aristocracies,
some of the functionaries of the legislative and judicial
powers are, or at least may be, hereditary. But in a
representative repubhc, all power emanates from the peo-
ple, and is exercised by their choice, and never extends
beyond the lives of the individuals, to whom it is intrusted.
It may be intrusted for any shorter period ; and then it
returns to them again, to be again delegated by a new
choice.
§ GO. The first thing, that strikes us, upon the slightest
survey of the national Constitution, is, that its structure
contains a fundamental separation of the three great de-
partments of government, the legislative, the executive,
and the judicial. The existence of all these departments
has always been found indispensable to due energy and
stability in a government. Their separation has always
been found equally indispensable, for the preservation of
public liberty and private rights. Whenever they are all
vested in one person or body of men, the government is
in fact a despotism, by whatever name it may be called,
whether a monarchy, or an aristocracy, or a democracy.
When, therefore, the Convention, which framed the Con-
stitution, determined on a more efficient system than the
Confederation, the first resolution adopted by them was,
48 CONSTITUTION OF THE UNITED STATES.
that ^' a national government ought to be established,
consisting of a supreme legislative, judiciary, and execu-
tive."
§61. In the establishment of free governments, the
division of the three great powers of government, the ex-
ecutive, the legislative, and the judicial, among different
functionaries, has been a favorite policy with patriots and
statesmen. It has by many been deemed a maxim of
vital importance, that these powers should for ever be
kept separate and distinct. And, accordingly, we find it
laid down, with emphatic care, in the Bill of Rights of sev-
eral of the State Constitutions.
§ 62. The general reasoning, by which the maxim is
supported, independently of the just weight of the authori-
ty in its support, seems entirely satisfactory. What is
of far more value than any mere reasoning, experience
has demonstrated it to be founded in a just view of the
' nature of government, and of the safety and liberty of the
people. It is no small commendation of the Consti-
tution of the United States, that, instead of adopting a
new theory, it has placed this practical truth, at the ba-
sis of its organization. It has placed the legislative, ex-
ecutive, and judicial powers in different hands. It has,
as we shall presently see, made the terra of office and the
organization of each department different. For objects of
permanent and paramount importance, it has given to the
judicial department a tenure of office during good beha-
vior ; while it has limited each of the others to a term of
years.
§ 63. But when we speak of a separation of the three
great departments of government, and maintain, that that
separation is indispensable to public liberty, we are to
understand this maxim in a limited sense. It is not meant
to affirm, that they must be kept wholly and entirely se{3-
arate and distinct, and have no common hnk of connection
or dependence, the one ujDon the other, in the slightest
degree. The true meaning is, that the whole power of
one of these departments should not be exercised by the
same hands, which possess the whole power of either of
the other departments ; and that such exercise of the
LEGISLATIVE DEPARTMENT. 49
whole by the same hands would subvert the principles of
a free constitution.
§ 64. How far the Constitution of the United States,
hi the actual separation of these departments, and the oc-
casional mixtures of some of the powers of each, has
accomplished the great objects of the maxim, which we
have been considering, will appear more fully, when a
survey is taken of the particular powers confided to each
department. But the true and only test must, after all,
be experience, which corrects at once the errors of theo-
ry, and fortifies and illustrates the eternal judgements of
ISature.
§ 65. The first section, of the first article, begins with
the structure of the Legislature. It is in these words : —
" All legislative powers, herein granted, shall be vested
in a Congress of the United States ; which shall con-
sist of a Senate and House of Representatives." Un-
der the Confederation, the whole legislative power of the
Union was confided to a single branch ; and, limited as
that power was, this concentration of it, in a single body,
was deemed a prominent defect. The Constitytion, on
the other hand, adopts, as a fundamental rule, the exercise
of the legislative power by two distinct and independent
branches. The advantages of this division, are, in the /
first place, that it interposes a great check upon undue, .X*^
hastyj_and oppressive legislation. In the next place, it
interposes a barrier against the strong propensity of all
public bodies to accumulate all power, patronage, and in-
fluence in their own hands. In the next place, it oper-
ates, indirectly, to retard, if not wholly to prevent, the
success of the eflbrts of a few popular leaders, by their
combinations and intrigues in a single body, to carry their
own personal, private, or party objects into effect, uncon-
nected with the public good. In the next place, it secures
a deliberate review of the same measures, by independent
minds, in different branches of government, engaged in the
same habits of legislation, but organized upon a different
system of elections. And, in the last place, it affords
great securities to public liberty, by requiring the co-oper-
ation of different bodies, which can scarcely ever, if prop-
5 XIII.
60 CONSTITUTION OF THE UNITED STATES.
erly organized, embrace the same sectional or local inter-
ests, or influences, in exactly the same proportion, as a
single body. The value of such a separate organization
will, of course, be greatly enhanced, the more the ele-
ments, of which each body is composed, differ from each
other, in the mode of choice, in the qualifications, and in
the duration of office of the members, provided due intel-
ligence and virtue are secured in each body. All these
considerations had great weight in the Convention, which
framed the Constitution of the United States. We shall
presently see, how far these desirable modifications have
been attained in the actual composition of the Senate and
House of Representatives.
CHAPTER IX. '
The House of Representatives.
§ 66. The second section, of the first article, contains
the structure and organization of the House of Represent-
atives. The first clause is — "The House of Repre-
sentatives 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."
§ 67. First, the principle of representation. The
Representatives are to be chosen by the people. No
reasoning was necessary, to satisfy the American people
of the advantages of a House of Representatives, whicii
should emanate directly from themselves, which should
guard their interests, support their rights, express their
opinions, make known their wants, redress their grievan-
ces, and introduce a pervading popular influence through-
out all the operations of the national government. Their
own experience, as colonists, as well as the experi-
ence of the parent country, and the general deductions
of theory, had settled it, as a fundamental principle of a
HOUSE OF REPRESENTATIVES. 51
free government, and especially of a republican govern-
ment, that no laws ought to be passed without the con-
sent of the pe(>j:)le, through representatives, immediately
chosen by, and responsible to them.
§ 68. The indirect advantages, from this immediate
agency of the people in the choice of their Representatives,
are of incalculable benefit, and deserve a brief mention
in this place, because they furnish us with matter for
most serious reflection, in regard to the actual operations
and influences of repubhcan governments. In the first
place, the right confers an additional sense of personal
dignity and duty upon the mass of the people. It gives
a strong direction to the education, studies, and pursuits
of the whole community. It enlarges the sphere of
action, and contributes, in a high degree, to the formation
of the public manners, and national character. It pro-
cures to the common people courtesy and sympathy from
their superiors, and difl'uses a common confidence, as
well as a common interest, through all the ranks of so-
ciety. It awakens a desire to examine, and sift, and de-
bate all public proceedings ; and it thus nourishes a hvely
curiosity to acquire knowledge, and, at the same time,
furnishes the means of gratifying it. The proceedings
and debates of the legislature ; the conduct of public
oflicers, from the highest to the lowest ; the character and
conduct of the Executive and his ministers ; the struggles,
intrigues, and conduct of diflerent parties ; and the dis-
cussion of the great public measures and questions which
agitate and divide the community ; — are not only freely
canvassed, and thus improve and elevate conversation ;
but they gradually furnish the mind with safe and solid
materials for judgement upon all public affairs, and check
that impetuosity and rashness, to which sudden impulses
might otherwise lead the people, when they are artfully
misguided by selfish demagogues, and plausible schemes
of change.
§ 69. Secondly, the qualifications of electors. These
were various in the different States. In some of them,
none but freeholders w^ere entitled to vote ; in others,
only persons, who had been admitted to the privileges of
52 CONSTITUTION OF THE UNITED STATES.
freemen ; in others, a qualification of property was re-
quired of voters ; in others, the payment of taxes ; and
in others, again, the right of suffrage was ahnost universal.
This consideration had great weight in the Convention ;
and the extreme difficulty of agreeing upon any uniform
rule of voting, which should be acceptable to all the
States, induced the" Convention, finally, after much dis-
cussion, to adopt the existing rule in the choice of Repre-
sentatives in the popular branch of the State legislatures.
Thus, the peculiar wishes of each State, in the formation
of its own popular bra*nch, were consulted ; and some
not unimportant diversities were introduced into the actual
composition of the national House of Representatives.
All the members would represent the people, but not ex-
actly under influences precisely of the same character.
§ 70. Thirdly, the term of service of the Representa-
tives. It is two years. This period, with reference to
the nature of the duties to be performed by the members,
to the knowledge and experience essential to a right per-
formance of them, and to the periods, for which the
members of the State legislatures are chosen, seems as short
as an enlightened regard to the public good could require.
A very short term of service would bring together a great
many new members, with little or no experience in the
national business ; the very frequency of the elections
would render the office of less importance to able men ;
and some of the duties to be performed would require
more time, and more mature inquiries, than could be
gathered, in the brief space of a single session, from the
distant parts of so extensive a territory. What might be
well begun by one set of men, could scarcely be carried
on, in the same spirit, by another. So that there would
be great danger of new and immature plans succeeding
each other, without any well-established system of opera-
tions.
§ 71. But the very nature and objects of the national
government require far more experience and knowledge,
than what may be thought requisite in the members of a
State legislature. For the latter, a knowledge of local
interests and opinions may ordinarily suffice. But it is
HOUSE OF RETRESENTATIVES. 53
far different with a member of Congress. He is to legis-
late for the interest and welfare, not of one State only,
but of all the States. It is not enough, that he comes to
the task with an upright intention and sound judgement -,
but he must have a competent degree of knowledge of all
the subjects, on which he is called to legislate ; and he
must have skill, as to the best mode of applying it. The
latter can scarcely be acquired, but by long experience
and training in the national councils. The period of ser-
vice ought, therefore, to bear some proportion to the va-
riety of knowledge and practical skill, which the duties
of the station demand.
§ 72. The most superficial glance at the relative du-
ties of a member of a State legislature aad of those of a
member of Congress, will put this matter in a striking
light. In a single State, the habits, manners, institutions,
and laws, are uniform, and all the citizens are more or
less conversant with them. The relative bearings of the
various pursuits and occupations of the people are well
imderstood, or easily ascertained. The general affairs
of the State lie in a comparatively narrow compass, and
are daily discussed and examined by those, who have an
immediate interest in them, and, by frequent communica-
tion with each other, can interchange opinions. It is
very different with the general government. There,
every measure is to be discussed whh reference to the
rights, interests, and pursuits of all the States. When
the Constitution was adopted, there were thirteen, and
there are now twenty-six States, having different laws,
institutions, employments, products, and cHmates, and
many artificial, as well as natural differences in the struc-
ture of society, growing out of these circumstances.
Some of them are almost wholly agricultural ; some
commercial ; some manufacturing ; some have a mixture
of all ; and in no two of them are there precisely the
same relative adjustments of all these interests. No le-
gislation for the Union can be safe or wise, which is not
founded upon an accurate knowledge of these diversi-
ties, and their practical influence upon public measures.
What may be beneficial and politic, with reference to the
64 CONSTITUTION OF THE UNITED STATES.
interests of a single State, maybe subversive of those of
other States. A regulation of commerce, wise and just
for the commercial States, may strike at the foundation of
the prosperity of the agricultural or manufacturing States.
And, on the other hand, a measure beneficial to agricul-
ture or manufactures, may disturb, and even overwhelm
the shipping interest. Large and enlightened views,
comprehensive information, and a just attention to the
local peculiarities, and products, and employments of
different States, are absolutely indispensable quahfications
for members of Congress. Yet it is obvious, that if
very short periods of service are to be allowed to mem-
bers of Congress, the continual fluctuations in the public
councils, and the perpetual changes of members, will be
very unfavorable to the acquirement of the proper
knowledge, and the due application of it for the pubhc
welfare. One set of men will just have mastered the
necessary information, when they will be succeeded by a
second set, who are to go over the same grounds, and
then are to be succeeded by a third. So that inexpe-
rience, instead of practical wisdom, hasty legislation, in-
stead of sober deliberation, and imperfect projects, in-
stead of vvell-constructed systems, would characterize the
national government.
§ 73. Fourthly, the qualifications of Representatives.
The Constitution declares — " No person shall be a Repre-
sentative, 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."
These qualifications are few and simple. They respect
only age, citizenship, and inhabitancy.
§ 74. First, in regard to age. That some qualifica-
tion, as to age, is desirable, cannot well be doubted, if
knowledge, or experience, or wisdom, is of any value in
the administration of public affairs. And if any quali-
fication is required, what can be more suitable than
twenty-five years of age ? The character and principles
of young men can scarcely be understood at the moment
of their majority. They are then new to the rights even
HOUSE OF REPRESENTATIVES. 55
of self-government ; warm in their passions ;•' ardent in
their expectations ; and too eager in their favorite pur-
suits, to learn the lessons of caution, which riper years in-
culcate. Four years of probation, is but a very short
space, in which to try their virtues, to develope their
talents, to enlarge their intellectual resources, and to give
them a practical knowledge of the true principles of legis-
lation. Indeed, it may be safely said, that a much longer
period will scarcely suffice to furnish them with that thor-
ough insight into the business of human life, which is in-
dispensable to a safe and enlightened exercise of public
duties.
§ 75. Secondly, in regard to citizenship. No person
will deny the propriety of excluding aliens from any share
in the administration of the affairs of the national govern-
ment. No persons, but citizens, can be presumed to feel
that deep sense of the value of our domestic institutions, and
that permanent attachment to the soil and interests of our
country, which are the true sources of a healthy patriot-
ism. The only practical question would seem to be,
whether foreigners, even after they were naturalized,
should be permitted to hold office. Most nations studi-
ously exclude them, from policy, or from jealousy. But
the peculiar circumstances of our country were supposed
to call for a less rigorous course ; and the period of
seven years was selected as one, which would enable
naturalized citizens to acquire a reasonable famiharity
with the principles of our institutions and with the inter-
ests of the people ; and which, at the same time, would
justify the latter in reposing confidence in their talents,
virtues, and patriotism.
§ 76. Thirdly, in regard to inhabitancy. The Repre-
sentative is required to be an inhabitant of the State, at
the time when he is chosen. The object of this clause,
doubtless, is to secure, on the part of the Representative,
a familiar knowledge of the interests of the people whom
he represents, a just responsibility to them, and a per-
sonal share in all the local results of the measures, which
he shall support. It is observable, that inhabitancy is
required in the State only, and not in any particular elec-
56 CONSTITUTION OF THE UNITED STATES.
tioQ district ; so that the Constitution leaves a wide field
of choice open to the electors. And if we consider,
how various the interests, pursuits, employments, pro-
ducts, and local circumstances of the different States are,
we can scarcely be surprised, that there should be a
marked anxiety to secure a just representation of all of
them in the national councils.
§ 77. Subject to these reasonable qualifications, the
House of Representatives is open to persons of merit of
every description, whether native or adopted citizens,
whether young or old, whether rich or poor, without any
discrimination of rank, or business, or profession, or
religious opinion.
§ 78. The next clause of the Constitution respects the
apportionment of Representatives among the States. It
declares, — " Representatives, and direct taxes, shall be
apportioned among the several States, which may be
included within this Union, according to their respec-
tive numbers, which shall be determined 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 enu-
meration shall be made within three years after the first
meeting of the Congress of the United States, and whhin
every subsequent term of ten years, in such manner, as
they shall by law direct. The number of Representa-
tives shall not exceed one for every thirty thousand ; but
each State shall have at least one Representative. And
until such enumeration shall be made, the State of New
Hampshire shall be entitled to choose three ; Massachu-
setts, eight ; Rhode Island and Providence Plantations,
one ; Connecticut, five ; New York, six ; New Jersey,
four ; Pennsylvania, eight ; Delaware, one ; Maryland,
six ; Virginia, ten ; North Carolina, five ; South Caro-
lina, five ; and Georgia, three."
§79. Under the Confederation, each State was en-
tided to one vote only, but might send as many delegates
to Congress, as it should choose, not less than two, nor
more than seven ; and of course, the concurrence of a
majority of its delegates was necessary to every vote of
HOUSE OF REPRESENTATIVES. 57
each State. In the House of Representatives, each
member is entitled to one vote, and therefore the appor-
tionment of Representatives became, among the States, a
subject of deep interest, and of no inconsiderable diver-
sity of opinion in the Convention. The smaU States
insisted upon an equahty of representation in the House
of Representatives, as well as in the Senate, which was
strenuously resisted by the large States. The slave-
holding States insisted on a representation strictly accord-
ing to the number of inhabitants, whether they were
slaves or free persons, within the State. The non-
slave-holding States contended for a representation ac-
cording to the number of free persons only. The con-
troversy was full of excitement, and was maintained with
so much obstinacy, on each side, that the Convention was
more than once on the eve of a dissolution. At length,
the present system was adopted, by way of compromise.
It was seen to be unequal in its operation, but was a
necessary sacrifice to that spirit of conciliation, on which
the Union was founded. The exception of Indians was
of no permanent importance ; and the persons bound to
service for a terra of years were too few to produce any
sensible effect in the enumeration. The real difficulty
was, as to slaves, who were included under the mild ap-
])ellation'of "all other persons." Three fifths of the
slaves are added to the number of free persons, as the
basis of the apportionment.
§ 80. In order to reconcile the non-slave-holding
States to this arrangement, it was agreed, that direct
taxes (the nature of which we shall hereafter consider)
should be apportioned in the same manner as Representa-
tives. This provision is more specious than sohd ; for,
in reality, it exempts the remaining two fifths of the
slaves from direct taxation. But, in the practical ope-
rations of the government, a far more striking inequality
has been developed. The principle of representation is
uniform and constant ; whereas, the imposition of direct
taxes is occasional and rare ; and, in fact, three direct
taxes only have been laid, at distant periods from each
other, since the adoption of the Constitution. The slave-
68 CONSTITUTION OF THE UNITED STATES.
holding States have, at the present time, in Congress,
twenty-five Representatives more than they would have
upon the basis of an enumeration of free persons o«Iy.
The apportionment, however, viewed as a matter of
compromise, is entitled to great praise, for its modera-
tion, its aim at practical utihty, and its tendency to satis-
fy the people of every State in the Union, that the Con-
stitution ought to be dear to all, by the privileges, which
it confers, as well as by the blessings, which it secures.
It has sometimes been complained of as a grievance, found-
ed in a gross inequality and an unjustifiable surrender of
important rights. But whatever force there may be in
the suggestion, abstractly considered, it should never
be forgotten that it was a necessary price paid for the
Union ; and if it had been refused, the Constitution never
would have been recommended for the adoption of the
people, even by the Convention, which framed it.
§ 81. In order to carry into effect this principle of
apportionment, it was indispensable, that some provision
should be made for ascertaining, at stated times, the pop-
ulation of each State. Unless this should be done, it is
obvious, that, as the growth of the different States would
be in very unequal proportions, the representation would
soon be marked by a corresponding inequality. To
illustrate this, we need only to look at Delaware, which
now sends only one Representative, as it did in the first
Congress, and to New York, which then sent six, and
now sends forty Representatives. Similar, though not
as great, diversities exist in the comparative representa-
tion of several other States. Some have remained near-
ly stationary, and others have had a very rapid increase
of population. The Constitution has, therefore, wisely
provided, that there shall be a new enumeration of the
inhabitants of all the States, every ten years, which is
commonly called the decennial census.
§ 82. There is one question of great practical impor-
tance, as to the apportionment of Representatives, which
has constantly been found to involve much embarrassment
and difficulty ; and that is, how and in what manner the
apportionment is to be made. The language of the Con-
HOUSE OF REPRESENTATIVES. 69
stitution is, that " Representatives and direct taxes shall
be apportioned among the several States, &c., according
to their respective numbers ;" and at the first view it
would not seem to involve the slightest difficulty. A
moment's reflection will dissipate the illusion, and teach
us, that there is a difficulty intrinsic in the very nature of
the subject. In regard to direct taxes, the natural course
would be to assume a particular sum to be raised, as three
millions of dollars ; and to apportion it among the States
according to their relative numbers. But even here,
there will always be a very small fractional amount inca-
pable of exact distribution, since the numbers in each
State will never exactly coincide with any common divi-
sor, or give an exact aliquot part for each State without
any remainder. But, as the amount may be carried
through a long series of descending money fractions, it
may be ultimately reduced to the smallest fraction of any*
existing, or even imaginary coin.
§ 83. But the difficulty is far otherwise in regard to
Representatives. Here, there can be no subdivision of
the unit ; each State must be entitled to an entire Repre-
sentative, and a fraction of a Representative is incapable
of apportionment. Yet it will be perceived at once, that
it is scarcely possible, and certainly is wholly improbable,
that the relative numbers in each State should bear such
an exact proportion to the aggregate, that there should
exist a common divisor for all, which should leave no
fraction in any State. Such a case never yet has existed ;
and in all human probability it never will. Every com-
mon divisor, hitherto applied, has left a fraction, greater
or smaller, in every State ; and what has been, in the past,
must continue to be, for the future. Assume the whole
population to be three, or six, or nine, or twelve millions,
or any other number ; if you follow the injunctions of the
Constitution, and attempt to apportion the Representativ^es
according to the numbers in each State, it will be found
to be absolutely impossible. The theory, however true,
becomes practically false in its application. Each State
may have assigned to it a relative proportion of Representa-
tives, up to a given number, the whole being divisible by
60 CONSTITUTION OF THE UNITED STATES.
some common divisor ; but the fraction of population be-
longing to eacli beyond that point is left unprovided for. So
that the apportionment is, at best, only an approximation to
the rule laid down by the Constitution, and not a strict
compliance with the rule. The fraction in one State may
be ten times as great, as that in another ; and so may
differ in each State in any assignable mathematical pro-
portion. What then is to be done ? Is the Constitution
to be wholly disregarded on this point ? Or is it to be
followed out in its true spirit, though unavoidably differing
from the letter, by the nearest approximation to it ? If
an additional Representative can be assigned to one State
beyond its relative proportion to the whole population, it
is equally true, that it can be assigned to all, that are in
a similar predicament. If a fraction admits of represent-
ation in any case, what prohibits the application of the
Tule to all fractions .'* The only constitutional limitation
seems to be, that no State shall have more than one Rep-
resentative for every thirty thousand persons. Subject
to this, the truest rule seems to be, that the apportion-
ment ought to be the nearest practical approximation to
the terms of the Constitution ; and the rule ought to be
such, that it shall always work the same way in regard
to all the States, and be as little open to cavil, or contro-
versy, or abuse, as possible.
§ 84. But it may be asked. What are the first steps to
be taken in order to arrive at a constitutional apportion-
ment ? Plainly, by taking the aggregate of population
in all the States, (accordhig to the constitutional rule,)
and then ascertain the relative proportion of the popula-
tion of each State to the population of the whole. This
is necessarily so in regard to direct taxes ; and there is no
reason to say, that it can, or ought to be otherwise in re-
gard to Representatives ; for that would be to contravene
the very injunctions of the Constitution, which require the
like rule of apportionment in each case. In the one, the
apportionment may be run down below unity ; in the other,
it cannot. But this does not change the nature of the
rule, but only the extent of its application.
§ 85. It is difficult to make this subject clear to the
HOUSE OF REPRESENTATIVES. 61
common understanding, without introducing some tabular
statements, which the nature of this work seems absolute-
ly to prohibit. But it may be stated, as an historical
fact, that in every apportionment hitherto made of Rep-
resentatives, whatever has been the number of inhabi-
tants assumed as the ratio to govern the number of Rep-
resentatives, whether thirty thousand or any higher num-
ber, there has always been a fraction in each State less
than that number, and of course an unrepresented fraction.
In some, of the States, the fraction has been very small ;
in others, very large ; and in others, intermediate numbers
constantly varying from each other. So that, in fact, there
never has been any representation of each State, appor-
tioned in exact proportion to its numbers, as the Consti-
tution requu-es. The rule adopted has been, to assume a
particular number of inhabitants as the ratio to give a sin-
gle Representative, and to give to each State as many
Representatives, as its population contained of that ratio
or particular number ; and to disregard all fractions below
that.
§ S6. There remained two important points to be set-
tled in regard to representation. First, that each State
should have at least one Representative ; for otherwise, it
might be excluded from any share of the legislative pow-
er in one branch ; and secondly, that there should be
some limitation of the number of Representatives ; for
otherwise, Cong»ess might increase the House to an unrea-
sonable size. If Congress were left free to apportion the
Representatives according to any basis of numbers they
might select, half the States in the Union might be de-
prived of Representatives, if the whole number of their
inhabitants fell below that basis. On the other hand, if
the number selected for the basis were small, the House
might become too unwieldy for business. There is,
therefore, great wisdom in restricting the representation,
so that there shall not be more than one Representative
for every thirty thousand inhabitants in a State ; and on
the other hand, by a positive provision, securing to
each State a constitutional representation in the House, by
at least one Representative, however small its own popu-
62 CONSTITUTION OF THE UNITED STATES.
lation may be. It is curious to remark, that it was origi-
nally thought a great objection to the Constitution, that
the restriction of Representatives, to one for every thirty
thousand, would give too small a House to be a safe de-
pository of power ; and that, now the fear is, that a re-
striction to double that number will hardly, in the future,
restrain the size of the House within sufficiently moderate
limits, for the purposes of an efficient and enlightened
legislation. So much has the growth of the country,
under the auspices of the national Constitution, outstrip-
ped the most sanguine expectations of its friends.
§ 87. The next clause is ; '' When vacancies happen
in the representation of any State, the executive au-
thority thereof shall issue writs of election to fill such
vacancies." It is obvious, that such a power ought to
reside in some pubHc functionary. The only question is,
in whom it can, with most safety and convenience, be lodg-
ed. If vested in the general government, or in any
department of it, it was thought, that there might not be
as strong motives for an immediate exercise of the pow-
er, or as thorough a knowledge of local circumstances,
to guide the exercise of it wisely, as if vested in the
State government. It is, therefore, left to the latter, and
to that branch of it, the State Executive, which is best
fitted to exercise it with promptitude and discretion.
And thus, one source of State jealousy is effectually
dried up.
§ 88. The next clause is ; ^' The House of Repre-
sentatives shall choose their Speaker, and other offi-
cers ; and shall have the sole power of impeachment."
Each of these privileges is of great practical importance.
In Great Britain, the Speaker is elected by the House of
Commons ; but he must be approved by the King ; and
a similar power of approval belonged to some of the Gov-
ernors in the Colonies, before the Revolution. An inde-
pendent and unhmited choice by the House of Repre-
sentatives of all their officers is every way desirable. It
secures, on the part of their officers, a more efficient re-
sponsibility, and gives to the House a more complete
authority over them. It avoids all the dangers and in-
HOUSE OF REPRESENTATIVES. 63
conveniences, which may arise from differences of opin-
ion between the House and the Executive, in periods of
high party excitement. It reHeves the Executive from all
the embarrassments of opposing the popular will, and the
House from all the irritations of not consulting the wishes
of the Cabinet.
§ 89. Next, the Power of Impeachment. " The
House of Representatives shall have the sole power of im-
peachment ;" that is, the right to present a written accu-
sation against persons in high offices and trusts, for the
purpose of bringing them to trial and punishment for gross
misconduct. The power, and the mode of proceeding,
are borrowed from the practice of England. In that
Kingdom, the House of Commons (which answers to our
House of Representatives) has the right to present arti-
cles of impeachment against any person, for any gross
misdemeanor, before the House of Lords, which is the
court of the highest criminal jurisdiction in the realm.
The articles of impeachment, are a sort of indictment ;
and the House, in presenting them, acts as a grand jury,
and also as a public prosecutor. The great object of this
power is, to bring persons to justice, who are so elevated
in rank or influence, that there is danger, that they might
escape punishment before the ordinary tribunals ; and the
exercise of the power is usually confined to political or
official offences. These prosecutions are, therefore,
conducted by the Representatives of the nation, in their
public capacity, in the face of the nation, and upon a re-
sponsibility, which is felt and reverenced by the whole
community. We shall have occasion, hereafter, to con-
sider the subject of impeachment more at large, in anoth-
er place ; and this may suffice here, as an explanation of
the nature and objects of the power. No one can well
doubt, that, if the power is to be exercised at all, by any
popular body, it is most appropriately confided to the
representatives of the people.
64 CONSTITUTION OF THE UNITED STATES.
CHAPTER X.
The Senate.
§ 90. We come next to the organization and powers
of the Senate, which are provided for in the third section
of the first article of the Constitution.
§ 91. We have already had occasion to refer, in a
brief manner, to the general reasoning, by which the divis-
ion of the legislative power between two distinct branch-
es has been justified in the actual organization of free
governments. And here seems the proper place to enter
somewhat more at large, into the reasonings, by which
the establishment of the Senate of the United States was
supported*as an independent branch of the national gov-
ernment. In order to justify the existence of a Senate
with co-ordinate powers, it was said, first, that it was a
misfortune incident to republican governments, though in
a less degree than to other governments, that those, who
administer it, may forget their obligations to their constit-
uents, and prove unfaithful to their important trust. In
this point of view, a Senate, as a second branch of the
legislative assembly, distinct from, and dividing the pow-
er with a first, must be in all cases a salutary check on
the government. It doubles the security to the people
by requiring the concurrence of two distinct bodies, in
schemes of usurpation or perfidy ; whereas the ambition
or corruption of one would otherwise be sufficient. This
precaution, it was added, was founded on such clear
principles, and so well understood in the United States,
that it was superfluous to enlarge on it. As the improb-
abihty of sinister combinations would be in proportion to
the dissimilarity in the genius of the two bodies, it must
be politic to distinguish them from each other by every
circumstance, which would consist with a due harmony
in all proper measures, and with the genuine principles
of republican government. *
THE SENATE. 65
§ 92. Secondly. The necessity of a Senate was
not less indicated by the propensity of all single and nu-
merous assemblies to yield to the impulse of sudden and
violent passions, and to be seduced by factious leaders
into intemperate and pernicious resolutions. Examples
of this sort might be cited without number, and from pro-
ceedings in the United States, as well as from the history
of other nations. A body, which is to correct this infirm-
ity, ought to be free from it, and consequently ought to
be less numerous, and to possess a due degree of firm-
ness, and a proper tenure of office.
§93. Thirdly. Another defect, to be supplied by
a Senate, lay in the want of a due acquaintance with the
objects and principles of legislation. A good government
implies two things ; first, fidelity to the objects of the gov-
ernment ; secondly, a knowledge of the means, by which
those objects can be best attained. It was suggested,
that in the American governments too little attention had
been paid to the last ; and that 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 repeahng, explaining, and
amending laws, which fill and disgrace our voluminous
codes, but so many monuments of deficient wisdom ; so
many impeachments exhibited by each succeeding, against
each preceding, session ; so many admonitions to the peo-
ple of the value of those aids, which may be expected
from a well-constituted Senate ?
§ 94. Fourthly. Such a body would prevent too great
a mutability in the public councils, arising from a rapid
succession of new members ; for, from a change of men,
there must proceed a change of opinions, and from a
change of opinions, a change of measures. Such insta-
bility in legislation has a tendency to diminish respect and
confidence abroad, as well as safety and prosperity at
home. It has a tendency to damp the ardor of industry
and enterprise ; to diminish the security of property ; and
to impair the reverence and attachment, which are indis-
pensable to the permanence of every political institu-
tion.
6*
66 CONSTITUTIOx\ OF THE UNITED STATES.
§ 95. Fifthly. Another ground, illustrating the utility
of a Senate, was suggested to be the keeping alive of a
due sense of national character. In respect to foreign
nations, this was of vital importance ; for in our intercourse
with them, if a scrupulous and uniform adherence to just
principles was not observed, it must subject us to many
embarrassments and collisions. It is difficult to impress
upon a single body, which is numerous and changeable, a
deep sense of the value of national character. A small
portion of the praise, or blame, of any particular measure,
can fall to the lot of any particular person ; and the peri-
od of office is so short, that little responsibility is felt, and
little pride is indulged, as to the course of the govern-
ment.
§ 96. Sixthly. It was urged, that, paradoxical as it
might seem, the want, in some important cases^ of a due
responsibility in the government arises from that very fre-
quency of elections, w^iich, in other cases, produces such
responsibility. In order to be reasonable, responsibility
must be limited to objects within the power of the respon-
sible party ; and in order to be effectual, it must relate to
operations of that power, of which a ready and proper
judgement can be formed by the constituents. Some
measures have singly an immediate and sensible operation ;
others again depend on a succession of 'well-connected
schemes, and have a gradual, and perhaps unobserved
operation. If, therefore, there be but one Assembly,
chosen for a short period, it will be difficult to keep up
the train of proper measures, or to preserve the proper
connexion between the past and the future. And the
more numerous the body, and the more changeable its
component parts, the more difficult it will be to preserve
the personal responsibility, as well as the uniform action,
of the successive members, to the great objects of the
public welfare.
§ 97. Lastly. A Senate, duly constituted, would not
only opeiate as a salutary check upon the Representatives,
but occasionally upon the people themselves, against their
own temporary delusions and errors. The cool, deliber-
ate sense of the community ought, in all governments, and
THE SENATE. 67
actually will, in all free governments, ultimately prevail
over the views of their rulers. But there are particular
moments in public affairs, when the people, stimulated by
some irregular passion, or some illicit advantage, or mis-
led by the artful misrepresentations of interested men, may
call for measures, which they themselves will afterwards
be the most ready to lament and condemn. In these
critical moments, how salutary will be the interference of
a body of respectable citizens, chosen without reference
to the exciting cause, to check the misguided career of
public opinion, and to suspend the blow, until reason,
justice, and truth can regain their authority over the pub-
lic mind. It was thought to add great weight to all these
considerations, that history has informed us of no long-
lived republic, which had not a senate. Sparta, Rome,
Carthage were, in fact, the only states, to whom that
character can be apphed.
§ 98. It will be observed, that some parts of the fore-
going reasoning apply to the fundamental importance of
an actual division of the legislative power ; and other
parts to the true principles, upon which that division
should be subsequently organized, in order to give full
effect to the constitutional check. Some parts go to show
the value of a Senate ; and others, what should be its
structure, in order to insure wisdom, experience, fidelity,
and dignity in its members. All of it, however, instructs
us, that, in order to give it fair play and influence, as a
co-ordinate branch of government, it ought to be less nu-
merous, more select, and more durable, than the other
branch ; and be chosen in a manner, which should com-
bine, and represent, different interests, with a varied force.
How far these objects are attained by the Constitution,
will be better seen, when the details belonging to each
department are successively examined.
§ 99. The first clause of the third section is — " 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."
§ 100. First, the nature of the representation and vote
68 CONSTITUTION OF THE UNITED STATES.
in the Senate. \^ Each State is entitled to two Senators ;
X and each Senator is entitled to one vote. Of course,
there is a perfect equality of representation and vote of
the States in the Senate. In this respect it forms a
marked contrast to the House of Representatives. In
the latter, the representation is in proportion to the popu-
lation of each State, upon a given basis ; in the former,
each State, whether it be great or be small, is, in its po-
litical capacity, represented upon the footing of equality
with every other, as it would be in a Congress of Ambas-
sadors, or in an Assembly of Peers^ The only important
difference between the vote in the Senate, and that in the
old Continental Congress under the Confederation, is, that
in the latter, the vote was by States, each having but one
vote, whereas, in the Senate, each Senator has one vote.
So that, although the Senators represent States, they
vote as individuals ; thus combining the two elements of
individual opinion, and of State representation. A ma-
jority of the Senators must concur in every vote ; but
the vote need not be that of a majority of the States,
since the Senators from the same State, may vote on
different sides of the same question. The Senators from
fifteen States may divide in their votes ; and those from
eleven, may concur in their votes, and thus give a deci-
sive majority.
§ 101. It is obvious, that this arrangement could only
arise from a compromise between the great and the small
States, founded upon a spirit of amity, and mutual defer-
ence and concession, which the peculiarity of situation
of the Unhed States rendered indispensable. There was,
for a long time, a very animated struggle in the Conven-
tion, between the great and the small States, on this sub-
ject ; the latter contending for an equality of representa-
tion in each branch of the Legislature ; the former for a
representation in each, proportionate to its population and
importance. In the discussions, the States were so nearly
balanced, that their union in any plan of government,
which should provide for a perfect eq.uality, or an inequal-
ity, of representation in both Houses, became utterly hope-
less. A compromise became indispensable. The small
THE SENATE. 60
States yielded up an equality of representation in the
House of Representatives, and the great States, in like
manner, conceded an equality in the Senate. This ar-
rangement, so vital to the peace of the Union, and to the
preservation of the separate existence of the States, is, at
the same time, full of wisdom, and sound political pohoy.
It introduces, and perpetuates, in the different branches
of the Legislature, different elements, which will make
the theoretical check, contemplated by the division of the
legislative power, more efficient and constant in its opera-
tion. The interests, passions, and prejudices of a par-
ticular representative district may thus be controlled by
the influence of a whole State ; the like interests, pas-
sions, and prejudices of a State, or of a majority of the
States, may thus be controlled by the voice of a majority
of the people of the Union.
§ 102. Secondly, the mode of choosing Senators. ;
They are to be chosen by the Legislature of each State. I
This mode has a natural tendency to increase the just
operation of the check, to which we have already alluded.
The people of the States directly choose the Representa-
tives ;;the Legislature, whose votes are variously com-\
pounded, and whose mode of election is different in dif- )
ferent States, directly choose the Senators. So that it'\
is impossible, that exactly the same influences, interests, '
and feelings, -should prevail in the same proportions in
each branch. Three schemes were presented in the
Convention ; one was, a choice directly by the people
of the States ; another was, a choic.e by the national
House of Representatives ; and the third was, that which
now exists. Upon mature deliberation, the last was
thought to possess a decided preference over either of the
other two. It was recommended by the double advantage
of favoring a select appointment, and of giving to the
State governments such an agency in the formation of the
national government, as might secure a due authority to
the former, and may well serve as a connecting link
between the two systems. Our past experience has fully
justified the wisdom of the choice.
§ 103. The Constitution has not provided for the man-
70 CONSTITUTION OF THE UNITED STATES.
ner, in which the choice shall be made by the State Legis-
latures, whether by a joint vote, or by a concurrent vote ;
the former is, where both branches form one assembly,
and give a united vote numerically ; the latter is, where
each branch gives . a separate and independent vote.
As each of the State Legislatures now consists of two
branches, this is a very important practical question.
Generally, but not universally, the choice of Senators is
made by a concurrent vote. Another question might be
suggested, whether the Executive constitutes a part of the
Legislature for such a purpose, in cases where the State
constitution gives him a qualified negative upon the laws.
But this has been silently and universally settled against
the executive participation in the appointment.
§ 104. Thirdly, the number of Senators. Each State
is entitled to tw^o Senators. To insure competent knowl-
edge and ability to discharge all the functions intrusted
to the Senate, and, at the same time, to give promptitude
and efficiency to their acts, the number should not be un-
reasonably large or small. The number should be suffi-
ciently large to insure a sufficient variety of talents and
experience and practical skill for the just discharge of all
the duties of that important branch of the Legislature.
A very small body also is more easily overawed and
intimidated by external influences, jthan one of a reason-
able size, embracing weight of character, and dignity of
talents. Numbers, alone, in many cases, confer power,
and encourage firmness. If the number of the Senate were
confined to one for each State, there would be danger,
that it might be too small for a comprehensive knowledge
and diligence in all the business devolved upon the body.
And besides ; in such a case, the illness, or accidental
absence of a Senator might deprive a State of its vote
upon an important question, or of its influence in an inter-
esting debate. If, on the other hand, the number were
very large, the Senate might become unwieldy, and want
despatch, and due responsibility. It could hardly exer-
cise due deliberation in some functions connected with
executive duties, which might, at the same time, require
prompt action. If any number beyond one be proper,
THE SENATE. 71
two seems as convenient a number as any, which can be
devised. The Senate, upon its present organization, can-
not probably ever become too large or too small for the
fit discharge of all its functions. The benefit is retained,
of consultation, and mutual interchange of opinion between
the members from the same State ; and the number is
sufficient to guard against any undue influence over it by
the more popular branch of the Legislature.
§ 105. Fourthly, the term of service of the Senators. '
It is for six years, although, as we shall presently see, one
third of the members is changed every two years. What
is -the proper duration of the office, is certainly a matter,
upon which different minds may arrive at different con-
clusions. The term should have reference to the nature
and extent of the duties to be performed, the experience
to be required, the independence to be secured, and the
objects to be attained. A very short duration of office, \
diminishes responsibility, and energy, and public spirit, f
and firmness of action, by diminishing the motives to
great efforts, and also, by diminishing the means of ma-
turing, and carrying into effect, wise measures. The
Senate has various highly-important functions to perform,
besides its legislative duties. It partakes of the execu-
tive power of appointment to office, of and the ratification
of public treaties. To perform these functions worthily,
the members should enjoy public confidence at home and
abroad ; and they should be beyond the reach of the sud-
den impulses of domestic factions, as well as of foreign
influences. They should not be subject to intimidation
by the mere seekers of office ; nor should they be deemed
by foreign nations, to have no permanent weight in the
administration of the government. They should be able, on
the one hand, to guard the States against usurpations of
authority on the part of the National Government ; and on
the other hand, to guard the people against the unconsti-
tutional projects of selfish demagogues. They should
have the habits of business, and the large experience in
the affairs of government, derived from a practical con-
cern in them for a considerable period. They should be
chosen for a longer period than the House of Represen-
72 CONSTITUTION OP THE UNITED STATES.
tatives, in order to prevent sudden and total changes at
the same period of ail the functionaries of the government,
which would necessarily encourage instability in the pub-
lic councils, and stimulate pohtical agitations and rivalries.
In all these respects, the term of office of the Senators
seems admirably well adapted to the purposes of an effi-
cient, and yet of a responsible body. It secures the
requisite qualifications of skill, experience, information,
and independence. It prevents any sudden changes in
the public pohcy. It induces foreign nations to treat
with the government with more confidence, from the con-
sciousness of the permanence of its councils. It com-
mands a respect at home, which enables it to resist any
undue inroads of the popular branch ; and, at the same
time, its duration is not so long, as to take away a pres-
sing sense of responsibihty both to the people, and to the
States.
§ 106. But, in order to quiet the last lingering scruples
of jealousy on this head, the next clause of the Constitu-
tion provides for a change of one third of the members
every two years. It declares, — " 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 every second
year ; of the second class, at the expiration of every fourth
year ; and of the third class, at the expiration of every
sixth year ; so that one third may be chosen every second
year." Thus, the whole body is gradually changed in the
course of the six years, always retaining a large portion
of experience, and yet incapable of combining its mem-
bers together for any sinister purposes. No person
would probably propose a less duration of office for the
Senators, than double the period of that of the members
of the House. In effect, this provision changes, within
the same period, the composition of two thirds of the
body.
§ 107. As vacancies may occur in the Senate during
the recess of the State Legislatures, it became indispen-
sable to provide for that exigency, in order to preserve
THE SENATE. 73
the full right of representation of each State in that body.
Accordingly, the same clause declares — " And if any
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 va-
cancies." This mode seems as unexceptionable, as any
which could be adopted. It enables the Executive of
the State to appoint a temporary Senator, when the
State Legislature is not in session. One of three courses,
only, seemed open ; either to allow the vacancy to remain
unfilled, which would deprive the State of its due vote ;
or to allow the State Legislature prospectively to pro-
vide for the vacancy by a contingent appointment, which
might be liable to some objections of a different charac-
ter ; or to confide a temporary appointment to the high-
est State functionary, who might well be presumed to
enjoy the public confidence, and be devoted to the pub-
lic interest, and to have very strong motives to make a
judicious appointment.
§ 108. We next come to the qualifications of Sena-
tors. No person shall be a Senator, who sha]l not have
attained the age of thn^ty years, and been nine years a
citizen of the United States, and who shall not, when
elected, be an inhabitant of that State, for which he shall
be chosen." As the nature of the duties of a Senator
requires more experience, knowledge, and stability of
character, than those of a Representative, the qualifica-
tion of age is accordingly raised. A person may be a
Representative, at twenty-five years ; but he cannot be a
Senator, until thirty years. Citizenship, also, is required,
the propriety of which qualification cannot well be doubt-
ed. The term of citizenship of a Representative is seven
years ; that of a Senator is nine years. The reason, for
increasing the term, in the latter case, is, the direct con-
nection of the Senate with foreign nations, in the appoint-
ment of ambassadors, and in the formation of treaties.
This prolonged term may well be required of a foreigner,
not only to give him a more thorough knowledge of the
interests of his adopted country ; but also to wean him
7 " XIII.
74 CONSTITUTION OF THE UNITED STATES.
more effectually from those of his native country. The
next qualification, is, inhabitancy in the State ; and the
propriety of this, is almost self-evident, since an inhabit-
ant may not only be presumed to be better acquainted
with the local interests, and wants, and pursuits, of the
State ; but may, also, well be deemed to feel a higher
degree of responsibility to the State, than any stranger.
He will, also, personally, share more fully in the effects of
all measures, touching the sovereignty, rights, and influ-
ence, of the State. The only surprise, is, that provision
is not made for his ceasing to represent the State, in the
Senate, as soon as he should cease to be an inhabitant of
the State.
§ 109. In concluding this topic, it is proper to re-
mark, that no qualification, whatever, as to property, is
required in regard to Senators, any more than in regard
to Representatives. Merit and talent have, therefore, the
freest access open to them into each branch of the Legis-
lature. Under such circumstances, if the choice of the
people is but directed by a suitable sobriety of judgement,
the Senate cannot fail of being distinguished for wisdom,
for learning, for exalted patriotism, for incorruptible in-
tegrity, and for inflexible independence.
§ 110. The next clause respects the person who
shall preside in the deliberations of the Senate. — " 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 President pro tempore, in the ab-
sence of the Vice President, or when he shall exercise
the office of President of the United States."
§ 111. The propriety of creating the office of Vice
President will be reserved for future consideration, when
the organization of the executive department shall come
under review. The reasons, why he is authorized to
preside in the Senate, belong appropriately to this place.
The strong motive for this arrangement undoubtedly arose
from the desire to moderate State jealousy and to preserve
State equality in the Senate. If the presiding officer of
the Senate were to be chosen exclusively from its own
THE SENATE. 75
members, it was supposed, that the State, upon which \
the choice might fall, might possess either more or less,
than its due share of influence. If he were not allowed
to vote, except upon an equal division of the Senate, then
the State would be deprived of his vole ; if he were en-
titled to vote, and also, in such cases, to give a casting
vote, then the State would, in effect, possess a double
vote. If he could only vote as a member, then, in case
of an equahty of votes, much inconvenience might arise
from the indecision of the Senate. It might give rise to
dangerous feuds, or intrigues, and create State, or na-
tional agitations. It would be far better, in such an
equality of votes, to refer the decision to a common arbi-
ter, like the Vice President, chosen by a vote of the
States, and therefore to be deemed the representative of
all of them. The permanent appointment of any one of
the Senators, as President of the Senate, might give
him an undue influence and control over measures during
his official term. An appointment for a single session,
only, would subject the body to constant agitations, and
intrigues, incompatible with its own dignity and conveni-
ence, and might introduce irregularities, unfavorable to an
impartial course of proceedings, founded upon experience,
and an accurate knowledge of the duties of the office.
These views appear to have had great weight in the
Convention, and have been found entirely satisfactory to
the people. The appointment of the Vice President to
preside in the Senate has been greatly conducive to the
harmony of the States and the dignity of the General Gov-
ernment. As the Senate possess the power to make
rules to regulate their own proceedings, there is little
danger, that there can ever arise any serious abuse of the
presiding power. The danger, if any, is rather the
other way, that the presiding power will be silently weak-
ened or openly surrendered, so as to leave to the office
little more than the barren honor of the place, without in-
fluence, and without action.
§ 112. The propriety of intrusting the Senate with
the choice of its other officers, and also of a President
pro tempore in the absence of the Vice President, or
76 CONSTITUTION OF THE UNITED STATES.
when he exercises the office of President, seems never
to have been questioned ; and indeed is so obvious, that
it is wholly unnecessary to vindicate it. Confidence be-
tween the Senate and its officers, and the power to make
a suitable choice, and to secure a suitable responsibility
for the faithful discharge of the duties of office, are so
indispensable for the pubhc good, that the provision will
command universal assent, as soon as it is mentioned. It
has grown into a general practice for the Vice President
to vacate the Senatorial chair a short time before the
termination of each session, in order to enable the Senate
to choose a President pro tempore, who might already
be in office, if the Vice President, in the recess, should be
called to the chair of State. The practice is founded in
wisdom and sound pohcy, as it immediately provides for
an exigency, which may well be expected to occur at
any time ; and prevents the choice from being influenced
by temporary excitements or intrigues, arising from the
actual existence of a vacancy. As it is useful in peace
to provide for war ; so it is hkewise useful in times of
profound tranquillity to provide for political agitations,
which may disturb th^ public harmony.
CHAPTER XI.
Impeachments.
§ 113. The next clause respects the judicial power
of the Senate to try impeachments. " The Senate
shall have the sole power to try all impeachments.
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 convicted, without the concurrence of two thirds
of the members present." The great objects to be at-
tained in the selection of a tribunal for the trial of im-
peachments, are impartiality, integrity, intelligence, and
independence. If either of these qualities is wanting,
IMPEACHMENTS. 77
the trial is essentially defective. To insure impartiality,
the body must be, in some degree, removed from popular
power and passions, from the influence of sectional pre-
judices, and from the still more dangerous influence of
party spirit. To secure integrity, there must be a lofty
sense of duty, and a deep responsibility to God, as well
as to future ages. To secure intelligence, there must be
age, experience, and high intellectual powers and attain-
ments. To secure independence, there must be numbers,
as well as talents, and a confidence, resulting from per-
manency of place, dignity of station, and consciousness
of patriotism. The Senate, from its very organization,
must be presumed to possess all these qualities in a high
degree, and, certainly, in a degree not surpassed by any
other political body in the country. If it should be
asked, why the power to try impeachments might not
have been confided to a court of law of the highest grade,
it may be answered, that such a tribunal is not, on various
accounts, so fit for the purpose. In the first place, the
offences to be tried are generally of a political character,
such as a court of law is not ordinarily accustomed to
examine, and such as its common functions exclude.
The Senators, on the contrary, necessarily become fa-
miliar with such subjects. In the next place, the strict
course of proceedings, in courts of law, is ill adapted to
the searching out of political dehnquencies. In the next
place, such political functions, are in no small degree
incompatible with the due discharge of other judicial
duties. They have a tendency to involve the Judges in
party interests and party contests, and thereby to with-
draw their minds from those studies and habits, which
are most important, in the ordinary administration of jus-
tice, to secure independence and impartiahty. In the
next place, the Judges are themselves appointed by the
Executive, and maybe called upon to try cases, in which
he, or some officer enjoying his confidence, and acting
under his orders, is the party impeached. In the last
place, adjudge may be the very party impeached ; and,
under such circumstances, a court of law may be pre-
sumed to labor under as strong feelings and sympathies
7*
78 CONSTITUTION OF THE UNITED STATES.
for the accused, as any other body. It could never be
desirable to call upon the Supreme Court of the nation to
try an impeachment of one of its own members for an
official misdemeanor. So that, to say the least, the tri-
bunal selected by the Constitution is as unobjectionable,
as any, which could be pointed out.
§ 114. The mode of trial is also provided for. The
Senate, when sitting as a Court of Impeachment, '' shall
be on oath or affirmation." This is required in all cases
of trials in the common courts of law. Jurymen, as
well as Judges, are always under oath or affirmation, in
the discharge of their respective duties. It is a sanction,
appealing to their consciences, and calling upon them to
reflect well upon their duties. The provision was deem-
ed the more necessary, because in trials of impeachment
in England, the House of Lords (which is the High
Court of Impeachment) is not under oath ; but each
Peer makes a declaration simply upon his honor ; al-
though if he were a witness in any common trial, he
must give his testimony on oath.
§ 115. The next provision is; "When the Presi-
dent of the United States is tried, the Chief Justice shall
preside." The object of this clause is, to preclude the
Vice President, who might be supposed to have a natural
desire to succeed to the office of President, from being |
instrumental, or having any influence, in procuring a con-/
viction of the Chief Magistrate. Under such circum-
stances, who could be deemed more suitable to preside
at the trial, than the highest Judicial magistrate of the na-
tion. His impartiality and independence would be as
Ihtle liable to suspicion, as those of any other person in
the country. The dignity of his station might well be
deemed an adequate pledge for his possession of the high-
est accomplishments ; and his various learning and great
experience in the law, might well be presumed to enable him
to give essential assistance to the Senate, not only in reg-
ulating their proceedings in such delicate matters, but
also in securing the just rights of the accused, by protect-
ing him against unintentional mistakes and errors of judge-
ment in that body. It is added ; " And no person shall
IMPEACHMENTS. 79
be convicted, without the concurrence of two thirds of
the members present." The reason for this restriction,
doubtless, is, that if a bare majority, only, were sufficient to
convict of political ofiences, there would be danger, in
times of high popular commotion, or party spirit, that the
influence of the House of Representatives would be
found irresistible. In cases of trials by jury, absolute
unanimity is required to the conviction of a criminal ; in
cases of legislation, a majority only is required for a de-
cision ; and, here, an intermediate number, between an
entire unanimity and a bare majority, is adopted. If
any thing short of unanimity ought to be allowed, two
thirds seems a reasonable limitation.
§ 116. The next clause respects the judgement to be
rendered in cases of impeachment. — " Judgement in i
cases of impeachment shall not extend further than to I
removal from office, and disqualification to hold and en-
joy any office of honor, trust, or profit, under the United
States. But the party convicted shall, nevertheless, be
liable and subject to indictment, trial, judgement, and
punishment according to law." As the principal object
of the power of impeachment is to punish political crimes,
the restriction of the punishment to mere removal and
disqualification from office, seems appropriate, and suffi-
cient. Probably the abuses, to which an unlimited pow-
er of punishment might lead in times of popular excite-
ment, and party strife, introduced this restriction. And
the experience of the parent country had demonstrated,
that it could be apphed against a particular victim with a
cruelty and harshness, wholly incompatible with national
justice, and pubhc honor. Yet persons, who are guilty
of public offences, ought not wholly to escape the proper
punishment, affixed by law in other casfes. And, there-
fore, they are made amenable, like their fellow-citizens,
to the common course of trial and punishment in the
courts of law. This provision was the more necessary, \
because it might otherwise be contended, that they could \
not, according to a known maxim of law, be twice tried ;
and punished for the same offence. And here, again, -■
the wisdom of the Constitution, in excluding the courts
so CONSTITUTION OF THE ^JNITED STATES.
of law from the trial of impeachments, js shown. For,
if the same court should re-try the cause, they would
already have decided upon the party's guilt ; and, if an
inferior court should try it, the influenge of the supe-
rior court would be apt to have an undue predominance
over it.
§ 117. There is wisdom, and sound policy, and in-
trinsic justice in this separation of the offence, at least, so
far as the jurisdiction and trial are concerned, into its
proper elements, bringing the political part under the
power of the political department of the government, and
retaining the civil part for presentment and trial in the
ordinary forum. A jury might well be intrusted with
the latter ; while the former should meet its appropriate
trial and punishment before the Senate. K it should be
asked, why separate trials should thus be successively
had ; and why, if a conviction should take place in a
court of law, that court might not be. intrusted with the
power to pronounce a removal from office, and the dis-
quahfication to office, as a part of its sentence, the an-
swer has been already given in the reasoning against vest-
j'ng any court of law with merely political functions. In
the ordinary course of the administration of criminal
justice, no court is authorized to remove or disqualify an
offender, as a part of its regular judgement. If it results
at all, it results as a consequence, and not as a part, of
the sentence. But it may be properly urged, that the
vesting of such a high and delicate power, to be exercised
by a court of law at its discretion, would, in relation to
the distinguished functionaries of the government, be pe-
culiarly unfit and inexpedient. What could be more
embarrassing, than for a court of law to pronounce for a
removal upon the mere ground of political usurpation, or
malversation in office, admittijig of endless varieties, from
the slightest guilt up to the most flagrant corruption ?
Ought a President to be removed from office at the mere
will of a court for political misdemeanors ? Is not a po-
litical body, like the Senate, from its superior informa-
tion in regard to executive functions, far better qualified
to judge, how Tar the public weal might be promoted by
IMPEACHMENTS. 81
such a punisliment in a given case, than a mere juridical
tribunal ? Suppose the Senate should still deem the
judgement irregular, or unjustifiable, how is the removal
to take effect, and how is it to be enforced ? A separa-
tion of the removing power altogether from the appoint-
ing power might create many practical difficulties, which
ought not, except upon the most urgent reasons, to be
introduced into matters of government. Without at-
tempting to maintain, that the difficulties would be insu-
perable, it is sufficient to show, that they might be highly
inconvenient in practice.
§ 1 18. In order to complete our review of the subject
of impeachments, it is necessary to cite a clause to be
found in a subsequent part of the Constitution, (Art. 2,
Sect. 4,) declaring, who shall be liable to impeachment,
and for what offences. " The President, Vice Presi-
dent, and all civil officers of the United States, shall
be removed from office, on impeachment for, and con-
viction of, treason, bribery, or other high crimes and
misdemeanors."
§ 119. From this clause, it appears, that the power of
impeachment does not extend to any, but civil officers
of the United States, including the President, and Vice
President. In England, it extends to all persons, wheth-
er peers or commoners, and whether officers or not.
There seems a peculiar propriety, in a republican gov-
ernment, in confining the impeaching power to persons
holding office. In such a government, all the citizens are
equal, and ought to have the same security of a trial by
jury, for all crimes and offences laid to their charge,
when not holding any official character. They might,
otherwise, be subject to gross political oppressions, and
prosecutions, which might ruin their fortunes, or subject
them to unjustifiable odium. When a person accepts an
office, he may fairly be held to consent to a waiver of
this privilege ; and there can be no reasonable objec-
tion, on his part, to a trial by impeachment, since it can go
no further than to a removal from office, and a disqualifi-
cation to hold office.
§ 120. Who are '' civil officers," within the meaning
82 CONSTITUTION OF THE UNITED STATES.
of this constitutional provision, is an inquiry, which natu*
rally presents itself ; and the answer cannot, perhaps, be
deemed settled, by any solemn adjudication. The term
" civil" has various significations. It is sometimes used,
in contradistinction to barbarous, or savage, to indicate
a state of society, reduced to order and regular govern-
ment. Thus, we speak of civil life, civil society, civil gov-
ernment, and civil liberty; in which cases, it is nearly equiv-
alent, in meaning, to political. It is sometimes used in
contradistinction to criminal, to indicate the private rights
and remedies of men, as members of the community, in
contrast to those, which are public, and relate to the gov-
ernment. Thus, we speak of civil process and criminal
process, civil jurisdiction and criminal jurisdiction. It
is sometimes used in contradistinction to military or eccle-
siastical, to 7iatural or foreign. Thus, we speak of a
civil station, as opposed to a mihtary or ecclesiastical
station ; a civil death, as opposed to a natural death ; a
civil war, as opposed to a foreign war. The sense, in
which the term is used in the Constitution, seems to be in
contradistinction to military, to indicate the rights and
duties relating to citizens generally, in contradistinction to
those of persons engaged in the land or naval service of
the government. It is in this sense, that Sir William
Blackstone speaks of the laity in England, as divided in-
to three distinct states ; the civil, the military, and the
maritime ; the two latter embracing the land and naval
forces of the government. And in the same sense, the
expenses of the civil list of officers are spoken of, in con-
tradistinction to those of the army and navy.
§ 121. All officers of the United States, therefore,
who hold their appointments under the national govern-
ment, whether their duties ^re executive or judicial, in
the highest or in the lowest departments of the govern-
ment, with the exception of officers, in the army and na-
vy, are properly civil officers, within the meaning of the
Constitution, and liable to impeachment. The reason
for excepting mihtary and naval officers is, that they are
subject to trial and punishment according to a peculiar
military code, the laws, rules, and usages of war. The
IMPEACHMENTS. 83
very nature and efficiency of nnilitary duties and discipline
require this summary and exclusive jurisdiction ; and the
promptitude of its operations is not only better suited
to the notions of military men ; but they deem their hon-
or and their reputation more safe in the hands of their
brother officers, than in any merely civil tribunal. In-
deed, in military and naval affairs, it is quite clear, that
the Senate could scarcely possess competent knowledge
or experience to decide upon the acts of military men ;
so much are these acts to be governed by mere usage
and custom, by military discipline, and military discre-
tion, that the Constitution has wisely committed the
whole trust to the decision of courts-martial.
§ 122. It is observable, that the clause makes the
President and Vice President expressly liable to im-
peachment. And the question arose, upon an impeach-
ment, in 1799, whether a Senator is a civil officer of the
United States, in the sense of the Constitution, so as to
be liable to an impeachment. It was on that occasion de-
cided, by the Senate, that he is not ; and, of course, the
same principle would apply to a Representative in Con-
gress. The ground of this decision seems to have been
that a Senator does not derive his appointment from or
under the National Government, but from the State Le-
gislature ; and that the clause contemplated only such civil
officers, as derived their appointment from the National
Government, and were responsible for their conduct
thereto. Motives of public policy would also conduce to
the establishment of this same conclusion, since the im-
peachment of Legislators for their official acts might have
a tendency to overawe or intimidate them in the discharge
of their public functions. In the whole history and prac-
tice of England and America, no example can be found, of
any attempt to introduce such a principle ; and this very
silence is expressive of the state of public opinion as to
the danger and impolicy of conferring such a power.
§ 123. The offences, to which impeachments extend,
are, ^'treason, bribery, and other high crimes and mis-
demeanors." No person can reasonably doubt the pro-
priety of the removal, and disqualification from office, of
84 CONSTITUTION OF THE UNITED STATES.
a person, who is guilty of treason, which aims at the
overthrow of the government, or of bribery, which cor-
rupts its due administration. And doubtless there are
other high crimes and misdemeanors, to which the pow-
er of impeachment may properly be applied, since they
may be utterly incompatible with the public safety and
interests, or may bring the government itself into disgrace
and obloquy.
§ 124. But an important inquiry still remains, as to the
nature and definition of these crimes. What is the crime of
treason ? What is the crime of bribery ? What are high
crimes and misdemeanors in the sense of the Constitution ?
For the definition of treason we may resort to the Consti-
tution itself. For the definition of bribery we must resort
to the common law, which alone furnishes the proper ex-
position of the nature and limits of the oftence. But nisither
the Constitution, nor the statutes of the United States, have
in any manner defined any other crimes to be high crimes
and misdemeanors, and as such, exposing the party to
impeachment. How then are we to ascertain, what of-
fences, besides treason and bribery, are within the scope
of the impeaching power ? If we say, that there are no
other offences, which are impeachable ofiences, until Con-
gress has enacted some law on the subject, then the Con-
stitution, as to all crimes except treason and bribery, has
remained a dead letter, up to the present hour. Such a
doctrine, would be truly alarming and dangerous.
§ 125. Congress have unhesitatingly adopted the con-
clusion, that no previous statute is necessary to authorize
an impeachment for any official misconduct ; and the
rules of proceeding, and the rules of evidence, as well as
the principles of decision, have been uniformly regulated
by the known doctrines of the common" law, and parlia-
mentary usage. In the few cases of impeachment, which
have hitherto been tried, no one of the charges has rested
upon any statutable misdemeanors. It seems, then, to
be the settled doctrine of the high court of impeachment,
that though the common law cannot be a foundation of a
jurisdiction not given by the Constitution, or laws, tRat
jurisdiction, when given, attaches, and is to be exercised,
IMPEACHMENTS. 85
according to the rules of the common law ; and that, what
are, and what are not, high crimes and misdemeanors, is
to be ascertained by a recurrence to that great basis of
American jurisprudence. The reasoning, by which the
power of the House of Representatives to punish for
contempts (which are breaches of privileges, and offen-
ces not defined by any positive laws) has been upheld by
the Supreme Court, stands upon similar grounds ; for if
the House had no jurisdiction to punish for contempts,
until the acts had been previously defined, and ascertained
by positive law, it is clear, that the process of arrest
would be illegal.
§ 126. This subject may be concluded by a summary
statement of the mode of proceeding in the institution and
trial of impeachments, as it is of rare occurrence, and is
not governed by the formahties of the ordinary prosecu-
tions in courts at law.
§ 127. When, then, an officer is known or suspected
to be guilty of malversation in ofSce, some member of
the House of Representatives usually brings forward a
resolution to accuse the party, or for the appointment of
a committee, to consider and report upon the charges
laid against him. The latter is the ordinary course ; and
the report of a committee usually contains, if adverse to
the party, a statement of the charges, and recommends
a resolution, that he be impeached therefor. If the res-
olution is adopted by the House, a committee is then
appointed to impeach the party at the bar of the Senate,
and to state, that the articles against him will be exhibit-
ed in due time, and made good before the Senate ; and
to demand, that the Senate take order for the appearance
of the party to answer to the impeachment. This being
accordingly done, the Senate signify their willingness to
take such order ; and articles are then prepared by a
committee, under the direction of the House of Repre-
sentatives, which, when reported to, and approved by,
the. House, are then presented in the like manner to the
Senate ; and a committee of managers are appointed to
conduct the impeachment. As soon as the articles are
thus presented, the Senate issue a process, summoning
8 XIII.
86 CONSTITUTION OF THE UNITED STATES.
the party to appear, at a given day, before them, to an-
swer the articles. The process is served by the sergeant-
at-arms of the Senate, and due return is made thereof
under oath.
§ 128. The articles thus exhibited, need not, and in-
deed do not, pursue the strict form and accuracy of an
indictment. They are sometimes quite general in the
form of the allegations ; but always contain, or ought to
contain, so much certainty, as to enable the party to put
himself upon the proper defence, and also, in case of an
acquittal, to avail himself of it, as a bar to another im-
peachment. Additional articles may be exhibited, per-
haps, at any stage of the prosecution.
§ 129. When the return day of the process for ap-
pearance has arrived, the Senate resolve themselves into
a court of impeachment, and the Senators are at that
time, or before, solemnly sworn, or affirmed, to do im-
partial justice upon the impeachment, according to the
Constitution and laws of the United States. The per-
son impeached is then called to appear and answer the
articles. If he does not appear in person, or by attor-
ney, his default is recorded, and the Senate may proceeel
ex parte (that is^ on the claim of one side) to the trial of
the impeachment. If he does appear in person, or by
attorney, his appearance is recorded. Counsel for the
parties are admitted to appear, and to be heard upon an
impeachment.
§ 130. When the party appears, he is entitled to be
furnished with a copy of the articles of i-mpeachment, and
lime is allowed him to prepare his answer thereto. The
answer, like the articles, is exempted from the necessity
of observing great strictness of form. The party may
plead, that he is not guilty, as to part, and make a fur-
ther defence, as to the residue ; or he may, in a few
words, saving all exceptions, deny the whole charge or
charges ; or he may plead specially, in justification or
excuse of the supposed offences, all the circumstances
attendant upon the case. And he is also indulged with
the liberty of offeriiv argumentative reasons, as well as
facts, against the charSj^es, in support, and as part, of his
« IMPEACHMENTS. 87
answer, to repel them. It is usual to give a full and par-
ticular answer separately to each article of the accusation.
§ 131. When the answer is prepared and given in,
the next regular proceeding is, for the House of Repre-
sentatives to file a rephcation to the answer in writing,
in substance denying the truth and validity of the defence
stated in the answer, and averring the truth and suffi-
ciency of the charges, and the readiness of the House to
prove them at such convenient time and place, as shall
be appointed for that purpose by the Senate. A time
is then assigned for the trial ; and the Senate, at that
period or before, adjust the preliminaries and other pro-
ceedings proper to be had, before and at the trial, by
fixed regulations ; which are made known to the House
of Representatives, and to the party accused. On the
day appointed for the trial, the House of Representatives
appear at the bar of the Senate, either in a body, or by
the managers selected for that purpose, to proceed with
the trial. Process to compel the attendance of witnesses
is previously issued at the request of either party, by or-
der of the Senate ; and at the time and place appointed,
they are bound to appear and give testimony. On the
day of trial, the parties being ready, the managers to con-
duct the prosecution open it on behalf of the House of
Representatives, one or more of them delivering an ex-
planatory speech, either of the whole charges, or of one
or more of them. The proceedings are then conducted
substantially, as they are upon common judicial trials, as
to the admission or rejection of testimony, the examina-
tion and cross-examination of witnesses, the rules of evi-
dence, and the legal doctrines, as to crimes and misde-
meanors. When the whole evidence has been gone
through, and the parties on each side have been fully
heard, the Senate then proceed to the consideration of
the case. If any debates arise, they are conducted in
secret ; if none arise, or after they are ended, a day is
assigned for a final public decision by yeas and nays
upon each separate charge in the articles of impeach-
ment. When the court is assembled for this purpose,
the question is propounded to each member of the Sen-
88 CONSTITUTION OF THE UNITED STATES.
ate by name, by the President of the Senate, in the
following manner, upon each article, the same being
first read by the Secretary of the Senate. " Mr. ,
how say you, is the respondent guilty, or not guilty,
of a high crime and misdemeanor, as charged in the
article of impeachment ?" Whereupon the member
rises in his place, and answers guilty, or not guilty, as
his opinion is. If upon no one article, two thirds of the
Senate decide, that the party is guilty, he is then entitled
to an acquittal, and is declared accordingly to be acquit-
ted by the President of the Senate. If he is convicted
of all, or any, of the articles, the Senate then proceed to
fix, and declare the proper punishment. The pardoning
power of the President does not, as will be presently
seen, extend to judgements upon impeachment ; and
hence, when once pronounced, they become absolute
and irreversible.
§ 132. Having thus gone through the whole subject
of impeachments, it only remains to observe, that a close
survey of the system, unless we are egregiously deceived,
will completely demonstrate the wisdom of the arrange-
ments made in every part of it. The jurisdiction to im-
peach is placed, where it should be, in the possession
and power of the immediate representatives of the peo-
ple. The trial is before a body of great dignity, and
ability, and independence, possessing the requisite knowl-
edge and firmness to act with vigor, and to decide with
impartiality upon the charges. The persons subjected
to the trial are officers of the national government ; and
the offences are such, as may affect the rights, duties,
and relations of the party accused, to the public in his
poHtical or official character, either directly or remotely.
The general rules of law and evidence, applicable to
common trials, are interposed, to protect the party against
the exercise of wanton oppression, and arbitrary power.
And the final judgement is confined to a removal from,
and disqualification for, office ; thus limiting the punish-
ment to such modes of redress, as are peculiarly fit for a
political tribunal to administer, and as will secure the pub-
lic against political injuries. In other respects, the offence
ELECTIONS OF CONGRESS. 89
is left to be disposed of by the common tribunals of jus-
tice, according to the laws of the land, upon an indict-
ment found by a grand jury, and a trial by a jury of
peers, before whom the party is to stand for his final de-
liverance, like his fellow-citizens.
CHAPTER XII.
Elections and Meetings of Congress.
§ 133. We next come to the fourth section of the
first article, which treats of the elections and meetings of
Congress. The first clause is, — " The time, places, and
manner of holding elections for Senators and Represen-
tatives, shall be prescribed in each State, by the Legisla-
ture thereof. But the Congress may, at any time, by
law, make or alter such regulations, except as to the
places of choosing Senators." There is great propriety
in leaving to the State Legislatures the right, in the first
instance, of regulating the times and places of choosing the
members of Congress, as every State is thus enabled to
consult its own local convenience in the choice ; and it
would be difficult to prescribe any uniform time or place
of elections, which would, in all possible changes in the
situation of the States, be found convenient for all of
them. On the other hand, as the ability of the General
Government to carry on its own operations depends upon
these elections being duly had, it is plain, that it ought
not to be left to the State governments, exclusively, to
decide, whether such elections should be had, or not.
The maxim of sound political wisdom is, that every gov-
ernment ought to contain in itself the means of its own
preservation. And, therefore, an ulterior and paramount
power is reserved to Congress, to make or alter the reg-
ulations as to such elections, so as to preserve the effi-
ciency of the General Government. But, inasmuch as
the State Legislatures are to elect Senators, the places
of their meetings are left to their own discretion, as mosl
8*
90 CONSTITUTION OF THE UNITED STATES.
fit to be decided by themselves, with reference to their
ordinary duties and convenience. But Congress may
still prescribe the times, at which such elections shall be
made.
§ 134. The next clause is, — " The Congress shall
assemble at least once in every year ; and such meeting
shall be on the first Monday of December, unless they
shall, by law, appoint a different day." The importance
of this provision can scarcely be overrated by a free peo-
ple, accustomed to know their rights, and jealous in the
maintenance of them. Unless some time were prescrib-
ed for the regular meetings of Congress, they would de-
pend upon the good will and pleasure of Congress itself,
or of some other department of the government. In times
of violent factions, or military usurpations, attempts might
be made to postpone such meetings for an unreasonable
length of time, in order to prevent the redress of griev-
ances, or secure the violators of the laws from condign
punishment. Annual meetings of the legislature have
long been deemed, both in England and America, a great
security to liberty and justice ; and it was true wisdgm
to estabhsh the duty of such annual meetings, by a polit-
ical provision in the Constitution, which could not be
evaded or disobeyed.
CHAPTER XIII. Pj^^ /->
Poicers and Privileges of both Houses,
§ 135. The fifth section of the first article contains
an enumeration of the powers, rights, and duties of each
branch of the Legislature, in its separate and distinct or-
ganic character. The first clause is, — "Each House
shall be the judge of the elections, returns, and quahfica-
tions, of its own members ; and a majority of each shall
constitute a quorum to do business ; but a smaller num-
ber may adjourn, from day to day, and may be authorized
to compel the attendance of absent members, in such
PRIVILEGES OF BOTH HOUSES. 91
manner, and under such penalties, as each House may
provide."
§ 136. These powers are common to all the legisla-
tive bodies of the States ; and, indeed, to those of other
free governments. They seem indispensable to the due
independence and efficiency of the body. The power to
judge of the elections, returns, and qualifications, of the
members of each House, must be lodged somewhere ;
for otherwise, any intruder, or usurper, might assume to
be a member. It can be safely lodged in no other body,
but that, in which the party claims a seat ; for otherwise,
its independence, its purity, and even its existence, might
be under the control of a foreign authority. It is equally
important, that a proper quorum for the despatch of busi-
ness should be fixed, otherwise a cunning, or industrious,
minority might, by stratagem, usurp the functions of the
majority, and pass laws at their pleasure. On the other
hand, if a smaller number were not authorized to adjourn
from day to day, or to compel the attendance of other
members, all legislation might be suspended at the pleas-
ure of the absentees, and the Legislature itself be virtually
dissolved.
§ 137. The next clause is, — '^ Each Plouse may de-
termine the rules of its proceedings, punish its members
for disorderly behavior, and, with the concurrence of two
thirds, expel a member." These powers, also, are usually
granted to legislative bodies. If they did not exist, it
would be utterly impracticable to transact the business of
the nation at all, or at least, to transact it with decency,
deliberation, and order. Without rules, no public body
can suitably perform its functions. If rules are made,
they are mere nuUities, unless the persons on whom they
are to operate, can be compelled to obey them. But, if
an unhmited power to punish, even to the extent of ex-
pulsion, existed, it might, in factious times, be apphed by
a domineering majority, to get rid of the most intelligent,
virtuous, and efficient of their opponents. There is,
tlierefore, a check interposed, which requires a concur-
rence of two thirds to expel ; and this number can hard-
ly be presumed to concur in exercising the power of ex-
92 CONSTITUTION OF THE UNITED STATES.
pulsion, except in cases of flagrant breaches of the rights
of tlie House.
§ 138. The next clause is, — '' Each House shall keep
a journal of its proceedings, and from time to time pub-
lish the same, except such parts as may, in their judge-
ment, 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." Each of these provisions has the same
object, to insure pubhcity and responsibility in all the
proceedings of Congress, so that the public mind may be
enhghtened, as to the acts of the members. But cases
may exist, where secrecy may be indispensable to the
complete operation of the intended acts, either at home or
abroad. And, on the other hand, an unlimited power to
call the yeas and nays on every question, at the mere will
of a single member, would interrupt and retard, and, in
many cases, wholly defeat, the public business. In each
case, therefore, a reasonable limitation is interposed.
§ 139. The next clause is, — " Neither House, during
the session of Congress, shall, without the consent of the
other, adjourn for more than three days, nor to any other
place than that in which the two Houses shall be sitting."
Here, again, the object of the clause is manifest, to pre-
vent either House from suspending, at its pleasure, the
regular course of legislation, and even of carrying the
power to the extent of a dissolution of the session. The
duration of the sessions of Congress, sulaject only to the
constitutional expiration of the term of office of the mem-
bers, thus depends upon their own pleasure, with the sin-
gle exception (as we shall hereafter see) of the case, where
the two Houses disagree, in respect to the time of ad-
journment, when it is given to the President. So that
their independence is effectually guarded against any en-
croachment on the part of the Executive. In England,
the King may prorogue or dissolve Parliament at his plea-
sure ; and, before the Revolution, the same power was
generally exercised by the Governors in most of the Amer-
ican Colonies.
^ 140. These are all the powers and privileges ex-
PRIVILEGES OF BOTH HOUSES. 93^
pressly enumerated, as belonging to the two Houses.
But other incidental powers may well be presumed to ex-
ist. Among these, the power to punish contempts, com-
mitted against either House by strangers, has been gener-
ally admitted, and insisted upon in practice, as indispensa-
ble to the freedom, the deliberative functions, and the
personal safety of the members.
§ 141. The sixth section of the first article contains
an enumeration of the personal rights, privileges, and
disabihties of the membefs, as contradistinguished from
those of the Houses, of which they are members. The
first clause is, — " The Senators and Representatives shall
receive a compensation for their services, to be ascer-
tained by law, and paid out of the Treasury of the
United States. They shall, in all cases, except treason,
felony, or breach of the peace, be priinileged from arrest,
during their attendance at the session of the 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."
§ 142. First, Compensation. It has been greatly
questioned, whether, on the whole, it is best to allow
compensation to members of Congress, or not. On the
one hand, it has been said, that it tempts unworthy and
avaricious men to intrigue for office, and to defeat candi-
dates of higher talents and virtues. On the other hand,
it has been said, that unless compensation be allowed,
merit of the highest order may be excluded by poverty
from the national councils ; and in a republican govern-
ment nothing can be more impoHtic than to give to wealth
superior encouragement, and facility in obtaining office.
The latter reasoning had its due force, and prevailed in
the Convention and with the people.
§ 143. Next, the privilege from arrest. This is given
in all cases, (except of crimes,) in going to, attending
upon, and returning from, any session of Congress. It
would be a great mistake to consider it, as in reality a
personal privilege, for the benefit of the member. It is
rather a privilege for the benefit of his constituents, that
they may not be deprived of the presence, services, and
94 CuNbTirUTION OF THE UNITED STATES.
influence of their own Representative in the national
councils. It might otherwise happen, that he might be
arrested from mere malice, or from political persecution,
or upon some unfounded claim, and thus they might be
deprived of his aid and talents during the whole session.
§ 144. Thirdly, the liberty of speech and debate.
This, too, is less to be regarded as a personal privilege,
than as a public right, to secure independence, firmness,
and fearlessness on the part of the members, so that, in
discharging their high trusts, they may not be overawed
by wealth, or power, or dread of prosecution. The
same privilege is enjoyed in the British Parliament, and
also in the several State Legislatures of the Union, found-
ed upon the same reasoning.
§ 145. The next clause regards the disqualifications
of members of Congress. "No Senator or Represen-
tative shall, during the time for which he is elected, be
appointed to any civil office, under the authority of the
United States, which shall have been created, or the
emoluments whereof shall have been increased during
such time. And no person, holding any office under the
United States, shall be a member of either House of
Congress during his continuance in office." The object
of these provisions is sufficiently manifest. It is, to se-
cure the Legislature against undue influence, and indirect
corruption, on the part of the Executive. Whether
much reliance can be placed upon guards of this disquali-
fying nature, has been greatly doubted. It is not easy,
by any constitutional or legislative enactments, to shut
out all, or even many, of the avenues of undue or corrupt
influence upon the human mind. The great securities for
society — those, on which it must for ever rest in a free
government — are, responsibility to the people through
elections, and personal character, and purity of principle.
Where these are wanting, there never can be any solid
confidence, or any deep sense of duty. Where these exist,
they become a sufficient guarantee against all sinister influ-
ences, as well as all gross offignces. It has been remarked,
with equal profoundness and sagacity, that, as there is a
degree of depravity in mankind, which requires a certain
PRIVILEGES OF BOTH HOUSES. 95
degree of circumspection and distrust ; so there are other
qualities in human nature, which justify a certain portion
of esteem and confidence. Republican government pre-
supposes the existence of these qualities in a higher form,
than any other. It might well be deemed harsh to dis-
qualify an individual from any office, clearly required by
the exigencies of the country, simply because he had done
his duty. And, on the other hand, the disqualification
might operate upon many persons, who might find their
way into the national councils, as a strong inducement to
postpone the creation of necessary offices, lest they should
become victims of their high discharge of duty. The
chances of receiving an appointment to a new office are
not so many, or so enticing, as to bewilder many minds ;
and if they are, the aberrations from duty are so easily
traced, that they rarely, if ever, escape the public re-
proaches. And if influence is to be exerted by the Ex-
ecutive, for improper purposes, it will be quite as easy,
and in its operation less seen, and less suspected, to give
the stipulated patronage in another form, either of office,
or of profitable employment, already existing.
§ 146. The other part of the clause, which disquali-
fies persons, holding any office under the United States,
from being members of either House, during their continu-
ance in office, has been still more universally applauded ;
and has been vindicated upon the highest grounds of pub-
lic policy. It is doubdess founded in a deference to State
jealousy, and a sincere desire to obviate the fears, real or
imaginary, that the General Government would obtain an
undue preference over the State governments. It has
also the strong recommendation, that it prevents any undue
influence from office, either upon the party himself, or
those, with whom he is associated in legislative delibera-
tions. The universal exclusion of all persons holding
office, is (it must be admitted) attended with some incon-
veniences. The Heads of the Departments are, in fact,
thus precluded from proposing, or vindicating their own
measures in the face of the nation in the course of debate ;
and are compelled to submit them to other men, who are
either imperfectly acquainted with the measures, or are
96 CONSTITUTION OF THE UNITED STATES.
indifferent to their success or failure. Thus, that open
and public responsibility for measures, which properly be-
longs to the Executive in all governments, and especially
in a republican government, as its greatest security and
strength, is completely done away. The Executive is
compelled to resort to secret and unseen influence, to pri-
vate interviews, and private arrangements, to accomplish
his own appropriate purposes ; instead of proposing and
sustaining his own duties and measures by a bold and manly
appeal to the nation in the face of its representatives. One
consequence of this state of things, is, that there never can
be traced home to the Executive any responsibility for the
measures, which are planned, and carried at his suggestion.
Patronage may be quite as effective under a different form.
It may confer office on a friend, or a relative, or a depen-
dent. The hope of office, in future, may seduce a man
from his duty, as much as its present possession. And,
after all, the chief guards against venality, in all govern-
ments, must be placed in the high virtue, the unspotted
honor, and the pure patriotism of pubhc men. On this
account, it has been doubted, whether the exclusion of the
Heads of Departments from Congress, has not led to the
use of indirect and irresponsible influence, on the part of
the Executive, over the measures of Congress, far more
than could exist, if the Heads of Departments held seats
in Congress, and might be there compelled to avow and
defend their own opinions. The provision, however, as
it stands, has hitherto been found acceptable to the Amer-
can people, and ought not lightly to be surrendered.
CHAPTER XIV.
JMode of Passing Laws.
§ 147. The seventh section of the first article, de-
clares the mode of passing laws. The first clause is, —
" All bills for raising revenue, shall originate in the House
of Representatives ; but the Senate may propose, or
MODE OF PASSING LAWS. 97
concur with amendments, as in olber bills.'' This clause
Iiad its origin in the known rule of the British Parliament,
that all money bills shall originate in the House of Com-
mons. And so jealous are the House of Commons of
this valuable privilege, that they will not suffer the House
of Lords to make the least alteration or amendment to
any such bill. The general reason, assigned for this priv-
ilege, in that kingdom, is, that all taxes and supplies, raised
upon the people, should originate with their immediate
representatives. But, in truth, it wa§ intended by the pop-
ular branch of the legislature, by this coursej to acquire a
permanent importance in the government ; and to be able
to counterpoise the influence of the House of Lords, a
body having hereditary rights and dignity. The same
reason does not apply, with the same, force to our republi-
can forms of government. But still, as the same power
was exercised under some of the State governments, and
as the House of Representatives may be deemed pecu-
liarly well fitted to bring, to such subjects, a full knowledge
of the local interests, as well as of the wishes and opin-
ions of the people, there is no inconvenience in allowing
to the House the exclusive right to originate all such bills
in the course of legislation. But, as taxes and revenue
laws may bear with great inequality upon some of the
States, and, above all, as direct taxes are, and must, ac-
cording to the Constitijtion, be apportioned among the
States according to the ratio of their population, as al-
ready stated, a powder to amend such laws is properly re-
served to the Senate, where all the States possess an
equal voice. The due influence of all the States is thus
preserved over a subject of such vital importance ; and
it might otherwise happen, that, from the overwhelming
representation of some of the large States, in the House
of Representatives, taxes might be levied, which would
bear, with peculiar severity and hardship, upon the agricul-
tural, commercial, or manufacturing, interests of the small-
er States ; and thus the equilibrium of power, of influence,
and of interest, of the several States, in the National coun-
cils, might be practically subverted.
§ 148. The next clause respects the power of the
9 XIII.
98 CONSTITUTION OF THE UNITED STATES.
President to approve and negative laws. It is as fol-
lows : — " Every bill, which shall have passed the House
of Representatives and the Senate, shall, before it be-
come 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
objections, to the other House, by which it shall, like-
wise, 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 re-
spectively. If any bill shall not be returned by the Pres-
ident 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."
§ 149. The reasons, why the President should possess
a qualified negative, (for an absolute negative would be
highly objectionable,) are, if not quite obvious, at least,
when fairly expounded, entirely satisfactory. In the first
place, there is a natural tendency, in the legislative depart-
ment, to intrude upon the rights, and to absorb the pow-
ers, of the other departments of the government. If the
Executive did not possess this qualified negative, he might
gradually be stripped of all his authority, and become,
what the Governors of some of the States now are, a mere
pageant, and a shadow of magistracy.
§ 150. In the next place, the power is important, as
an additional security against the enactment of rash, im-
mature, and improper laws. In the third place, the Pres-
ident may fairly be deemed tl:ie representative of the
whole nation, the choice being produced by a dlfi^erent
modification of interests and opinions and votes, from that
by which the choice of either branch of the National Le-
MODE OF PASSING LAWS. 99
gislature is produced, either that representing the People,
or that representing the States. His power, therefore,
of a quahfied negative, being founded upon the supposition,
tiiat he truly represents all the interests and opinions of
the Union, introduces a useful element, to check any pre-
ponderating interest of any section, in a particular meas-
ure. It does not, like an absolute negative, suspend legis-
lation, but it merely refers the subject back, for a more
deliberate review of the Senate and House. If two thirds
of each branch still concur in favor of the measure, it be-
comes a law. Thus, a thorough revision of the measure
is guarantied ; and, at the same time, the deliberate wish-
es of the States, and of the people, cannot be disobeyed.
If two thirds of each branch do not dissent from the Pres-
ident's opinion, the natural inference is, that the measure
is not so far beyond all reasonable objections, that it ought
ordinarily to prevail. The negative of the President was
undoubtedly designed by the Constitution to be applied
only on extraordinary occasions and exigencies ; and if
it were to be applied to the common course of legislation,
it might be fraught with great public mischiefs, and weak-
en, if not overthrow, the just power of legislation by
Congress, since it may be presumed, that it can rarely
happen, in a country, having such a diversity of interests,
and pursuits, and opinions, as ours, that a clear majority
of two thirds of each House can be obtained against the
known wishes, and natural influence of the Executive de-
partment. On the other hand, if Congress should often
be driven, by the frequent use of it, to pass laws, in op-
position to the President's negative, it would gradually
introduce a disregard of his opinions, and a hostile oppo-
sition to his authority. Such a state of things would,
certainly, in every view, be most inconvenient and unde-
sirable. The evil, however, could scarcely be of a very
long continuance ; for, if the President should abuse his
power, (as certainly he sometimes may,) the people have
the proper remedies in their own hands, and can compel
him to relinquish office at no distant period.
§ 151. But the qualified negative is not left wholly
without restraint. The President must promptly exer-
100 CONSTITUTION OP THE UNITED STATES.
cise it, within ten days, excluding Sunday ; otherwise the
bill becomes a law. And, on the other hand, Con^fess
are deprived of the power of preventing its due exercise
by a hasty adjournment within the ten days, so as to leave
the President without sufficient time for due deliberation.
If a qualified negative is to be allowed at all, it would
seem thus to be as much restrained, as the public good can
require, or, at least, as much, as its proper exercise can
justify.
§ 152. The remaining clause provides a like regula-
tion in regard to orders, resolutions, and votes, to which
the concurrence of both Houses is necessary. It is, —
" Every order, resolution, or vote, to which the concur-
rence 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 Representa-
tives, according to the rules and limitations prescribed in
the case of a bill." If this provision had not been made.
Congress, by adopting the form of an order, or resolution,
or vote, instead of a bill, might have effectually defeated
the President's negative in many important portions of
legislation. The reason of the exception as to adjourn-
ments, is, that this power is peculiarly fit to be acted
upon by Congress, according to their own discretion ; and,
therefore, it is, (as we have seen,) by a preceding clause,
vested in both Houses, and devolves on the President,
only in cases of their disagreement.
§ 153. We have now completed the review of the
structure and organization of the legislative department ;
and, it has been shown, that it is admirably adapted for a
wholesome and upright exercise of the powers confided
to it. All the checks, which human ingenuity has been
able to devise, or at least all, which, with reference to our
habits, our institutions, and our diversities of local inter-
ests, seem practicable, to give perfect operation to the
machinery, to adjust its movements, to prevent its ec-
centricities, and to balance its forces ; all these have
POWERS OF CONGRESS. TAXATION. 101
been introduced, with singular skill, ingenuity, and wis-
dom, into the arrangements. Yet, after all, the fabric
may fall ; for the work of man is perishable. Nay, it
must fall, if there be not that vhal spirit in the people,
which can alone nourish, sustain, and direct, ah its move-
ments. If ever the day shall arrive, in which the best
talents, and the best virtues shall be driven from of-
fice, by intrigue, or corruption, by the denunciations of
the press, or by the persecutions of party factions, legis-
lation will cease to be national. It will be wise by acci-
dent, and bad by system.
CHAPTER XV.
Powers of Congress. — Taxation.
§ 154. We next come to the consideration of the legis-
lative powers conferred on Congress, which are contain-
ed in the eighth section of the first article. The first clause
is, — " 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 excises
shall be uniform throughout the United States." What
is the true interpretation of this clause, has been matter of
considerable controversy ; that is to say, whether the
words, '' Congress shall have power to lay and collect
taxes, duties, imposts, and excises," constitute a distinct
clause and confer a substantive independent power ; and
the words, " to pay the debts, and provide for the com-
mon defence and general welfare of the United States,"
constitute another, distinct clause, and substantive and
independent power ; or, whether these latter words are a
dependent clause, merely qualifying the former clause,
and so the whole to be read together, as if the words stood
thus, — " Congress shall have power to lay and collect
taxes, duties, imposts, and excises," in order "to pay the
public debts, and to provide for the common defence and
9*
102 CONSTITUTION OF THE UNITED STATES.
general welfare;" that is to say, Congress shall have pow-
er to lay taxes, &c., for the purpose of paying the public
debts, and providing for the common defence and general
welfare. If the former be' the true interpretation, then it
is obvious, that the powers of the National Government,
under color of the authority of the clause to provide for
the common defence and general welfare, would be prac-
tically unhmited. If the latter be the true interpretation,
then the words properly amount to a limitation or qualifi-
cation of the power of taxation ; so that no taxes can be
laid by Congress, except to pay the debts, and to provide
for the common defence and general welfare. The latter
seems the more just and solid interpretation of the words,
and most conformable to the true spirit and objects of the
instrument.
§ 155. The necessity of the power of taxation, to the
vigorous action of the National Government, would seem
to be self-evident. The want of it, was one of the prin-
cipal defects under the Confederation. A National Gov-
ernment, without the power of providing for its own ex-
penditures, charged with pubhc burdens and duties, and
yet deprived of adequate means to sustain and perform
them, would soon become wholly inert and imbecile. It
would be almost as absurd, as to bind a man immovably to
the earth, and yet at the same time to require him to walk
abroad. If, then, there is to be a real, effective National
Government, there must be a power of taxation given to
it, adequate to its wants, its objects, and its duties. The
only proper remaining inquiry would be, whether the
power of taxation should be limited to particular speci-
fied objects and sources, or whether the power should
be general and unhmited. It is obvious, that if limited
to particular objects and sources, those objects and sour-
ces might be exhausted, or might become utterly inade-
equate to the public wants, or might be taxed to an
extent, which would be ruinous to particular employ-
ments and interests. Thus, for example, if the power
were Hmited to mere taxes on commerce, and the nation
should be engaged in war, or should otherwise be in-
volved in heavy expenditures in the course of unfortunate
POWERS OF CONGRESS. TAXATION. 103
events, the very attempt to defray the national expendi-
tures, and supply the national wants, by taxes on com-
merce, might amount to an utter annihilation of all its
value, and be equivalent to a total prohibition of all for-
eign trade. The same would be equally true, if the pow-
er of taxation were limited exclusively to lands, or to. the
products of agriculture, or manufactures, or to taxes on
particular articles, such as wheat, corn, cotton, flour, rice,
or domestic animals. The power of taxation, on the
other hand, if general and unrestricted, will leave to Con-
gress a free choice, from time to time, to select such arti-
cles for taxation as shall be most productive, and least
burdensome, and thus to supply the public wants, without
endangering the interests, or depressing the products, of
every section of the Country. For these reasons, the
power has been given in unlimited terms ; and the wisdom
of the provision will scarcely now be called in question,
by any considerate mind.
§ 156. The words used, are, " taxes, duties, imposts,
and excises. '^ In a general sense, all contributions, im-
posed by the Government upon individuals for the service
of the State, are taxes, by whatever name they may be
called. In this sense, they are usually divided into two
classes ;— direct taxes, under which head are included
taxes on land, and other real estate, and poll, or capita-
tion taxes, or taxes on the polls or persons of individuals ;
mdirect taxes, under which head are classed those, which
are levied only upon articles of consumption, and, of
course, of which every person pays only so much, as he
consumes of the articles. The word " duties," is often
used as synonymous with taxes ; but is more often used
as synonymous with "customs," which are taxes levied
upon goods and merchandise, which are exported or im-
ported. In this sense, duties are equivalent to " imposts,"
although the latter word is often restrained to duties on
goods and merchandise, which are imported from abroad.
" Excises," is a word, generally used in contradistinction
to '■' imposts," in its restricted sense ; and is applied to
internal or inland impositions, levied sometimes upon the
consumption of a commodity, sometimes upon the retail
104 CONSTITUTION OF THE UNITED STATES.
sale of it, and sometimes upon the manufacture of it.
Thus, a tax, levied upon goods imported from a foreign
country, is generally called an " impost" duty ; and a tax,
levied upon goods manufactured or sold in a country, is
called an " excise" duty. The meanings of these words,
therefore, often run into each other ; and all of them are
used in the Constitution, to avoid any ambiguity, as to
any one of them being used in a general sense, or in a re-
stricted sense, which might involve endless doubts as to
the true extent of the constitutional power.
§ 157. The power of taxation is not, however, unlim-
ited in its character. The taxes levied must be (as we
have seen) either to pay the pubhc debts, or to provide
for the common defence and general welfare of the United
States. They cannot be levied solely for foreign pur-
poses, or in aid of foreign nations, or for purposes not na-
tional in their objects or character. In the next place,
all direct taxes (as we have also seen) are to be ap-
portioned among the several States, in the same manner
as Representatives, that is, according to the numbers of
the population, to be ascertained in the particular mode
pointed out in the Constitution. There is another clause
of the Constitution, on the same subject, which declares,
*' That no capitation, or other direct tax, shall be laid, un-
less in proportion to the census, or enumeration, herein
before directed to be taken." There do not seem to be
any other cases, in v/hich a direct tax can be laid accord-
ing to the sense of the Constitution, except by a direct
tax on land or other real estate, or a capitation or poll
tax ; for no other taxes seem capable of an apportion-
ment among the States. All other taxes, that is, all
" duties, imposts, and excises," are required to be uni-
form throughout the United States. The reason of the
latter rule, is, to prevent Congress from giving any undue
preference to the pursuits or interests of one -State over
those of any other. It might otherwise happen, that the
agriculture, commerce, or manufactures of one State
might be built up on the ruins of the interests of another ;
and, the combination of a few States in Congress might
secure a monopoly of certain branches of trade and busi-
ness exclusively to themselves.
POWERS OF CONGRESS. TAXATION. 105
§ 158. And further, to enforce this uniformity, and to
preserve the equal rights of all the States, it is declared,
in a subsequent clause of the Constitution, that " No tax
or duty shall be laid on articles exported from any State.
No preference shall be given, by any regulation of com-
merce 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."
§ 159. The obvious object of these provisions is, to
prevent any possibility of applying the power to lay taxes,
or regulate commerce, injuriously to the interests of any
one State, so as to favor or aid another. If Congress
were allowed to lay a duty on exports from any one State,
it might unreasonably injure, or even destroy, the staple
productions, or common articles of that State. The in-
equality of such a tax would be extreme. In some of the
States, the whole of their means result from agricultural
exports. In others, a great portion is derived from other
sources ; from external fisheries ; from freights ; and from
the profits of commerce in its largest extent. The bur-
den of such a tax would, of course, be very unequally dis-
tributed. The power is, therefore, wholly taken away to
intermeddle with the subject of exports. On the other
hand, preferences might be given to the ports of one State
by regulations, either of commerce or of revenue, which
might confer on them local facilities or privileges in regard
to commerce, or to revenue. And such preferences might
be equally fatal, if indirectly given under the milder form
of requiring an entry, clearanoe, or payment of duties in
the ports of any State, other than the ports of the State,
to or from which the vessel was bound. The last clause,
therefore, does not prohibit Congress from requiring an
entry or clearance, or payment of duties at the custom-
house on importations in any port of a State, to or from
which the vessel is bound ; but cuts off the right to re-
quire such acts to be done in other States, to which the
vessel is not bound. In other words, it cuts oft' the power
to require that circuity of voyage, which, under the Brit-
ish colonial system, was employed to interrupt the Amer-
ican commerce before the Revolution. No American
106 CONSTITUTION OF THE UNITED STATES.
vessel could then trade with Europe, unless through a cir
cuitous voyage to and from a British port.
§ 160. But, as the power of taxation is not exclusive-
ly vested in the National Government, but may also be
concurrently exercised by the State Governments, it be-
came essential, in order fully to effectuate the same gen-
eral purposes, and to prevent any State from securing un-
due preferences and monopolies in-its own favor, to lay
some restraints upon the exercise of this power by the
States. iVccordingly another clause in the Constitution
declares, — " No State shall, without the consent of Con-
gress, 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 and exports, shall
be for the use of the treasury of the United States ; and
all such laws shall be subject to the revision of Congress.
No State shall, without the consent of Congress, lay any
tonnage duty." A petty warfare of regulation among the
States is thus prevented, which might otherwise rouse re-
sentments, and create dissensions, dangerous to the peace
and harmony of the Union. The exceptions in favor of
inspection laws, to a limited extent, is for the purpose of
enabhng each State to improve the quality of articles,
produced by the labor and industry of its own inhabitants ;
and thus to fit them better for exportation, as well as for
domestic use. Yet, even here, the superintending power
of Congress is reserved, lest, under color of such laws,
attempts should be made Jo injure the interests of other
States. The net produce of all such duties and imposts
is to be for the use of the National treasury ; and the
laws themselves, by which they are imposed, 9re subject
to the revision of Congress. Thus, the temptations on the
part of any State to levy heavy inspection duties are ma-
terially diminished, and an effectual remedy is provided to
meet any intentional, or accidental excess. Having thus
brought together all the various, but scattered articles of
the Constitution, on the subject of taxation, the subject
may be dismissed with the single remark, that as no power
is more likely, in its abuse, to be detrimental to the pubhc
POWER OVER COMMERCE. 107
welfare, so no one is guarded with more care, and adjust-
ed with more anxious deference to local and sectional in-
terests.
§ 161. Notwithstanding, however, all the solicitude
manifested by the Constitution, on this subject, inasmuch
as the power of taxation is concurrent in the National and
State Governments, it is obvious, that many nice and del-
icate questions must perpetually arise (as indeed some have
already arisen) as to the time and boundaries of the power
and rights of each government. For, however true it
may be, that in a direct conflict between the constitu-
tional authority of the Union and that of a State, the for-
mer must be deemed paramount and superior in its obliga-
tory force ; yet the question when, and how far, such a
conflict does in fact exist, must often involve many diffi-
cult and embarrassing inquiries, which do not admit of any
universal solution.
CHAPTER XVI.
Power to Borroxo Money ^ and Regulate Commerce.
§ 162. The next power of Congress is, '* to bor-
row money on the credit of the United States." This
power, also, seems indispensable to the sovereignty and
existence of the National Government ; for otherwise, in
times of great public dangers, or severe pubhc calamities.
It might be impossible to provide, adequately, for the pub-
lic exigencies. In times of peace, it may not, ordinarily,
be necessary for the expenditures of a nation to exceed its
revenues. But the experience of all nations must convince
us, that, in times of war, the burdens and expenses of a
single year may more than equal the ordinary revenue of
ten years. And, even in times of peace, there are occa-
sions, in which loans may be the most facile, convenient,
and economical means of supplying any extraordinary ex-
penditure. The experience of the United States, has
already shown the importance of the power, both in peace
108 COiN'STITUTION OF THE UNITED STATES.
and in war. Without this resource, neither the war of
Independence, nor the more recent war with Great Brit-
ain could have been successfully carried on, or terminated.
And the purchase of Louisiana was by the same means
promptly provided for, without being felt by the nation, in
its ordinary fiscal concerns.
§ 163. The next power of Congress is, '' to regu-
late commerce with foreign nations, and among the several
States, and with the Indian tribes." The want of this
power to regulate commerce was, as has been already
suggested, a leading defect of the Confederation. In the
'different States, the most opposite and conflicting regula-
tions existed ; each pursued its own real or supposed local
interests ; each was jealous of the rivalry of its neighbors ;
and each was successively driven to retaliatory measures,
in order to satisfy public clamor, or to alleviate private
distress. In the end, however, all their measures became
utterly nugatory, or mischievous, engendering mutual hos-
tilities, and prostrating all their commerce at the feet of
foreign nations. It is hardly possible to exaggerate the
oppressed and degraded state of domestic commerce, man-
ufactures, and agriculture, at the time of the adoption of
the Constitution. Our ships were almost driven from the
ocean ; our work-shops were nearly deserted ; our me-
chanics were in a starving condition ; and our agriculture
v/as sunk to the lowest ebb. These were the natural re-
salts of the inabihty of the General Government to regu-
late commerce, so as to prevent the injurious monopolies
and exclusions of foreign nations, and the conflicting, and
often ruinous regulations of the different States. If du-
ties were laid by one State, they were rendered inefl^ec-
tual by the opposite policy of another. If one State gave
a preference to its own ships or commerce, it was coun-
teracted by another. If one State endeavored to foster
its own manufactures by any measures of j)rotection, that
made it an object of jealousy to others ; and brought upon
it the severe retaliation of foreign ^overniifents. If one
State was peculiarly favored in its agricultural products,
that constituted an inducement with others to load them
with some restrictions, which should redress the inequality.
POWER OVER COMMERCE, 109
It was easy to foresee, that this state of things could not
long exist, without bringing on a border warfare, and a
deep-rooted hatred, among neighboring States, fatal to the
Union, and, of course, fatal also to the liberty of every
member of it.
§ 164. The power ''to regulate foreign commerce,"
enabled the government at once to place the whole coun-
try upon an equality with foreign nations ; to compel them
to abandon their narrow and selfish policy towards us ;
and to. protect our own commercial interests against their
injurious competitions. The power to regulate commerce
'' among the several States," in like manner, annihilated
the causes of domestic feuds and rivalries. It compelled
every State to regard the interests of each, as the inter-
ests of all ; and thus diffused over all the blessings of a
free, active, and rapid exchange of commodities, upon
the footing of perfect equality. The power to regulate
commerce "with the Indian tribes," was equally ne-
cessary to the peace and safety of the frontier States.
Experience had shown the utter impracticability of escap-
ing from sudden wars, and invasions, on the part of these
tribes ; and the dangers were immeasurably increased by
the want of uniformity of regulations and control in the
intercourse with them. Indeed, in nothing has the pro-
found wisdom of the framers of the Constitution been
more displayed, than in the grant of this power to the
Union. By means of it, the country has risen from pov-
erty to opulence ; from a state of narrow and scanty re-
sources to an ample national revenue ; from a feeble, and
disheartening intercourse and competition with foreign na-
tions, in agriculture, commerce, manufactures, and popu-
lation, to a proud, and conscious independence in arts, in
numbers, in skill, and in civil polity.
§ 165. In considering this clause of the Constitution,
several important inquiries are presented. In the first
])lace, what is the natural import of the terms ; in the
next place, how far the power is exclusive of that of
the States ; in the third place, to what purposes and for
what objects the power may be constitutionally applied ;
and in the fourth place, what are the true nature and ex-
10 XIII.
110 CONSTITUTION OF THE UNITED STATES.
tent of the power to regulate commerce with the Indian
tribes.
§ 166. In the first place, then, what is the constitutional
meaning of the words, " to regulate commerce ;" for the
Constitution being (as has been aptly said) one of enu-
meration, and not of definition, it becomes necessary, in
order to ascertain the extent of the power, to ascertain
the meaning of the words. The power is, to regulate ;
that is, to prescribe the rule, by which commerce is to be
governed. The subject to be regulated, is commerce. Is
that limited to traffic, to buying and selling, or the inter-
change of commodities ? Or does it comprehend navi-
gation and intercourse ? If the former construction is
adopted, then a general term, applicable to many objects,
is restricted to one of its significations. If the latter, then
a general term is retained in its general sense. To adopt
the former, without some guiding grounds furnished by the
context, or the nature of the power, would be improper.
The words being general, the sense must be general, also,
and embrace all subjects comprehended under them, un-
less there be some obvious mischief, or repugnance to
other clauses, to hmit them. In the present case, there is
nothing to justify such a Hmitation. Commerce undoubt-
edly is traffic ; but it is something more. It is inter-
course. It describes the commercial intercourse between
nations, and parts of nations, in all its branches ; and is
regulated by prescribing rules for carrying on that inter-
course. The mind can scarcely conceive a system for
regulating commerce between nations, which shall exclude
all laws concerning navigation ; which shall be silent on
the admission of the vessels of one nation into the ports of
another ; and be confined to prescribing rules for the con-
duct of individuals in the actual employment of buying and
selling, or barter. It may, therefore, be safely affirmed,
that the terms of the Constitution have, at all times, been
understood to include a power over navigation, as well as
over trade, over intercourse, as well as over traffic. It
adds no small strength to this interpretation, that the prac-
tice of all foreign countries, as well as of our own, has
uniformly conformed to this view of the subject.
POWER OVER COMMERCE. Ill
§ 167. The next inquiry is, whether this power to reg-
ulate commerce, is like that to lay taxes. The latter,
may well be concurrent, while the former, is exclusive,
resulting from the different nature of the two powers.
The power of Congress in laying taxes is not neces-
sarily, or naturally inconsistent with that of the States.
Each may lay a tax on the same property, without inter-
fering with the action of the other ; for taxation is but
taking small portions from the mass of property, which is
susceptible of almost infinite division. In imposing taxes
for State purposes, a State is not doing what Congress is
empowered to do. Congress is not empowered to tax
for those purposes, which are within the exclusive prov-
ince of the States. When, then, each government exer-
cises the power of taxation, neither is exercising the power
of the other. But when a State proceeds to regulate com-
merce with foreign nations, or among the several States,
it is exercising the very power, which is granted to Con-
gress ; and is doing the very thing, which Congress is au-
thorized to do. There is no analogy, then, between the
power of taxation, and the power of regulating commerce.
§ 168. Nor can any power be inferred in the States, to
regulate commerce, from other clauses in the Constitution,
or the acknowledged rights exercised by the States. The
Constitution has prohibited the States from laying any im-
post or duty on imports or exports ; but this does not
admit, that the State might otherwise have exercised the
power, as a regulation of commerce. The laying of such
imposts and duties may be, and indeed often is, used, as
a mere regulation of commerce, by governments possess-
ing that power. But the laying of such imposts and du-
ties is as certainly, and more usually, a right exercised as
a part of the power to lay taxes ; and with this, latter
power the States are clearly intrusted. So that the pro-
hibition is an exception from the acknowledged power of
the State to lay taxes, and not from the questionable power
to regulate commerce. Indeed, the Constitution treats
these as distinct and independent powers. The same
remarks apply to a duty on tonnage.
§ 169. In the next place, to what extent, and for what
112 CONSTITUTION OF THE UNITED STATES.
objects and purposes, the power to regulate commerce
may be constitutionally applied.
§170. And first, among the States. It is not doubted,
that it extends to the regulation of navigation, and to the
coasting trade and fisheries, within, as well as without
any State, w^herever it is connected with the commerce or
intercourse with any other State, or with foreign nations.
It extends to the regulation and government of seamen
on board of American ships ; and to conferring privileges
upon ships built and owned in the United States, in do-
mestic, as well as in foreign trade. It extends to quarantine
laws, and pilotage laws, and wrecks of the sea. It ex-
tends, as well to the navigation of vessels engaged in car-
rying passengers, and whether steam vessels or of any
other description, as to the navigation of vessels engaged
in traffic and general coasting business; It extends to
the laying of embargoes, as well on domestic, as on for-
eign voyages. It extends to the construction of light-
houses, the placing of buoys and beacons, the removal of
obstructions to navigation in creeks, rivers, sounds, and
bays, and the estabhshment of securities to navigation
against the inroads of the ocean. It extends also to the
designation of a particular port or ports of entry and deliv-
ery for the purposes of foreign commerce. These pow-
ers have been actually exerted by the National Government
under a system of laws, many of which commenced with
the early establishment of the Constitution ; and they hav^e
continued unquestioned unto our day, if not to the utmost
range of their reach, at least to that of their ordinary ap-
plication.
§ 171. Many of the like powers have been applied in
the regulation of foreign commerce. The commercial
system of the United States has also been employed some-
times for the purpose of revenue ; sometimes for the pur-
pose of prohibition ; sometimes for the purpose of retali-
ation and commercial reciprocity ; sometimes to lay em-
bargoes ; sometimes to encourage domestic navigation,
and the shipping and mercantile interest, by bounties, by
discriminating duties, and by special preferences and priv-
ileges ; and sometimes to regulate intercourse with a view
POWER OVER COMMERCE. 113
to mere political objects, such as to repel aggressions,
increase the pressure of war, or vindicate the rights of
neutral sovereignty. In all these cases, tlie right and
duty have been conceded to the National Govenmient by
the unequivocal voice of the people.
§ 172. It may be added, that Congress have also,
from the earliest period of the government, applied tjje
same power of regulating commerce for the purpose of
encouraging and protecting domestic manufactures ; and
although this application of it has been recently contested,
yet Congress have never abandoned the exercise of it for
such a purpose. Indeed, if Congress does not possess
the power to encourage domestic manufactures, by regu-
lations of commerce, it is a power, that is utterly annihi-
lated ; for it is admitted, on all sides, that the States do
not possess it. And America would then present the
singular spectacle of a nation voluntarily depriving itself,
in the exercise of its admitted rights of sovereignty, of all
means of promoting some of its most vital interests.
§ 173. In respect to trade with the Indian tribes. Ante-
cedently to the American Revolution, the authority to reg-
ulate trade and intercourse with the Indian tribes, whether
they were within, or without the boundaries of the Colo-
nies, was uAderstood to belong to the prerogative of the
British crown. And after the American Revolution, the
hke power would naturally fall to the Federal Government,
with a view to the general peace and interests of all the
States. Two restrictions, however, upon the power, were,
by express terms, incorporated into the Confederation,
which occasioned endless embarrassments and doubts.
The power of Congress was restrained to Indians, not
members of any of the States ; and was not to be exercised
so as to violate or infringe the legislative right of any State,
within its own limits. What description of Indians were
to be deemed members of a State, was never settled under
the Confederation ; and was a question of frequent per-
plexity and contention in the federal councils. x\nd how
the trade with Indians, though not members of a State,
yet residing within its legislative jurisdiction, was to be
regulated by an external authority, without so far intrud-^
10*
ll4 CONSTITUTION OF THE UNITED STATES.
mg on the internal rights of legislation, was absolutely in-
comprehensible. Ill this case, as in some other cases,
the Articles of Confederation inconsiderately endeavored
to accomplish impossibilities ; to reconcile a partial sov-
ereignty in the Union, with complete sovereignty in the
States ; to subvert a mathematical axiom, by taking away
a part, and letting the whole remain. The Constitution
has wisely disembarrassed the power of these two hmita-
tions ; and has thus given to Congress, as the only safe
and proper depositary, the exclusive power, which be-
longed to the Crown in the ante-revolutionary times ; a
power indispensable to the peace of the States, and to the
just preservation of the rights and territory of the Indians.
CHAPTER XVII.
JSTaturalizatiorij Bankruptcy, and Coinage of Money.
§ 174. The next power of Congress is, '' to establish
a uniform rule of naturalization, and uniform laws on the
subject of bankruptcies throughout the States." The
power of naturalization is, whh great propriety, confided
to Congress, since, "if left to the States, they might natu-
ralize foreigners upon very different, and even upon oppo-
site systems ; and, as the citizens of all the States have
common privileges in all, it would thus be in the power
of any one State to defeat the wholesome policy of all
the others in regard to this most important subject. Con-
gress alone can have power to pass uniform laws, obliga-
tory on all the States ; and thus to adopt a system, which
shall secure all of them against any dangerous results from
the indiscriminate admission of foreigners to the right of
citizenship upon their first landing on our shores. And,
accordingly, this power is exclusive in Congress.
§ 175. The power to pass bankrupt laws is equally
important, and proper to be intrusted to Congress, al-
though it is greatly to be regretted, that it has not, except
for a very brief period, been acted upon by Congress.
NATURALIZATION. BANKRUPTCY. 115
Bankrupt and insolvent laws, when properly framed, have
two great objects in view ; first, to secure to honest but
unfortunate debtors a discharge from debts, which they
are unable to pay, and thus to enable them to begin anew
in the career of industry, without the discouraging fear,
that it will be wholly useless ; secondly, to secure to cred-
itors a full surrender, and equal participation, of and in the
effects of their debtors, when they have become bank-
rupt, or failed in business. On the one hand, such laws
relieve the debtor from perpetual bondage to his creditors,
in the shape, either of an unlimited imprisonment for his
debts, or of an absolute right to appropriate all his future
earnings. The latter course obviously destroys all en-
couragement to future enterprise and industry, on the part
of the debtor ; the former is, if possible, more harsh, se-
vere, and indefensible ; for it makes poverty, in itself
sufficiently oppressive, the cause or occasion of penalties
and punishments.
§ 176. It is obvious, that no single State is competent
to pass a uniform system of bankruptcy, which shall ope-
rate throughout all of them. It can have no power to.
discharge debts, contracted in other States ; or to bind
creditors in other States. And it is hardly within the
range of probability, that the same system should be uni-
versally adopted, and persevered in permanently, by all
the States. In fact, before, as w^ell as since the adoption
of the Constitution, the States have had very different
systems on the subject, exhibiting a policy as various and
sometimes as opposite, as could well be imagined. The
future will, in all human probability, be, as the past. And
the utter inability of any State to discharge contracts made
within its own territorial limits, before the passage of its
own laws, or to discharge any debts whatever, contracted
in other States, or due to the citizens thereof, must per-
petually embarrass commercial dealings, discourage indus-
try, and diminish private credit and confidence. The
■remedy is in the hands of Congress. It has been given
for wise ends, and has hitherto been strangely left without
any efficient operation.
§ 177. The next power of Congress is, to " coin mon-
116 CONSTITUTION OF THE UNITED STATES.
ey, regulate the value thereof, and of foreign coins, and
fix the standard of weights and measures." The object
of the power over the coinage and currency of the country
is, to produce uniformity in the value of money throughout
the Union, and thus to save us from the embarrassments
of a perpetually fluctuating and variable currency. ]f
each State might coin money, as it pleased, there would
be no security for any uniform coinage, or any uniform
standard of value ; and a great deal of base and false coin,
would constantly be throw^n into the market. The evils
from this cause are abundantly felt among the small prin-
cipahties of continental Europe. The power to fix the
standard of weights and measures is a matter of great pub-
lic convenience, although it has hitherto remained in a
great measure dormant. The introduction of the decimal
mode of calculation, in dollars and cents, instead of the
old and awkward system of pounds, shillings, and pence,
has been found of great pubhc convenience, although it
was at first somewhat unpopular. A similar system in
weights and measures has been thought by many statesmen
to have advantages equally great and universal. At all
events, the power is safe in the hands of Congress, and
may hereafter be acted upon, whenever either our foreign,
or our domestic intercourse, shall imperiously require a
new system.
§ 178. The next power of Congress is, ''to provide
for the punishment of counterfeiting the securities, and
current coin of the United States." This is a natural,
and, in a just view, an indispensable appendage to the
power to borrow money, and to coin money. Without
it, there would be no adequate means for the General
Government to punish frauds or forgeries, detrimental to
its own interests, and subversive of public and private
confidence.
POST OFFICE. PATENTS FOR INVENTIONS. 117
CHAPTER XVIII.
Post Office and Post Roads. — Patents for Inventions.
§ 179. The next power of Congress, is ''to establish
post offices, and post roads." This power is peculiarly
appropriate ^o the National Government, and would be
at once unwieldy, dilatory, and irregular in the hands of
the States, from the utter impracticability of adopting any
uniform system of regulations for the whole continent, and
from the inequality of the burdens, and benefits of any
local system, among the several States, in proportion to
their own expenditures. Under the auspices of the Gen-
eral Government, the post office has already become one
of the most beneficent, and useful of our national estab-
lishments. It circulates intelligence, of a commercial,
political, literary, and private nature, with incredible speed
and regularity. It thus administers, in a very high degree,
to the comfort, the interests, and the necessities of per-
sons in every rank and station of life. It is not less ef-
fective, as an instrument of the government ; enabling it,
in times of peace and war, to send its orders, execute its
measures, transmit its funds, and regulate its operations,
with a promptitude and certainty, which are of incalcula-
ble importance, in point of economy, as well as of ener-
gy. The rapidity of its movements has been, in a gen-
eral view, doubled within the last twenty years ; and there
were, at the close of the year 1838, twelve thousand
five hundred and fifty-three post offices in the United
States ; and mails then travelled, in various directions and
on various routes, more than one hundred and thirty-four
thousand^ miles. The net amount of postage, in the same
year, amounted to little short of three millions of dollars.
It seems wholly unnecessary to vindicate the grant of a
power, which has been thus demonstrated to be of the
highest value to all the people of the Union.
§ ISO. The next power of Congress is, " to promote
118 CONSTITUTION OF THE UNITED STATES.
the progress of science, and the useful arts, by securing,
for limited times, to authors, and inventors, the exclusive
right to their respective writings, and discoveries." The
utiHty of this power has never been questioned. Indeed,
if authors, or inventors, are to have any real property or
interest in their writings, or discoveries, it is manifest,
that the power of protection must be given to, and admin-
istered by, the General Government. A copy-right, or
patent, granted by a single State, might be violated with
impunity by every other ; and, indeed, adverse titles might
at the same time be set up in different States to the same
thing, each of which, according to the laws of the State,
in which it originated, might be equally vahd. No class
of men are more meritorious, or are better entitled to
public patronage, than authors and inventors. They have
rarely obtained, as the histories of their lives sufficiently
establish, any due encouragement and reward for their in-
genuity and pubhc spirit. They have often languished
in poverty, and died in neglect, while the w^orld has de-
rived immense wealth from their labors, and science and
the arts have reaped unbounded advantages from their
discoveries. They have but too often possessed a barren
fame, and seen the fruits of their genius gathered by those,
who have not blushed to purloin, what they have been
unable to create. It is, indeed, but a poor reward, to
secure to authors and inventors, for a limited period, only,
an exclusive title to that, which is, in the noblest sense,
their own property ; and to require it ever afterwards to be
dedicated to the public. But, such as the provision is, it
is impossible to doubt its justice, or its policy, so far as
it aims at their protection and encouragement.
§ 181. The power, in its terms, is confined to authors
and inventors ; and cannot be extended to the introducers
of any new works or inventions. This has been thought,
by some persons of high distinction, to be a defect in the
Constitution. But perhaps the policy of further extending
the right is questionable ; and, at all events, the restriction
has not hitherto operated as any discouragement of science
or the arts. It has been doubted, whether Congress has
authority to decide the fact, that a person is an author or
PUNISHMENT OF PIRACIES AND FELONIES. 119
inventor, in the sense of the Constitution, so as to preclude
that question from judicial inquiry. But, at all events,
such a construction ought never to be put upon the terms
of any general act in favor of a particular investor, unless
't be inevitable.
§ 182. The next power of Congress is, " to constitute
tribunals inferior to the Supreme Court." But this will
hereafter properly come under review, in considering the
structure and powers of the Judicial department.
CHAPTER XIX.
Punishment of Piracies and Felonies. — Declaration of
War.
§ 183. The next power of Congress is, " to define,
and punish piracies and felonies, committed on the high
seas, and offences against the law of nations." Piracy is
commonly defined to be robbery, or forcible depredation
upon the high seas with intent to steal. But " felony"
is a term, not so exactly understood or defined. It is
usually applied to designate capital offences, that is, of-
fences punishable with death ; but its true original mean-
ing seems to be, to designate such offences as are by the
common law punished by forfeiture of lands and goods.
" Offences against the law of nations" are still less clearly
defined ; and therefore, as to these, as well as to felonies,
the power to define, as well as to punish, is very properly
given. As the United States are responsible to foreign
governments for the conduct of our own citizens on the
high seas, and as the power to punish offences committed
there is also indispensable to the due protection and sup-
port of our navigation and commerce, and the States,
separately, are incapable of affording adequate redress in
such cases, the power is appropriately vested in the Gen-
eral Government.
§ 184. What the true meaning of the phrase ''high
seas," is, within the intent of this clause, does not seem
120 CONSTITUTION OF THE UNITED STATES.
to be matter of any serious doubt. In order to understand
it, resort must be had to the common law, in wiiich, the
definition of "high seas" is, that the high seas embrace
not only all the waters of the ocean, which are out of sigiit
of land, but also all waters on the seacoast below low-
water mark, whether those waters be within the territorial
sov^ereignty of a foreign nation or of a domestic State.
It has accordingly been heJd, by our ablest law writers,
that the main or high seas properly begin at low-water
mark.
§ 185. The next power of Congress is, " to declare
war, grant letters of marque and reprisal, and make rules
concerning captures on land and water." That the power
to declare war should belong exclusively to the National
Government, w^ould hardly seem matter of controversy.
If it belonged to the States severally, it would be in the
power of any one of them, at any time, to involve the
whole Union in hostilities with a foreign country, not only
against their interests, but against their judgement. Their
very existence might thus be jeoparded without their con-
sent, and their liberties sacrificed to private resentment,
or popular prejudice. The power cannot, therefore, be
safely deposited, except in the General Government ; and,
if in the General Government, it ought to belong to Con-
gress, where all the States and all the people of the States
are represented ; and where a majority of both Houses
must concur, to authorize the declaration. War, indeed,
is, in its mildest form, so dreadful a calamity ; it destroys
so many lives, wastes so much property, and introduces
so much moral desolation ; that nothing but the strongest
state of necessity can justify, or excuse it. In a repub-
lican government, it should never be resorted to, except
as a last expedient to vindicate its rights ; for military
power and military ambition have but too often fatally tri-
umphed over the liberties of the people.
§ 1 86. The power to declare war, if vested in the Gen-
eral Government, might have been vested in the President,
or in the Senate, or in both, or in the House of Repre-
sentatives alone. In monarchies, the power is ordinarily
vested in the Executive. But certainly, in a republic.
DECLARATION OF WAR. 121
the chief magistrate ought not to be clothed with a power
so summary, and, at the same time, so full of dangers to the
public interest and the public safety. It would be to com-
mit the Hberties, as well as the rights of the people, to the
ambition, or resentment, or caprice, or rashness of a single
mind. If the power were confided to the Senate, either
alone, or in connection with the Executive, it might be
more safe in its exercise, and the less liable to abuse.
Still, however, in such a case, the people, who were to
bear the burdens, and meet the sacrifices and sufferings
of such a calamity, would have no direct voice in the mat-
ter. Yet the taxes and the loans, which would be required
to carry on the war, must be voted by their Representa-
tives, or there would be an utter impossibihty of urging it
with success. If the Senate should be in favor of war,
and the House of Representatives against it, an immediate
conflict would arise between them, and in the distraction
of the public councils, nothing but disaster or ruin would
follow the nation. On the contrary, if the House of Rep-
resentatives were called upon by the Constitution to join
in the declaration of war, harmony in the public coun-
cils might fairly be presumed in carrying on all its opera-
tions ; for it would be a war sustained by the authority of
the voice of the people, as well as of the States. This
reasoning was decisive in confiding the power to Con-
gress.
§ 187. ^' Letters of marque and reprisal" are commis-
sions, granted to private persons and ships, to make cap-
tures ; and are usually granted in times of general war.
The power to declare war would, of itself, carry the inci-
dental power to grant letters of marque and reprisal, and
to make rules concerning captures, in a general war.
But such letters are also sometimes granted by nations,
having no intention to enter into a general war, in order
to redress a grievance to a private citizen, which the offend-
ing nation refuses to redress. In such a case, a commis-
sion is sometimes granted to the injured individual, to make
a reprisal upon the property of the subjects of that nation
to the extent of his injury. It thus creates an imperfect
state of hostilities, not necessarily including a general war-
11 , XIII
122 CONSTITUTION OF THE UNITED STATES.
fare. Still, however, it is a dangerous experiment ; and
the more usual, and wise course is, to resort to negotia-
tions in such cases, and to wait until a favorable moment
occurs to press the claim.
§ 183. If captures are to be made, as they necessarily
must be, to give efficiency to a declaration of war, it follows,
that the General Government ought to possess the power to
make rules and regulations concerning them, thereby to
restrain personal violence, intemperate cupidity, ^nd de-
grading cruelty.
CHAPTER XX.
Poioer as to Army and J^avy.
§ 189. The next power of Congress is, *' to raise and
support armies ; but no appropriation of money to that
use shall be for a longer term than two years." The
power to raise armies would seem to be an indispensable
incident to the power to declare war, if the latter is not
to be a mere idle sound, or instrument of mischief. Un-
der the Confederation, however, the two powers were
separated ; Congress were authorized to declare war ;
but they could not raise troops. They could only make
requisitions upon the States to raise them. The experi-
ence of the whole country, during the Revolutionary War,
established, to the satisfaction of every statesman, 'the
utter inadequacy and impropriety of this system of re-
quisition. It was equally at war with economy, efficiency,
and safety. It gave birth to a competition between the
States, which created a kind of auction of men. In order
to furnish the quotas required of them, they outbid each
other, till bounties grew to an enormous and insupportable
size. On this account, many persons procrastinated their
enlistment, or enlisted only for short periods. Hence,
there were but slow and scanty levies of men in the most
critical emergencies of our affiiirs ; short enlistments at
an unparalleled expense ; and continual fluctuations in the
POWER AS TO AR3IY AND NAVY. 123
troops, ruinous to their discipline, and subjecting the pub-
lic safety frequently to the perilous crisis of a disbanded
army. Hence also arose those oppressive expedients for
raising men, which were occasionally practised, and which
nothing, but the enthusiasm of hberty, could have induced
the people to endure. The burden was also very une-
qually distributed. The States near the seat of war, in-
fluenced by motives of self-preservation, made efforts to
furnish their quotas, which even exceeded their abilities ;
while those at a distance were exceedingly remiss in their
exertions. In short, the army was frequently composed
of three bodies of men ; first, raw recruits ; secondly,
persons, who were just about completing their term of
service ; and thirdly, of persons, who had served out half
their term, and were quietly waiting for its determination.
Under such circumstances, the wonder is not, that its
mihtary operations were tardy, irregular, and often un-
successful ; but, that it was ever able to make headway
at all against an enemy, possessing a fine establishment,
well appointed, well armed, w^ell clothed, and well paid.
The appointment, too, by the States, of all regimental
officers, had a tendency to destroy all harmony and sub-
ordination, so necessary to the success of military life.
The consequence was (as is well known) general ineffi-
ciency, want of economy, mischievous delays, and great
inequality of burdens. This is, doubtless, the reason,
why the power is expressly given to Congress. It in-
sures promptitude and unity of action, and, at the same
time, promotes economy and harmony of operations.
Nor is it in war only, that the power to raise armies may
be usefully applied. It is important to suppress domestic
rebellions and insurrections, and to prevent foreign ag-
gressions and invasions. A nation, which is prepared for
war in times of peace, will, thereby, often escape the ne-
cessity of engaging in war. Its rights will be respected,
and its wrongs redressed. Imbecihty and want of prep-
aration invite aggression, and protract controversy.
§ 190. But, inasmuch as the power to raise armies
may be perverted in times of peace to improper purposes,
a restriction is imposed upon the grant of appropriations
124 CONSTITUTION OP THE UNITED STATES.
by Congress for the maintenance of them. So that, at
furthest, every two years, the propriety of retaining an ex-
isting army must regularly come before the Representa-
tives of the people in Congress for consideration ; and if
no appropriation is made, the army is necessarily dis-
banded. Thus, the army may, at any time within two
years, be in effect dissolved, by a majority of Congress,
without the consent of the President, by a simple refusal
to grant supplies. In point of fact. Congress have hith-
erto made the appropriations annual, as they have a con-
stitutional right to do, if it is deemed expedient. The
power, therefore, is surrounded by all reasonable restric-
tions, as to its exercise ; and it has hitherto been used in
a manner, which has conferred lasting, benefits on the
country.
§ 191. The next power of Congress is, '' to provide,
and maintain a navy." This power has the same general
object, as that to raise armies. But, in its own nature,
it is far more safe, and, for a maritime nation, quite as in-
dispensable. No nation was ever deprived of its liberty
by its navy. The same cannot ^e said of its army.
And a commercial nation would be utterly without its due
share of sovereignty upon the ocean, its means of self-
protection at home, and its power of efficient action
abroad, without the possession of a navy. Yet this
power, until a comparatively recent period, found httle
favor with some of our statesmen of no mean celebrity.
It was not until the brilhant achievements of our little
navy, during the late war, (1812-1814,) had shed a
glory, as well as a protection, over our national flag in
every sea, that the country became alive to its vast im-
portance and efficiency. At present, it enjoys an exten-
sive public favor, which, having been earned by the most
gallant deeds, can scarcely fail of permanently engrafting
it into the solid establishments of our national strength.
§ 192. The next power of Congress is, "to make
rules, for the government and regulation of the land and
naval forces." Upon the propriety of this power, as an
incident to the preceding, it is unnecessary to enlarge.
It is equally beyond the reach of cavil and complaint.
POWER OVER MILITIA. 125
CHAPTER XXI.
Power over Militia.
193. The next power of Congress is, ** to provide
for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasions."
This is a natural incident to the duty, devolved on the
General Government, of superintending the common de-
fence, and providing for the general welfare in matters
confided to it by the Constitution. There is but one of
two alternatives, which can be resorted to in cases of in-
surrections, invasions, or violent oppositions to the exe-
cution of the laws ; either to employ regular troops, or
to employ the militia In ordinary cases of riots and
public disturbances, the magistracy of the country, with
the assistance of the civil officers, and private individuals,
may be sufficient to restore the public peace. But when
force is contemplated by a discontented and lawless fac-
tion, it is manifest, that it must be met, and overthrown
by force. Among a free people, there is a strong objec-
tion to the keeping up of a large standing army. But this
will be indispensable, unless the power is delegated to
command the services of the militia in such exigencies.
The latter is, therefore, conferred on Congress, because
it is the most safe, and tlie least obnoxious to popular
jealousy. The employment of the mihtia is economical,
and will generally be found to be efficient, in suppressing
sudden and transitory insurrections, and invasions, and
resistances of the laws.
§ 194. It is observable, that the power given to Con-
gress over the mihtia is not limited as to the time of ser-
vice, or as to the place of operation. And it is obvious,
that to be effective, the power could not safely be limited
in either respect ; for it is impossible to foresee either the
nature, or extent, or place, or duration, of the exigency, for
which the militia might properly be called forth. It must
11*
126 CONSTITUTION OF THE UNITED STATES.
be left, therefore, to the sound discretion of Congress,
acting with a wise regard to the pubhc interests and the
convenience of mihtary operations. If Congress had no
authority to march the mihtia beyond the territorial bound-
aries of a particular State, either to execute the laws, or
to suppress insurrections, or to repel invasions, the power
over the militia might be perfectly nugatory for all the
purposes of common safety, or common defence. Sup-
pose there should be an invasion of Rhode Island by a
public enemy, if the mihtia of the neighboring States
could not be ordered into that State for military duty, it is
obvious, that the militia would be utterly worthless for
the general protection of the Union. Suppose a battle
to be fought on the confines of two States, and the militia
to stop at the boundary, and thus to lose all the advanta-
ges of mutual cooperation, and even of a victory almost
achieved ? In times of insurrection or invasion, it cannot
admit of a reasonable doubt, that it would be both natural
and proper, that the mihtia of the neighboring States should
be marched into the suffering State to repel the invaders,
or to suppress the insurgents. But it would rarely occur,
if ever, that the mihtia of any one State would be required
to march to a great distance from their homes, or for a long
period of service, since it would be at once the most in-
convenient, as well as the most expensive force, which could
be employed upon distant expeditions. And yet an occa-
sion might occur, when even such a service might be
indispensable to the pubhc safety ; as it was in the late
war with Great Britain, (1814,) when the militia of Ten-
nessee and Kentucky were required to go to New Or-
leans ; and there saved the country from the dreadful ca-
lamity of having the mouth of the Mississippi in the hands
of the enemy.
§ 195. The next power of Congress is, " to provide
for organizing, arming, and disciphning 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 au-
thority of training the militia, according to the disciphne
prescribed by Congress." And here, again, we have
POWER OVER MILITIA. 127
another instance of the distribution of powers, between
the National and State Governments, over the same sub-
ject matter. Unless there is uniformity in the organiza-
tion, arming, and disciplining of the militia, there can be
little chance of any energy, or harmony of action, be-
tween the corps of mihtia of different States, when called
into the public service. Uniformity can alone be pre-
scribed by the General Government ; and the powder is
accordingly given to it. On the other hand, as a com-
plete control of the militia by the General Government
would deprive the States of their natural means of military
defence, even upon the most urgent occasions, and would
leave them absolutely dependent upon the General Gov-
ernment, the power of the latter is limited to a few cases ;
and the former retain the appointment of all the officers,
and also the authority to train the militia, according to the
discipline prescribed by Congress. With these limita-
tions, the authority of Congress would seem to be above
all reasonable objections.
§ 196. Several questions, of great practical importance,
have arisen under these clauses of the Constitution re-
specting the power of the National Government over the
militia, which deserve mention in this place. Congress
are authorized " to provide for calhng forth the militia," in
the particular exigencies above stated. And accordingly,
by an act passed in 1795, under President Washington's
administration, authority was given to the President to
call forth the militia in case any of those exigencies oc-
curred. The delegation of this power to the President
would seem indispensable, since the exigency might occur
in the recess of Congress ; and by the Constitution, the
President is not only Commander-in-Chief of the army
and navy, and of the militia, when called into service, but
he is also (as we shall see) bound to see the laws duly
executed. But the question has arisen, whether the
President has the sole and exclusive authority to judge
and decide, whether the exigency has arisen, or not ; or,
in other words, whether any subordinate officer of the
militia, or any State magistrate, has a right to judge and
decide for himself, whether the exigency has arisen, and
128 CONSTITUTION OF THE UNITED STATES.
whether, when called upon, he is bound to obey the re-
quisitions of the President or not. This question was
formerly a matter of heated controversy, and at last came
before the Supreme Court of the United States for de-
cision, where it was finally settled, upon full deliberation,
that. From the necessity of the case, the President is the
exclusive judge of the exigency ; and that his decision was
conclusive. The reasoning, which led to this conclusion,
cannot be repeated in this work ; but it deserves the at-
tentive consideration of every statesman. -
§ 197. Another question, of great practical importance,
is, Who, in the personal absence of the President, is to
command the militia called forth in the service of the
National Government ^ Are the commanding officers of
the militia of each State, so in service, to command their
separate detachments during his absence, or has the
President a right to delegate his authority to any su-
perior military officer of the United States, or of the
militia, to act as commander of the whole force during his
absence ? This question was also formerly a matter of
great controversy ; and perhaps is not now definitively
settled. Practically, however, the National Government
has constantly insisted upon the right of the President, in
such cases, to appoint a person to act as his delegate in
the command ; and most of the States of the Union have
acquiesced in this decision, as indispensable to any effective
military operations.
CHAPTER XXII.
Seat of Government, and other Ceded Places.
§ 198. The next power of Congress is, " 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 Con-
gress, become the Seat of the Government of the
United States ; and to exercise like authority over all
places purchased by the consent of the Legislature of the
SEAT OF GOVERNMENT. 129
State, in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful build-
ings."
§ 199. A moment's consideration will establish the
importance and necessity of this power. Without it, the
National Government would have no adequate means to
enforce its authority in the place, in which its public func-
tionaries should be convened. They might be insulted,
and their proceedings might be interrupted with impunity.
And if the State should array itself in hostility to the pro-
ceedings of the National Government, the latter might be
driven to seek another asylum, or be compelled to an hu-
miliating submission to the State authorities. It never
could be safe, to leave, in the possession of any one State,
the exclusive power to decide, whether the functionaries
of the National Government should have the moral or
physical power to perform their duties. Nor let it be
thought, that the evil is wholly imaginary. It actually
occurred .to the Continental Congress, at the very close
of the Revolution, who were compelled to quit Philadel-
phia, and adjourn to Princeton, in order to escape from
the violence of some insolent mutineers of the Continental
army.
§ 200. It is under this clause, that the cession of the
present District of Columbia was made, by the States of
Maryland and Virginia, to the National Government ; and
the present seat of the National Government was estab-
lished at the city of Washington, in 1800. That con-
venient spot was selected by the exalted patriot, whose
name it bears, for this very purpose. And who, that
loves his country, does not desire, that it may for ever
remain a monument of his wisdom, and the eternal capital
of the republic ?
§ 201. The other clause, as to cessions for forts,
magazines, arsenals, dockyards, and other needful build-
ings, is dictated by a like policy. The public money
expended on such places, the public property deposited
there, the military, and other duties to be executed there,
all require, that the sovereignty of the United States
should have exclusive jurisdiction and control over them.
130 CONSTITUTION OF THE UNITED STATES.
It would be wholly improper, that such places, on which
the security of the Union may materially depend, should
be subjected to the authority of any single member of it.
In order to guard against any possible abuse, the consent
of the State Legislature is necessary to divest its own
territorial jurisdiction ; and, of course, that consent will
never be given, unless the public good will be manifestly
promoted by the cession.
§ 202. A great variety of cessions have been made
by the States under this power. And generally there
has been a reservation of the right to serve all State pro-
cess, civil and criminal, upon persons found therein.
This reservation has not been thought at all inconsistent
with the provision of the Constitution ; for the State pro-
cess, in this respect, becomes the process of the United
States, and the general power of exclusive legislation
remains with Congress. Thus, these places are not
capable of being made a sanctuary for fugitives, to exempt
them from acts done within, and cognizable by, the States,
to which the territory belonged ; and, at the same time.
Congress is enabled to accomplish the great objects of
the power.
§ 203. The power of Congress to exercise exclusive
jurisdiction over these ceded places is conferred on that
body, as the Legislature of the Union ; and cannot be ex-
ercised in any other character. A law passed in pursu-
ance of it is the supreme law of the land, and binding on
all the States, and cannot be defeated by them. The
power to pass such a law carries with it all the incidental
powers to give it complete and effectual execution ; and
such a law may be extended in its operation incidentally
throughout the United States, if Congress think it neces-
sary so to do. But if intended to have efficiency beyond
the District, language must be used in the act expressive
of such an intention ; otherwise it will be deemed to be
purely local.
§ 204. It follows from this review of the clause, that
the States cannot take cognizance of any acts done in the
ceded places after the cession ; and, on the other hand,
the inhabitants of those places cease to be inhabitants of
GENERAL POWER TO MAKE LAWS. 131
the State, and can no longer exercise any civil or politi-
cal rights under the laws of the State. But if there has
been no cession by the State, of a particular place, although
it has been constantly occupied and used, under purchase,
or otherwise, by the United States, for a fort, arsenal, or
other constitutional purpose, the State jurisdiction still
remains complete and perfect.
§ 205. Upon a recent occasion, the nature and effect
of the exclusive power of legislation, thus given by the
Constitution in these ceded places, came under the con-
sideration of the Supreme Court, and was much discussed.
It was argued, that all such legislation by Congress was
purely local, like that exercised by a territorial Legisla-
ture ; and was not to be deemed legislation by Congress
in the character of the Legislature of the Union. The
object of the argument was to establish, that a law, made
in or for such ceded places, had no extra-territorial force
or obligation, it not being a law of the United States.
The reasoning of the Court affirming, that such an act was
a law of the United States, and that Congress, in passing
it, acted as the Legislature of the LTnion, can be best
conveyed in their own language, and would be impaired
by an abridgement, and therefore is omitted as incompati-
ble with the design of the present work.
CHAPTER XXIIL
General Power to make J^ecessary and Proper Laws.
§ 206. The next power of Congress is, ''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."
§ 207. This clause is merely declaratory of a truth,
which would have resulted by necessary implication from
the act of establishing a National Government, and invest-
ing it with certain powers. If a power to do a thing is
132 CONSTITUTION OF THE UNITED STATES.
given, it includes the use of the means, necessary and
proper, to execute it. If it includes any such means, it
includes all such means ; for none can, more correctly
than others, be said exclusively to appertain to the pow-
er ; and the choice must depend upon circumstances, to
be judged of by Congress. What is a power, but the
ability or faculty of doing a thing ? What is the ability
to do a thing, but the power of employing the means
necessary to its execution ? What is a legislative pow-
er, but a power of making laws ? What are the means
to execute a legislative power, but laws ? What is the
power, for instance, of laying and collecting taxes, but a
legislative power, or a power to make laws to lay and
collect taxes ? What are the proper means of executing
such a power, but necessary and proper laws ? In truth,
the constitutional operation of the government would be
precisely the same, if the clause were obliterated, as if it
were repeated in every article. It would otherwise re-
sult, that the power could never be exercised ; that is,
the end would be required, and yet no means allowed.
This would be a perfect absurdity. It would beno create
powers, and compel them to remain for ever in a torpid,
dormant, and paralytic state. It cannot, therefore, be
denied, that the powers, given by the Constitution, imply
the ordinary means of execution ; for, without the sub-
stance of the power, the Constitution would be a dead let-
ter. If it should be asked, why, then, was the clause
inserted in the Constitution ; the answer is, that it is pe-
culiarly useful, in order to avoid any doubt, which inge-
nuity or jealousy might raise upon the subject. There
was also a clause in the Articles of Confederation, which
restrained the authority of Congress to powers expressly
granted ; and, therefore, it was highly expedient to make
an explicit declaration, that that rule of interpretation,
which had been the source of endless embarrassments
under the Confederation, should no longer prevail. The
Continental Congress had been compelled, in numerous
instances, to disregard that limitation, in order to escape
from the most absurd and distressing consequences. They
had been driven to the dangerous experiment of violating
the Confederation, in order to preserve it.
GENERAL POWER TO MAKE LAWS. 133
§ 208. The plain import of the present clause is, that
Congress shall have all the incidental and instrumental
powers, necessary and proper to carry into execution the
other express powers ; not merely such as are indispensa-
bly necessary in the strictest sense, (for then the word
"proper" ought to have been omitted,) but such also as
are appropriate to the end required. Indeed, it would
otherwise be difficult to give any rational interpretation
to the clause ; for it can scarcely be affirmed, that one
means only exists to carry into effect any of the given
powers ; and if more than one should exist, then neither
could be adopted, because neither could be shown to be
indispensably necessary. The clause, in its just sense,
then, does not enlarge any other power, specifically grant-
ed ; nor is it the grant of any new power. It is merely
a declaration, to remove all uncertainty, that every power
is to be so interpreted, as to include suitable means to
carry it into execution. The very controversies, which
have since arisen, and the efforts, which have since been
made, to narrow down the just interpretation of the clause,
demonstrate its wisdom and propriety. The practice of
the government, too, has been in conformity to this view
of the matter. There is scarcely a law of Congress, which
does not include the exercise of implied powers and means.
This might be illustrated by abundant examples. Under
the power "to estabhshpost offices and post roads," Con-
gress have proceeded to make contracts for the carriage
of the mail, have punished offences against the estabhsh-
ment, and have made an infinite variety of subordinate
provisions, not one of which is found expressly authorized
in the Constitution. A still more striking case of implied
power is, that the United States, as a government, have
no express authority given to make any contracts ; and yet
it is plain, that the government could not go on for an
hour without this imphed power.
§ 209. There are many other cases, in which Con-
gress have acted upon implied powers, some of which
have given rise to much political discussion, and contro-
versy ; but it is not within the design of this work to ex-
amine those cases, or to express any opinion respecting
12 XIII.
134 CONSTITUTION OF THE UNITED STATES.
them. It is proper, however, that the reader should be
apprized, that among them, are the questions respecting the
power of Congress to establish a national bank ; to make
national roads, canals, and other internal national improve-
ments ; to purchase cessions of foreign territory, (such,
for example, as Louisiana and Florida ;) to lay embar-
goes, without any fixed limitation of the time of their du-
ration ; and to prohibit intercourse or commerce with a for-
eign nation for an unhmited period.
§ 210. And here terminates the eighth section of the
Constitution professing to enumerate the powers of Con-
gress. But there are other clauses, delegating express
powers, which, though detached from their natural con-
nection in that instrument, should be here brought under
review, in order to complete the enumeration.
CHAPTER XXIV.
Punishment of Treason. — State Records.
§ 211. The third clause of the third article contains
a constitutional definition of the crime of treason, (which
will be reserved for a separate examination,) and then pro-
ceeds, in the same section, to provide, — '^ 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 attaint-
ed.'^ The punishment of treason by the common law, par-
takes, in a high degree, of those savage and malignant
refinements in cruelty, which in former ages were the ordi-
nary penalties attached to state offences. The offender
is to be drawn to the gallows on a hurdle ; hanged by the
neck, and cut down alive ; his entrails taken out, and burn-
ed, while he is yet ahve ; his head cut off; and his body
quartered. Congress are intrusted with the power to fix
the punishment, and have, with great wisdom and human-
ity, abolished these horrible accompaniments, and confin-
ed the punishment simply to death by hanging. The
PUNISHMENT OF TREASON. 135
power to punish treason is exclusive in Congress ; and
the trial for the offence, as well as the award of the pun-
ishment, belongs, also, exclusively to the National tribu-
nals, and cannot be exercised by any State tribunals.
§ 212. The other clause may require some explana-
tion, to those, who are not bred to the profession of the
law. By the common law, one of the regular incidents
to an attainder for treason, (that is, to a conviction and
judgement in court against the offender,) is, that he forfeits
all his estate, real and personal. His blood is also cor-
rupted, that is, it loses all inheritable quahties, so that he
can neither inherit any real estate himself, from any ances-
tor or relation by blood, nor can his heirs inherit any real
estate from him, or through him, from any ancestor or re-
lation by blood. So that, if the father should commit trea-
son, and be attainted of it in the life time of the grand-
father, and the latter should then die, the grandson could
not inherit any real estate from the grandfather, although
both were perfectly innocent of the offence ; for the
father could communicate no inheritable blood to the
grandson. Thus, innocent persons are made the victims
of the misdeeds of their ancestors ; and are punished,
even to the remotest generations, by incapacities derived
through them. The Constitution has aboHshed this cor-
ruption of blood, and general forfeiture ; and confined the
punishment exclusively to the offenders ; thus adopting a
rule, founded in sound policy, and as humane, as it is just.
§ 213. The first section of the fourth article declares,
'' 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."
§ 214. It is well known, that the acts, records, and
judicial proceedings of foreign nations are not judicially
taken notice of by our courts ; that is, their genuineness,
vahdity, and authority are not admitted as of course by
our courts, as is the case with the acts, records, and
judicial proceedings of the Legislature and judicial tri-
bunals of the State ; but they must be proved, like other
136 CONSTITUTION OF THE UNITED STATES.
facts, whenever they are brought into controversy in any
suit. The nature and modes of such proof are different
in different countries ; and being wholly governed by the
municipal law of each particular nation, must present
many embarrassing questions. Independent of the proof,
another not less serious difficulty is, as to the effect to be
given to such acts, records, and proceedings, after they
are duly authenticated. For example, what effect is to
be given to the judgement of a court in one country, when
it is sought to be enforced in another country ? Is it to be
held conclusive upon the parties, without further inquiry ?
Or, is it to be treated like common suits, and its justice
and equity to be open to new proofs and new litigation ?
These are very serious questions, upon which different na-
tions hold very different doctrines. Even in the American
Colonies, before the Revolution, no uniform rules were
adopted, in regard to judgements in other colonies. In
some, they were held conclusive ; in others, not. Some
foreign nations hold the judgements of foreign courts be-
tween the parties, as of no validity or force out of the ter-
ritory, where the judgements are pronounced ; others hold
such judgements to be only prima facie or presumptively
valid and just, but open to be controverted and over-
thrown by any new proofs ; and others, again, hold such
judgements, either absolutely, or under certain limitations
and restrictions, to be binding and conclusive between the
parties and their heirs and other representatives. Now,
domestic judgements, that is, judgements rendered in the
same State, are uniformly held, in all the tribunals of that
State, to be conclusive between the parties and their heirs
and representatives, so that they cannot be controverted,
or their validity impeached, or new proofs offered to over-
throw them in the ordinary administration of justice.
§ 215. We may readily perceive, upon a slight exam-
ination, how inconvenient it would be, to hold all the
judgements rendered in^ one State to be controverted
anew in any other State. Suppose a judgement in one
State, after a trial, and verdict by a jury, upon a contract,
or for a trespass, in the place where all the witnesses
lived ; and, afterwards, the defendant should remove into
ADMISSION OF NEW STATES. 137
another State, and some of the material witnesses should
die, or remove, so that their testimony could not be had ;
if the defendant were then called upon to satisfy the judge-
ment in' a new suit, and he might controvert anew all the
facts, there could be no certainty of any just redress to the
plaintiff. The Constitution, therefore, has wisely sup-
pressed this source of heart-burning and mischief between
the inhabitants of different States, by declaring, that full
faith and credit shall be given to the acts, records, and
judicial proceedings of every other State ; and by author-
izing Congress to prescribe the mode of authentication,
and the effect of such authentication, when duly made.
Congress have accordingly declared the mode, in which
the records and judgements of the respective States shall
be authenticated, and have further declared, that, when so
authenticated, they shall have the same force and credit,
and, of course, the same effect, in every other State, that
they have in the State, where the records and judgements
were originally made and rendered.
CHAPTER XX\^.
Admission of Mw States, — Government of Territories,
§ 216. The first clause of the fourth article declares,
" 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, without the consent of the Legislatures of the
States concerned, as well as of the Congress." It was
early foreseen, from the extent of the territory of some
States, that a division thereof into several States might be-
come important and convenient to the inhabitants thereof,
as well as add to the security of the Union. And it was
also obvious, that new States would spring up in the then
vacant western territory, which had been ceded to the
Union, and that such new States could not long be re-
12*
138 CONSTITUTION OF THE UNITED STATES.
tained in a state of dependence upon the National Gov-
ernment. It was indispensable, therefore, to make some
suitable provisions for both these emergencies. On the
one hand, the integrity of any of the States ought not to
I be severed without their own consent; for their sove-
U'eignty would, otherwise, be at the mere will of Congress.
On the other hand, it was equally clear, that no State
ought to be admitted into the Union without the consent
of Congress ; for, otherwise, the balance, equality, and
harmony of the existing States might be destroyed. Both
of these objects are, therefore, united in the present clause.
To admit a new State into the Union, the consent of Con-
gress is necessary ; to form a new State within the boun-
daries of an old one, the consent of the latter is also ne-
cessary. Under this clause, besides Vermont, three new
States formed within the boundaries of the old States,
viz., Kentucky, Tennessee, and Maine ; and nine others,
viz., Ohio, Indiana, Illinois, Mississippi, Alabama, Louis-
iana, Missouri, Arkansas, and Michigan, formed within
the territories ceded to the United States, have been al-
ready admitted into the Union. Thus far, indeed, the
power has been most propitious to the general welfare of
the Union, and has reahzed the patriotic anticipation, that
the parents would exult in the glory and prosperity of
their children.
§ 217. The second clause of the same section is,
" The Congress shall have power to dispose of, and
make all needful rules and regulations respecting the ter-
ritory, or other property, belonging to the United States.
And nothing in this Constitution shall be so construed,
as to prejudice any claims of the United States, or of any
particular State." As the General Government possess-
es the right to acquire territory by cession and conquest, it
would seem to follow, as a natural incident, that it should
possess the power to govern and protect, what it had ac-
quired. At the time of the adoption of the Constitution,
it had acquired the vast region included in the Northwest-
ern Territory ; and its acquisitions hm^ since ^^tto great-
ly enlarged by the purchase of Louisiana and Florida.
The tW9 latter Territories, (Louisiana and Florida,) sub-
ADMISSION OF NEW STATES. 139
ject to the treaty stipulations, under which they were ac-
quired, are of course under the general regulation of
Congress, so far as the power has not been or may not be
parted with by erecting them into States. The Northwest-
ern Territory has been peopled under the admirable Ordi-
nance of the Continental Congress of the 13th of July,
1787, which we owe to the wise forecast and pohtical wis-
dom of a man, whom New England can never fail to rev-
erence.*
§ 218. The main provisions of this Ordinance, which
constitute the basis of the Constitutions and Govern-
ments of all the States and Territories organized within
the Northwestern Territory, deserve here to be stated, as
the ordinance is equally remarkable for the beauty and
exactness of its text, and for its masterly display of the
fundamental principles of civil and religious and politi-
cal liberty. It begins, by providing a scheme for the
descent and distribution of estates equally among all the
children, and their representatives, or other relatives of
the deceased in equal degree, making no distinction be-
tween the whole and the half blood ; and for the mode of
disposing of real estate by will, and by conveyances. It
then proceeds to provide for the organization of the ter-
ritorial governments, according to their progress in pop-
ulation, confiding the whole power to a Governor and
Judges, in the first instance, subject to the control of Con-
gress. As soon as the Territory contains five thousand
inhabitants, it provides for the establishment of a general
Legislature, to consist of three branches, a Governor, a
Legislative Council, and a House of Representatives ;
with a power to the Legislature to appoint a delegate to
Congress. It then proceeds to state certain fundamental
articles of compact between the original States, and the
people and States in the Territory, which are to remain un-
alterable, unless by common consent. The first provides
for the freedom of religious opinion and worship. The
second provides for the right to the writ of habeas cor-
pus ; for the trial by jury ; for a proportionate represent-
ation in the Legislature ; for judicial proceedings accord-
*The late Hon. Nathan Dane, of Beverlv, Massachusetts.
140 CONSTITUTION OF THE UNITED STATES.
ing to the course of the common law ; for capital offences
being bailable ; for fines being moderate, and punishments
not being cruel or unusual ; for no man's being deprived
of his liberty or property, but by the judgement of his
peers, or the law of the land ; for full compensation for
property taken, or services demanded, for the public exi-
gencies ; '' and, for the just preservation of rights and
property, that no law ought ever to be made, or have
force in the said Territory, that shall, in any manner
whatever, interfere with, or affect private contracts or
engagements, bona fide, and without fraud, previously
formed." The third provides for the encouragement
of religion, and education, and schools, and for good
faith and due respect for the rights and property of the
Indians. The fourth provides, that the Territory, and
States formed therein, shall for ever remain a part of the
Confederacy, subject to the constitutional authority of
Congress ; that the inhabitants shall be hable to be taxed
proportionately for the public expenses ; that the Legisla-
tures in the Territory shall never interfere with the prima-
ry disposal of the soil by Congress, nor with their regula-
tions for securing the title to the soil to purchasers ; that
no tax shall be imposed on lands, the property of the
United States ; and non-resident proprietors shall not be
taxed more than residents ; that the navigable waters
leading into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common high-
ways, and for ever free. The fifth provides, that there
shall be formed in the Territory not less than three, nor
more than five States, with certain boundaries ; and when-
ever any of the said States shall contain sixty thousand
free inhabitants, such State shall (and may not before) be
admitted, by its delegates, into Congress, on an equal foot-
ing with the original States in all respects whatever, and
shall be at liberty to form a permanent Constitution and
State government, provided it shall be republican, and in
conformity to these articles of compact. The sixth and
last provides, that there shall be neither slavery nor in-
voluntary servitude in the said Territory, otherwise than
in the punishment of crimes ; but fugitives from other
ADMISSION OP NEW STATES. 141
States, owing service therein, may be reclaimed. Such
is a brief outline of this most important ordinance, the
effects of which upon the destinies of the country have
already been abundantly demonstrated in the Territory, by
an almost unexampled prosperity and rapidity of popula-
tion, by the formation of republican governments, and by
an enlightened system of jurisprudence. Already five
States, composing a part of that Territory, have been ad-
mitted into the Union ; and others are fast advancing to-
wards the same grade of political dignity.
§ 219. The proviso, reserving the claims of the Union,
as well as of the several States, was adopted from abun-
dant caution, to quiet public jealousies upon the subject
of the contested titles, which were then asserted by some
of the States to some parts of the Western Territory.
Happily, these sources of alarm and irritation have long
since been dried up.
§ 220. And here is closed our Review of the express
powers conferred upon Congress. There are other inci-
dental and implied powers, resulting from other provisions
of the Constitution, which will naturally present them-
selves to the mind in our future examination of those
provisions. At present, it may suffice to say, that, with
reference to due energy in the General Government, to
due protection of the national interests, and to due secu-
rity to the Union, fewer powers could scarcely have been
granted, without jeoparding the existence of the whole
system. Without the power to lay and collect taxes, to
provide for the common defence, and promote the gen-
eral welfare, the whole system would have been vain and
illusory. Without the power to borrow money upon sud-
den or unexpected emergencies, the National Government
might have been embarrassed, and sometimes have been
incapable of performing its own proper functions and du-
ties. Without the power to declare war and raise armies,
and provide a navy, the whole country would have been
placed at the mercy of foreign nations, or of invading foes,
who should trample upon our rights and liberties. With-
out the power exclusively to regulate commerce, the inter-
course between the States would have been liable to con-
142 CONSTITUTION OF thI: united states.
stant jealousies, rivalries, and dissensions ; and the inter
course with foreign nations would have been liable to
mischievous interruptions, from secret hostihties, or open
retaliatory restrictions. The other powders are principally
auxiliary to these ; and are dictated by an enlightened pol-
icy, a devotion to justice, and a regard to the permanence
of the Union. The wish of every patriot must be, that
the system thus formed may be perpetual, and that the
powers thus conferred may be constantly used for the
purposes, for which they were originally given, for the
promotion of the true interests of all the States, and not
for the gratification of party spirit, or the aggrandizement
of rulers at the expense of the people.
CHAPTER XXVI.
Prohibitions on the United States.
§ 221 . We next come to the consideration of the pro-
hibitions and limitations upon the powers of Congress,
which are contained in the ninth section of the first arti-
cle, passing by such, as have been already incidentally
discussed.
§ 222. The first clause is, " The migration or im-
portation of such persons, as any of the States now ex-
isting 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 upon such
importation, not exceeding ten dollars for each person."
§ 223. This clause, as is manifest from its language,
was designed solely to reserve to the Southern States,
for a hmited period, the right to import slaves. It is to
the honor of America, that she should have set the first
example of interdicting and abolishing the slave trade, in
modern times. It is well know^n, that it constituted a
grievance, of which some of the Colonies complained,
before the Revolution, that the introduction of slaves was
encouraged by the parent country, and that the prohibi-
PROHIBITIONS ON THE UNITED STATES. 143
tory laws, passed by the Colonies, were negatived by the
Crown. It was, doubtless, desirable, that the importation
of slaves should have been at once interdicted through-
out the Union. But it was indispensable to yield some-
thing to the prejudices, the wishes, and the supposed in-
terests of the South. And it ought to be considered as
a great point gained, in favor of humanity, that a period
of twenty years should enable Congress to terminate, in
America, (as Congress in fact have terminated the Afri-
can slave trade,) a traffic, which has so long and so loud-
ly upbraided the morals and justice of modern nations.
§ 224. The next clause is, " The privilege of the
writ of habeas corpus shall not be suspended, unless
when, in cases of rebellion or invasion, the public safety
may require it." In order to understand the exact mean-
ing of the terms here used, recourse must be had to the
common law. The writ of habeas corpus, here spoken
of, is a writ known to the common law, and used in all
cases of confinement, or imprisonment of any party, in
order to ascertain whether it is lawful or not. The writ
commands the person, who detains the party, to produce
his body, with the day and cause of his detention, before
the Court or Judge, who issues the writ, to do, submit
to, and receive, whatever the Court or Judge shall direct
at the hearing. It is hence called the writ of habeas cor-
pus ad subjiciendum^ from the effective words of the writ,
(when it was issued, as it originally was, in the Latin
language) that you (the person, detaining the party,) have
the body {habeas corpus) to submit {ad subjiciendum) to
the order of the Court or Judge. And if the cause of de-
tention is found to be insufficient, or illegal, the party is
immediately set at liberty by the order of the Court or
Judge. It is justly, therefore, esteemed the great bul-
wark of personal hberty, and is grantable, as a matter of
right, to the party imprisoned. But as it had often, for
frivolous reasons of state, been suspended or denied in the
parent country, to the grievous oppression of the subject,
it is made a matter of constitutional right in all cases, ex-
cept when the public safety may, in cases of rebellion or
invasion, require it. The exception is reasonable, since
144 CONSTITUTION OF THE UNITED STATES.
cases of great urgency may arise, in which the suspen-
sion mdy be indispensable for the preservation of the hb-
erties of the country against traitors and rebels.
§ 225. The next clause is, " No bill of attainder, or
tx post facto law, shall be passed." A bill of attainder,
m its technical sense, is an act passed by the legislature,
convicting a person of some crime, for which it inflicts
upon him, without any trial, the punishment of death.
If it inflicts a milder punishment, it is usually called a bill
of pains and penalties. Such acts are in the highest de-
gree objectionable, and tyrannical, since they deprive the
party of any regular trial by jury, and deprive him of
his life, liberty, and property, without any legal proof of
his guilt. In a republican government, such a proceed-
ing is utterly inconsistent with first principles. It would
be despotism in its worst form, by arming a popular Le-
gislature with the power to destroy, at its will, the most
virtuous and valuable citizens of the state.
§ 226. To the same class, belong ex post facto laws,
that is, (in a literal interpretation of the phrase,) laws
made after the act is done. In a general sense, all ret
respective laws are ex post facto ; but the phrase is here
used to designate laws to punish, as pubhc ofiences, acts,
which, at the time when they were done, were lawful, or
were not public crimes, or, if crimes, which were not lia-
ble to so severe a punishment. It requires no reasoning
to establish the wisdom of a prohibition, which puts a
fixed restraint upon such harsh legislation. In truth, the
existence of such a power in a legislature is utterly in-
compatible with all just notions of the true ends and
objects of a republican government.
§ 227. The next clause (not already commented on)
is, "No money shall be drawn from the treasury, but in
consequence of appropriations made by law. And a
regular statement and account of the receipts ^nd expen-
ditures of all public money shall be published from time
to time." The object of this clause is, to secure regu-
larity, punctuality, fidelity, and responsibility, in the keep-
ing and disbursement of the public money. No money
can be drawn from the treasury by any officer, unless
PROHIBITIONS ON THE UNITED STATES. 145
under appropriations made by some act of Congress. As
all the taxes raised from the people, as well as the rev-
enues arising from other sources, are to be applied to the
discharge of the expenses, and debts, and other engage-
ments of the government, it is highly proper, that Con-
gress should possess the power to decide, how and when
any money should be appHed for these purposes. If it
were otherwise, the Executive would possess an unbound-
ed power over the public purse of the nation ; and might
apply all its monied resources at his pleasure. The pow-
er to control and direct the appropriations, constitutes a
most useful and salutary check upon profusion and ex-
travagance, as well as upon corrupt influence and public
peculation. In arbitrary governments, the prince lev-
ies what money he pleases from his subjects, disposes of
it, as he thinks proper, and is beyond responsibility or
reproof. It is wise, in a republic, to interpose every
restraint, by which the public treasure, the common fund
of all, should be applied, with unshrinking honesty, to
such objects, as legitimately belong to the common de-
fence, and the general welfare. Congress is made the
guardian of this treasure ; and, to make their responsibihty
complete and perfect, a regular account of the receipts
and expenditures is required to be published, that the
people may know, what money is expended, for what
purposes, and by what authority.
§228. The next clause is, ''No title of nobility
shall be granted by the United States ; and no person,
holding any office of profit or trust under them, shall,
without the consent of the Congress, accept of any pres-
ent, emolument, office, or title, of any kind whatever,
from any king, prince, or foreign state." A perfect
equality of rights, privileges, and rank, being contemplated
by the Constitution among all citizens, there is a manifest
propriety in prohibiting Congress from creating any titles
of nobility. The other prohibition, as to presents, emolu-
ments, offices, and titles from foreign governments, besides
aiding the same general object, subserves a more important
policy, founded on the just jealousy of foreign corruption
and undue influence exerted upon our national officers. It
13 XIII.
146 CONSTITUTION OF THE UNITED STATES.
seeks to destroy, in their origin, all the blandishments from
foreign favors, and foreign tflles, and all the temptations
to a departure from official duty by receiving foreign re-
wards and emoluments. No officer of the United States
can without guilt wear honors borrowed from foreign sov-
ereigns, or touch for personal profit any foreign treasure.
CHAPTER XXVII.
Prohibitions on the States,
§ 229. Such are the prohibitions upon the govern-
ment of the United States. And we next proceed to
the prohibitions upon the States, which are not less
important in themselves, or less necessary to the security
of the Union. They are contained in the tenth section
of the first article.
§ 230. The first clause is, "No State shall enter into
any treaty, alliance, or confederation ; grant letters of
marque or reprisal ; coin money ; emit bills of credit ;
make any thing but gold or 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."
§ 231. The prohibition against a State's entering into
any treaty, alliance, or confederation, is indispensable to
the preservation of the rights and powers of the National
Government. A State might otherwise enter into engage-
ments with foreign governments, utterly subversive of
the pohcy of the National Government, or injurious to the
rights and interests of the other States. One State might
enter into a treaty or aUiance with France, and another
with England, and another with Spain, and another with
Russia, — each in its general objects inconsistent with the
other ; and thus, the seeds of discord might be spread
over the whole Union.
§232. The prohibition to "grant letters of marque
and reprisal" stands on the same ground. This power
PROHIBITIONS ON THE STATES. 147
would hazard the peace of the Union by subjecting it to
the passions, resentments, or policy of a single State.
If any State might issue letters of marque or reprisal at
its own mere pleasure, it might at once involve the whole
Union in a public war ; or bring on retaliatory measures
by the foreign government, which might cripple the
commerce, or destroy the vital interests of other States.
The prohibition is, therefore, essential to the public
safety.
§ 233. The prohibition to " coin money" is necessary
to our domestic interests. The existence of the power
in the States would defeat the salutary objects intended,
by confiding the like power to the National Government.
It would have a tendency to introduce a base and varia-
ble currency, perpetually liable to frauds, and embarrass-
ing to the commercial intercourse of the States.
§ 234. The prohibition to " emit bills of credit." —
Bills of credit are a well-known denomination of paper
money, issued by the Colonies before the Revolution,
and afterwards by the States, in a most profuse degree.
These bills of credit had no adequate funds appropriated
to redeem them ; and though on their face they were
often declared payable in gold and silver, they were in
fact never so paid. The consequence was, that they
became the common currency of the country, in a con-
stantly depreciating state, ruinous to the commerce and
credit, and disgraceful to the good faith of the country.
The evils of the system were of a most aggravated nature,
and could not be cured, except by an entire prohibition
of any future issues of paper money. And, indeed, the
prohibition to coin money would be utterly nugatory, if
the States might still issue a paper currency for the same
purpose.
§ 235. But the inquiry here naturally occurs ; What is
the true meaning of the phrase " bills of credit" in the
Constitution ? In its enlarged, and perhaps in its literal
sense, it may comprehend any instrument, by which a
State engages to pay money at a future day, (and, of
course, for which it obtains a present credit ;) and thus it
would include a certificate given for money borrowed.
148 CONSTITUTION OF THE UNITED STATES.
But the language of the Constitution itself, and the mis-
chief to be prevented, which we know from the history
of our country, equally limit the interpretation of the
terms. The word "emit" is never employed in de-
scribing those contracts, by which a State binds itself to
pay money at a future day for services actually received,
or for money borrowed for present use. Nor are instru-
ments, executed for such purposes, in common language
denominated " bills of credit." To emit bills of credit,
conveys to the mind the idea of issuing paper, intend-
ed to circulate through the community for ordinary pur-
poses, as money, which paper is redeemable at a future
day. • This is the sense, in which the terms of the Con-
stitution have been generally understood. The phrase
(as we have seen) was well known, and generally used to
indicate the paper currency, issued by the States during
their colonial dependence. During the war of our Revo-
lution, the paper currency issued by Congress was con-
stantly denominated, in the acts of that body, bills of
credit ; and the like appellation was applied to similar
currency issued by the States. The phrase had thus
acquired a determinate and appropriate meaning. At the
time of the adoption of the Constitution, bills of credit
were universally understood to signify a paper medium
intended to circulate between individuals, and between
government and individuals, for the ordinary purposes of
society. Such a medium has always been liable to con-
siderable fluctuation. Its value is continually changing ;
and these changes, often great and sudden, expose indi-
viduals to immense losses, are the sources of ruinous
speculations, and destroy all proper confidence between
man and man. In no country, more than our own, had
these truths been felt in all their force. In none, had
more intense suffering, or more wide-spreading ruin
accompanied the system. It was, therefore, the object
of the prohibition to cut up the whole mischief by the
roots, because it had been deeply felt throughout all the
States, and had deeply affected the prosperity of all.
The object of the prohibition was not to prohibit the
thing, when it bore a particular name ; but to prohibit the
PROHIBITIONS ON THE STATES. 149
thing, whatever form or name it might assume. If the
words are not merely empty sounds, the prohibition must
comprehend the emission of any paper medium by a State
government for the purposes of common circulation. It
would be preposterous to suppose, that the Constitution
meant solemnly to prohibit an issue under one denomina-
tion, leaving the power complete to issue the same thing
under another. It can never be seriously contended, that
the Constitution means to prohibit names, and not things ;
to deal with shadows, and to leave substances. What
would be the consequence of such a construction ? That
a very important act, big with great and ruinous mischief,
and on that account forbidden by words the most appro-
priate for its description, might yet be performed by the
substitution of a name. That the Constitution, even in one
of its vital provisions, might be openly evaded by giving
a new name to an old thing. Call the thing a bill of credit,
and it is prohibited. Call the same thing a certificate,
and it is constitutional.
§ 236. Connected with this, is the prohibition, No
State shall '' make any thing but gold and silver coin a
tender in payment of debts." The history of the State
laws on this subject, while we were Colonies, as well as
during the Revolution, and afterwards before the adoption
of the Constitution, is starding at once to our morals, to
our patriotism, and to our sense of justice. In the inter-
mediate period between the commencement of the Revo-
lutionary War, and the adoption of the Constitution, the
system had attained its most appalling character. Not
only was paper money declared to be a tender in payment
of debts ; but other laws, having the same general object,
and interfering with private debts, under the name of
appraisement laws, instalment laws, and suspension laws,
thickened upon the statute book of many States in the
Union, until all pubhc confidence was lost, and all private
credit and morals were prostrated. The details of the
evils, resulting from this source, can scarcely be compre-
hended in our day. But they were so enormous, that
the whole country seemed involved in a general bank-
ruptcy ; and fraud and chicanery obtained an undisputed
13*
150 CONSTITUTION OP THE UNITED STATES.
mastery. Nothing but an absolute prohibition, like that
contained in the Constitution, could arrest the overwhelm-
ing flood ; and it was accordingly hailed with the most
sincere joy by all good citizens. It has given us that
healthy and sound currency, and that solid private credit,
which constitute the true foundation of our prosperity,
industry, and enterprise.
§ 237. The prohibition, to " pass any bill of attainder,
ex post facto law, or law impairing the obligation of con-
tracts," requires scarcely any vindication or explanation,
beyond what has been already given. The power to
pass bills of attainder, and ex post facto laws, (the nature
of which has been already sufficiently explained,) is quite
as unfit to be intrusted to the States, as to the General
Government. It was exercised by the States during the
Revolutionary War, in the shape of confiscation laws,
to an extent, which, upon cool reflection, every sincere
patriot must regret. Laws "impairing the obligation of
contracts" are still more objectionable. They interfere
with, and disturb, and destroy, private rights, solemnly
secured by the plighted faith of the parties. They bring
on the same ruinous effects, as paper tender laws, instal-
ment laws, and appraisement laws, which are but varieties
of the same general noxious policy. And they have been
truly described, as contrary to the first principles of the
social compact and to every principle of sound legislation.
§ 23S. Although the language of this clause, " law im-
pairing the obligation of contracts," would seem, at first
view, to be free from any real ambiguity ; yet there is
not perhaps a single clause of the Constitution, which
has given rise to more acute and vehement controversy.
What is a contract ? What is the obligation of a con-
tract ? What is impairing a contract ? To what classes
of laws does the prohibition apply ? To what extent does
it reach, so as to control prospective legislation on the
subject of contracts ? These and many other questions,
of no small nicety and intricacy, have vexed the legisla-
tive halls, as well as the judicial tribunals, with an uncount-
ed variety and frequency of litigation and speculation.
§ 239. In the first place, What is to be deemed a con-
PROHIBITIONS ON THE STATES. 151
tract, in the constitutional sense of this clause ? A con-
tract is an agreement to do, or not to do, a particular
thing ; or (as was said on another occasion) a contract is
a compact between two or more persons. A contract is
either executory, or executed. An executory contract
is one, in which a party binds himself to do, or not to do,
a particular thing. An executed contract is one, in which
the object of the contract is performed. This differs in
nothing from a grant ; for a contract executed conveys a
thing in possession ; a contract executory conveys only
a thing in action. Since, then, a grant is in fact a con-
tract executed, the obligation of which continues ; and
since the Constitution uses the general term, contract,
without distinguishing between those, which are executory,
and those, which are executed ; it must be construed to
comprehend the former, as well as the latter. A State
law, therefore, annulling conveyances between individu-
als, and declaring, that the grantors shall stand seized of
their former estates, notwithstanding those grants, would
be as repugnant to the Constitution, as a State law, dis-
charging the vendors from the obligation of executing
their contracts of sale by conveyances. It would be
strange, indeed, if a contract to convey were secured by
the Constitution, while an absolute conveyance remained
unprotected. That the contract, while executory, was
obligatory ; but when executed, might be avoided.
§ 240. Contracts, too, are express, or implied. Ex-
press contracts are, where the terms of the agreement are
openly avowed, and uttered at the time of the making of
them. Implied contracts are such, as reason and justice
dictate from the nature of the transaction, and which,
therefore, the law presumes, that every man undertakes to
perform. The Constitution makes no distinction between
the one class of contracts and the other. It then equally
embraces, and equally apphes to both. Indeed, as by far
the largest class of contracts in civil society, in the ordinary
transactions of hfe, are implied, there would be very httle
object in securing the inviolability of express contracts,
if those, which are implied, might be impaired by State
legislation. The Constitution is not chargeable with
152 CONSTITUTION OP THE UNITED STATES.
such folly, or inconsistency. Every grant, in its own
nature, amounts to an extinguishment of the right of the
grantor, and imphes a contract not to reassert it. A
party is, therefore, always estopped by his own grant.
How absurd would it be to provide, that an express
covenant by a party, as a muniment attendant upon the
estate, should bind him for ever, because executory, and
resting in action ; and yet, that he might reassert his
title to the estate, and dispossess his grantee, because
there was only an implied covenant not to reassert it.
§ 241. In the next place, What is the obligation of a
contract ? It seems agreed, that, when the obligation of
contracts is spoken of in the Constitution, we are to un-
derstand, not the mere moral, but the legal obligation of
contracts. The moral obligation of contracts is, so far
as human society is concerned, of an imperfect kind,
which the parties are left free to obey or not, as they
please. It is addressed to the conscience of the parties,
under the solemn admonitions of accountability to the
Supreme Being. No human lawgiver can either impair,
or reach it. The Constitution has not in contemplation
any such obligations, but such only, as might be im-
paired by a State, if not prohibited. It is the civil obli-
gation of contracts, which it is designed to reach, that is,
the obligation, which is recognised by, and results from,
the law of the State, in which it is made. If, therefore,
a contract, when made, is by the law of the State de-
clared to be illegal, or deemed to be a nullity, or a naked
pact^ or promise, it has no civil obligation ; because the
law, in such cases, forbids its having any binding efficacy,
or force. It confers no legal right on the one party, and
no correspondent legal duty on the other. There is no
means allowed, or recognised to enforce it ; for the max-
im is, that from a mere naked promise no action arises.
But when it does not fall within the predicament of being
either illegal, or void, its obligatory force is coextensive
with its stipulations.
§ 242. Nor is this obligatory force so much the result
of the posiuve declarations of the municipal law, as of
the general principles of natural, or (as it*is sometimes
PROHIBITIONS ON THE STATES. 153
called) universal, law. In a state of nature, independent
of the obligations of positive law, contracts may be
formed, and their obligatory force be complete. Be-
tween independent nations, treaties and compacts are
formed, which are deemed universally obligatory ; and
yet in no just sense can they be deemed dependent on
municipal law. Nay, there may exist (abstractly speak-
ing) a perfect obligation in contracts, where there is no
known and adequate means to enforce them. As, for
instance, between independent nations, where their rela-
tive strength and power preclude the possibility, on the
side of the weaker party, of enforcing them. So, in the
same government, where a contract is made by a State
with one of its own citizens, which yet its laws do not
permit to be enforced by any action or suit. In this
predicament are the United States, who are not suable
on any contracts made by themselves ; but no one doubts,
that these are still obligatory on the United States. Yet
their obligation is not recognised by any positive muni-
cipal law, in a great variety of cases. It depends alto-
gether upon principles of pubhc or universal law. Still,
in these cases, there is a right in the one party to have the
contract performed, and a duty on the other side to per-
form it. But, generally speaking, when we speak of the
obligation of a contract, we include in the idea some
known means acknowledged by the municipal law to en-
force it. Where all such means are absolutely denied,
llie obligation of the contract is understood to be im-
paired, although it may not be completely annihilated.
Rights may, indeed, exist, without any present adequate
correspondent remedies between private persons. Thus,
a State may refuse to allow imprisonment for debt ; and
the debtor may have no property. But still the right of
the creditor remains ; and he may enforce it against the
future property of the debtor. So, a debtor may die
without leaving any known estate, or without any known
representative. In such cases, we should not say, that
the right of the creditor was gone ; but only, that there
was nothing, on which it could presently operate. But
suppose an administrator should be appointed, and prop-
154 CONSTITUTION OF THE UNITED STATES.
erty in contingency should fall in, the right might then be
enforced to the extent of the existing means.
§ 243. The civil obligation of a contract, then, although
it can never arise, or exist, contrary to positive law, may
arise or exist independently of it ; and it may be, exist,
notwithstanding there may be no present adequate reme-
dy to enforce it. Wherever the municipal law recog-
nises an absolute duty to perform a contract, there the
obligation to perform it is complete, although there may
not be a perfect remedy.
§ 244. In the next place. What may properly be
deemed impairing the obligation of contracts, in the sense
of the Constitution ? It is perfectly clear, that any law,
which enlarges, abridges, or in any manner changes the
intention of the parties, resulting from the stipulations in
the contract, necessarily impairs it. The manner or de-
gree, in' which this change is effected, can in no respect
influence the conclusion ; for, whether the law affect the
vaHdity, the construction, the duration, the discharge, or
the evidence of the contract, it impairs its obligation, al-
though it may not do so, to the same extent, in all the sup-
posed cases. Any deviation from its terms, by postpon-
ing, or accelerating the period of performance, which it
prescribes, or by imposing conditions not expressed in the
contract, or by dispensing with the performance of those,
which are a part of the contract, however minute, or ap-
parently immaterial in their effects upon it, impairs its
obligation. A fortiori^ a law, which makes the contract
wholly invalid, or extinguishes, or releases it, is a law
impairing it. Nor is this all. Although there is a distinc-
tion between the obligation of a contract, and a remedy
upon it ; yet if there are certain remedies existing at the
time, when it is made, all of which are afterwards wholly
extinguished by new laws, so that there remain no means
of enforcing its obligation, and no redress for its violation ;
such an abolition of all remedies, operating immediate-
ly, is also an impairing of the obligation of such contract.
But every change and modification of the remedy does
not involve such a consequence. No one will doubt, that
the Legislature may vary the nature and extent of reme-
PROHIBITIONS ON THE STATES. 155
dies, so always, that some substantive remedy be in fact
left. Nor can it be doubted, that the Legislature may pre-
scribe the times and modes, in which remedies may be
pursued ; and bar suits, not brought within such periods,
and not pursued in such modes. Statutes of limitations
are of this nature ; and have never been supposed to de-
stroy the obligation of contracts, but to prescribe the
times, within which that obligation shall be enforced by a
suit ; and in default thereof, to deem it either satisfied, or
abandoned. The obligation to perform a contract is co-
eval with the undertaking to perform it. It originates
with the contract itself, and operates anterior to the time
of performance. The remedy acts upon the broken con-
tract, and enforces a preexisting obligation. And a
State Legislature may discharge a party from imprison-
ment upon a judgement in a civil case of contract, without
infringing the Constitution ; for this is but a modification
of the remedy, and does not impair the obligation of the
contract. So, if a party should be in jail, and give a
bond for the prison liberties, and to remain a true prison-
er, until lawfully discharged, a subsequent discharge by
an act of the Legislature would not impair the contract ;
for it would be a lawful discharge in the sense of the bond.
§ 245. These general considerations naturally conduct
us to some more difficult inquiries growing out of them ;
and upon which there has been a very great diversity of
judicial opinion. The great object of the framers of
the Constitution undoubtedly was, to secure the inviola-
bility of contracts. This principle was to be protected
in whatever form it might be assailed. No enumeration
was attempted to be made of the modes, by which con-
tracts might be impaired. It would have been unwise to
have made such an enumeration, since it might have been
defective ; and the intention was to prohibit every mode or
device for such purpose. The prohibition was universal.
§ 246. The question has arisen, and has been most
elaborately discussed, how far the States may constitution-
ally pass an insolvent law, which shall discharge the obli-
gation of contracts. It is not doubted, that the States
may pass insolvent laws, which shall discharge the per-
156 CONSTITUTION OF THE UNITED STATES.
son, or operate in the nature of a cessio bonorum, or a
surrender of all the debtor's property, provided such laws
do not discharge, or intermeddle with, the obligation of
contracts. Nor is it denied, that insolvent laws, which
discharge the obligation of contracts, made antecedently
to their passage, are unconstitutional. But the question
is, how far the States may constitutionally pass insolvent
laws, which shall operate upon, and discharge contracts,
which are made subsequently to their passage. After the
most ample argument, it has at length been settled, by
a majority of the Supreme Court, that the States may
constitutionally pass such laws operating upon future con-
tracts, although not upon past.
§ 247. The remaining j^rohibition is, to "grant any title
of nobility," which is supported by the same reasoning as
that already suggested, in considering the like prohibition
upon the National Government.
§ 248. The next clause, omitting the prohibition (al-
ready cited) to lay any imposts or duties on imports or
exports, is, "No State shall, without the consent of Con-
gress, lay any duty on tonnage ; keep troops, or ships of
war, in time of peace ; enter into any agreement or com-
pact with another State, or with a foreign power ; or
engage in war unless actually invaded, or in such immi-
nent danger, as will not admit of delay." That part,
which respects tonnage duties, has been already consid-
ered. The other parts have the same general policy in
view, which dictated the preceding restraints upon State
power. To allow the States to keep troops, or ships
of war, in time of peace, might be hazardous to the pub-
lic peace or safety, or compel the National Government
to keep up an expensive corresponding force. To allow
the States to enter into agreements with each other, or
with foreign nations, might lead to mischievous combina-
tions, injurious to the general interests, and bind them
into confederacies of a geographical or sectional charac-
ter. To allow the States to engage in war, unless com-
pelled so to do in self-defence and upon sudden emergen-
cies, would be (as has been already stated) to put the
peace and safety of all the States in the power and dis-
PROHIBITIONS ON THE STATES. 157
cretlon of any one of tbem. But an absolute prohibition
of all these powers might, in certain exigencies, be inex-
pedient, and even mischievous ; and, therefore. Congress
may, by their consent, authorize the exercise of any of
them, whenever, in their judgement, the public good shall
require it.
§ 249. We have thus passed through the positive
prohibitions introduced upon the powers of the States.
It will be observed, that they divide themselves into two
classes ; those, which are political in their character, as
an exercise of sovereignty ; and those, which more espe-
cially regard the private rights of individuals. In the
latter, the prohibition is absolute and universal. In the
former, it is sometimes absolute, and sometimes subjected
to the consent of Congress. It will, at once, be per-
ceived, how full of difficulty and dehcacy the task was, to
reconcile the jealous tenacity of the States over their own
sovereignty, with the permanent security of the National
Government, and the inviolability of private rights. The
task has been accomplished with eminent success. If
every thing has not been accomplished, which a wise
forecast might have deemed proper for the preservation
of our national rights and liberties in all political events,
much has been done to guard us against the most obvious
evils, and to secure a wholesome administration of private
justice. To have attempted more, would probably have
endangered the whole fabric ; and thus might have per-
petuated the dominion of misrule and imbecility.
§ 250. It has been already seen, and it will hereafter
more fully appear, that there are implied, as well as ex-
press, prohibitions in the Constitution upon the power of
the States. Among the former, one clearly is, that no
State can control, or abridge, or interfere with the exer-
cise of any authority under the National Government.
And it may be added, that State laws, as, for instance.
State statutes of hmitations, and State insolvent laws,
have no operation upon the rights or contracts of the
United States.
§ 251. And here end our commentaries upon the first
article of the Constitution, embracing the organization
14 XIII.
158 CONSTITUTION OF THE UNITED STATES.
and powers of the Legislative department of the govern-
ment, and the prohibitions upon the State and National
Governments. If we here pause, but for a moment, we
cannot but be struck with the reflection, how admirably this
division and distribution of legislative powers between the
State and National Governments is adapted to preserve
of the liberty, and to promote the happiness of the people
of the United States. To the General Government are
assigned all those powers, which relate to the common
interests of all the States, as comprising one confederated
nation ; while to each State is reserved all those pow-
ers, which may affect, or promote its own domestic in-
terests, its peace, its prosperity, its policy, and its local
institutions. At the same time, such limitations and re-
straints are imposed upon each government, as experience
has demonstrated to be wise to control any public func-
tionaries, or as are indispensable to secure the harmonious
operations of the Union.
CHAPTER XXVIII.
The Executive Department.
§ 252. We next come to the second article of the
Constitution, which prescribes the structure, organization,
and powers of the Executive department. What is the
best constitution for the executive department, and what
are the powers, with which it should be intrusted, are
problems among the most important, and probably the
most difficult to be satisfactorily solved, of all, which are
involved in the theory of free governments. No man,
who has ever studied the subject with profound attention,
has risen from the labor without an increased and almost
overwhelming sense of its intricate relations, and perplex-
ing doubts. No man, who has ever deeply read the
human history, and especially the history of republics,
but has been struck with the consciousness, how little has
been hitherto done to establish a safe depositary of power
EXECUTIVE DEPARTMENT. 159
in any hands ; and how often, in the hands of one, or a
few, or many, — of an hereditary monarch, or an elective
chief, or a national council, the executive power has
brought ruin upon the state, or sunk under the oppressive
burden of its own imbecihty. Perhaps our own history
has not, as yet, established, that we shall wholly escape
all the dangers ; and that here will not be found, as has
been the case in other nations, the vulnerable part of the
republic.
§ 253. The first clause of the first section is, " 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 with the Vice
President, chosen for the same term, be elected as fol-
lows."
§ 254. In considering this clause, three practical ques-
tions may arise ; (1) whether there should be any execu-
tive department ; (2) whether it should be composed of
more than one person ; (3) and what should be the dura-
tion of the term of office. Upon the first question, httle
need now be said, to establish the propriety of an execu-
tive department. It is founded upon a maxim admitted
in all our State Constitutions, that the legislative, execu-
tive, and judicial departments ought to be kept separate,
and the power of one ought not to be exercised by either
of the others. The want of an executive department
was felt as a great defect under the Confederation.
§ 255. In the next place, in what manner should the
executive department be organized ? It may, in general
terms, be answered, — In such a manner as best to secure
energy in the Executive, and safety to the people. A
feeble •Executive imphes a feeble execution of the gov-
ernment ; and a feeble execution is but another phrase
for a bad execution. Unity in the Executive is favorable
to energy, promptitude, and respohsibility. A division
of the power among several persons impairs each of these
qualities ; and introduces discord, intrigue, dilatoriness,
and, not unfrequently, personal rivalries, incompatible with
the public good. On the other hand, a single Executive
is quite as safe for the people. His responsibility is more
160 CONSTITUTION OF THE UNITED STATES.
direct and efficient, as his measures cannot be disguised,
or shifted upon others ; and any abuse of authority can
be more clearly seen, and carefully watched, than when
it is shared by numbers.
§ 256. In the next place, the duration of the term of
office of the Executive. It should be long enough to
enable a chief magistrate to carry fairly through a system
of government, according to the laws ; and to stimulate
him to personal firmness in the execution of his duties.
If the term is very short, he will feel very little of the
just pride of office, from the precariousness of its tenure.
He will act more with reference to immediate and tem-
porary popularity, than to permanent fame. His meas-
ures will tend to insure his own reelection, (if he desires
it,) rather than to promote the good of the country. He
will bestow offices upon mean dependants, or fawning
courtiers, rather than upon persons of solid honor and
distinction. He will fear to encounter opposition by a
lofty course ; and his wishes for office, equally with his
fears, will debase his fortitude, weaken his integrity, and
enhance his irresolution.
§ 257. On the other hand, the period should not be so
loflg, as to impair the proper dependence of the Execu-
tive upon the people for encouragement and support ; or
to enable him to persist in a course of measures, deeply
injurious to the public interests, or subversive of the pub-
lic faith. His administration should be known to come
under the review of the people at short periods ; so that
its merits may be decided, and its errors be corrected by
the sober exercise of the electoral vote by the people.
§ 258. For all of these purposes, the period, actually
assigned for the duration of office of the President'^ by the
Constitution, seems adequate and satisfactory. It is four
years, a period intermediate between the term of office
of the Representatives, and that of the Senators. By
this arrangement, too, the whole organization of the legis-
lative departments is not dissolved at the same moment.
A part of the functionaries are constantly going out of
office, and as constantly renewed, while a sufficient num-
ber remain, to carry on the same general system with in-
EXECUTIVE DEPARTMENT. 161
telligence and steadiness. The President is not precluded
from being reeligible to office ; and thus with a just
estimate of the true dignity and true duties of his office,
he may confer lasting benefits on his country, as well
as acquire for himself the enviable fame of a statesman
and patriot.
§ 259. The like term of office is fixed for the Vice
President ; and in case of the vacancy of the office of
President, he is to succeed to the same duties and pow-
ers. In the original scheme of the government, the Vice
President was an equal candidate for the office of Presi-
dent. But that provision has been altered (as we shall
presently see) by an amendment of the Constitution. As
President of the Senate, it seems desirable, that the Vice
President should have the experience of at least four
years service, to perfect him in the forms of business,
and secure to him due distinction, and ^weight of charac-
ter.
§ 260. The next clause provides for the mode of
choice of the President and Vice President. '' 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 maybe entitled in the Congress. But no Sen-
ator or Representative, or person holding an office of
trust or profit under the United States, shall be appointed
an Elector."
§ 261. Various modes were suggested as to the choice
of these high officers ; first, the choice was proposed to
be made by the National Legislature ; secondly, by the
State Legislatures ; thirdly, by the people at large ;
fourthly, by the people in districts ; and lastly, by Elect-
ors. Upon consideration of the whole subject, the last
was deemed the most ehgible course, as it would secure
the united action and wisdom of a select body of distin-
guished citizens in the choice, and would be attended
with less excitement, and more deliberation, than a mere
popular election. Such a body would also have this
preference over any mere Legislature, that it would not be
chosen for the ordinary functions of legislation, but singly
14#
162 CONSTITUTION OP THE UNITED STATES.
and solely for this duty. It was supposed from these
circumstances, that the choice would be more free and
independent, more wise and cautious, more satisfactory,
and more unbiased by party spirit, than in either of the
other modes. The State Legislatures would still have
an agency in the choice, by prescribing the mode, in
which the Electors should be chosen, whether it should
be by the people at large, or in districts, or by the Legis-
lature itself. For the purpose of excluding all undue
influence in the electoral colleges, the Senators and
Representatives in Congress, and all officers under the
National Government are disqualified from being Electors.
§ 262. The remaining clause regulates the conduct of
the Electors, in giving and certifying their votes ; the
manner of ascertaining and counting the votes in Congress ;
and the mode of choice, in case there is no choice made
by the Electors. The original clause was as follows : —
'' 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, and 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 Representa-
tives, 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 majori-
ty 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 Representa-
tives 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 Presi-
dent the votes shall be taken by States, the representation
from each State having one vote ; a quorum for this pur-
pose shall consist of a member or members from two
thirds of the States, and a majority of all the States shall
EXECUTIVE DEPARTMENT. 163
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 Pres-
ident."
§ 263. This clause is now repealed, (whether wisely or
not, has been a matter of grave question among statesmen,)
and the following substituted in. its stead : — " The Elec-
tors 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 per-
son voted for as President, and in distinct ballots the
person voted for as Vice President. And they shall
make distinct hsts of all persons voted for as President,
and of all persons voted for as Vice President, and of the
number of votes for each ; which lists they shall sign and
certify, and transmit sealed to the seat of government of
the United States, directed to the President of the Sen-
ate. The President of the Senate shall, in 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 per-
son have such majority, then, from the persons having the
highest numbers, not exceeding three, on the list of those
voted for as President, the House of Representatives shall
choose immediately, by ballot, the President. But in
choosing the President, the votes shall be taken by States,
the Representation from each State having one vote ; a
quorum for this purpose shall consist of a member or
members from two thirds of the States ; and a majority
of all the States shall be necessary to a choice. And
if the House of Representatives shall not choose a Pres-
ident, 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
164 CONSTITUTION OF THE UNITED STATES.
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 Elect-
ors appointed. And if no person have a majority, then,
from the two highest numbers on the list, the Senate shall
choose the Vice President. A quorum for the purpose
shall consist of two thirds of the whole number of Sena-
tors, and a majority of the whole number shall be neces-
sary to a choice. But no person, constitutionally ineligi-
ble to the office of President, shall be eligible to that of
Vice President of the United States."
§ 264. The principal differences between the original
plan, and this amendment to the Constitution, are the fol-
lowing : First, by the original plan, two persons were voted
for as President ; and after the President was chosen, the
person, having the greatest number of votes of the Elect-
ors was to be Vice President ; but if tw^o or more had
equal votes, the Senate were to choose the Vice Presi-
dent from them by ballot. By the present plan, the votes
for President and Vice President are distinct. Second-
ly, by the original plan, in case of no choice of President
by the Electors, the choice was to be made by the House
of Representatives, from the five highest on the list. It
is now reduced to three. Thirdly, by the original plan,
the Vice President need not have a majority of all the
electoral votes, but only a greater number than any other
person. It is now necessary, that he should have a ma-
jority of all the votes. Fourthly, by the original plan,
the choice of Vice President could not be made until af-
ter a choice of President. It can now be made by the
Senate, as soon as it is ascertained, that there is no choice
by the Electors. Fifthly, no provision was made for the
case of no choice of President by the House of Represent-
atives, before the fourth day of March next. It is now
provided that the Vice President in such a case shall act
as President.
§ 265. A few words, only, will be necessary, to explain
the main provisions, respecting the choice of these high
functionaries, since the adoption of this amendment, as an
elaborate examination of the subject would occupy too
EXECUTIVE DEPARTMENT. 165
much space. In the first place, the Electors, as well as
the House of Representatives, are to vote by ballot, and
not viva voce, or by oral declaration. The object of this
provision, is, to secure the Electors from all undue influ-
ence, and undue odium for their vote, as it was supposed,
that perfect secrecy could be maintained. In the next
place, both candidates cannot be an inhabitant of the same
State, as the Electors. The object of this clause is to
suppress local partialities and combinations. In the next
place, the votes are to be certified by the Electors them-
selves, in order to insure the genuineness of the vouchers.
In the next place, they are to be sealed, and opened and
counted only in presence of the Senate and House of
Representatives, in order to prevent any frauds or altera-
tions in their transmission. In the next place, a majority
of all the electoral votes is, in the first instance, required
for a choice, and not a mere plurality ; thus enabling the
people, in case there is no choice, to exercise through
their Representatives a sound discretion, in selecting from
the three highest candidates. It might otherwise happen,
if there were many candidates, that a person, having a
very small number of votes over any one of the others,
might succeed against the wishes of a great majority of
the people. In the next place, the House of Represent-
atives are to vote by States, each having one vote in the
choice. The choice is, as we have seen, in the first in-
stance to be by the people of each State, according to
the number of their Senators and Representatives. But
if no choice is thus made, then the choice devolves on
the House of Representatives, and each State is to have
an equal voice in the election, and to have but a single
vote, whatever maybe the number of its Representatives.
Thus, the primary election is in effect surrendered to the
large States ; and if that fails, then it is surrendered to
the small States. So that an important motive is thus
suggested for union among the large States in the first
instance ; and for union among the small States in the
last resort.
§ 266. There probably is no part of the plan of the
framers of the Constitution, which, practically speaking,
166 CONSTITUTION OF THE UNITED STATES.
has so little realized the expectations of its friends, as that
which regards the choice of President. They undoubt-
edly intended, that the Electors should be left free to make
the choice according to their own judgement of the rel-
ative merits and qualifications of the candidates for this
high office ; and that they should be under no pledge to
any popular favorite, and should be guided by no sectional
influences. In both respects, the event has disappointed
all these expectations. The Electors are now almost uni-
versally pledged to support a particular candidate, before
they receive their own appointment ; and they do little
more than register the previous decrees, made by public
and private meetings of the citizens of their own State.
The President is in no just sense the unbiassed choice of
the people, or of the States. He is commonly the rep-
resentative of a party, and not of the Union ; and the dan-
ger, therefore, is, that the office may hereafter be filled by
those, who will gratify the private resentments, or preju-
dices, or selfish objects of their particular partisans, rather
than by those, who will study to fulfil the high destiny
contemplated by the Constitution, and be the impartial
patrons, supporters, and friends of the great interests of the
whole country.
§ 267. It is observable, that the mode, in which the
electoral vote of each State is to be given, is confided to
the State Legislature. The mode of choice has never
been uniform since the Constitution was adopted. In
some States, the choice is by the people by a general
ticket ; in others, by the people in electoral districts ;
and in others, by the immediate choice of the State Le-
gislature. This want of uniformity has been deemed a
serious defect by many statesmen ; but, hitherto, it has
remained unredressed by any constitutional amendment.
§ 268. The next clause is, " The Congress may de-
termine the time of choosing the Electors, and the day,
on which they shall give their votes ; which day shall be
the same throughout the United States." This measure
is undoubtedly the result of sound policy. A fixed peri-
od, at which all the electoral votes shall be given on the
same day, has a tendency to repress political intrigues and
EXEfcUlJIVE DEPARTMENT. 167
speculations, by rendering a combination among all the
electoral colleges, as to their votes, more difficult, if not
unavailing. This object would be still more certainly-
obtained, by fixing the choice of the electors themselves
on the same day, and at so short a period, before they
gave their votes, as to render any general negotiations and
arrangements among them nearly impracticable. Prac-
tically speaking, however, this provision, as well as the
preceding, has had far less influence than was expected ;
for the votes of the Electors are now, in consequence of
their pledges, almost as well known before, as after, their
votes are counted.
§ 269. The next clause respects the qualifications of the
President ; and the qualifications of the Vice President
are (as we have seen) to be the same. "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 the office, who shall not have attained
to the age of thirty-five years, and been fourteen years a
resident within the United States."
§ 270. Considering the nature of the duties, the extent
of the information, and the solid wisdom and experience,
required in the Executive department, no one can reason-
ably doubt the propriety of some qualification of age of the
President. That, which is selected, is the middle age of
life, by which period, the character and talents of individ-
uals are generally known, and fairly developed ; the pas-
sions of youth have become moderated ; and the faculties
are fast advancing to their highest state of maturity. An
earlier period could scarcely have afforded sufficient pledg-
es of talents, wisdom, and virtue, adequate to the dignity
and importance of the office.
§ 271. The other qualifications respect citizenship and
inhabitancy. It is not too much to say, that no one, but
a native citizen, ought ordinarily to be intrusted with an
office so vital to the safety and liberties of the people.
But an exception was, from a deep sense of gratitude,
made in favor of those distinguished men, who, though not
natives, had, with such exalted patriotism, and such per-
168 CONSTITUTION OF THE UNITED STATES.
sonal sacrifices, united their lives and fortunes with ours
during the Revolution. But even a native citizen might,
from long absence, and voluntary residence abroad, be-
come alienated from, or indifferent to his country ; and,
therefore, a residence for fourteen years within the United
States is made indispensable, as a qualification to the
office. This, of course, does not exclude persons, who
are temporarily abroad in the pubUc service, or on their
private affairs, and who have not intentionally given up
their domicile here.
§272. The next clause is, "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 of the President
and Vice President ; declaring what officer shall then act
as President ; and such officer shall act accordingly, until
the disability be removed, or a President shall be elect-
ed." The propriety of this power is manifest. It pro-
vides for cases, which may occur in the progress of the
government ; and it prevents in such cases a total sus-
pension of the executive functions, which would be in-
jurious, and might even be fatal to the interests of the
country.
§ 273. What shall be the proper proof of the resigna-
tion of the President or Vice President, or of their refu-
sal to accept the office, is left open by the Constitution.
But Congress, with great wisdom and foresight, have pro-
vided, that the only evidence of a refusal to accept the
office, or of a resignation of the office, shall be an instru-
ment in writing, declaring the same, subscribed by the
party and delivered into the office of the Secretary of
State. No provision has as yet been made for the case
of the inability of the President or. Vice President to
perform the duties of his office, nor has any mode of
proof been prescribed, to ascertain the fact of inability,
or what shall be deemed an inability.
§ 274. The next clause provides for the compensation
of the President. " The President shall, at stated times,
EXECUTIVE DEPARTMENT. 169
receive for his services a compensation, which shall nei-
ther 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, oi^any of them."
§275. The propriety of granting to the President a
suitable compensation, cannot well be doubted. The Con-
stitution would, otherwise, exclude all persons of moder-
ate fortune from the office ; or expose them to gross
temptations, to sacrifices of duty, and perhaps to direct
corruption. The compensation should be adequate to
the just expenditures of the office. If the Legislature
should possess a discretionary authority to increase or
diminish it at their pleasure, the President would become
an humble dependent upon their bounty, or a mean sup-
pliant for their favor. It would give them a complete
command of his independence, and perhaps of his integ-
rity. And on the other hand, if the actual incumbent
could procure an augmentation of it during his official
term to any extent he might desire, he might be induced,
from mere avarice, to seek this as his highest reward, and
undermine the virtue of Congress, in order to accomplish
it. The prohibition equally forbids any increase or dimi-
nution. And, to exclude all exterior influences, it equal-
ly denies to him all emoluments arising from any other
sources, State or National. He is thus secured, in a great
measure, against all sinister foreign influences. And he
must be lost to all just sense of the high duties of his
station, if he does not conduct himself with an exclusive
devotion to the good of the whole people, unmindful at
once of the blandishments of courtiers, who seek to
deceive him, and of partisans, who aim to govern him,
and thus to accomplish their own selfish purposes.
§ 276. The next clause is, " Before he enters 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, pre-
serve, protect, and defend, the Constitution of the United
States." There is little need of commentary here. No
15 XIII.
170 CONSTITUTION OF THE UNITED STATES.
man can doubt the propriety of placing the President
under the sanction of an oath of office, to preserve, pro-
tect, and defend, the Constitution, who would require an
oath or solemn affirmation on any other occasion. If a
judge, or a juryman, or a witness, ought to tak^ a solemn
oath or affirmation, to bind his conscience, surely a Pres-
ident, holding in his hands the destiny of the nation, ought
so to do. Let it not be deemed a vain or idle form. In
all these things, God will bring us into judgement. A
President, who shall dare to violate the obligations of his
solemn oath or affirmation of office, may escape human
censure, nay, may even receive applause from the giddy
multitude. But he will be compelled to learn, that there
is a watchful Providence, that cannot be deceived ; and
a righteous Being, the searcher of all hearts, who will
render unto all men according to their deserts. Consid-
erations of this sort will necessarily make a conscientious
man more scrupulous in the discharge of his duty ; and
will even make a man of looser principles pause, when
he is about to enter upon a deliberate violation of his
official oath.
CHAPTER XXIX.
Powers and Duties of the President.
§ 277. We next come to the consideration of the pow-
ers and duties of the President. The first clause of the
second section is, " 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 offices ; and he shall have
power to grant reprieves and pardons for offences against
the United States, except in cases of impeachment."
§ 278. The command, direction, and application, of
POWERS AND DUTIES OF THE PRESIDENT. 171
the public forces, to execute the laws, maintain peace,
resist invasion, and carry on war, are powers obviously
belonging to the executive department, and require the
exercise of qualifications, which cannot properly be pre-
sumed to exist in any other department of the govern-
ment. Promptitude of action, unity of design, and har-
mony of operations, are in such cases indispensable to
success. Timidity, indecision, obstinacy, pride, and slug-
gishness, must mingle, in a greater or less degree, in all
numerous bodies, and render their councils inert and im-
becile, and their military operations slow and uncertain.
There is, then, true wisdom and policy in confiding the
command- of the army and navy to the President, since it
will insure activity, responsibility, and firmness, in public
emergencies.
§ 279. The President is also authorized to require
the opinions of the Heads of Departments, in writing, on
subjects relative to their official duties. This, perhaps,
might have been deemed an incidental right to his gener-
al authority. But it was desirable to make it a matter of
constitutional right, so as to enforce responsibility in crit-
ical times.
§ 280. To the President, also, is confided the power
*' to grant reprieves and pardons." Without this power,
'no government could be deemed to be suitably organized
for the purposes of administering human justice. The
criminal code of every country must necessarily partake,
in some of its punishments, of a high degree of severity ;
and it is not possible to fix the exact degree of punish-
ment, for every kind of offence, under every variety of
circumstances. There are so many things, which may
extenuate, as well as inflame the atrocity of crimes, and
so many infirmities, which belong to human nature in
general, which may furnish excuses, or mitigations for
the commission of them, that any code, which did not
provide for any pardoning or mitigating power, would be
universally deemed cruel, unjust, and indefensible. It
would introduce the very evils, which it would seek to
avoid, by inducing the community to connive at an escape
from punishment, in all cases, where the latter would be
172 CONSTITUTION OF THE UNITED STATES.
disproportionate to the offence. The power of pardon
and reprieve is better vested in a single person, than in a
numerous body. It brings home a closer responsibility ;
it can be more promptly applied ; and, by cutting off de-
lays, it will, on the one hand, conduce to certainty of
punishment, and, on the other hand, enable the Execu-
tive, at critical moments, to apply it as a means of detect-
ing, or of suppressing gross offences. But if the power
of pardon extended to impeachments, it is obvious, that
the latter might become wholly inefficient, as a protection
against political offences. The party accused might be
acting under the authority of the President, or be one of
his corrupt favorites. It is, therefore, wisely excepted
from his general authority.
§ 281. The next clause respects the power to make
treaties and appointments to office. " He (the Presi-
dent) shall have power, by and with the advice and con-
sent 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, ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other offi-
cers 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
appointment of such inferior officers, as they think proper,
in the President alone, in the Courts of Law, or in the
Heads of Departments."
§ 282. The power to make treaties is general, and,
of course, it embraces treaties for peace, or war ; for
commerce, or cessions of territory ; for alliance, or suc-
cors ; for indemnity for injuries, or payment of debts ;
for the recognition or establishment of principles of pub-
lic law ; and for any other purposes, which the policy,
necessities, or interests of independent nations may dic-
tate. Such a power is so large, and so capable of abuse,
that it ought not to be confided to any one man, nor even
to a mere majority of any public body, in a republican
government. There should be some higher pledge for
the sound policy or necessity of a treaty. It should re-
POWERS AND DUTIES OF THE PRESIDENT. 173
ceive the sanction of such a number of public functiona-
ries, as would furnish a sufficient guaranty of such policy
or necessity. Two thirds of the Senate, therefore, are
required to give validity to a treaty. It would seem to
be perfectly safe in such a body, under such circumstan-
ces, representing, as it does, all the States of the Union.
The House of Representatives would not have been so
eligible a body, because it is more numerous, more popu-
lar in hs structure, more short in its duration, more unfit
to act upon sudden emergencies, more under the control
of a few States ; and, from its organization, it may fairly
be presumed to have less experience in public affairs,
and less knowledge of foreign relations, than the Senate.
§ 283. The power of appointment, one of the most
important and delicate in a republican government, is
next provided for. Upon its fair and honest exercise,
must, in a great measure, depend the vigor, the public
virtue, and even the safety, of the government. If it shall
ever be wielded by any Executive, exclusively to gratify
his own ambition or resentments, to satisfy his own per-
sonal favorites, or to carry his own political measures,
and, still more, if it shall ever interfere with the freedom
of elections by the people, or suppress the honest expres-
sion of opinion and judgement by voters, it will become
one of the most dangerous and corrupt engines to destroy
private independence and public liberty, which can assail
the republic. It should, therefore, be watched in every
free government with uncommon vigilance, as it may,
otherwise, soon become as secret, as it will be irresisti-
ble, in its mischievous operations. If the time shall ever
arrive, when no citizen can obtain any appointment to
office, unless he submits to sacrifice all personal indepen-
dence and opinion, and to become the mere slave of
those, who can confer it, it is not difficult to foresee, that
the power of appointment will then become the fittest in-
strument of artful men to accomphsh the worst purposes.
The framers of the Constitution were aware of this danger,
and have sedulously interposed certain guards to,check, if
not wholly to prevent, the abuse of the power. The ad-
vice and consent of the Senate is required to the appoint-
15*
174 CONSTITUTION OF THE UNITED STATES.
ment of ambassadors, other public ministers, consuls,
judges of the Supreme Court, and other high officers.
§ 284. The mode of appointment of inferior officers
is left in a good measure to the discretion of Congress ;
and the power may be vested by them in the President,
in the Courts of Law, or in the Heads of Departments.
The propriety of this grant of discretionary power, in
certain cases, cannot well be doubted. But it is very
questionable, if Congress have not permitted its exercise,
in some departments of the government, to an extent,
which may be highly alarming, and even incompatible
with the sound policy and interests of the government.
Some departments possess only the unenviable power
of appointing their own clerks ; whilst others possess a
power of patronage, which almost rivals that of the Pres-
ident himself; and the exercise of it is left, in a great
measure, without the check of the constitutional advice
or consent of the Senate.
§ 285. It is observable, that the Constitution makes
no mention of any power of removal of any officer by the
President, or by any other body. As, however, the
tenure of office is not provided for in the Constitution,
except in the judicial department, (where it is during good
behavior,) the natural inference is, that all other officers
are to hold their offices during pleasure, or during such
period, as Congress shall prescribe. But if the power of
removal exists, in cases where the term of office is not
thus limited by Congress, the question is, in whom does
it reside } Doss it reside in the President alone ? Or
does it reside in the body intrusted with the particular
appointment ? It was maintained, with great earnestness
and ability, by some of the ablest statesmen, who assisted
in framing the Constitution, that it belonged to the latter ;
and that, in all cases where the advice and consent of the
Senate are necessary to an appointment, the same advice
and consent are also necessary to a removal from office.
In short, they maintained, with great force of argument
and reasoning, that the power of removal was but an inci-
dent to the power of appointment, and that, consequently,
the removal could only take place by the appointing pow-
POWERS AND DUTIES OF THE PRESIDENT. 175
er, and was consummated only by a new appointment. It
is singular enough, that in the first Congress, jealous,
as it was, of executive power, a different doctrine was
maintained, viz., that it is an incident to the executive
department. This doctrine arose (it has been said) partly
from a just deference to the great man (Washington)
then in the office of President, and partly from a belief,
that a removal from office without just cause would be an
impeachable offence in the President ; and, therefore,
that there could be no danger of its exercise, except in
flagrant cases of malversation, or incapacity of the officer.
This latter doctrine has ever since prevailed in practice ;
and the President is accordingly now permitted to exer-
cise the power of removal, without any restraint from the
Senate, although the Constitution, in the enumeration of
his powers, is wholly silent on the subject. If we con-
nect this power of removal, thus practically expounded,
with another power, which is given in the succeeding
clause, to fill up vacancies in the recess of the Senate,
the chief guards, intended by the Constitution, over the
power of appointment, may become utterly nugatory. A
President of high ambition and feeble principles may re-
move all officers, and make new appointments, in the
recess of the Senate ; and if his choice should not be
confirmed by the Senate, he may reappoint the same
persons in the recess, and thus set at defiance the salu-
tary check of the Senate in all such cases.
§ 286. The clause to which we have alluded is, " The
President shall have power to fill up all vacancies, that
may happen during the recess of the Senate, by granting
commissions, which shall expire at the end of their next
session." This is a provision almost indispensable to
secure a due performance of public duties by officers of
the government, during the recess of the Senate ; and as
the appointments are but temporary, the temptation to any
abuse of the power would seem to be sufficiently guarded,
if it might not draw in its train the dangerous consequen-
ces, which have been before stated.
§ 287. The third section of the second article enume-
rates the duties of the President, " He shall from time
176 CONSTITUTION OF THE UNITED STATES.
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 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 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."
§ 288. The duty of giving information by the Presi-
dent to Congress, of the state of the Union, and of re-
commending measures, would seem almost too clear to
require any express provision. But it is not without its
use. It fixes the responsibility on the President ; and,
on the other hand, it disables Congress from taking any
objection, that he is impertinently interfering with their
appropriate duties. His knowledge of public affairs may
be important to them ; and the people ought consequently
to have a right to demand it. His recommendation of
measures may give Congress the benefit of his large expe-
rience ; and, at all events, may compel them to a just dis-
charge of their legislative powers. So that, in this way,
each department may be brought more fully before the
pubhc, both as to what each does, and what each omits
to do, and each will share the responsibility accordingly.
§ 289. The power to convene Congress on extraordi-
nary occasions is founded on the wisest pohcy. Sudden
emergencies may arise in the recess of Congress, and be
wholly beyond any previous foresight, yet indispensable
to be met with promptitude and vigor. The power to
adjourn Congress, in cases of disagreement between the
two Houses, is a quiet w^ay of disposing of a practical
difficulty in cases of irritation or obstinate differences of
opinion between them.
§ 290. The power to receive ambassadors and other
public ministers, is a very important and delicate function ;
and far more so, than it seems to have been deemed even
by the framers of the Constitution. In times of profound
tranquillity throughout the world, it may properly be con-
POWERS AND DUTIES OP THE PRESIDENT. 177
fided to the Executive alone. But it is not so clear, that
the Senate ought not, in cases of revolutions in foreign
governments, to partake of the functions, by their advice
and consent. The refusal to receive an ambassador or
minister, is sometimes a source of discontent to foreign
nations, and may even provoke public hostilities. But
in cases of revolution, or the separation of a kingdom into
two or more distinct governments, the acknowledgement
of an ambassador or minister, of either party, is often treat-
ed as an interference in the contest, and may lead to an
open rupture. There would therefore seem to be a pecu-
liar propriety, in all such cases, to require greater caution
on the part of the Executive, by interposing some check
upon his own unlimited discretion. Our own times have
furnished abundant examples of the critical nature of the
trust ; but it has hitherto been exercised with such sound
judgement, that the power has been felt to be practically
safe, and eminently useful.
§ 291 . Another duty of the President is, " to take care
that the laws be faithfully executed.'^'' And by the laws
we are here to understand, not merely the acts of Con-
gress, but all the obhgations of treaties, and all the requi-
sitions of the Constitution, as the latter are, equally with
the former, the " supreme law of the land." The great
object of the establishment of the executive department
is, to accompHsh, in this enlarged sense, a faithful execu-
tion of the laws. Without it, be the form of government
whatever it may, it will be utterly worthless for confidence,
or defence, for the redress of grievances, or the protec-
tion of rights, for the happiness and good order of citi-
zens, or for the public and political liberties of the peo-
ple.
§ 292. But we are not to understand, that this clause
confers on the President any new and substantial power
to cause the laws to be faithfully executed, by any means,
which he shall see fit to adopt, although not prescribed by
the Constitution, or by the acts of Congress. That would
be to clothe him with an absolute despotic power over the
lives, the property, and the rights of the whole people.
A tyrannical President might, under a pretence of this
178 CONSTITUTION OF THE UNITED STATES.
sort, punish for a crime, without any trial by jury, or
usurp the functions of other departments of the govern-
ment. The true interpretation of the clause is, that the
President is to use all such means as the Constitution and
laws have placed at his disposal, to enforce the due exe-
cution of the laws. As, for example, if crimes are com-
mitted, he is to direct a prosecution by the proper public
officers, and see, that the offenders are brought to justice.
If treaties are violated by foreign nations, he is to make
suitable demands for a due enforcement of them ; but he
cannot employ the public force, or make war, to accom-
phsh the purpose. If pubhc officers refuse or neglect to
perform their appropriate duties, he is bound to remove
them, and appoint others who will honestly and faithfully
perform them.
§ 293. The remaining duty is, '' to commission all the
officers of the United States." The President cannot
lawfully refuse, or neglect it in any case, where it is re-
quired by law. It is not designed, as some have incor-
rectly supposed, to give him a control over all appoint-
ments ; but to give to the officers a perfect voucher of
their right to office. In this view, it is highly important,
as it introduces uniformity and regularity into all the de-
partments of the government, and furnishes an indisputa-
ble evidence of a rightful appointment.
§ 294. The remaining section of this article contains
an enumeration of the persons, who shall be liable to be
removed from office by impeachment, and for what of-
fences. It is, *' The President, Vice President, and all
civil officers of the United States, shall be removed from
office, on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors." The
true objects and interpretation of this clause have been
already sufficiently considered.
§ 295. There are other incidental powers, belonging
to the executive department, which are necessarily im-
phed from the nature of the functions, which are confided
to it. Among these, must necessarily be included the
power to perform them, without any obstruction or im-
pediment whatsoever. The President cannot, therefore.
THE JUDICIAL DEPARTMENT. 179
be liable to arrest, imprisonment, or detention, while he
is in the discharge of the duties of his office ; and for this
purpose his person must be deemed, in civil cases at least,
to possess an official inviolability. In the exercise of his
political powers, he is to use his own discretion, and is
accountable only to his country, and to his own conscience.
His decision, in relation to these powers, is subject to no
control ; an^ his discretion, when exercised, is conclusive.
But he has no authority to control other officers of the
government, in relation to the duties imposed upon them
by law, in cases not touching his own political powers.
§ 296. Thus is closed the examination of the rights,
powers, and duties of the Executive department. Unless
my judgement has been unduly biased, I think it will be
found impossible to withhold from this part of the Consti-
tution a tribute of profound respect, if not of the Hveliest
admiration. All, that seems desirable in order to gratify
the hopes, secure the reverence, and sustain the dignity
the nation, is, that it should always be occupied by a man
of elevated talents, of ripe virtues, of incorruptible integ-
rity, and of tried patriotism ; one, who shall forget his
own interests, and remember, that he represents not a
party, but the whole nation ; one, whose fame may be
rested with posterity, not upon the false eulogies of favor-
ites, but upon the soHd merit of having preserved the glo-
ry, and enhanced the prosperity of the country.
CHAPTER XXX.
The Judicial Department.
§ 297. Having finished our examination of the struc-
ture and organization of the Legislative and Executive
Departments, we next come to an examination of the
remaining coordinate department, the Judiciary. No
one, who has duly reflected, can doubt, that the existence
of such a department, with powers coextensive with those
of the Legislative and Executive departments, is indispen
180 CONSTITUTION OF THE UNITED STATES.
sable to the safety of a free government. Where there
is no Judiciary department to interpret, pronounce, and
execute the laws, to decide controversies, to punish offen-
ces, and to enforce rights, the government must either
perish from its own weakness, or the other departments
of government must usurp powers for the purpose of
commanding obedience, to the utter extinction of civil and
political liberty. The will of those who govern, must,
under such circumstances, become absolute and despotic ,
and it is wholly immaterial, whether absolute power be
vested in a single tyrant, or in an assembly of tyrants. No
remark is better founded in human experience than that
of Montesquieu, that '' there is no liberty, if the judiciary
be not separated 'from the legislative and executive pow-
ers." It is no less true, that personal security and pri-
vate property depend entirely upon the wisdom, integrity,
and stabihty of courts of justice. How, otherwise, are
the innocent to be protected against unjust accusations, or
the injured to obtain redress for their wrongs ? If that
government can be truly said to be despotic and intolera-
ble, in which the law is vague and uncertain ; it cannot
but be rendered still more oppressive and more mischiev-
ous, when the actual administration of justice is depend-
ent upon caprice, or favor, upon the will of rulers, or the
influence of popularity. When power becomes right, it
is of little consequence, whether decisions rest upon cor-
ruption, or weakness, upon the accidents of chance, or
upon deliberate wrong. In every well-organized govern-
ment, therefore, with reference to the security both of
public rights and private rights, it is indispensable, that
there should be a judicial department, to ascertain, and
decide, rights, to punish crimes, to administer justice, and
to protect the innocent from injury and usurpation.
§ 298. In the National Government, the judicial power
is equally as important, as it is in the States. The want
of it was a vital defect in the Confederation ; and led to
the most serious embarrassments during the brief existence
of that ill-adjusted instrument. Without it, the laws of
the Union would be perpetually in danger of being con-
travened by the laws of the States. The National Gov-
THE JUDICIAL DEPARTMENT. 181
ernment would be reduced to a servile dependence upon
the latter for the due execution of its powers ; and we
should have reacted over the same solemn mockery,
which began in the neglect, and ended in the ruin of the
Confederation. Power without adequate means to en-
force it, is Hke a body in a state of suspended animation.
For all practical purposes, it is, as if its faculties were
extinguished. A single State might, under such circum-
stances, at its mere pleasure, suspend the whole opera-
tions of the Union.
§ 299. Two ends, of paramount importance, and fun-
damental to a free government, are to be attained by a
National Judiciary. The first is, a due execution of the
powers of the government ; the second is, a uniformity
of interpretation and operation of those powers, and of
the laws made in pursuance of them. The power of in-
terpreting the laws, necessarily involves the power to
decide, whether they are conformable to the Constitution,
or not ; and in a conflict between the laws. State or
National, and the Constitution, no one can doubt, that the
latter is, and ought to be, of paramount obligation and
force. And, accordingly, it has always been deemed a
function mdispensable to the safety and liberty of the peo-
ple, that courts of justice should have a right to declare
void such laws, as violate the Constitution. The framers
of the Constitution, having these great principles in view,
unanimously adopted two fundamental resolutions on this
subject ; first, that a National Judiciary ought to be estab-
lished ; and secondly, that it ought to possess powers co-
extensive with those of the legislative department.
§ 300. The third article of the Constitution shows the
manner, in which these great principles are carried into
effect. The first section is, *' 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 diminished
during their continuance in office." The establishment
16 XIII.
182 CONSTITUTION OF THE UNITED STATES.
of a Supreme Court is positively required ; the establish-
ment of inferior courts is left to the discretion of Congress.
Unless a Supreme Court were established, there would
be no adequate means to insure uniformity in the inter-
pretation and operations of the Constitution and laws.
Inferior tribunals, whether State, or National, might con-
strue them in very different manners ; and, thus their
full obligation might be admitted in one State, and de-
nied in another State. The existence of a Supreme
Court is, therefore, at all times indispensable for the pur-
poses of public justice ; and it is accordingly made the
imperative and absolute duty of Congress to establish such
a Court. But the establishment of inferior courts may
not, in all cases, and under all circumstances, be as indis-
pensable. And, at all events, the nature and extent of
the organization and jurisdiction of these inferior courts,
may properly vary, at different times, to suit the public
convenience and exigencies. The power, therefore, to
establish these courts, as well as prescribe their organiza-
tion and jurisdiction, is confided to the discretion of Con-
gress.
§ 301 . The next consideration is, the mode of appoint-
ment, and tenure of office, of the judges. We have already
seen, that the judges of the Supreme Court are to be ap-
pointed by the President, by and with the advice and
consent of the Senate. The appointment of inferior
judges is not expressly provided for. But it has either
been left to the discretion of Congress, or silently belongs
to the President, by and with the advice and consent of
the Senate, under the clause already considered, author-
izing him to appoint all other officers, whose appointments
are not otherwise, in the Constitution, provided for.
§ 302. The tenure of office of the judges, both of the
Supreme and the inferior courts, is during good behavior.
This tenure of office seems indispensable to a due degree
of independence and firmness on their part, in the dis-
charge of the duties of their office ; and to a due security
to the people for their fidelity and impartiality, in admin-
istering private rights, and preserving the public liberties.
Such was the opinion of the framers of the Constitution,
THE JUDICIAL DEPARTMENT. 183
who unanimously agreed to this tenure of office. Let
us briefly consider some of the reasoning, by which it is
supported.
§ 303. In the first place, factions and parties are quite
as common in republics, as in monarchies ; and the same
safeguards are as indispensable in the former, as in the
latter, against the encroachments of party spirh, and the
tyranny of faction. Laws, however wholesome or neces-
sary, are sometimes the objects of temporary aversion,
of popular odium, and even of popular resistance. Noth-
ing is more easy in republics, than for demagogues, under
artful pretences, to stir up combinations against the regu-
lar exercise of authority, in order to advance their own
selfish projects. The independence and impartiality of
upright magistrates often interpose barriers to the success
of their schemes, which make them the secret enemies
of any regular and independent administration of justice.
If, under such circumstances, the tenure of office of the
judges were for a short period, they could easily intimi-
date them in the discharge of their duties, or, by render-
ing them odious, easily displace them. And thus the
minority in the state, whose sole rehance for protection,
in all free governments, must be upon the Judiciary, would
be deprived of their natural protectors.
§ 304. In the next place, the independence of the
Judiciary is indispensable, to secure the people against
the unintentional, as well as the intentional usurpations of
authority, in the Executive and Legislative departments.
It has been observed, with great sagacity, that power is
perpetually stealing from the many to the few ; and that
there is a perpetual tendency in the Legislative and Exe-
cutive departments to absorb all power. If the judges are
appointed at short intervals, either by the Legislative or
by the Executive authority, they will naturally, and almost
necessarily, become mere dependents upon the appoint-
ing power. If they have a desire to obtain, or to hold
office, they will at all times evince a desire to follow, and
obey the will of the predominant power in the state.
Public justice will be administered with a faltering and
feeble hand. The Judiciary will under such circum-
184 CONSTITUTION OF THE UNITED STATES.
Stances seek little but the possession of office, and the
approbation of those who value, because they can con-
trol it. It will be apt to decree, what best suits the
opinions of the day ; and to forget, that the precepts of
the law rest on eternal foundations, and are not to be
changed at the arbitrary will of the judges. The rulers
and the citizens will not stand upon an equal ground in
litigations. The favorites of the day will overcome by
their power, or seduce by their influence. And thus the
fundamental maxim of a republic, that it ought to be a
Government of laws, and not of men, will be silently
disproved, or openly abandoned.
§ 305. In the next place, all these considerations ac-
quire still more cogency and force, when applied to con-
stitutional questions. These questions may arise, not
merely between citizen and citizen, but between State
and State, and between the United States and the States.
Can it be supposed, for a moment, that men, who hold
their offices for two, or four, or even six years, would be
generally found firm enough to resist the will of those,
who have appointed them, and can so soon displace them ?
If they are to administer the Constitution, according to its
true spirit and principles, to support the weak against the
strong, the humble against the powerful, the few against
the many ; how can they be expected to possess the
requisite independence and impartiality, unless they hold
their offices by a tenure beyond the reach of the power
of the Legislature and Executive ? He is ill read in
the history of human experience, who does not foresee,
as well as provide for, such exigencies. In republics, the
other departments of the government may sometimes, if
not frequently, be found combined in hostility against the
Judiciary ; and even the people, for a while, under the
influence of party spirit and turbulent factions, may be
ready to abandon the judges to their fate. Few men
possess the firmness to resist the torrent of popular opin-
ion, or popular prejudice. Still fewer are content to
sacrifice present ease and popular favor, in order to earn
the slow rewards of a conscientious discharge of their
duty. If we would preserve the Constitution from inter-
¥
THE JUDICIAL DEPARTMENT. 185
nal, as well as from external perils, from the influences of
the great, and the corruptions of the selfish and ambitious,
we must place around it every guard, which experience
has shown will encourage good men in their integrity, and
will awe bad men in their intrigues. If the Constitution
ever perishes, it will be, when the Judiciary shall have
become feeble and inert, and either unwilling or unable
to perform the solemn duties imposed upon it by the ori-
ginal structure of the Government. Hitherto, no attempts
have been made to alter the Constitution, in respect to the
tenure of office. The views of the framers of it have, in
all the vicissitudes of party, still been supported by the
general approbation of the people. And, if any changes
shall hereafter be proposed, which shall diminish the just
authority of this, as an independent department, they will
only be matters of regret, so far as they may take away
any checks to the exercise of arbitrary power by either of
the other Departments of the Government.
§ 306. But the tenure of office during good behavior,
would be of little consequence, if Congress possessed an
unlimited power over the compensation of the judges. It
has been well remarked, that, in the course of human af-
fairs, a power over a man's subsistence is a power over
his will. If Congress could diminish at pleasure the sal-
aries of the judges, they could reduce it to a mere pit-
tance, and thus might sink them into an abject dependence.
The Constitution has, therefore, wisely provided, that the
compensation of the judges shall not be diminished during
their continuance in office, and shall be paid at stated
times.
§ 307. It is almost unnecessary to add, that, although
the Constitution has thus sedulously endeavored, from
motives of public good, to place the independence of the
Judiciary upon a solid basis ; yet, the judges are not be-
yond the reach of the law. They hold their offices du-
ring good behavior only ; and for misconduct, they may
be removed from office upon impeachment. Thus, per-
sonal responsibility is brought home to them ; and, like
all other public functionaries, they are also bound by an
oath to obey tlie laws, and support the Constitution,
16*
186 CONSTITUTION OF THE UNITED STATES.
CHAPTER XXXI.
POWERS AND JURISDICTION OF THE JUDICIARY.
§ 308. The next, the second section of the third arti-
cle, contains an exposition of the jurisdiction appertaining
to the National Judiciary. " 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 ambassadors, other pubhc ministers,
and consuls ; to all cases of admiralty and maritime juris-
diction ; 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."
§ 309. In a work like the present, it is impossible to
present a full exposition of the reasons for conferring the
different portions of this jurisdiction, all having the same
general object, the promotion of harmony, good order,
and justice at home, and the preservation of peace and
commercial intercourse abroad. In a general summary,
it may be said, that the jurisdiction extends to cases arising
under the Constitution, laws, and treaties, of the United
States, because the judicial power ought to be coexten-
sive with the legislative and executive powers, in order
to ensure uniformity of interpretation and operation of the
Constitution, laws, and treaties, and the means of enforc-
ing rights, duties, and remedies, arising under them. It
extends to cases affecting ambassadors, pubhc ministers,
and consuls, because they are officers of foreign nations,
entitled by the law of nations to the protection of our Gov-
ernment ; and any misconduct towards them might lead
to private retaliations, or open hostilities, on the part of
JURISDICTION OP THE JUDICIARY. IS7
the offended Government. It extends to cases of admi-
ralty and maritime jurisdiction, because such cases grow
out of, and are intimately connected with, foreign com-
merce and navigation, with offences committed on the
ocean, and with the right of making captures, and carry-
ing on the operations of war. It extends to controver-
sies, to which the United States are a party, because the
Government ought to possess a right to resort to National
courts, to decide all controversies and contracts, to which
it is a party. It extends to controversies between two or
more States, in order to furnish a peaceable and impartial
tribunal, to decide cases, where different States claim
conflicting rights, in order to prevent gross irritations, and
border warfare. It extends to controversies between a
State and the citizens of another State ; because a State
ought not to be the sole judge of its own rights, as against
the citizens of other States. It extends to controversies
between citizens of different States ; because these con-
troversies may embrace questions, upon which the tribu-
nals of neither State could be presumed to be perfectly
impartial, from the peculiar pubhc interests involved in
them. It extends to controversies between citizens of
the same State, claiming lands under grants of different
States ; because a similar doubt of impartiality may arise.
It extends to controversies between a State, or its citizens,
and foreign States, citizens, or subjects ; because foreign
States and citizens have a right to demand an impartial
tribunal for the decision of cases, to which they are a par-
ty ; and want of confidence in the tribunals of one par-
ty may be fatal to the public tranquillity, or at least, may
create a discouraging sense of injustice. Even this cur-
sory view cannot fail to satisfy reasonable minds of the
importance of the powers of the National Judiciary to the
tranquillity and sovereignty of the States, and .to the pre-
servation of the rights and liberties of the people.
§ 310. But the subject is so important, and has so often
become matter of political discussion, and constitutional
inquiry, that it deserves to be examined more at large in
this place. We shall, therefore, proceed to examine
each of these cases, in which jurisdiction is conferred, in
188 CONSTITUTION OP THE UNITED STATES.
the order, in which it stands, in order more fully to com-
prehend the particular reasons, on which it is founded.
§ 311. And first : The judicial power extends to all
cases in law and equity, arising under the Constitution, the
laws, and the treaties, of the United States. And, by
cases in this clause, we are to understand criminal, as well
as civil, cases.*
§ 312. The propriety of the delegation of jurisdiction,
in " cases arising under the Constitution," rests on the
obvious consideration, that there ought always to be some
constitutional method of giving effect to constitutional
provisions. What, for instance, would avail restrictions
on the authority of the State Legislatures, without some
constitutional mode of enforcing the observance of them ^
The States are, by the Constitution, prohibited from doing
a variety of things ; some of which are incompatible with
the interests of the Union ; others, with its peace and
safety ; others, with the principles of good government.
The imposition of duties on imported articles, the declar-
ation of war, and the emission of paper money, are ex-
amples of each kind. No man of sense will beheve, that
such prohibitions woiild be scrupulously regarded, without
some effectual power in the Government to restrain, or
correct the infractions of them. The power must be
either a direct negative on the State laws, or an authority
in the National courts to overrule such, as shall manifestly
be in contravention to the Constitution. The latter course
was thought by the Convention to be preferable to the
former ; and it is, without question, by far the most ac-
ceptable to the States.
• § 313. The same reasoning appHes, with equal force,
to " cases arising under the laws of the United States."
In fact, the necessity of uniformity, in the interpretation
of these laws, would of itself settle every doubt, that could
be raised on the subject. " Thirteen independent courts
of final jurisdiction over the same causes, (it was said,) is
a Hydra in government, from which nothing but contra-
diction and confusion can proceed." The number is now
increased to twenty-six.
§ 314. There is still more cogency, if it be possible,
JURISDICTION OP THE JUDICIART. 189
in the reasoning, as applied to '* cases arising under trea-
ties made, or which shall be made, under the authority
of the United States." Without this power, there would
be perpetual danger of collision, and even of war, with
foreign powers, and an utter incapacity to fulfil the ordi-
nary obligations of treaties. The want of this power was
(as we have seen) a most mischievous defect in the Con-
federation ; and subjected the country, not only to viola-
tions of its plighted faith, but to the gross, and almost
proverbial, imputation of punic insincerity.
§ 315. It is observable, that the language is, that ''the
judicial power shall extend to all cases in laic and equity ^^^
arising under the Constitution, laws, and treaties, of the
United States. What is to be understood by "cases in
law and .eauity," in this clause ? Plainly, cases at the
coc^mon lawj ds^cont^distinguished from cases in equity,
according to the known distinction in the jurisprudence
of England, which our ancestors brought with them upon
their emigration, and with which all the American States
were familiarly acquainted. Here, then, at least, the
Constitution of the United States appeals to, and adopts,
the common law, to the extent of making it a rule in the
pursuit of remedial justice in the courts of the Union. If
the remedy must be in law, or in equity, according to the
course of proceedings at the common law, in cases arising
under the Constitution, laws, and treaties of the United
States, it would seem irresistibly to follow, that the prin-
ciples of decision, by which these remedies must be
administered, must be derived from the same source.
Hitherto, such has been the uniform interpretation and
mode of administering justice, in civil suits, in the courts
of the United States, in this class of cases.
§ 316. Another inquiry may be, what constitutes a
case J within the meaning of this clause. It is clear, that
the Judicial department is authorized to exercise jurisdic-
tion to the full extent of the Constitution, laws, and trea-
ties, of the United States, whenever any question respect-
ing them shall assume such a form, that the judicial pow-
er is capable of acting upon it. When it has assumed
such a form, it then becomes a case ; and then, and not
190 CONSTITUTION OF THE UNITED STATES.
till then, the judicial power attaches to it. A case, then,
in the sense of this clause of the Constitution, arises, when
some subject, touching the Constitution, laws, or treaties,
of the United States, is submitted to the court by a par-
ty, who asserts his rights in the form prescribed by law.
In other words, a case is a suit in law or equity, instituted
according to the regular course of judicial proceedings ;
and, when it involves any question arising under the Con-
stitution, laws, or treaties, of the United States, it is within
the judicial power confided to the Union.
§ 317. Cases arising under the Constitution, as contra-
distinguished from those, arising under the laws of the
United States, are such as arise from the powers conferred,
or privileges granted, or rights claimed, or protection se-
cured, or prohibitions contained, in the Constitution itself,
independent of any particular statute enactment. Many
cases of this sort may easily be enumerated. Thus, if a
citizen of one State should be denied the privileges of a
citizen in another State ; if a State should coin money,
or make paper money a tender ; if a person, tried for a
crime against the United States, should be denied a trial
by jury, or a trial in the State, where the crime is charged
to be committed ; if a person, held to labor, or service,
in one State, under the laws thereof, should escape into
another, and there should be a refusal to deliver him up
to the party, to whom such service or labor may be due ; in
these, and many other cases, the question, to be judicially
decided, 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 constitutional autho-
rity, whether they constitute the right, or privilege, or
claim, or protection, or defence, of the party, in whole
or in part, by whom they are asserted. The same rea-
soning applies to cases arising under treaties. Indeed,
wherever, in a judicial proceeding, any question arises,
touching the validity of a treaty, or statute, or authority,
exercised under the United States, or touching the con-
struction of any clause of the Constitution, or any statute,
or treaty, of the United States ; or touching the validity
JURISDICTION OP THE JUDICIARY. 191
of any statute, or authority exercised under any State, on
the ground of 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.
§ 31S. It has sometimes been suggested, that a case,
to he within the purview of this clause, must be one, in
which a party comes into court to demand something con-
ferred on him by the Constitution, or a law, or a treaty,
of the United States. But this construction is clearly too
narrow. A case in law or equity consists of the right of
the one party, as well as of the other, and may truly be
said to arise under the Constitution, or a law, or a treaty,
of the United States, whenever its correct decision de-
pends on the construction of either. This is manifestly
the construction given to the clause by Congress, by the
25th section of the Judiciary act, (which was almost
contemporaneous with the Constitution,) and there is no
reason to doubt its solidity or correctness. Indeed, the
main object of this clause would be defeated by any nar-
rower construction ; since the power was conferred for
the purpose, in an especial manner, of producing a uni-
formity of construction of the Constitution, laws, and trea-
ties, of the United States.
§ 319. Cases may also arise under laws of the United
States by implication, as well as by express enactment ;
so that due redress may be administered by the judicial
power of the United States. It is not unusual for a le-
gislative act to involve consequences, which are not ex-
pressed. An officer, for example, is ordered to arrest
an individual. It is not necessary, nor is it usual, to say,
that he shall not be punished for obeying this order. His
security is implied in the order itself. It is no unusual
thing for an act of Congress to imply, without expressing,
this very exemption from State control. The collectors
of the revenue, the carriers of the mail, the mint estab-
lishment, and all those institutions, which are public in
their nature, are examples in point. It has never been
doubted, that all, who are employed in them, are protect-
ed, while in the line of their duty ; and yet this protect
192 CONSTITUTION OF THE UNITED STATES.
tion is not expressed in any act of Congress. It is inci-
dental to, and is implied in, the several acts, by which
those institutions are created ; and it is secured to the in-
dividuals, employed in them, by the judicial power alone ;
that is, the judicial power is the instrument employed by
the Government iu administering this security.
§ 320. It has also been asked, and may again be asked,
why the words, " cases in equity," are found in this
clause ? What equitable causes can grow out of the Con-
stitution, laws, and treaties, of the United States ? To
this, the general answer seems at once clear and satisfac-
tory. There is hardly a subject of litigation between
individuals, which may not involve those ingredients of
frauds accident^ trust, or hardship, which would render
the matter an object of equitable, rather than of legal,
jurisdiction, as the distinction is known and established in
several of the States. It is the peculiar province, for
instance, 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 advan-
tage 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 judicatories
to do justice, without an equitable, as well as a legal ju-
risdiction. Agreements to convey lands, claimed under
the grants of different States, may afford another example
of the necessity of an equitable jurisdiction in the Federal*
courts. 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 other States,
where it is exemplified by every day's practice.
§ 321. The next clause, extends the judicial power
"to all cases affecting ambassadors, other public min-
isters, and consuls." The propriety of this delegation
of power to the National Judiciary will scarcely be ques-
tioned by any persons, who have duly reflected upon the
subject. There are various grades of public ministers,
JURISDICTION OF THE JUDICIARY. 193
from ambassadors, (which is the highest grade,) down to
common resident ministers, whose rank, and diplomatic
precedence, and authority, are well known, and well as-
certained, in the law and usages of nations. But what-
ever may be their relative rank and grade, public minis-
ters of every class are the immediate representatives of
their sovereigns. As such representatives, they owe no
subjection to any laws, but those of their own country,
any more than their sovereign ; and their actions are not
generally deemed subject to the control of the private
law of that State, wherein they are appointed to reside.
He, that is subject to the coercion of laws, is necessarily
dependent on that power, by whom those laws were made.
But public ministers ought, in order to perform their du-
ties to their own sovereign, to be independent of every
power, except that by which they are sent ; and, of con-
sequence, ought not to be subject to the mere municipal
law of that nation, wherein they are to exercise their
functions. The rights, the powers, the duties, and the
privileges, of public ministers, are, therefore, to be deter-
mined, not by any municipal constitutions, but by the law
of nature and nations, which is equally obligatory upon
all sovereigns, and all states. What these rights, powers,
duties, and privileges are, are inquiries properly belong-
ing to a treatise on the law of nations, and need not be
discussed here. But it is obvious, that every question,
in which these rights, powers, duties, and privileges are
involved, is so intimately connected with the public peace,
and policy, and diplomacy, of the nation, and touches the
dignity and interest of the sovereigns of the ministers
concerned so deeply, that it would be unsafe, that they
siiould be submitted to any other, than the highest judica-
ture of the nation.
§ 322. Consuls, indeed, have not in strictness a diplo-
matic character. They are deemed to be mere commer-
cial agents : and, therefore, partake of the ordinary char-
acter of such agents ; and are subject to the municipal
laws of the countries, where they reside. Yet, as they
are the public agents of the nation, to which they belong,
and are often entrusted with the performance of very deli-
17 XIII.
194 CONSTITUTION OF THE UNITED STATES.
cate functions of state, and as they might be greatly em-
barrassed by being subject to the ordinary jurisdiction of
inferior tribunals, State and National, it was thought
highly expedient to extend the original jurisdiction of the
Supreme Court to them also. The propriety of vesting
jurisdiction, in such cases, in some of the National courts,
seems hardly to have been questioned by the most zeal-
ous opponents of the Constitution. And in cases against
ambassadors, and other foreign ministers, and consuls,
the jurisdiction has been deemed exclusive.
§ 323. The next clause extends the judicial power
"to all cases of admiralty and maruime jurisdiction."
§ 324. The admiralty and maritime jurisdiction, (and
the word, " maritime," was doubtless added to guard
against any narrow interpretation of the preceding word,
''admiralty,") conferred by the Constitution, embraces
two great classes of cases ; one dependent upon locality,
and the other upon the nature of the contract. The first,
respects acts, or injuries, done upon the high sea, where
all nations claim a common right and common jurisdic-
tion ; or acts, or injuries, done upon the coast of the sea ;
or, at farthest, acts and injuries done within the ebb and
flow of the tide. The second, respects contracts, claims,
and services purely maritime, and touching rights and du-
ties appertaining to commerce and navigation. The for-
mer is again divisible into two great branches, one embrac-
ing captures, and questions of prize arising by the rights of
war ; the other embracing acts, torts, and injuries, strictly
of civil cognizance, independent of belligerent operations.
§ 325. By the law of nations, the cognizance of all
captures, jure belli, or, as it is more familiarly phrased,
of all questions of prize, and their incidents, belongs ex-
clusively to the courts of the country, to which the cap-
tors belong, and from whom they derive their authority
to make the capture. No neutral nation has any right to
inquire into, or to decide upon, the validity of such cap-
ture, even though it should concern property belonging
to its own citizens or subjects, unless its own sovereign
or territorial rights are violated ; but the sole and exclu-
sive jurisdiction belongs to the courts of the capturing bel-
JURISDICTION OF THE JUDICIARY. 195
ligerent. And this jurisdiction, by the common consent
of nations, is vested exclusively in courts of admiralty, pos-
sessing an original, or appellate jurisdiction. The courts
of common law are bound to abstain from any decision of
questions of this sort, whether they arise directly or indi-
rectly in judgement. The remedy for illegal acts of cap-
ture is, by the institution of proper prize proceedings in the
prize courts of the captors. If justice be there denied, the
nation itself becomes responsible to the parties aggrieved ;
and if every remedy is refused, it then becomes a subject
for the consideration of the nation, to which the parties
aggrieved belong, which may vindicate their rights, either
by a peaceful appeal to negotiation, or by a resort to arms.
§ 326. It is obvious, upon the slightest consideration,
that the cognizance of all questions of prize, made under
the authority of the United States, ought to belong exclu-
sively to the National courts. How, otherwise, can the
legahty of the captures be satisfactorily ascertained, or de-
liberately vindicated ? It seems not only a natural, but a
necessary, appendage to the power of war, and of negotia-
tion with foreign nations. It would otherwise follow, that
the peace of the whole nation might be put at hazard, at
any time, by the misconduct of one of its members. It
could neither restore, upon an illegal capture ; nor, in many
cases, afford any adequate redress for the wrong ; nor
punish the aggressor. It would be powerless and palsied.
It could not perform, or compel the performance, of the
duties required by the law of nations. It would be a
sovereign, without any solid attribute of sovereignty ; and
move in chains, only to betray its own imbecihty. Even
under the Confederation, the power to decide upon ques-
tions of capture and prize was exclusively conferred, in
the last resort, upon the National court of appeals. But,
like all other powers conferred by that instrument, it was
totally disregarded, wherever it interfered with State
pohcy, or with extensive popular interests. We have
seen, that the sentences of the National prize court of
appeals were treated as mere nuUities ; and were incapa-
ble of being enforced, until after the establishment of the
present Constitution. The same reasoning, which con-
196 CONSTITUTION OF THE UNITED STATES.
ducts US to the conclusion, that the National courts ought
to have jurisdiction of this class of admiralty cases, con-
ducts us equally to the conclusion, that, to be effectual
for the administration of international justice, it ought to
be exclusive. And, accordingly, it has been constantly
held, that this jurisdiction is exclusive in the courts of
the United States.
§ 327. The other branch of admiralty jurisdiction,
dependent upon locality, respects civil acts, torts, and
injuries done on the sea, or, in certain cases, on vv^aters
of the sea, where the tide ebbs and flows, without any
claim of exercising the rights of war. Such are cases of
assaults, and other personal injuries ; cases of collision,
or running of ships against each other ; cases of spohation
and damage, (as they are technically called,) such as ille-
gal seizures, or depredations upon property ; cases of
illegal dispossession, or withholding possession from the
owners of ships, commonly called possessory suits ; cases
of seizures under municipal authority for supposed breach-
es of revenue, or other prohibitory laws ; and cases of
salvage for meritorious services performed, in saving
property, whether derelict, or wrecked, or captured, or
otherwise in imminent hazard from extraordinary perils.
§ 328. It is obvious, that this class of cases has, or
may have, an intimate relation to the rights and duties of
foreigners, in navigation and maritime commerce. It may
materially affect our intercourse with foreign states ; and
may raise many questions of international law, not merely
touching private claims, but national sovereignty, and
national reciprocity. Thus, for instance, if a collision
should take place at sea between an American and a for-
eign ship, many important questions of public law might
be connected with its just decision ; for it is obvious, that
it could not be governed by the mere municipal law of
either country. So, if a case of recapture, or other
salvage service, performed to a foreign ship, should occur,
it must be decided by the general principles of maritime
law, and the doctrines of national reciprocity. Where a
recapture is made of a friendly ship from the hands of its
enemy, the general doctrine now established is, to restore
JURISDICTION OF THE JUDICIARY. 197
it upon salvage, if the foreign country, to which it belongs,
adojDts a reciprocal rule; or to condemn it to the recap-
tors, if the hke rule is adopted in the foreign country.
And, in other cases of salvage, the doctrines of internation-
al and maritime law come into full activity, rather than
those of any mere municipal code. There is, therefore,
a peculiar fitness in appropriating this class of cases to
the National tribunals ; since they will be more likely to
be there decided upon large and comprehensive princi-
ples, and to receive a more uniform adjudication ; and
thus to become more satisfactory to foreigners.
§ 329. The remaining class respects contracts, claims,
and services purely maritime. Among these, are the claims
of material-men and others, for repairs and outfits of ships
belonging to foreign nations, or to other States ; bottom-
ry bonds, for moneys lent on ships in foreign ports, to
relieve their distresses, and enable them to complete their
voyages ; surveys of vessels damaged by perils of the
seas ; pilotage on the high seas ; and suits for mariners'
wages. These, indeed, often arise in the course of the
commerce and navigation of the United States ; and
seem emphatically to belong, as incidents, to the power
to regulate commerce. But they may also affect the
commerce and navigation of foreign nations. Repairs
may be done, and supplies be furnished, to foreign ships ;
money may be lent on foreign bottoms ; pilotage and
mariners' wages may become due in voyages in foreign
employment ; and in such cases, the general marhime law
enables the courts of admiralty to administer a wholesome
and prompt justice. Indeed, in many of these cases, as
the courts of admiralty entertain suits in rem, (that is,
upon the thing,) as well as in 'personam^ (that is, upon
the person,) they are often the only courts, in which an
effectual redress can be afforded, especially when it is
desirable to enforce a specific maritime lien, or claim, in
the nature of a pledge.
§ 330. So that' we see, that the admiralty jurisdiction
naturally connects itself, on the one hand, with our diplo-
matic relations and duties to foreign nations, and their
subjects ; and, on the other hand, with the great interests
17*
198 CONSTITUTION OF THE UNITED STATES.
of navigation and commerce, foreign and domestic. There
is, then, a peculiar wisdom in giving to the National Govern-
ment a jurisdiction of this sort, which cannot be wielded,
except for the general good ; and which muhiplies the
securities for the public peace abroad, and gives to com-
merce and navigation the most encouraging support at
home. It may be added, that, in many of the cases
included in these latter classes, the same reasons do not
exist, as in cases of prize, for an exclusive jurisdiction ;
and, therefore, whenever the common law is competent
to give a remedy in the State courts, they may retain
their accustomed concurrent jurisdiction in the adminis-
tration of it.
§ 331. We have been thus far considering the admi-
ralty and maritime jurisdiction in civil cases only. But it
also embraces all public offences, committed on the high
seas, and in creeks, havens, basins, and bays, within the
ebb and flow of the tide ; at least, in such as are out of
the body of any county of a State. In these places, the
jurisdiction of the courts of admiralty over offences is
exclusive ; for that of the courts of common law is limi-
ted to such offences, as are committed within the body of
some county. And on the seacoast, there is an alter-
nate, or divided jurisdiction of the courts of common law,
and admiralty, in places between high and low water
mark ; the former having jurisdiction when, and as far as
the tide is out, and the latter when, and as far as the tide
is in, or to high water mark. This criminal jurisdiction
of the admiralty is therefore exclusively vested in the
National Government ; and may be exercised over such
crimes and offences, as Congress may, from time to time,
delegate to the cognizance of the National courts. The
propriety of vesting this criminal jurisdiction in the Nation-
al Government depends upon the same reasonmg, and is
estabhshed by the same general considerations, as have
been already suggested in regard to civil cases. It is
essentially connected with the due regulation, and pro-
tection of our commerce and navigation on the high seas,
and with our rights and duties in regard to foreign nations,
&nd their subjects, in the exercise of common sovereignty
JURISDICTION OF THE JUDICIARY. 199
Oil the ocean. The States, as such, are not known in our
intercourse with foreign nations, and are not recognized
as common sovereigns on the ocean. And if they were
permitted to exercise criminal or civil jurisdiction there-
on, there would be endless embarrassments, arising from
the conflict of their laws, and the most serious dangers
of perpetual controversies with foreign nations. In short,
the peace of the Union would be constantly put at hazard
by acts, over which it had no control ; and by assertions
of right, which it might wholly disclaim.
§ o32. The next clause extends the judicial power
" to controversies, to which the United States shall be a
party." It scarcely seems possible to raise a reasonable
doubt, as to the propriety of giving to the National courts
jurisdiction of cases, in which the United States are a
party. It would be a perfect novelty in the history of
national jurisprudence, as well as of public law, that a
sovereign had no authority to sue in his own courts. Un-
less this power were given to the United States, the en-
forcement of all their rights, powers, contracts, and privi-
leges, in their sovereign capacity, would be at the mercy
of the States. They must be enforced, if at all, in the
State tribunals. And there would not only not be any
compulsory power over those courts to perform such func-
tions ; but there would not be any means of producing
uniformity in their decisions. A sovereign, w'ithout the
means of enforcing civil rights, or compelling the perfor-
mance, either civilly or criminally, of pubhc duties, on
the part of the citizens, would be a most extraordinary
anomaly. It would prostrate the Union at the feet of
the States. It would compel the National Government
to become a supplicant for justice before the judicature of
those, who were by other parts of the Constitution placed
in subordination to it.
§ 333. The next clause extends the judicial power
" to controversies between two or more States ; between
a State and the citizens of another State ; between citi-
zens of different States, claiming lands under grants of
different States ; and between a State, or the citizens
thereof, and foreign States, citizens, or subjects." Of
200 CONSTITUTION OF THE UNITED STATES
these, we will speak in their order. And, first, " Contro-
versies between two or more States." This power seems
to be essential to the preservation of the peace of the
Union. History gives us a horrid picture of the dis-
sensions and private wars, which distracted and desolated
Germany, prior to the institution of the imperial chamber
by Maximilian, towards the close of the fifteenth century ;
and informs us, at the same time, of the vast influence of
that institution, in appeasing the disorders, and estabhsh-
ing the tranquilhty, of the empire. This was a court in-
vested with authority to decide finally all differences among
the members of the Germanic body. But we need not
go for illustrations to the history of other countries. Our
own has presented, in past times, abundant proofs of the
irritating effects resulting from territorial disputes, and in-
terfering claims of boundary between the States. And
there are yet controversies of this sort, which have brought
on a border warfare, at once dangerous to public repose,
and incompatible with the pubhc interests.
§ 334. Under the Confederation, authority was given
to the National Government, to hear and determine, (in
the manner pointed out in the article,) in the last resort,
on appeal, all disputes and differences between two or
more States concerning boundary, jurisdiction, or any
other cause whatsoever. Before the adoption of this in-
strument, as well as afterwards, very irritating and vexa-
tious controversies existed between several of the States,
in respect to soil, jurisdiction, and boundary ; and threat-
ened the most serious pubhc mischiefs. Some of these
controversies were heard and determined by the court of
commissioners, appointed by Congress. But, notwith-
standing these adjudications, the conflict was maintained
in some cases, until after the estabhshment of the present
Constitution.
§ 335. Before the Revolution, controversies between
the colonies, concerning the extent of their rights of soil,
territory, jurisdiction, and boundary, under their respec-
tive charters, were heard and determined before the King
in council, who exercised original jurisdiction therein,
upon the principles of feudal sovereignty. This jurisdic-
JURISDICTION OF THE JUDICIARY. 201
tion was often practically asserted, as in the case of the
dispute between Massachusetts and New Hampshire, de-
cided by the Privy Council, in 1679 ; and in the case of
the dispute between New Hampshire and New York, in
1764. Lord Hardwicke recognised this appellate juris-
diction in the most deliberate manner, in the great case of
William Perm v. Lord Baltimore. The same necessity,
which gave rise to it in our colonial state, must continue to
operate through all future time. Some tribunal, exercis-
ing such authority, is essential to prevent an appeal to
the sword, and a dissolution of the government. That it
ought to be estabhshed under the National, rather than
under the State, Government ; or, to speak more properly,
that it can be safely established under the former only,
would seem to be a position self-evident, and requiring no
reasoning to support it. It may justly be presumed, that
under the National Government, in all controversies of this
sort, the decision will be impartially made, according to
the principles of justice ; and all the usual and most ef-
fectual precautions are taken to secure this impartiahty,
by confiding it to the highest judicial tribunal.
§ 336. Next : " Controversies between a State and
" the citizens of another State." There are other sourc-
es, besides interfering claims of boundary, from which
bickerings and animosities may spring up among the mem-
bers of the Union. The past experience of the Country
has furnished some melancholy instances of this truth.
Under the Confederation, laws, of a character utterly in-
defensible in point of justice and principle, were passed m
some of the States, affecting the rights of citizens of other
States. And though the Constitution establishes particu-
lar guards against the repetition of those instances, which
have hitherto made their appearance ; yet it is warranta-
ble to apprehend, that the spirit, which produced them,
will assume new shapes, that could not be foreseen, nor
specifically provided against. Whatever practices may
have a tendency to distract the harmony of the States, are
proper objects of national superintendence and control.
It may be esteemed the basis of the Union, that ' the
citizens of each State shall be entitled to all the privileges
202 ^ CONSTITUTION OF THE UNITED STATES.
and immunities of citizens of the several States.' And
if it be a just principle, that every government ought to
possess the means of executing its own provisions by its
own authority, it will follow, that, in order to the inviola-
ble maintenance of that equality of privileges and immuni-
ties, to which the citizens of the Union will be entitled, the
National Judiciary ought to preside in all cases, in which
one State, or its citizens, are opposed to another State,
or its citizens. To secure the full effect of so fundamen-
tal a provision against all evasion and subterfuge, it is
necessary, that its interpretation should be committed to
that tribunal, which, having no local attachments, will be
likely to be impartial between the different States and
their citizens, and which, owing its official existence to
the Union, will never be hkely to feel any bias inauspi-
cious to the principles, on which it is founded. It may be
added, that the reasonableness of the agency of the Na-
tional courts in cases, in which the State tribunals cannot
be supposed to be impartial, speaks for it. No man
ought certainly to be a judge in his own cause, or in any
cause, in respect to which he has the least interest or
bias. This principle had no inconsiderable weight in
designating the national courts, as the proper tribunals for
the determination of controversies between difierent States
and their citizens.
§ 337. And here a most important question of a con-
stitutional nature was formerly litigated ; and that is, wheth-
er the jurisdiction, given by the Constitution, in cases,
in which a State is a party, extended to suits brought
against a State, as well as by it, or was exclusively con-
fined to the latter. It is obvious, that, if a suit could be
brought, by any citizen of one State against another State,
upon any contract, or matter of property, the State would
be constantly subjected to judicial action, to enforce pri-
vate rights against it in its sovereign capacity. Accord-
ingly, at a very early period, numerous suits were brought
against particular States by their creditors, to enforce the
payment of debts, or other claims. The question was
made, and most elaborately considered, in the celebrated
case of Chisholm v. Georgia ; and the majority of the
JURISDICTION OF THE JUDICIARY. - 203
Supreme Court held, that the judicial power, under the
Constitution, apphed equally to suits brought %, and suits
brought against a State. All the learned judges, on that
occasion, delivered opinions, containing the grounds of
their respective judgements. It is not my intention to go
over these grounds, although they are stated with great
ability and legal learning, and exhibit a very thorough
mastery of the whole subject. The decision created
general alarm among the States ; and an amendment was
proposed, and ratified by the States, by which the pow-
er was entirely taken away, so far as it regards suits
brought against a State. It is in the following words :
" The judicial power of the United States shall not be
construed to extend to any suit in law, or equity, com-
menced or prosecuted against one of the United States,
by citizens of another State, or by citizens, or subjects
of any foreign State." This amendment was construed
to include suits then pending, as well as suits to be com-
menced thereafter ; and, accordingly, all the suits then
pending were dismissed, without any further adjudication.
§ 338. Since this amendment has been made, a ques-
tion of equal importance has arisen ; and that is, whether
the amendment applies to original suits only, brought
against a State, leaving the appellate jurisdiction of the
Supreme Court in its full vigor over ail constitutional
questions, arising in the progress of any suit brought by a
State, in any State court, against any private citizen or
alien. But this question will more properly come under
review, when we are considering the nature and extent
of the appellate jurisdiction of the Supreme Court. At
present, it is only necessary to state, that it has been sol-
emnly adjudged, that the amendment applies only to orig-
inal suits against a State ; and does not touch the appel-
late jurisdiction of the Supreme Court to re-examine, on
an appeal or writ of error, a judgement or decree render-
ed in any State court, in a suit brought originally by a
State against any private person.
§ 339. Another inquiry, suggested by the original
clause, as well as by the amendment, is, when a State is
properly to be deemed a party to a suit, so as to avail
204 f:ONSTlTUTION OF THE UNITLD STATES.
itself of, or to exempt itself from, the operation of the
jurisdiction conferred by the Constitution. To such an
inquiry, the proper answer is, that a State, in the sense
of the Constitution, is a party only, when it is on the rec-
ord as such ; and it sues, or is sued in its political capaci-
ty. It is not sufficient, that it may hav^e an interest in a
suit between other persons, or that its rights, powers, priv-
ileges, or duties, may come therein incidentally in ques-
tion. It must be in terms a plaintiff or defendant, so that
the judgement, or decree, may be binding upon it, as it is
in common suits, binding upon parties and privies. The
point arose in an early stage of the government, in a suit
between private persons, where one party asserted the
land in controversy to be in Connecticut, and the other
in New York ; and the court held, that neither State
could be considered as a party. It has been again dis-
cussed in some late cases ; and the doctrine now firmly
established is, that a State is not a party in the sense of
the Constitution, unless it appears on the record, as such,
either as plaintiff or defendant. It is not sufficient, that
it may have an interest in the cause, or that the parties
before the Court are sued for acts done, as agents of the
State. In short, the very immunity of a State from be-
ing made a party, constitutes, or may constitute, a solid
ground, why the suit should be maintained against other
parties, who act as its agents, or claim under its title ;
although otherwise, as the principal, it might be fit, that
the State should be made a party upon the common
principles of a court of equity.
§ 340. The same principle applies to cases, where a
State has an interest in a corporation ; as, when it is a
stockholder in an incorporated bank, the corporation is
still suable, although the State, as such, is exempted
from any action. The State does not, by becoming a
corporator, identify itself with the corporation. The
bank, in such a case, is not the State, although the State
holds an interest in it. Nor will it make any difference
in the case, that the State has the sole interest in the cor-
poration, if in fact it creates other persons corporators.
An analogous case will be found in the authority, given
JURISDICTION OF THE JUDICIARY. 205
by an act of Congress to the postmaster-general, to bring
suits in his official capacity. In such suits, the United
States are not understood to be a party, although the
suits solely regard their interests. The postmaster-gener-
al does not, in such cases, sue under the clause giving ju-
risdiction, " in controversies, to which the United States
shall be a party ;" but under the clause extending the juris-
diction to cases arising under the laws of the United States.
§ 341. It may, then, be laid down, as a rule, which
admits of no exception, that, in all cases under the Con-
stitution of the United States, w-here jurisdiction depends
upon the party, it is the party named on the record.
Consequently the amendment, above referred to, which
restrains the jurisdiction granted by the Constitution over
suits against States, is of necessity limited to those suits, in
which a State is a party on the record. The amendment
has its full effect, if the Constitution is construed, as it
would have been construed, had the jurisdiction never
been extended to suits brought against a State by the
citizens of another State, or by aliens.
§342. Next: "Controversies between citizens of
different States." Although the necessity of this power
may not stand upon grounds quite as strong, as some of
the preceding, there are high motives of state policy and
public justice, by which it can be clearly vindicated.
There are many cases, in which such a power may be
indispensable, or in the highest degree expedient, to carry
into effect some of the privileges and immunities con-
ferred, and some of the prohibitions upon States expressly
declared, in the Constitution. For example : It is de-
clared, that " the citizens of each State shall be entitled to
all the privileges and immunities of citizens of the several
States." Suppose an attempt is made to evade, or with-
hold these privileges and immunities, would it not be
right to allow the party aggrieved an opportunity of claim-
ing them, in a contest with a citizen of the State, before
a tribunal, at once national and impartial ? Suppose a
State should pass a tender law, or law impairing the obli-
gation of private contracts, or should, in the course of its
legislation, grant unconstitutional preferences to its own
18 XIII.
206 -CONSTITUTION OF THE UNITED STATES.
citizens, is it not clear, that the jurisdiction to enforce the
obhgations of the Constitution, in such cases, ought to be
confided to the national tribunals ? These cases are not
purely imaginary. They have actually occurred ; and may
again occur, under peculiar circumstances, in the course
of State legislation. What was the fact under the Con-
federation ? Each Slate was obhged to acquiesce in the
degree of justice, which another State might choose to
yield to its citizens. There was not only danger of ani-
mosities growing up from this source ; but, in point of
fact, there did grow up retaliatory legislation, to meet
such real or imagined grievances.
§ 343. Nothing can conduce more to general harmony
and confidence among all the States, than a conscious-
ness, that controversies are not exclusively to be decided
by the State tribunals ; but may, at the election of the
party, be brought before the National tribunals. Besides ;
it cannot escape observation, that the judges in different
States hold their offices by a very different tenure. Some
hold during good behavior ; some for a term of years ;
some for a single year ; some are irremovable, except
upon impeachment ; and others may be removed upon
address of the Legislature. Under such circumstances, it
cannot but be presumed, that there may arise a course
of State policy, or State legislation, exceedingly injurious
to the interests of the citizens of other States, both as to
real and to personal property. It would require an un-
common exercise of candor or credulity to affirm, that, in
cases of this sort, all the State tribunals would be wholly
without State prejudice, or State feelings ; or, that they
would be as earnest in resisting the encroachments of
State authority upon the just rights, and interests of the
citizens of other States, as a tribunal differently consti-
tuted, and wholly independent of State authority. And,
if justice should be as fairly and as firmly administered in
the former, as in the latter, still the mischiefs would be
most serious, if the public opinion did not indulge such a
behef. Justice, in cases of this sort, should not only be
above all reproach, but above all suspicion. The sources
of State irritations and State jealousies arc sufficiently
JURISDICTION OF THE JUDICIARY. 207
numerous, without leaving open one so copious and con-
stant, as the behef, or the dread, of wrong in the adminis-
tration of State justice. Besides ; if the pubhc confidence
should cottinue to follow the State tribunals, (as in many
•cases it doubtless will,) the provision will become inert
and harmless ; for, as the party will have his election of
the forum, he will not be inclined to desert the State
courts, unless for some sound reason, founded either in
the nature of his cause, or in the influence of State pre-
judices. On the other hand, there can be no real danger
of injustice to the other side in the decisions of the Na-
tional tribunals ; because the cause must still be decided
upon the true principles of the local law, and not by any
foreign jurisprudence. There is another circumstance of
no small importance, as a matter of policy ; and that is,
the tendency of such a power to increase the confidence
and credit between the commercial and agricultural States.
No man can be insensible to the value, in promoting credit,
of the belief of there being a prompt, efficient, and impar-
tial administration of justice in enforcing contracts.
§ 344. The next inquiry, growing out of this part of
the clause, is, who are to be deemed citizens of difl?erent
States, within the meaning of it. Are all persons born
within a State to be always deemed citizens of that State,
notwithstanding any change of domicil ? Or does their
citizenship change with their change of domicil ? The
answer to this inquiry is equally plain and satisfactory.
The Constitution having declared, that the citizens of
each State shall be entitled to all privileges and immu-
nities of citizens in the several States, every person, who
is a citizen of one State, and removes into another, with
the intention of taking up his residence and inhabitancy
there, becomes ipso facto a citizen of the State, where
he resides ; and he then ceases to be a citizen of the
State, from which he has removed his residence. Of
course, when he gives up his new residence, or domicil,
and returns to his native, or other State residence or dom-
icil, he reacquires the character of the latter. What cir-
cumstances shall constitute such a change of residence or
domicil, is an inquiry, more properly belonging to a trea-
20S CONSTITUTION OF THE UNITED STATES.
tise upon public or municipal law, than to commentaries
upon constitutional law. In general, however, it may be
said, that a removal from one State into another, with an
intention of residence, or with a design of becoming an in-
habitant, constitutes a change of domicil, and of course a
change of citizenship. But a person, who is a native citi-
zen of one State, never ceases to be a citizen thereof, until
he has acquired a new citizenship els where. Residence in
a foreign country has no operation upon his character, as
a citizen, although it may, for purposes of trade and com-
merce, impress him with the character of the country.
To change allegiance is one thing ; to change inhabitancy
is quite another thing. The right and the power are not
coextensive in each case. Every citizen of a State is
ipso facto a citizen of the United States.
§ 345. And a person, who is a naturalized citizen of
the United States, by a like residence in any State in the
Union, becomes ipso facto a citizen of that State. So a
citizen of a Territory of the Union, by a like residence,
acquires the character of the State, where he resides.
But a naturahzed citizen of the United States, or a citizen
of a Territory, is not a citizen of a State, entitled to sue
in the courts of the United States, in virtue of that char-
acter, while he resides in any such Territory, nor until he
has acquired a residence or domicil in the particular State.
§ 346. A corporation, as such, is not a citizen of a
State, in the sense of the Constitution. But, if all the
members of the corporation are citizens, their character
win confer jurisdiction ; for then it is substantially a suit
by citizens, suing in their corporate name. And a citizen
of a State is entitled to sue, as such, notwithstanding he
is a trustee for others, or sues in autre droits as it is
technically called^ that is, as representative of another.
Thus, a citizen may sue, who is a trustee at law, for the
benefit of the person entitled to the trust. And an ad-
ministrator, and an executor, may sue for the benefit of the
estate, which they represent ; for, in each of these cases,
it is their personal suit. But if citizens, who are parties
to a suit, are merely nominally so ; as, for instance, if ma-
gistrates are officially required to allow suits to be brought
JURISDICTION OF THE JUDICIARY. 209
in their names for the use or benefit of a citizen or ahen,
the latter are deemed the substantial parties entitled to
sue.
§ 347. Next : " Controversies between citizens of
the same State, claiming lands under grants of different
States." This clause was not in the first draft of the
Constitution, but was added whhout any known objection
to its propriety. It is the only instance, in which the
Constitution directly contemplates the cognizance of dis-
putes between citizens of the same State ; but certainly
not the only one, in which they may indirectly, upon Con-
stitutional questions, have the benefit of the judicial power
of the Union. It has been already remarked, that the rea-
sonableness of the agency of the National courts, in cases
in which the State tribunals cannot be supposed to be im-
partial, speaks for itself. No man ought certainly to be
a judge in his own cause, or in any cause, in respect to
which he has the least interest or bias. This principle
has no inconsiderable w^eight in designating the National
courts, as the proper tribunals for the determination of
controversies between different States and their citizens.
And it ought to have the same operation, in regard to some
cases between citizens of the same State. Claims to land
under grants of different States, founded upon adverse
pretensions of boundary, are of this description. The
courts of neither of the granting States could be expected
to be unbiassed. The laws may even have prejudged
the question, and tied the courts down to decisions in
favor of the grants of the State, to which they belonged.
Where this has not been done, it would be natural,
that the judges, as men, should feel a strong predilection
for the claims of their own government. And, at all
events, the providing of a tribunal, having no possible in-
terest on the one side, more than the other, would have
a most salutary tendency in quieting the jealousies, and
disarming the resentments of the State, whose grant should
be held invalid. This jurisdiction attaches not only to
grants made by different States, which were never united ;
but also to grants made by different States, which were
originally united under one jurisdiction, if made since the
IS*
210 CONSTITUTION OF THE UNITED STATES.
separation, although the origin of the title may be traced
back to an antecedent period.
§ 348. Next : '' Controversies between a State, or the
citizens thereof, and foreign states, citizens, or subjects."
This provision has been vindicated in the following brief,
but powerful manner. The peace of the whole ought
not to be left at the disposal of a part. The Union will
undoubtedly be answerable to foreign powers for the con-
duct of its members. And the responsibility for an injury
ought ever to be accompanied with the faculty of pre-
venting it. As the denial or perversion of justice, by the
sentences of courts, is with reason classed among the just
causes of war, it will follow, that the National Judiciary
ought to have cognizance of all causes, in which the citi-
zens of other countries are concerned. This is not less
essential to the preservation of the public faith, than to
the security of the public tranquiUity. A distinction may
perhaps be imagined between cases arising upon treaties
and the laws of nations, and those, which may^stand merely
on the footing of the municipal law. The former kind
may be supposed proper for the National jurisdiction ; the
latter for that of the States. But it is at least problemat-
ical, w^hether an unjust sentence against a foreigner, where
the subject of controversy was wholly relative to the lex
loci^ as it is called, that is, to the local law, would not, if
unredressed, be an aggression upon his sovereign, as well
as one, which violated the stipulations of a treaty, or the
general law of nations. And a still greater objection to
the distinction would result from the immense difficulty, if
not impossibihty, of a practical discrimination between the
eases of one complexion, and those of the other. So
great a proportion of the controversies, in which foreign-
ers are parties, involve national questions, that it is by far
the most safe, and most expedient, to refer all those, in
which they are concerned, to the National tribunals.
§ 349. In addition to these suggestions, it may be re-
marked, that it is of great national importance to advance
public, as well as private credit, in our intercourse with
foreign nations and their subjects. Nothing can be more
beneficial in this respect, than to create an impartial tri-
JURISDICTION OF THE JUDICIARV. 211
bunal, to which they may have resort upon all occasions,
when it may be necessary to ascertain, or enforce their
rights. Besides ; it is not wholly immaterial, that the law,
to be administered in cases of foreigners, is often very dis-
tinct from the mere municipal code of a State, and de-
pendent upon the law merchant, or the more enlarged
consideration of international rights and duties, in a case
of conflict of the foreign and domestic laws. And it may
fairly be presumed, that the National tribunals will, from
the nature of their ordinary functions, become better ac-
quainted with the general principles, which regulate sub-
jects of this nature, than other courts, however enlighten-
ed, which are rarely required to discuss them.
§ 350. In regard to controversies between an American
state and a foreign state, it is obvious, that the suit must,
on one side at least, be wholly voluntary. No foreign
state can be compelled to become a parly, plaintiff or de-
fendant, in any of our tribunals. If, therefore, it chooses
to consent to the institution of any suit, it is its consent
alone, which can give effect to the jurisdiction of the
court. It is certainly desirable, to furnish some peaceable
mode of appeal in cases, where any controversy may exist
between an American state and a foreign state, sufficiently
important to require the grievance to be redressed by any
other mode, than through the instrumentality of negotia-
tions.
§ 351. The inquiry may here be made, who are to be
deemed aliens, entitled to sue in the courts of the United
States. The general answer is, any person, who is not
a citizen of the United States. A foreigner, who is nat-
uralized, is no longer entitled to the character of an alien.
And when an alien is the substantial party, it matters not,
whether he is a suitor in his own right ; or whether he
acts, as a trustee, or a personal representative ; or whether
he is compellable, by the local law^, to sue ihrongh some
official organ. A foreign corporation, established in a
foreign country, all of whose members are aliens, is en-
titled to sue in the same manner, that an alien may per-
sonally sue in the courts of the Union. It is not suffi-
cient to vest the jurisdiction, that an alien is a party to
212 CONSTITUTION OF THE UNITED STATES.
the suit, unless the other party be a citizen. British vb-
jects, born before the American Revolution, are I,* be
deemed aliens ; and. may sue American citizens, born be-
fore the Revolution, as well as those born since that pe-
riod. The Revolution severed the ties of allegiance ; and
made the inhabitants of each country aliens to each other.
In relation to aliens, however, it should be stated, that
they have a right to sue only, while peace exists between
their country and our own. For, if a war break out, and
they thereby become alien enemies, their right to sue is
suspended, until the return of peace.
§ 352. We have now finished our review of all the
classes of cases, to which the judicial power of the United
States extends ; and this review will (we trust) amply
establish the reasonableness, the sound policy, and in many
cases, the indispensable necessity, of confining this juris-
diction on the National Government. The next inquiry
naturally presented, is in what mode this jurisdiction is to
be exercised, and in what courts it is to be vested. The
next clause of the third article, answers the inquiry. It
is as follows : "In all cases affecting ambassadors, other
pubhc 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 jurisdiction, both as
to law and fact, with such exceptions, and under such
regulations, as the Congress shall make."
§ 353. By original jurisdiction, is here meant, that the
party may commence his suit directly, and in the first in-
stance, in the Supreme Court ; by appellate jurisdiction
is meant, a right to revise the decision or judgement,
made by some other court, in which^the suit has been in-
stituted. For reasons of the highest public pohcy, original
jurisdiction is given to the Supreme Court in cases, in
which foreign nations and the States are concerned, as
more appropriate to their dignity, and, under all circum-
stances, more fit to receive the decision of the highest
tribunals. Othej- cases may conveniently be left to the
inferior tribunals, and be brought by appeal for revision
before the Supreme Court, if either party should require
JURISDICTION OF THE JUDICIARY. 213
it, leaving to Congress the authority to regulate the right
of appeal, in the exercise of a sound discretion.
§ 354. There are some additional suggestions upon this
clause, which may, perhaps, be useful to that class of read-
ers who desire to comprehend the full force and opera-
tion of this clause, in its various practical bearings.*
§ 355. The first remark, arising out of this clause, is,
that, as the judicial power of the United States extends
to all the cases enumerated in the Constitution, it may ex-
tend to all such cases, in any form, in which judicial power
may be exercised. It may, therefore, extend to them in
the shape of original, or of appellate jurisdiction, or of
both ; for there is nothing in the nature of the cases,
which binds to the exercise of the one in preference to the
other. But it is clear, from the language of the Consti-
tution, that, in one form or the other, it is absolutely obli-
gatory upon Congress, to vest all the jurisdiction in the
National courts, in that class of cases, at least, where it
has declared, that it shall extend to " all cases. ''^
§ 356. In the next place, the jurisdiction, which is
by the Constitution to be exercised by the Supreme Court
in an original form, is very limited, and extends only to
cases affecting ambassadors, and other public ministers,
and consuls, and cases, where a State is a party. And
Congress cannot constitutionally confer on it any other, or
further original jurisdiction. This is one of the appropri-
ate illustrations of the rule, that the affirmation of a power
in particular cases, excludes it in all others. The clause
itself would otherwise be wholly inoperative and nugatory.
If it had been intended to leave it to the discretion of Con-
gress, to apportion the judicial power between the Su-
preme and inferior courts, according to the will of that
body, it would have been useless to have proceeded fur-
ther, than to define the judicial power, and the tribunals,
in which it should be vested. Affirmative words often,
in their operation, imply a negative of other objects, than
those affirmed ; and in this case, a negative, or exclusive
sense, must be given to the w^ords, or they have no oper-
* The following sections of this chapter can be omitted by those,
whose studies may not enable them fully to understand this compli-
cated subject.
214 CONSTITUTION OF THE UNITED STATES.
ation at all. If the solicitude of the Convention, respect-
ing our peace with foreign powers, might induce a provis-
ion to be made, that the Supreme Court should have
original jurisdiction in cases, which might be supposed to
affect them ; yet the clause would have proceeded no fur-
ther, than to provide for such cases, unless some further re-
striction upon the powers of Congress had been intended.
The direction, that the Supreme Court shall have appel-
late jurisdiction, in all cases, with such exceptions, as Con-
gress shall make, will be no restriction, unless the words
are to be deemed exclusive of original jurisdiction. And
accordingly, the doctrine is firmly estabhshed, that the
Supreme Court cannot constitutionally exercise any orig-
inal jurisdiction, except in the enumerated cases. If Con-
gress should confer it, it would be a mere nuUity.
§ 357. But, although the Supreme Court cannot ex-
ercise original jurisdiction, in any cases, except those
specially enumerated, it is certainly competent for Con-
gress to vest, in any inferior courts of the United States,
original jurisdiction of all other cases, not thus specially
assigned to the Supreme Court ; for there is nothing in
the Constitution, which excludes such inferior courts from
the exercise of such original jurisdiction. Original juris-
diction, so far as the Constitution gives a rule, is coexten-
sive with the judicial power ; and except, so far as the
Constitution has made any distribution of it among the
courts of the United States, it remains to be exercised in
an original, or an appellate form, or in both, as Congress
may, in their wisdom, deem fit. Now, the Constitution has
made no distribution, except of the original and appellate
jurisdiction of the Supreme Court. It has nowhere in-
sinuated, that the inferior tribunals shall have no original
jurisdiction. It has nowhere affirmed, that they shall have
appellate jurisdiction. Both are left unrestricted and un-
defined. Of course, as the judicial power is to be vested
in the Supreme and inferior courts of the Union, both are
under the entire control and regulation of Congress.
§ 358. Another question, of a very different nature, is,
whether the Supreme Court can exercise appellate juris-
diction in the class of cases, of which original jurisdiction is
JURISDICTION OF THE JUDICIARY. 215
delegated to it by the Constitution ; in other words, wheth-
er the original jurisdiction excludes the appellate ; and
so, on the other hand, wliether the latter iniphes a negative
of the former. It has been said, that the very distinction,
taken in the Constitution, between original arid appellate
jurisdiction, presupposes, that, where the one can be ex-
ercised, the other cannot. For example, since the orig-
inal jurisdiction extends to cases, where a State is a party,
this is the proper form, in which such cases are to be
brought before the Supreme Court ; and, therefore, a case,
where a State is a party, cannot be brought before the
Court, in the exercise of its appellate jurisdiction ; for the
affirmative here, as well as in the cases of original jurisdic-
tion, includes a negative of the cases not enumerated.
§ 359. If the correctness of this reasoning were ad-
mitted, it would establish no more, than that the Supreme
Court could not exercise appellate jurisdiction in cases,
where a State is a party. But it would by no means
estabhsh the doctrine, that the judicial power of the Uni-
ted States did not extend, in an appellate form, to such
cases. The exercise of appellate jurisdiction is far from
being limited, by the terms of the Constitution, to the
Supreme Court. There can be no doubt, that Congress
may create a succession of inferior tribunals, in each of
which it may vest appellate, as well as original jurisdic-
diction. This results from the very nature of the dele-
gation of the judicial power in the Constitution. It is
delegated in the most general terms ; and may, therefore,
be exercised under the authority of Congress, under every
variety of form of original and of appellate jurisdiction.
There is nothing in the instrument, w^hich restrains or
limits the power ; and it must, consequently, subsist in the
utmost latitude, of which it is in its nature susceptible.
The result, then, would be, that, if the appellate jurisdic-
tion over cases, to which a State is a party, could not, ac-
cording to the terms of the Constitution, be exercised by the
Supreme Court, it might be exercised exclusively by an
inferior tribunal. The soundness of any reasoning, which
would lead us to such a conclusion, may well be questioned.
§ 360. But the reasoning itself is not well founded.
216 CONSTITUTION OF THE UNITED STATES.
It proceeds upon the ground, that, because the character
of the party alone, in some instances, entitles the Su-
preme Court to maintain original jurisdiction, without any
reference to the nature of the case, therefore, the char-
acter of the case, which in other instances is made the very
foundation of appellate jurisdiction, cannot attach. Now,
that is the very point of controversy. It is not only not
admitted, but it is solemnly denied. The argument might
just as well, and with quite as much force, be pressed in
the opposite direction. It might be said, that the appel-
late jurisdiction is expressly extended by the Constitution
to all cases in law and equity, arising under the Constitu-
tion, laws, and treaties of the United States, and, there-
fore, in no such cases could the Supreme Court exercise
original jurisdiction, even though a State were a party.
§361. The next inquiry is, whether the eleventh
amendment to the Constitution has effected any change
of the jurisdiction, thus confided to the judicial power of
the United States. The words of the amendment, are,
"The judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the States, by citizens
of another State, or by citizens or subjects of any foreign
state." It is a part of our history, that, at the adoption
of the Constitution, all the States were greatly indebted ;
and the apprehension, that these debts might be prosecu-
ted in the National courts, formed a very serious objection
to that instrument. Suits were instituted ; and the Supreme
Court maintained its jurisdiction. The alarm was general ;
and, to quiet the apprehensions, that were so extensively
entertained, this amendment was proposed in Congress,
and adopted by the State Legislatures. That its motive
was not to maintain the sovereignty of a State from the
degradation, supposed to attend a compulsory appearance
before the tribunal of the Nation, may be inferred from the
terms of the amendment. It does not comprehend con-
troversies between two or more States, or between a
State and a foreign state. The jurisdiction of the Court
still extends to these cases ; and in these, a State may
still be sued. We must ascribe the amendment, then, to
JURISDICTION OP THE JUDICIARY. 217
some other cause, than the dignity of a State. There is
no difficulty in finding this cause. Those, who were in-
hibited from commencing a suit against a State, or from
prosecuting one, which might be commenced before the
adoption of the amendment, were persons, who might
probably be its creditors. There was not much reason to
fear, that foreign or sister States would be creditors to any
considerable amount ; and there was reason to retain the
jurisdiction of the Court in those cases, because it might
be essential to the preservation of peace. The amend-
ment, therefore, extended to suits commenced, or prose-
cuted by individuals, but not to those brought by States.
§ 362. The first impression, made on the mind by this
amendment, is, that it was intended for those cases, and
for those only, in which some demand against a State is
made by an individual in the courts of the Union. If we
consider the cause, to which it is to be traced, we are
conducted to the same conclusion. A general interest
might well be felt, in leaving to a State the full power of
consulting its convenience in the adjustment of its debts,
or of other claims upon it ; but no interest could be felt
in so changing the relations between the whole and its
parts, as to strip the Government of the means of pro-
tecting, by the instrumentality of its courts, the Consti-
tution and laws from active violation.
§ 363. This amendment, then, was designed to prevent
any suit being originally commenced by any private per-
son against a State ; but it was not designed to control
or interfere with the appellate jurisdiction of the Supreme
Court, in cases to which that appellate jurisdiction ex-
tended before the amendment. A case, therefore, orig-
inally commenced hy a State against a private person in
any other Court, which involved any question arising
under the Constitution, laws, or treaties,'of the United
States, might still be revised by the Supreme Court, upon
an appeal, or writ of error, as the case might require.
§ 364. Another inquiry, touching the appellate juris-
diction of the Supreme Court, of a still more general char-
acter, is, whether it extends only to the inferior courts of
tlie Union, constituted by Congress, or reaches to cases
19 XIII.
218 CONSTITUTION OF THE UNITED STATES.
decided in the State courts. This question has been
made on several occasions ; and it has been most deliber-
ately and solemnly decided by the Supreme Court, that
it reaches the latter cases.
§ 365. We have already seen, that appellate jurisdic-
.tion is given by the Constitution to the Supreme .Court,
in all cases, where it has not original jurisdiction ; subject,
however, to such exceptions and regulations, as Congress
may prescribe. It is, therefore, capable of embracing
every case enumerated in the Constitution, which is not
exclusively to be decided by way of original jurisdiction.
But the exercise of appellate jurisdiction is far from being
limited, by the terms of the Constitution, to the Supreme
Court. There can be no doubt, that Congress may cre-
ate a succession of inferior tribunals, in each of which it
may vest appellate, as well as original jurisdiction. The
judicial power is delegated by the Constitution in the most
general terms, and may, therefore, be exercised by Con-
gress, under every variety of form of appellate, or of ori-
ginal jurisdiction. And as there is nothing in the Con-
stitution, which restrains, or limits this power, it must,
therefore, in all these cases, subsist in the utmost latitude,
of which, in its own nature, it is susceptible.
§ 366. If the Constitution meant to limit the appellate
jurisdiction to cases pending in the courts of the United
States, it would necessarily follow, that the jurisdiction
of these courts would, in all the cases enumerated in the
Constitution, be exclusive of State tribunals. How,
otherwise, could the jurisdiction extend to all cases, aris-
ing under the Constitution, laws, and treaties, of the Uni-
ted States, or, to all cases of admiralty and maritime ju-
risdiction .'' If some of these cases might be entertained
by State tribunals, and no appellate jurisdiction, as to
them, should exist, then the appellate power would not
extend to all, but to some, cases. If State tribunals
might exercise concurrent jurisdiction over all, or some
of the other classes of cases in the Constitution, without
control, then the appellate jurisdiction of the United States
might, as to such cases, have no real existence, contrary
to the manifest intent of the Constitution. Under such
JURISDICTION OP THE JUDICIARY. 219
circumstances, to give effect to the judicial power, it
must be construed to be exclusive ; and this, not only
when the very question should arise directly ; but when it
should arise incidentally, in cases pending in State courts.
This construction would abridge the jurisdiction of such
courts far more, than has been ever contemplated in any
act of Congress.
§ 367. But it is plain, that the framers of the Consti-
tution did contemplate, that cases within the judicial cog-
nizance of the United States, not only might, but would
arise in the State courts, in the exercise of their ordinary
jurisdiction. With this view, the sixth article declares,
that, " 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 author-
ity of the United States, shall be the supreme law of the
land, and the judges, in every State, shall be bound
thereby, any thing, in the Constitution or laws of any
State, to the contrary notwithstanding." It is obvious,
that this obligation is imperative upon the State judges in
their official, and not merely in their private capacities.
From the very nature of their judicial duties, they would
be called upon to pronounce the law, applicable to the
case in judgement. They were not to decide, merely
according to the laws, or Constitution, of the State, but
according to the Constitution, laws, and treaties, of the
United States, — "the supreme law of the land."
§ 368. A moment's consideration will show us the
necessity and propriety of this provision, in cases, where
the jurisdiction of the State courts is unquestionable.
Suppose a contract, for the payment of money, is made
between citizens of the same State, and performance
thereof is sought in the courts of that State ; no person
can doubt, that the jurisdiction completely and exclusively
attaches, in the first instance, to such courts. Suppose
at the trial, the defendant sets up, in his defence, a tender
under a State law, making paper money a good tender,
or a State law, impairing the obligation of such contract,
which law, if binding, would defeat the suit. The Con-
stitution of the United States has declared, that no State
220 CONSTITUTION OF THE UNITED STATES.
shall make any thing but gold or silver coin a tender in
payment of debts, or pass a law impairing the obligation
of contracts. If Congress shall not have passed a law,
providing for the removal of such a suit to the courts of the
United States, must not the State court proceed to hear,
and determine it ? Can a mere plea in defence be, of
itself, a bar to further proceedings, so as to prohibit an
inquiry into its truth, or legal propriety, when no other
tribunal exists, to which judicial cognizance of such cases
is confided ? Suppose an indictment for a crime in a
State court, and the defendant should allege in his de-
fence, that the crime was created by an ex post facto act
of the State, must not the State court, in the exercise of
a jurisdiction, which has already rightfully attached, have
a right to pronounce on the validity, and sufficiency of
the defence ? It would be extremely difficult, upon any
legal principles, to give a negative answer to these inqui-
ries. Innumerable instances of the same sort might be
stated, in illustration of the position ; and unless the State
courts could sustain jurisdiction in such cases, this clause
of the sixth article would be without meaning or effect ;
and pubhc mischiefs, of a most enormous magnitude,
would inevitably ensue.
§ 369. It must, therefore, be conceded, that the Con-
stitution not only contemplated, but meant to provide for,
cases within the scope of the judicial power of the United
States, which might yet be brought before State tribunals.
It was foreseen, that, in the exercise of their ordinary
jurisdiction. State courts would, incidentally, take cogni-
zance of .cases arising under the Constitution, the laws,
and treaties, of the United States. Yet, to all these cases
lihe judicial power, by the very terms of the Constitution,
is to extend. It cannot extend, by original jurisdiction,
if that has already rightfully and exclusively attached in
the State courts, which (as has been already shown) may
occur ; it must, therefore, extend by appellate jurisdic
tion, or not at all. It would seem to follow, that th
appellate power of the United States must, in such cases
extend to Sfate tribunals ; and, if in such cases, there i:
no reason, why it should not equally attach upon all other;
within the purview of the Constitution.
i
JURISDICTION OF THE JUDICIARY. 221
§ 370. It is manifest, that the Constitution has pro-
ceeded upon a theory of its own, and given and withheld
powers according to the judgement of the American peo-
ple, by whom it was adopted. We can only construe its
powers, and cannot here inquire into the policy, or princi-
ples, which induced the grant of them. The Constitution
has presumed, (whether rightly or wrongly, we do not here
inquire,) that State attachments. State prejudices, State
jealousies, and State interests, might sometimes obstruct,
or control, or be supposed to obstruct, or control, the reg-
ular administration of justice. Hence, in controversies
between States ; between citizens of different States ; be-
tween citizens, claiming grants under different States ; be-
tween a State and its citizens, or foreigners ; and between
citizens and foreigners ; it enables the parties, under the
authority of Congress, to have the controversies heard,
tried, and determined, before the National tribunals. No
other reason, than that, which has been stated, can be
assigned, why some, at least, of these cases should not
have been left to the cognizance of the State courts. In
respect to the other enumerated cases, — cases arising
under the Constitution, laws, and treaties, of the United
States ; cases affecting ambassadors, and other public
ministers ; and cases of admiralty and maritime jurisdic-
tion,— reasons of a higher and more extensive nature,
touching the safety, peace, and sovereignty, of the Nation,
might well justify a grant of exclusive jurisdiction.
§ 371. This is not all. A motive of another kind,
perfectly compatible with the most sincere respect for
State tribunals, might induce the grant of appellate power
over their decisions. That motive is the importance,
and even necessity, of uniformity of decisions throughout
the whole United States, upon all subjects within the pur-
view of the Constitution. Judges of equal learning and
integrity, in different States, might differently interpret a
statute, or a treaty, of the United States, or even the Con-
stitution itself. If there were no revising authority to
control these jarring and discordant judgements, and har-
monize them into uniformity, the laws, the treaties, and
tlie Constitution, of the United States, would be different
19*
222 CONSTITUTION OP THE UNITED STATES.
in different States ; and might, perhaps, never have pre-
cisely the same construction, obligation, or efficacy, in
any two States. The public mischiefs, which would
attend such a state of things, would be truly deplorable ;
and it cannot be believed, that they could have escaped
the enlightened Convention, which formed the Constitu-
tion. What, indeed, might then have been only proph-
ecy, has now become fact ; and the appellate jurisdittion
must continue to be the only adequate remedy for such
evils.
§ 372. There is an additional consideration, which is
entitled to great weight. The Constitution of the United
States was designed for the common and equal benefit of
all the people of the United States. The judicial power
was granted for the same benign and salutary purpose.
It was not to be exercised exclusively for the benefit of
partie^ who might be plaintiffs, and would elect the Na-
tional forum ; but also for the protection of defendants,
who might be entitled to try their rights, or assert their
privileges, before the same forum. Yet, if the appellate
jurisdiction does not extend to such cases, it will follow,
that, as the plaintiff may always elect the State court?,
the defendant may be deprived of all the security, which
the Constitution intended in aid of his rights. Such a
state of things can, in no respect, be considered as givinn;
equal rights.
§ 373. Strong as this conclusion stands upon the gen-
eral language of the Constitution, it may still derive sup-
port from other sources. It is an historical fact, that this
exposition of the Constitution, extending its appellate pow-
er to State courts, was, previous to its adoption, uniformly
and publicly avowed by its friends, and admitted by its
enemies, as the basis of their respective reasonings, both
in and out of the State conventions. It is an historical fact,
that, at the time, when the Judiciary Act was submitted
to the deliberations of the first Congress, composed, as it
was, not only of men of great learning and ability, but of
men, who had acted a principal part in framing, support-
ing, or opposing, that Constitution, the same exposition
was explicitly declared, and admitted by the friends, and
JURISDICTION OF THE JUDICIARY. 223
by the opponents of that system. It is an historical fact,
that the Supreme Court of the United States have, from
lime to time, sustained this appellate jurisdiction, in a great
variety of cases, brought from the tribunals of many of
the most important States in the Union ; and that no
State tribunal ever breathed a judicial doubt on the sub-
ject, or dechned to obey the mandate of the Supreme
Court, until a comparatively recent period. This weight
of contemporaneous exposition, by all parties, this acqui-
escence of enhghtened State courts, and these judicial de-
cisions of the Supreme Court, through so long a period,
places the doctrine upon a foundation of authority, which
cannot be shaken, without delivering over the subject to
perpetual, and irremediable doubts.
§ 374. It would be difficult, and perhaps not desira-
ble, to lay down any general rules in relation to the cases,
in which the judicial power of the courts of the United
States is exclusive of the State courts, or in which it may
be made so by Congress, until they shall be settled by
some positive adjudication of the Supreme Court. That
there are some cases, in which that power is exclusive,
cannot well be doubted ; that there are others, in which
it may be made so by Congress, admits of as little doubt ;
and that, in other cases, it is concurrent in the State courts,
at least until Congress shall have passed some act, ex-
cluding the concurrent jurisdiction, will scarcely be de-
nied. It seems to be admitted, that the jurisdiction of
the courts of the United States is, or at least may be,
made exclusive in all cases arising under the Constitution,
laws, and treaties, of the United States ; in all cases
affecting ambassadors, other public ministers, and consuls ;
in all cases of admiralty and maritime jurisdiction, (which
are exclusive in their character ;) in controversies, to
w'hich the United States shall be a party ; in controver-
sies between two or more States ; in controversies be-
tween a State and citizens of another State ; and in con-
troversies between a State and foreign States, citizens, or
subjects. And it is only in those cases, where, previous
to the constitution. State tribunals possessed jurisdiction,
independent of National authority, that they can now con-
stitutionally exercise a concurrent jurisdiction.
224 CONSTITUTION OF THE UNITED STATES.
§375. In the exercise of. the jurisdiction confided
respectively to the State courts, and those courts of the
United States, (where the latter have not appellate juris-
diction,) it is plain, that neither can have any right to in-
terfere with, or control, the operations of the other. It
has accordingly been settled, that no State court can issue
an injunction upon any judgement in a court of the United
States ; the latter having an exclusive authority over its
own judgements and proceedings. Nor can any State
court, or any State legislature, annul the judgements of
the courts of the United States, or destroy the rights ac-
quired under them ; nor in any manner deprive the Su-
preme Court of its appellate jurisdiction ; nor in any
manner interfere with, or control, the process (whether
mesne or final) of the courts of the United States ; nor
prescribe the rules or forms of proceeding ; nor affect a
process in the courts of the United States ; nor issue a
mandamus to an officer of the United States, to compel
him to perform duties, devolved on him by the laws of
the United States. And, although writs of habeas corpus
have been issued by State judges, and State courts, in
cases where the party has been in custody, under the au-
thority of process of the courts of the United States,
there has been considerable diversity of opinion, whether
such an exercise of authority is constitutional ; and it yet
remains to be decided, whether it can be maintained.
§ 376. On the other hand, the National courts have no
authority (in cases not within the appellate jurisdiction of
the United States) to issue injunctions to judgements in
the State courts ; or in any other manner to interfere with
their jurisdiction or proceedings.
§ 377. Having disposed of these points, we may again
recur to the language of the Constitution, for the purpose
of some further illustrations. The language is, that ^'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."
§ 378. In the first place, it may not be without iTse to
ascertain, what is here meant by appellate jurisdiction ;
and what is the mode, in which it may be exercised. The
JURISDICTION OP THE JUDICIARY. 225
essential criterion of appellate jurisdiction is, that it revises
and corrects the proceedings in a cause already instituted,
and does not create that cause. In reference to judicial
tribunals, an appellate jurisdiction, therefore, necessarily
implies, that the subject matter has been already instituted
in, and acted upon by, some other court, whose judge-
ment or proceedings are to be revised. This appellate
jurisdiction may be exercised in a variety of forms, and
indeed in any form, which the Legislature may choose to
prescribe ; but, still, the substance must exist, before the
form can be apphed to it. To operate at all, then, un-
der the Constitution of the United States, it is not suffi-
cient, that there has been a decision by some officer, or
Department, of the United States ; but it must be by one
clothed with judicial authority, and acting in a judicial
capacity. A power, therefore, conferred by Congress
on the Supreme Court, to issue a mandamus to public
officers of the United States generally, is not warranted
by the Constitution ; for it is, in effect, under such cir-
cumstances, an exercise of original jurisdiction. But
where the object is to revise a judicial proceeding, the
mode is wholly immaterial ; and a writ of habeas corpus,
or of mandamus, a writ of error, or an appeal, may be
used, as the Legislature may prescribe.
§ 379. The most usual modes of exercising appellate
jurisdiction, at least, those, which are most known in the
United States, are, by a writ of error, or by an appeal,
or by some process of removal of a suit from an inferior
tribunal. An appeal is a process of civil law origin, and
removes a cause entirely, subjecting the fact, as well as
the law, to a review and a re-trial. A writ of error is a
process of common law origin ; and it removes nothing
for re-examination, but the law. The former mode is
usually adopted in cases of equity and admiralty jurisdic-
tion ; the latter, in suits at common law tried by a jury.
§ 380. It is observable, that the language of the Con-
stitution is, that " the Supreme Court shall have appellate
jurisdiction, both as to laic and fact.^'' This provision
was a subject of no small alarm and misconstruction at the
time of the adoption of the Constitution, as it was sup-
226 CONSTITUTION OF THE UNITED STATES.
posed to confer on the Supreme Court, in the exercise
of its appellate jurisdiction, the power to review the de-
cision of a jury in mere matters of fact ; and thus, in
effect, to destroy the validity of their verdict, and to re-
duce to a mere form, the right of a trial by jury in civil
cases. The objection was at once seized hold of by the
enemies of the Consthution ; and it was pressed with an
urgency and zeal, which were well nigh preventing its
ratification. There is certainly some foundation, in the
ambiguity of the language, to justify an interpretation, that
such a review might constitutionally be within the reach
of the appellate power, if Congress should choose to car-
ry it to that extreme latitude. But, practically speaking,
there was not the slightest danger, that Congress would
ever adopt such a course, even if it were within their con-
stitutional authority ; since it would be at variance with
all the habits, feelings, and institutions, of the whole coun-
try. At least, it might be affirmed, that Congress would
scarcely take such a step, until the people were prepared
to surrender all the great securities of their civil, as well
as of their political rights and hberties ; and in such an
event, the retaining of the trial by jury would be a mere
mockery. The real object of the provision was, to retain
the power of reviewing the fact, as well as the law, in cases
of equity, and of admiralty, and maritime jurisdiction. And
the manner, in which it is expressed, was probably occa-
sioned by the desire to avoid the introduction of the subject
of a trial by jury, in civil cases, upon which the Conven-
tion were greatly divided in opinion.
§ 381. These views, however reasonable they may
seem to considerate minds, did not wholly satisfy the pop-
ular opinion ; and as the objection had a vast influence
upon public opinion, and amendments were proposed by
various State conventions on this subject. Congress, at its
first session, under the guidance of the friends of the Con-
stitution, proposed an amendment, which was ratified by
the people, and is now incorporated into the Constitution.
It is in these words : "In suits at common law, where
the value in controversy shall exceed twenty dollars, the
right of a trial by jury shall be preserved. And no fact.
JURISDICTION OF THE JUDICIARY. 227
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. ' ' This amendment completely struck down
the objection ; and has secured the right of a trial by jury,
in civil cases, in the fullest latitude of the common law.
It is a most important and valuable amendment ; and
places upon the high ground of constitutional right, the
inestimable privilege of a trial by jury in civil cases, a
privilege scarcely inferior to that in criminal cases, which
is conceded by all persons to be essential to political and
civil liberty.
§ 382. The appellate jurisdiction is to be, " with such
exceptions, and under such regulations, as the Congress
shall prescribe." But, here, a question is presented
upon the construction of the Constitution, whether the
appellate jurisdiction attaches to the Supreme Court,
subject to be withdrawn and modified by Congress ; or,
whether an act of Congress is necessary to confer the
jurisdiction upon the court. If the former be the true con-
struction, then the entire appellate jurisdiction, if Congress
should make no exceptions or regulations, would attach,
by force of the terms, to the Supreme Court. If the lat-
ter, then, notwithstanding the imperative language of the
Constitution, the Supreme Court is lifeless, until Con-
gress have conferred powder on it. And if Congress may
confer power, they may repeal it. So that the whole
efficiency of the judicial power is left by the Constitution
wholly unprotected and inert, if Congress shall refrain to
act. There is certainly very strong ground to maintain,
that the language of the Constitution meant to confer the
appellate jurisdiction absolutely on the Supreme Court,
independent of any action by Congress ; and to require
this action to divest or regulate it. The language, as to
the original jurisdiction of the Supreme Court, admits, of
no doubt. It confers it without any action of Congress.
Why should not the same language, as to the appellate
jurisdiction, have the same interpretation ? It leaves the
power of Congress complete, to make exceptions and reg-
ulations ; but it leaves nothing to their inaction. This
construction was asserted in argument at an early period
228 CONSTITUTION OF THE UNITED STATES.
of the Constitution, and it has since been deliberately con-
firmed by the Supreme Court.
§ 383. The functions of the judges of the courts of
the United States are strictly and exclusively judicial.
They cannot, therefore, be called upon to advise the
President in any Executive measures ; or to give extra-
judicial interpretations of law ; or to act as commissioners
in cases of pensions, or other hke proceedings.
CHAPTER XXXII.
Trial by Jury, and its Incidents. — Definition of Trea*
son.
§ 384. The next clause of the second section of the
third article is, " 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. " It seems hardly necessary, in
this place, to expatiate upon the antiquity, or importance,
of the trial by jury in criminal cases. It was, from very
early times, insisted on by our ancestors in the parent
country, as the great bulwark of their civil and poHtical
liberties, and watched with an unceasing jealousy and so-
licitude. The right constitutes a fundamental article of
Magna Charta, in which it is declared, " that no man shall
be arrested, nor imprisoned, nor banished, nor deprived
of life, &c., but by the judgement of his peers, or by the
law of the land." The judgement of his peers here allud-
ed-to, and commonly called, in the quaint language of for-
mer times, a trial per pais, or trial by the country, is the
trial by a jury, who are called the peers of the party ac-
cused, being of the like condition and equality in the state,
^hen our more immediate ancestors removed to Ameri-
ca, they brought this great privilege with them, as their
birthright and inheritance, as a part of that admirable
TRIAL BY JURY. 229
common law, which had fenced round, and interposed
barriers on every side against the approaches of arbitrary
power. It is now incorporated into all our State Consti-
tutions, as a fundamental right ; and the Constitution of
the United States would have been justly obnoxious to
the most conclusive objection, if it had not recognised
and confirmed it, in the most solemn terms.
§ 385. The great object of a trial by jury, in criminal
cases, is to guard against a spirit of oppression and ty-
ranny, on the part of rulers, and against a spirit of violence
and vindictiveness, on the part of the people. Indeed, it
is often more important to guard against the latter, than
the former. The sympathies of all mankind are enlisted
against the revenge and fury of a single despot ; and
every attempt will be made to screen his victims from
punishment. But it is difficult to escape from the ven-
geance of an indignant- people, roused into hatred by un-
founded calumnies, or stimulated to cruelty by political
enmity, and party jealousy. The appeal for safety, under
such circumstances, can scarcely be made by the innocent,
in any other manner, than by the strict control of a court
of justice, and the firm and impartial verdict of a jury,
sworn to do right, and guided solely by legal evidence,
and a sense of duty.
§ 386. It is observable, that the trial of all crimes is
not only to be by jury, but to be held in the State, where
they are committed. The object of this clause is, to se-
cure the party accused from being dragged to a trial in
some distant State, far away from his friends, and wit-
nesses, and neighborhood ; and thus subjected to the ver-
dict of mere strangers, who may feel no common sympa-
thy, or who may even cherish animosities, or prejudices,
against him. Besides this, a trial in a distant State or
Territory might subject the party to the most oppressive
expenses, or perhaps even to the inabihty of procuring
the proper witnesses to estabhsh his innocence. There
is Httle danger, indeed, that Coxigress would ever exert
their power in so oppressive and unjustifiable a man-
ner. But upon a subject, so vital to the security of the
citizen, it was fit to leave, as little as possible to mere dis-
20 XIII.
230 CONSTITUTION OP THE UNITED STATES.
cretion. By the common law, the trial of all crimes is
required to be in the county, where they are committed.
Nay, it originally carried its jealousy still farther, and re-
quired, that the jury itself should come from the vicinage
of the place, where the crime was alleged to be commit-
ted. This was certainly a precaution, which, however
justifiable in an early and barbarous state of society, is lit-
tle commendable in its more advanced stages. It has
been justly remarked, that in such cases, to summon, a
jury, laboring under local prejudices, is laying a snare for
their consciences ; and, though they should have, virtue
and vigor of mind sufficient to keep them upright, the
parties will grow suspicious, and indulge many doubts of
the impartiality of the trial. It was doubtless by analogy
to this rule of the common law, that all criminal trials are
required to be in the State, where the crimes are com-
mitted. But, as crimes may be committed on the high
seas, and elsewhere, out of the territorial jurisdiction of a
State, it was indispensable, that, in such cases. Congress
should be enabled to provide the place of trial. But even
here we may perceive, from the language used, that the
trial is to be in the place, which Congress may have di-
rected ; not in one, which they shall direct after the
commission of the offence.
§ 387. In order to secure this great • palladium of lib-
erty, the trial by jury, in criminal cases, from all possi-
bility of abuse, certain amendments have since been made
to the Constitution, which add greatly to the original con-
stitutional barriers against persecution and oppression.
They are as follows ; "No person shall be held to an-
swer 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 mili-
tia, when in actual service, in time of war, or public dan-
ger. Nor shall any person be subject for the same of-
fence 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, hberty, or prop-
erty, without due process of law ; nor shall private prop-
erty be taken for public use, without just compensation.
TRIAL Br JURY. 231
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 pre-
viously 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 compulsory pro-
cess for obtaining witnesses in his favor ; and to have the
assistance of counsel for his defence."
§ 388. Upon the main provisions of these articles, a
few remarks only will be made, since they are almost
self-evident, and can require few illustrations to establish
their utility and importance.
§ 389. The first clause requires the interposition of a
grand jury, by way of presentment or indictment, before
the party accused can be required to answer to any capi-
tal and infamous crime, charged against him. And this
is regularly true at the common law, of all offences, above
the grade of common misdemeanors. A grand jury, it is
well known, are selected in the manner prescribed by law,
and duly sworn to make inquiry, and present all offences
committed against the authority of the State government,
within the body of the county, for which they are impan-
nelled. In the National courts, they are sworn to inquire,
and present all offences committed against the authority
of the National Government, within the State or district,
for which they are impannelled, or elsewhere within the
jurisdiction of tlVe National Government. The grand
jury may consist, of any number, not less than twelve, nor
more than twenty-three ; and twelve at least must concur
in every accusation. They sit in secret, and examine
the evidence laid before them by themselves. A pre-
sentment, properly speaking, is an accusation, made by
a grand jury of their own mere motion, of an offence upon
their own observation and knowledge, or upon evidence
before them, and without any bill of indictment laid before
them at the suit of the government. An indictment is a
written accusation of an offence preferred to, and pre-
sented, upon oath, as true, by a grand jury, at the suit of
the government. Upon a presentment, the proper officer
232 CONSTITUTION OF THE tMIITED STATES.
of the court must frame an indictment, before the party ac-
cused can be put to answer it. But an indictment is usually,
in the first instance, framed by the officers of the govern-
ment, and laid before the grand jury. When the grand jury
have heard the evidence, if they are of opinion, that the
indictment is groundless, or not supported by evidence,
they used formerly to endorse on the back of the bill,
" ignoramus," or we know nothing of it, whence the bill
was said to be ignored. But now, they assert, in plain
English, "not a true bill," or, which is a better way,
" not found ;" and then the party is entitled to be dis-
charged, if in custody, without further answer. But a
fresh bill may be preferred against him by another grand
jury. If the grand jury are satisfied of the truth of the
accusation, then they write on the back of the bill, *' a
true bill," (or anciently, " billa vera.'''') The bill is then
said to be found, and is publicly returned into court ; the
party stands indicted, and may then be required to answer
the matters charged against him.
§ 390. From this summary statement, it is obvious, that
the grand jury perform most important public functions ;
and are a great security to the citizens against vindictive
prosecutions, either by the government, or by political
partisans, or by private enemies. Nor is this all : the
indictment must charge the time, and place, and nature,
and circumstances, of the offence, with clearness and cer-
tainty ; so that the party may have full notice of the charge,
and be able to make his defence with all reasonable knowl-
edge and ability.
§ 391. Another clause declares, that no person shall
be subject, "for the same offence, to be twice put in
jeopardy of life and limb." This, again, is another great
privilege secured by the common law. The meaning of.
it is, that a party shall not be tried a second time, for the
same offence, after he has once been convicted, or ac-
quitted of the offence charged, by the verdict of a jury,
and judgement has passed thereon for or against him. But
it does not mean, that he shall not be tried for the offence
a second time, if the jury have been discharged without
giving any verdict ; or, if, having given a verdict, judge-
TRIAL BY JURY. 233
ment has been arrested upon it, or a new trial has been
granted in his favor ; for, in such a case, his hfe or limb
cannot judicially be said to have been put in jeopardy.
§ 392. The next clause prohibits any person from be-
«ig compelled, in any criminal case, to be a witness against
nimself, or from being deprived of hfe, liberty, or property,
without due process of law. This also is but an affirm-
ance of a common-law privilege. But it is of inestimable
value. It is well known, that in some countries, not only
are criminals compelled to give evidence against them-
selves ; but they are subjected to the rack or torture, in or-
der to procure a confession of guilt. And what is worse, it
has been (as if in mockery or scorn) attempted to excuse
or justify it, upon the score of mercy and humanity to the
accused. It has been contrived, (it is pretended,) that
innocence should manifest itself by a stout resistance, or
guilt by a plain confession ; as if a man's innocence were
to be tried by the hardness of his constitution, and his
guilt by the sensibility of his nerves ! Cicero, many ages
ago, although he lived in a state, wherein it was usual to
put slaves to the torture, in order to furnish evidence, has
denounced the absurdity and wickedness of the measure
in terms of glowing eloquence, as striking, as they are
brief. They are conceived in the spirit of Tacitus, and
breathe all his pregnant and indignant sarcasm. Ulpian,
also, at a still later period in Roman jurisprudence,
stamped the practice with severe reproof.
§ 393. The other part of the clause is but an enlarge-
ment of the language of Magna Charta ; " Neither will we
pass upon him, or condemn him, but by the lawful judge-
ment of his peers, S)V by the law of the land." Lord Coke
says, that these latter words, '^ by the law of the land,"
mean, by due process of law ; that is, without due pre-
sentment or indictment, and being brought in to answer
thereto by due process of the common law. So that this
clause, in effect, affirms the right of trial, according to the
process and proceedings of the common law.
§ 394. The concluding clause is, that private property
shall not be taken for public use without just compensa
tion This is an affirmance of a great doctrine established
20*
234 CONSTITUTION OP THE UNITED STATES.
by the common law, for the protection of private proper-?
ty. It is founded in natural equity, and is laid down by
jurists as a principle of universal law. Indeed, in a free
government, almost all other rights wouW become utterly
worthless, if the government possessed an uncontrollable
power over the private fortune of every citizen. One of
the fundamental objects of every good government must
be, the due administration of justice ; and how vain it
would be, to speak of such an administration, where all
property is subject to the will or caprice of the legislature
and the rulers !
§ 395. The other article, in declaring, that the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury of the State or district, wherein the crime
shall have been committed, (which district shall be pre-
viously ascertained by law,) and to be informed of the
nature and cause of the accusation, and to be confronted
with the witnesses against him, does but follow out the
established course of the common law in all trials for
crimes. The trial is always public ; the witnesses are
sworn, and give in their testimony, (at least in capital ca-
ses,) in the presence of the accused ; the nature and cause
of the accusation is accurately laid down in the indictment;
and the trial is at once speedy, impartial, and in the dis-
trict where the offence is charged to be committed. With-
out in any measure impugning the propriety of these pro-
visions, it may be suggested, that there seems to have been
an undue sohcitude to introduce into the Constitution some
of the general guards and proceedings of the common law
in criminal trials, (truly admirable in themselves,) without
sufficiently adverting to the consideration, that, unless the
whole system is incorporated, and especially the law of
evidence, a corrupt legislature, or a debased and servile
people, may render the whole Httle more than a solemn
pageantry. If, on the other hand, the people are enlight-
ened, and honest, and zealous in defence of their rights and
liberties, it will be impossible to surprise them into a sur-
render of a single valuable appendage of the trial by jury.
§ 396. The remaining clauses are of more direct sig-
nificance, and necessity. The accused is entitled to have
TRIAL BY JURY. 235
compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel. A very short re-
view of the state of the common law, on these points, will
put their propriety beyond question. In the first place,
it was an anciently and commonly-received practice, de-
rived from the civil law, and which Mr. Justice Black-
stone says, in his day, still obtained in France, although,
since the Revolution, it has been swept away, not to suffer
the party accused in capital cases to exculpate himself
by the testimony of any witnesses. Of this practice, the
courts grew so heartily ashamed from its unreasonable and
oppressive character, that another practice was gradually
introduced, of examining witnesses for the accused, but
not upon oath ; the consequence of which was, that the ju-
ry gave less credit to this latter evidence, than to that pro-
duced by the government. Sir Edward Coke denounced
the practice as tyrannical and unjust ; and contended that,
in criminal cases, the party accused was entided to have
witnesses sworn for him. The House of Commons, soon
after the accession of the house of Stuart to the throne of
England, insisted, in a particular bill then pending, and,
against the efforts both of the Crown and the House of
Lords, carried a clause affirming the right, in cases tried
under that act, of witnesses being sworn for, as well as
against, the accused. By the statute of 7 Will. 3, ch.
3, the same measure of justice was established throughout
the realm in cases of treason ; and afterwards, in the
reign of Queen Anne, the like rule was extended to all
cases of treason and felony. The right seems never to
have been doubted, or denied, in cases of mere misde-
meanors. For what causes, and upon what grounds, this
distinction was maintained, or even excused, it is impos-
sible to assign any satisfactory, or even plausible reason-
ing. Surely, a man's life must be of infinitely more value
than any subordinate punishment ; and if he might protect
himself against the latter, by proofs of his innocence, there
would seem to be irresistible reasons for permitting him
to do the same in capital offences. The common sug-
gestion has been, that, in capital cases, no man could, or
rather ought, to be convicted, unless upon evidence so
236 CONSTITUTION OF THE UNITED STATES.
conclusive and satisfactory, as to be above contradiction
or doubt. But who can say, whether it be in any case
so high, until all the proofs in favor, as well as against,
the party have been heard ? Witnesses for the govern-
ment may swear falsely, and directly to the matter in
charge ; and, until opposing testimony is heard, there may
not be the slightest ground to doubt its truth ; and yet,
when such is heard, it may be incontestable, that it is
wholly unworthy of belief. The real fact seems to be,
that the practice was early adopted into the criminal law
in capital oases, in which the crown was supposed to take
a peculiar interest, in base subserviency to the wishes of
the latter. It is a reproach to the criminal jurisprudence
of England, which the State trials, antecedently to the
revolution of 1688, but too strongly sustain. They are
crimsoned with the blood of persons, who were condemned
to death, not only against law, but against the clearest
rules of evidence.
§ 397. Another anomaly in the common law, is, that in
capital cases, the prisoner is not, upon his trial upon the
general issue, entitled to have counsel, unless some mat-
ter of law shall arise, proper to be debated. That is, in
other words, that he shall not have the benefit of the tal-
ents and assistance of counsel in examining the witnesses
or making his defence before the jury. Mr. Justice
Blackstone, with all his habitual reverence for the institu-
tions of English jurisprudence, as they actually exist,
speaks out upon this subject with the free spirit of a pa-
triot and a jurist. This (he says) is " a rule, which, how-
ever it may be paUiated under cover of that noble declar-
ation of the law, when rightly understood, that the judge
shall be counsel for the prisoner, that is, shall see, that
the proceedings against him are legal, and strictly regular,
seems to be not alt of a piece with the rest of the humane
treatment of prisoners by the English law. For, upon
what face of reason, can that assistance be denied to save
the life of a man, which is yet allowed him in prosecu-
tions for every petty trespass." The defect has indeed
been cured in England in cases of treason ; but it remain-
ed unprovided for in all other cases, to, what one can
SEARCH WARRANTS. 237
hardly help deeming, the discredit of the free genius of
the English Constitution, until a very recent period.
§ 393. The wisdom of both of these provisions is,
therefore, manifest, since they make matter of constitu-
tional right, what the common law had left in a most im-
perfect and questionable state. The right to have wit-
nesses sworn, and counsel employed for the prisoner, are
scarcely less important privileges, than the right of a trial
by jury. The omission of them in the Constitution is a
matter of surprise ; and their present incorporation into it
is matter of honest congratulation among all the friends
of rational liberty.
§ 399. We may bring also into view, in this place, two
other amendments of the Constitution, connected with
the subject of crimes. One is designed to guard the
citizens from unreasonable and illegal searches of their
persons, houses, papers, and effects, without probable
cause of the commission of any offence ; the other is, to
prevent Congress, as well as the courts, from inflicting
excessive and cruel punishments. The first is ; " The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated. And no warrants shall
issue, but upon probable cause, supported by oath or af-
firmation, and particularly describing the place to be
searched, and the person or things to be seized." A
warrant is a writ, or process under seal, issued by some
court or magistrate, for the arrest of a person, who is ac-
cused on oath of some public offence or misdemeanor,
requiring the officer, to whom it is directed, to arrest the
offender, and to bring him before the court or magistrate,
'to answer for the offence, and otherwise to be dealt with
according to law. Sometimes such warrants include, not
only an authority to arrest the person, but also, in cases
where the accusation is for stealing goods, authority to
search the dwelling house, or other place of abode, of the
party, for the stolen goods, and hence the latter are com-
monly called search-warrants. Formerly, search-war-
rants, in a general form, were issued from the State De-
partment in England, authorizing officers to search houses
233 CONSTITUTION OF THE UNITED STATES.
and persons, without naming any persons or places in par-
ticular, so that, under color of such warrants, every man's
house in the kingdom might, at the mere discretion of such
ofiicers, be searched, without any ground of accusation.
Such warrants were, however, held illegal by the courts
of justice in England. And this amendment not only
pronounces them illegal ; but prohibits Congress from
passing any laws to give them effect.
§ 400. The second amendment is ; ''Excessive bail
shall not be required ; nor excessive fines imposed ; nor
cruel and unusual punishments inflicted.'^ This amend-
ment may, at first sight, be thought superfluous. It is,
however, an exact transcript of a clause in the Bill of
Rights, passed and ratified in the great Revolution of
168S, in England. It was thought, at that time, to be a
most important constitutional provision for the security
of the people against the wilful oppression of their rulers.
The history of former ages had, indeed, taught the people
the necessity of some such guards against the vindictive-
ness and the cruelty of the supple dependents of the
Crown. In the arbitrary reigns of some of the princes
of the house of Stuart, demands had often been made of
excessive bail against persons, who were odious to the
Court or its favorites ; and on failing to procure such bail,
(as often occurred,) they were committed to prison, and
remained there for long periods, and always during the
pleasure of the Crown. Enormous fines and assessments
were also sometimes imposed by judges and magistrates,
and cruel and vindictive punishments were inflicted, with a
view to gratify the resentments of the prosecutors, or to
subdue the unhappy victims to the will of their oppressors.
The provision may now seem to be unnecessary, under
our free Constitution,' since it may be thought scarcely
possible, that any department of our Government should
authorize or justify such atrocious conduct. But the
clause holds out a wise admonition to all departments of
the National Government, to warn them against such vio-
lent proceedings, and to instruct them in the duties of
clemency and moderation. A barrier is thus interposed
against the use of those vindictive and atrocious punish-
TREASON. 239
ments, which in former ages have disgraced the annals of
many nations.
§ 401. The third section of the third article, contains
the definition of treason, a crime, which is very apt to rouse
public resentment, and, in times of party and poHtical ex-
citement, to be extended by construction to embrace acts
of very slight misconduct, and even of an innocent char-
acter. Free governments, as well as despotic govern-
ments, have too often been guilty of the most outrageous
injustice to their own citizens and subjects, upon accusa-
tions of this sort. They have been ready to accuse, upon
the most unsatisfactory evidence, and to convict, upon the
most slender proofs, some of their most distinguished and
virtuous statesmen, as well as p^sons of inferior char-
acter. They have inflamed into the criminality of treason
acts of just resistance to tyrannj' ; and tortured a manly
freedom of opinion into designs subversive of the govern-
ment. To guard against the recurrence of these evils,
the Constitution has declared, " 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 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."
§ 402. Treason is generally deemed the highest crime,
which can be committed in civil society, since its aim is
an overthrow of the government, and a public resistance
of its powers by force. Its tendency is to create univer-
sal danger and alarm ; and on this account, it is peculiarly
odious, and often visited with the deepest public resent-
ment. Even a charge of this nature, made against an
individual, is deemed so opprobrious, that, whether just
or unjust, it subjects him to suspicion and hatred ; and,
in times of high political excitement, acts of a very sub-
ordinate nature are often, by popular prejudices, as well
as by royal resentment, magnified into this fatal enormity.
It is, therefore, of very great importance, that its true
240 CONSTITUTION OF THE UNITED STATES.
nature and limits should be exactly ascertained ; and Mon-
tesquieu was so sensible of it, that he has not scrupled
to declare, that if the crime of treason be indeterminate,
that alone is sufficient to make any government degen-
erate into arbitrary power. The history of England it-
self is full of melancholy instruction on this subject. By
the ancient common law, it was left very much to discre-
tion to determine, what acts were, and what were not, trea-
son ; and the judges of those times, holding office at the
pleasure of the Crown, became but too often the instru-
ments, in its hands, of foul injustice. At the instance of
tyrannical princes, they had abundant opportunities to cre-
ate constructive treasons ; that is, by forced and arbitrary
constructions, to raise crfFences into the guilt and punishment
of treason, which were not suspected to be such. The
grievance of these constructive treasons was so enormous,
and so often weighed down the innocent, and the patriotic,
that it was found necessary, as early as the reign of Ed-
ward the Third, for Parhament to interfere, and arrest it,
by declaring and defining all the different branches of
treason. This statute has ever since remained the pole
star of English jurisprudence upon this subject. And,
although, upon temporary emergencies, and in arbitrary
reigns, since that period, other treasons have been crea-
ted, the sober sense of the nation has generally abrogated
them, or reduced their power within narrow limits.
§ 403. Nor have repubhcs been exempt from violence
and tyranny of a similar character. It has been justly
remarked, that new-fangled and artificial treasons have
been the great engines, by which violent factions, the
natural offspring of free governments, have usually wreak-
ed their alternate mahgnity on each other.
§ 404. It was under the influence of these admonitions,
furnished by history and human experience, that the Con-
vention deemed it necessary to interpose an impassable
barrier against arbitrary constructions, either by the courts,
or by Congress, upon the crime of treason. It confines
it to two species ; first, the levying of war against the
United States ; and, secondly, adhering to their enemies,
giving them aid and comfort. In so doing, they have
TREASON. 241
adopted the very words of the Statute of Treason, of
Edward the Third ; and thus, by impHcation, in order to
cut off, at once, all chances of arbitrary constructions,
they have recognized the well-settled interpretation of
these phrases in the administration of criminal law, which
has prevailed for ages.
§ 405. The other part of the clause, requiring the
testimony of two witnesses to the same overt act, or a
confession in open court, to justify a conviction, is found-
ed upon the same reasoning. A Hke provision exists in
British jurisprudence, founded upon the same great pohcy
of protecting men against false testimony and unguarded
confessions, to their utter ruin. It has been well remark-
ed, that confessions are the weakest and most suspicious
of all testimony ; ever liable to be obtained by artifice,
false hopes, promises of favor, or menaces ; seldom
remembered accurately, or reported with due precision ;
and incapable, in their nature, of being disproved by other
negative evidence. To which it may be added, that they
are easy to be forged, and the most difficult to guard against.
An unprincipled demagogue, or a corrupt courtier, might
otherwise hold the lives of the purest patriots in his hands,
without the means of proving the falsity of the charge, if
a secret confession, uncorroborated by other evidence,
would furnish a sufficient foundation and proof of guilt.
And wisely, also, has the Constitution declined to suffer
the testimony of a single witness, however high, to be
sufficient to establish such a crime, which rouses at once
against the victim private honor and public hostility.
There must, as there should, be a concurrence of two
witnesses to the same overt act, that is, to the same open
act of treason, who are above all reasonable exception.
§ 406. The subject of the power of Congress to de-
clare the punishment of treason, and the consequent disa-
bilities, have been already commented on in another place.
§ 407. We have thus passed in review all those pro-
visions of the Constitution, which concern the establish-
ment, jurisdiction, and duties, of the judicial department;
and the rights and privileges of the citizens, connected
.with the administration of public justice.
21 XIII.
242 eONSTITUTION OF THE UNITED STATES.
CHAPTER XXXIII.
Privileges of Citizens. — Fugitive Criminals and Slaves.
§ 408. The fourth article of the Constitution contains
several important subjects, some of which have been al-
ready considered. Among those, which have- been so
considered, are, the clauses which respect the faith
and credit to be given to the acts, records, judgements,
and proceedings, of the different States, and the mode of
proving them, and the effect thereof ; the admission of
new States into the Union ; and the regulation and disposal
of the territory, and other property, of the United States.
§ 409. Among those, which remain for consideration,
the first is, " The citizens of each State shall be entitled
to all privileges and immunities of citizens in the several
States." It is obvious, that if the citizens of the different
States were to be deemed aliens to each other, they could
not inherit, or hold, or purchase real estate, or possess
any political or municipal privileges in any other State,
than that, in which they were born. And the States
would be at liberty to make laws, giving preferences of
rights and offices, and even privileges in trade and busi-
ness, to those, who were Natives, over all other persons,
who belonged to other States ; or they might make in-
vidious discriminations between the citizens of different
States. Such a power would have a tendency to gene-
rate jealousies and discontents, injurious to the harmony
of all the States. And, therefore, the Constitution has
wisely created, as it were, a general citizenship, com-
municating to the citizens of each State, who have their^
domicil in another, all the privileges and immunities en-
joyed by the citizens of the latter.
§ 410. The next clause is, "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
FUGITIVE CRIMINALS AND SLAVES. 243
which he fled, be delivered up, to be removed to the
State, having jurisdiction of the crime." As doubts have
existed, whether, by the law of nations, a surrender of
fugitives from justice can lawfully be demanded from the
government of the country, where they seek an asylum,
there is great propriety in making this a positive right, in
regard to the several States composing the United States.
It is for their mutual benefit, convenience, and safety. It
will promote harmony and good feeling between them.
It will also add strength to a great moral duty, and ope
rate indirectly to the suppression of crimes ; and finally,
it will thus increase the public sense of the blessings of
the National Government.
§ 411. The next clause is, "No person held to ser*
vice or labor in one State, under the laws thereof, escap-
ing into another, shall, in consequence of any law or regu-
lation therein, be discharged from such service or labor ;
but shall be delivered up, on the claim of the party to
whom such service or labor may be due." This clause
was introduced into the Constitution solely for the benefit
of the «lave-holding States, to enable them to reclaim
their fugitive slaves, who should escape into other States,
where slavery is not tolerated. It is well known, that,
at the common law, a slave escaping into a State, where
slavery is not allowed, would immediately become free,
and could not be reclaimed. Before the Constitution
was adopted, the Southern States felt the want of some
protecting provision against such an occurrence to be a
grievous injury to them. And we here see, that the
Eastern and Middle States have sacrificed their own opin-
ions and feelings, in order to take away every source of
jealousy, on a subject so delicate to Southern interests ;
a circumstance, sufficient of itself, to repel the delusive
notion, that the South has not, at all times, had its full
share in the blessings resulting from the Union.
244 CONSTITUTION OP THE UNITED STATES.
CHAPTER XXXIV.
Guarantee of Republican Government. — Mode of mak"
ing Amendments.
§ 412. The fourth section of the fourth article de-
clares, " 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." The propriety of this provision will scarcely
be doubted. If any of the States were to be at liberty
to adopt any other form of Government, than a repub-
lican form, it would necessarily endanger, and might
destroy, the safety of the Union. Suppose, for instance,
a great State, like New York, should adopt a monarchical
form of government, it might, under an enterprising and
ambitious king, become formidable to, if not destructive
of, the Constitution. And the people of each State
have a right to protection against the tyranny of a domestic
faction, and to have a firm guarantee, that their political
liberties shall not be overturned by a successful dema-
gogue, who shall arrive at power by corrupt arts, and then
plan a scheme for permanent possession of it. On the
other hand, domestic violence by popular insurrection is
equally repugnant to the good order and safety of the
Union ; and one of the blessings arising from a National
Government is the security which it affords, against a
recurrence of evils of this sort. Accordingly, it is made
an imperative duty of the General Government, on the
application of the Legislature or Executive of a State, to
aid in the suppression of such domestic insurrections ; as
well as to protect the State from foreign invasion.
§ 413. It may possibly be asked, what need there
could be of such a precaution, and whether it may not
become a pretext for alterations in the State governments,
GUARANTEE OF REPUBLICAN GOVERNMENT. 245
without the concurrence of the States themselves. These
questions admit of ready answers. If the interposition of
the General Government should not be needed, the pro-
vision for such an event will be a harmless superfluity
only in the Constitution. But, who can say, what ex-
periments may be produced by the caprice of particular
States, by the ambition of enterprising leaders, or by the
intrigues and influence of foreign powers ? To the sec-
ond question, it may be answered, that if the General
Governmenir should interpose, by virtue of this constitu-
tional authority, it will, of course, be bound to pursue the
authority. But the authority extends no further than to a
guarantee of a republican form of Government, which
supposes a pre-existing Government of the form, which
is to be guarantied. As long, therefore, as the existing
republican forms are continued by the States, they are
guarantied by the Federal Constitution. Whenever the
States may choose to substitute other republican forms,
they have a right to do so, and to claim the federal guar-
antee for the latter. The only restriction imposed on
them is, that they shall not exchange republican for anti-
republican Constitutions : a restriction, which, it is pre-
sumed, will hardly be considered as a grievance.
§ 414. At first view, it might seem not to square
with the republican theory, to suppose, either that a ma-
jority have not the right, or that a minority will have the
force, to subvert a government ; and, consequently, that
the National interposition can never be required, but when
it would be improper. But theoretic reasoning in this case,
as in most other cases, must be qualified by the lessons
of practice. Why may not ilHcit combinations, for pur-
poses of violence, be formed, as well by a majority of a
State, especially of a small State, as by a majority of a
county, or of a district of the same State ; and if the au-
thority of the State ought, in the latter case, to protect the
local magistracy, ought not the National authority, in the
former, to support the State authority ? Besides ; there
are certain parts of the State Constitutions, which are so
interwoven with the National Constitution, that a violent
blow cannot be given to the one, without communicating
21*
4.-
246 CONSTITUTION OP THE UNITED STATES.
the wound to the other. Insurrections in a State will
rarely induce a National interposition, unless the number
concerned in them bear some proportion to the friends of
Government. It will be much better, that the violence
in such cases, should be repressed by the superintending
power, than that the majority should be left to maintain
their cause by a bloody and obstinate contest. The ex-
istence of a right to interpose will generally prevent the
necessity of exerting it.
§ 415. The next (the fifth) article, provides for the
mode of making amendments to the Constitution. " The
Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose amendments to this Constitu-
tion ; or, on 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, 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 ; 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
suffrage in the Senate."
§ 416. The importance of this power can scarcely be
over estimated. It is obvious, that no human govern-
ment can ever be perfect ; and it is impossible to foresee,
or guard against all the exigencies, which may, in different
ages, require changes in the powers and modes of opera-
tion of a government, to suit the necessities and interests
of the people. A government, which has no mode pre-
scribed for any changes, will, in the lapse of time, become
utterly unfit for the nation. It will either degenerate into
a despotism, or lead to a revolution, by its oppressive
inequalities. It is wise, therefore, in every government,
and especially in a republic, to provide peaceable means
for altering and improving the structure, as time and ex-
perience shall show it necessary, for the public safety and
gWrantee of republican government. 247
happiness. But, at the same timfe, it is equally important
to guard against too easy and frequent changes ; to secure
due deliberation and caution in making them ; and to
follow experience, rather than speculation and theory.
A government, which is always changing and changeable,
is in a perpetual state of internal agitation, and incapable
of any steady and permanent operations. It has a con-
stant tendency to confusion and anarchy.
§ 417. In regard to the Constitution of the United
States, it is confessedly a new experiment in the history
of nations. Its framers were not bold or rash enough to
believe, or to pronounce, it to be perfect. They made
use of the best lights, which they possessed, to form and
adjust its parts, and mould its materials. But they knew,
that time might develope many defects in its arrange-
ments, and many deficiencies in its powers. They de-
sired, that it might be open to improvement ; and, under
the guidance of the sober judgement and enlightened skill
of the country, to be perpetually approaching nearer and
nearer to perfection. It was obvious, too, that the means
of amendment might avert, or at least have a tendency to
avert, the most serious perils, to which confederated
republics are liable, and by which all have hitherto been
shipwrecked. They knew, that the besetting sin of re-
publics is a restlessness of temperament, and a spirit of
discontent at slight evils. They knew the pride and
jealousy of state power in confederacies ; and they
wished to disarm them of their potency, by providing a
safe means to break the force, if not wholly to ward off
the blows, which would, from time to time, under the
garb of patriotism, or a love of the people, be aimed at
the Constitution. They believed, that the power of
amendment was, if one may so say, the safety-valve to
let off all temporary effervescences and excitements ; and
the real effective instrument to control and adjust the
movements of the machinery, when out of order, or in
danger of self-destruction.
§ 418. Upon the propriety of the power, in some
form, there will probably be little controversy. The
only question is, whether it is so arranged, as to accom-
248 CONSTITUTION OP THE UNITED STATE^
plish its objects in the* safest mode ; safest for the sta-
bility of the Government ; and safest for the rights and
hberties of the people.
§ 419. The Constitution has adopted a middle course.
It has provided for aniendments being made ; the mode
is easy ; and at the same time, it secures due deliberation,
and caution. Congress may propose amendments, or a
convention of the States. But, in any amendment pro-
posed by Congress, two thirds of both Houses must con-
cur ; and no convention can be called, except upon the
application of two thirds of the States. When amend-
ments are proposed in either way, the assent of three
fourths of all the States is necessary to their ratification.
And, certainly, it may be said with confidence, that if
three fourths of the States are not satisfied with the ne-
cessity of any particular amendment, the evils, which it
proposes to remedy, cannot be of any general or pressing
nature. That the power of amendment is not, in its
present form, impfacticable, is proved by the fact, that
twelve amendments have been already proposed and
ratified.
§ 420. The proviso excludes the power of amend-
ment, until the year 1808, of the clauses in the Constitu-
tion, which respects the importation and migration of
slaves, and the apportionment of direct taxes. And as
the equahty of the Representation of the States in the
Senate might be destroyed by an amendment, it is ex-
pressly declared, that no amendment shall deprive any
State, without its consent, of its equal suffrage in that body.
CHAPTER XXXV.
Public Debt. — Supremacy of the Constitution, and Laws.
§ 421. The first clause of the sixth article is, "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
•\ SUPREMACY OF THE CONSTITUTION. 249
Confederation." This can scarcely be deemed more
than a solemn declaration of what the public law of na-
tions recognizes as a moral obligation, binding on all
nations, notwithstanding any changes in their forms of
Government. It was important, however, to clear away
all possible doubts, and to satisfy and quiet the public
creditors, who might fear, that their just claims upon the
Confederation might be disregarded or denied.
§ 422. The next clause is, " 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 Constitu-
tion, or laws of any State, to the contrary notwithstand-
ing." The propriety of this power results from the very
nature of the Constitution. To establish a National Gov-
ernment, and to affirm, that it shall have certain powers ;
and yet, that in the exercise of those powers it shall not
be supreme, but controllable by any State in the Union,
would be a solecism, so mischievous, and so indefensible,
that the scheme could never be attributed to the framers
of the Constitution, without manifestly impeaching their
wisdom, as well as their good faith. The want of such
an effective practical supremacy was a vital defect in the
Confederation ; and furnished the most solid reason for
abolishing it. It would be an idle mockery, to give pow-
ers to Congress, and yet at the same time to declare, that
those powers might be suspended or annihilated, at the
will of a single State ; that the will of twenty-five States
should be surrendered to the will of one. A govern-
ment of such a nature would be as unworthy of public
confidence, as it would be incapable of affording public
protection, or private happiness.
§ 423. In regard to treaties, there is equal reason,
why they should be held, when made, to be the supreme
law of the land. It is to be considered, that treaties
constitute solemn compacts of binding obligation among
nations ; and unless they are scrupulously obeyed, and
enforced, no foreign nation would consent to negotiate
250 CONSTITUTION OF THE UNITED STATES.
with us ; or if it did, any want of strict fidelity, on our
part, in the discharge of the treaty stipulations, would be
visited by reprisals, or by war. It is, therefore, indispen-
sable, that they should have the obhgation and force of a
law, that they may be executed by the judicial power,
and be obeyed like other laws. This will not prevent
them from being cancelled, or abrogated, by the nation,
upon grave and suitable occasions ; for it will not be dis-
puted, that they are subject to the legislative power, and
may be repealed, like other laws, at its pleasure ; or they
may be varied by new treaties. Still, while they do
subsist, they ought to have a positive binding efficacy, as
laws, upon all the States, and all the citizens of the States.
The peace of the nation, and its good faith, and moral
dignity, indispensably require, that all State laws should
be subjected to their supremacy. The difference be-
tween considering them as laws, and considering them as
executory, or executed contracts, is exceedingly im-
portant in the actual administration of public justice. If
they are supreme laws, courts of justice will enforce
them directly in all cases, to which they can be judicially
apphed, in opposition to all State laws, as we all know
was done in the case of the British debts, secured by the
treaty of 1783, after the Constitution was adopted. If
they are deemed but solemn compacts, promissory in
their nature and obhgation, courts of justice may be
embarrassed in enforcing them, and may be compelled to
leave the redress to be administered through other de-
partments of the Government. It is notorious, that
treaty stipulations (especially those of the treaty of peace
of 1783) were grossly disregarded by the States under the
Confederation. They were deemed by the States, not
as laws, but hke requisitions, of a mere moral obligation,
and dependent upon the good will of the States for their
execution. Congress, indeed, remonstrated against this
construction, as unfounded in principle and justice. But
their voice was not heard. Power and right were separ-
ated ; the argument was all on one side ; but the power
was on the other. It was probably to obviate this very
difficulty, that this clause was inserted in the Constitution ;
OATH OF OFFICE. RELIGIOUS TEST. 251
and it would redound to the immortal honor of it? authors,
if it had done no more, than thus to bring treaties within
the sanctuary of justice, as laws of supreme obligation.
There are, indeed, still cases, in which courts of justice
can administer no effectual redress ; for, when the terms
of a stipulation import a contract, or when either of the
parties engages to perform a particular act, the treaty ad-
dresses itself to the political, and not to the judicial,
department ; and the legislature must execute the con-
ti'act, before it can become a rule for the courts.
§ 424. From this supremacy of the Constitution, and
laws, and treaties, of the United States, within their con-
stitutional scope, arises the duty of courts of justice to
declare any unconstitutional law passed by Congress, or
by a State legislature, void. So, in like manner, the
same duty arises, whenever any other department of the
National or State governments exceeds its constitutional
functions. But the Judiciary of the United States has
no general jurisdiction to declare acts of the several States
void, unless they are repugnant to the Constitution of the
United States, notwithstanding they are repugnant to the
State Constitution. Such a power belongs to it only,
when it sits to administer the local law of a State, and
acts exactly, as a State tribunal is bound to act. But
upon this subject it seems unnecessary to dwell, since
the right of all courts. State as well as National, to de-
clare unconstitutional laws void, seems settled beyond
the reach of judicial controversy.
CHAPTER XXXVI.
Oath of Office. — Religious Test. — Ratification of the
Constitution.
§ 425. The next clause is, " The Senators and Rep-
resentatives before mentioned, (that is, in Congress,) and
the members of the several State Legislatures, and all ex-
ecutive and judicial officers, botli of the United States
252 CONSTITUTION OF THE UNITED STATES.
and of the several States, shall be bound by oath c«" affir-
mation to support this Constitution. But no religious test
shall ever be required, as a qualification to any office or
pubhc trust under the United States."
§ 426. That all those, who are intrusted with the exe-
cution of the powers of the National Government, should
be bound, by some solemn obligation, to the due execu-
tion of the trusts reposed in them, and to support the
Constitution, would seem to be a proposition too clear, to
render any reasoning necessary in support of it. It results
from the plain right of society, to require some guarantee
from every officer, that he will be conscientious in the dis-
charge of his duty. Oaths have a solemn obligation upon
the minds of all reflecting men, and especially upon those,
who feel a deep sense of accountability to a Supreme
being. If, in the ordinary administration of justice, in
cases of private rights, or personal claims, oaths are re-
quired of those, who try the cause, as well as of those,
who give testimony, to guard against malice, falsehood,
and evasion, surely like guards ought to be interposed in
the administration of high public trusts, and especially in
such, as may concern the welfare and safety of the whole
community. But there are known denominations of men,
who are conscientiously scrupulous of taking oaths, (among
which is that pure and distinguished sect of Christians,
commonly called Friends, or Quakers,) and, therefore,
to prevent any unjustifiable exclusion from office, the
Constitution has permitted a solemn affirmation to be
made, instead of an oath, and as its equivalent.
§ 427. But it may not appear to all persons quite so
clear, why the officers of the State governments should
be equally bound to take a like oath or affirmation ; and
it has been even suggested, that there is no more reason
to require that, than to require, that all of the United
States officers should take an oath or affirmation to sup-
port the State Constitutions. A moment's reflection will
show sufficient reasons for the requisition of it in the one
case, and the omission of it in the other. The members
and officers of the National Government have no agen-
cy in carrying into effect the State Constitutions. The
RATIFICATION OP THE CONSTITUTION. 253
members and officers of the State governments have an
essential agency in giving efiect to the National Constitu-
tion. The election of the President and the Senate \\i\\
depend, in all cases, upon the Legislatures of the several
States ; and, in many cases, the election of the House of
Representatives may be affected by their agency. The
judges of the State courts will frequently be called upon to
decide upon the Constitution, and laws, and treaties, of the
United States ; and upon rights and claims growing out of
them. Decisions ought to be, as far as possible, uniform ;
and uniformity of obligation will greatly tend to such a re-
sult. The executive authority of the several States may be
often called upon to exert powers, or to allow rights, given
by the Constitution, as in filling vacancies in the Senate,
during the recess of the Legislature ; in issuing writs of
election, to fill vacancies in the House of Representa-
tives ; in officering the militia, and giving effect to laws
for caUing them out ; and in the surrender of fugitives from
justice. These, and many other functions, devolving on
the State authorities, render it highly important, that
they should be under a solemn obligation to obey the
Constitution. In common sense, there can be no well-
founded objection to it. There may be serious evils
growing out of an opposite course.
§ 428. The remaining part of the clause declares, that
"no religious test shall ever be required, as a qualification
to any office or public trust under the United States."
This clause is recommended by its tendency to satisfy the
minds of many delicate and scrupulous persons, who enter-
tain great repugnance to religious tests, as a qualification
for civil power or honor. But it has a higher aim in the
Constitution. It is designed to cut off every pretence
of an alliance between the Church and the State, in the ad-
ministration of the National Government. The American
people were too well read in the history of other coun-
tries, and had suffered too much in their colonial state,
not to dread the abuses of authority resulting from reli-
gious bigotry, intolerance, and persecution. They knew
but too well, that no sect could be safely trusted with
power on such a subject ; for all had in turns wielded it
22 XIII.
254 CONSTITUTION OP THE UNITED STATES.
to the injury, and sometimes to the destruction, of their
inoffensive, but, in their judgement, erring neighbors
And we shall presently see, that, by an amendment to
the Constitution, evils of this sort in the National Gov-
ernment are still more effectually guarded against.
§ 429. The seventh and last article of the Constitu-
tion is, " The ratification of the Conventions of nine
States, shall be sufficient for the establishment of this
Constitution between the States so ratifying the same."
It is unnecessary now to comment upon this article, as
all the States have ratified the Constitution. But we
know, that if an unanimous ratification of it, by all the
States, had been required, it would have been rejected ;
for North Carolina, and Rhode Island, did not, at first,
accede to it.
§ 430. And here closes our review of the Constitu-
tion in the original form, in which it was adopted by the
people of the United States. The concluding passage
of it is valuable, as an historical reminiscence. " 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." At the head of the illustrious men, who framed
and signed it, stands the name of " George Washington,
President, and Deputy from Virginia ;" a name, at the
utterance of which it is impossible not to feel the liveliest
sense of gratitude to a gracious Providence, for a life of
so much glory, such spotless integrity, and such exalted
patriotism.
CHAPTER XXXVII.
.Amendments to the Constitution.
§ 431. When the Constitution was before the people
for adoption, several of the State conventions suggested
AMENDMENTS. BILL OF RIGHTS. 255
certain amendments for the consideration of Congress,
some of the most important of which were afterwards
proposed to the people for adoption, by that body, at its
first organization; and, having been since ratified, they are
now incorporated into the Constitution. They are mainly
clauses, in the nature of a Bill of Rights, which more ef-
fectually guard certain rights, already provided for in the
Constitution, or prohibit certain exercises of authority,
supposed to be dangerous to the pubhc interests. We
have already had occasion to consider several of them in
the preceding pages ; and the remainder will now be pre-
sented.
§ 432. Before, however, proceeding to the considera-
tion of them, it may be proper to say a few words, as to
the origin and objects of the first ten amendments, which
may be considered as a Bill of Rights, and were proposed
by the first Congress, and were immediately adopted by
the people of the United States. The first amendment
is, " Congress shall make no law respecting an establish-
ment 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."
§ 433. It has been already stated, that many objec-
tions were taken to the Constitution, not only on account
of its actual provisions, but also on account of its defi-
ciencies and omissions. Among the latter, none were
proclaimed with more zeal, and pressed with more effect,
than the want of a Bill of Rights. This, it was said, was
a fatal defect ; and sufficient of itself to bring on the ruin
of the republic. To this objection, several answers were
given ; first, that the Constitution did, in fact, contain many
provisions in th.e nature of a Bill of Rights, if the whole
Constitution was not, in fact, a Bill of Rights ; secondly,
that a Bill of Rights was in its nature more adapted to a
monarchy, than to a government, professedly founded
upon the will of the people, and executed by their imme-
diate representatives and agents ; and, thirdly, that a for-
mal Bill of Rights, beyond what was contained in it, was
wholly unnecessary, and might even be dangerous.
256 CONSTITUTION OF THE UNITED STATES.
§ 434. It was further added, that, in truth, the Consti-
tution itself, was, in every rational sense, and to every
useful purpose, a Bill of Rights for the Union. It speci-
fies, and declares the political privileges of the citizens in
the structure and administration of the Government. It
defines certain immunities and modes of proceeding, which
relate to their personal, private, and public rights and
concerns. It confers on them the unalienable right of
electing their rulers ; and prohibits any tyrannical meas-
ures, and vindictive prosecutions. So that, at best, much
of the force of the objection rests on mere nominal dis-
tinctions, or upon a desire to make a frame of government
a code to regulate rights and remedies.
§ 435. Although it must be conceded, that there is
much intrinsic force in this reasoning, it cannot in candor
be admitted to be wholly satisfactory, or conclusive on
the subject. It is rather the argument of an able advo-
cate, than the reasoning of a constitutional statesman. In
the first place, a Bill of Rights (in the very sense of this
reasoning) is admitted in some cases to be important ;
and the Constitution itself adopts, and establishes its pro
priety to the extent of its actual provisions. Every rea-
son, which establishes the propriety of any provision of
this sort in the Constitution, such as a right of trial by
jury in criminal cases, is, to that extent, proof, that it is
neither unnecessary nor dangerous. It reduces the ques-
tion to the consideration, not whether any Bill of Rights is
necessary, but what such a Bill of Rights should properly
contain. This is a point for argument, upon which dif-
ferent minds may arrive at different conclusions. That a
Bill of Rights may contain too many enumerations, and
especially such, as more correctly belong to the ordinary
legislation of a government, cannot be doubted. Some
of our State Bills of Rights contain clauses of this descrip-
tion, being either in their character and phraseology quite
too loose, and general, and ambiguous ; or covering doc-
trines quite debatable, both in theory and practice ; or
even leading to mischievous consequences, by restricting
the Legislative power under circumstances, which were
not foreseen, and if foreseen, the restraint would have
AMENDMENTS. BILL OF RIGHTS. 257
been pronounced by all persons inexpedient, and perhaps
unjust. Indeed, the rage of theorists to make constitu-
tions a vehicle for the conveyance of their own crude and
visionary aphorisms of government, requires to be guarded
against with the most unceasing vigilance.
§ 436. In the next place, a Bill of Rights is important,
and may often be indispensable, whenever it operates as
a qualification upon powers, actually granted by the peo-
ple to the government. This is the real ground of all the
Bills of Rights in the parent country, in the Colonial con-
stitutions and laws, and in the State constitutions. In
England, the Bills of Rights were not demanded merely of
the Crown, as withdrawing a power from the Royal pre-
rogative ; they were equally important, as withdrawing
power from Parliament. A large proportion of the most
valuable of the provisions in Magna Charta, and the Bill
of Rights in 1688, consists of a solemn recognition of the
limitations upon the powers of Parliament ; that is, a dec-
laration, that Parliament ought not to abolish, or restrict
those rights. Such are the right of trial by jury ; the
right to personal liberty and private property, according
to the law of the land ; that the subjects ought to have a
right to bear arms ; that elections of members of Parlia-
ment ought to be free ; that freedom of speech and debate
in Parliament ought not to be impeached, or questioned
elsewhere ; and that excessive bail ought not to be re-
quired, nor excessive fines imposed, nor cruel or unusual
punishments inflicted. Whenever, then, a general power
exists, or is granted to a government, which may, in its
actual exercise or abuse, be dangerous to the people, there
seems a peculiar propriety in restricting its operations,
and in excepting from it some at least of the most mis-
chievous.forms, in which it may be likely to be abused.
And the very exception in such cases, will operate with a
silent, but irresistible influence, to control the actual abuse
of it in other analogous cases.
§ 437. In the next place, a Bill of Rights may be im-
portant, even when it goes beyond the powers supposed to
be granted. It is not always possible to foresee the ex-
tent of the actual reach of certain powers, which are
22*
258 CONSTITUTION OP THE UNITED STATES.
given in general terms. They may be construed to ex-
tend (and perhaps fairly) to certain classes of cases, which
did not at first appear to be within them. A Bill of Rights,
then, operates, as a guard upon any extravagant or undue
extension of such powers. Besides ; (as has been justly
remarked,) a Bill of Rights is of real efficiency in control-
ling the excesses of party spirit. It serves to guide and
enlighten public opinion, and to render it more quick to
detect, and more resolute to resist, attempts to disturb
private rights. It requires more than ordinary hardihood
and audacity of character, to trample down principles,
which our ancestors have consecrated with reverence ;
which we imbibed in our early education ; which recom-
mend themselves to the judgement of the world by their
truth and simplicity ; and which are constantly placed
before the eyes of the people, accompanied whh the im-
posing force and solemnity of a constitutional sanction.
Bills of Rights are a part of the muniments of freemen,
showing their title to protection ; and they become of
increased value, when placed under the protection of an
independent judiciary, instituted as the appropriate guar-
dian of the public and private rights of the citizens.
§ 438. In the next place, a Bill of Rights is an impor-
tant protection against unjust and oppressive conduct on
the part of the people themselves. In a government
modified like that of the United States, (it has been said
by a great statesman,) the great danger lies rather in the
abuse of the community, than of the legislative body.
The prescriptions in favor of liberty ought to be levelled
against that quarter, where the greatest danger lies, name-
ly, that which possesses the highest prerogative of power.
But this is not found in the executive or legislative de-
partments of government ; but in the body of the people,
operating by the majority against the minority. It may
be thought, that all paper barriers against the power of
the community are too weak to be worthy of attention.
They are not so strong, as to satisfy all, who have seen
and examined thoroughly the texture of such a defence.
Yet, as they have a tendency to impress some degree of
respect for them, to establish the public opinion in their
AMENDMENTS. FREEDOM OF RELIGION. 259
favor, and to rouse the attention of the whole community,
it may be one means to control the majority from those
acts, to which they might be otherwise inclined.
§ 439. The want of a Bill of Rights, then, is not either
an unfounded or illusory objection. The real question
is not, whether every sort of right or privilege or claim
ought to be afiirmed in a constitution ; but whether such,
as in their own nature are of vital importance, and pecu-
liarly susceptible of abuse, ought not to receive this sol-
emn sanction. Doubtless, the want of a formal Bill of
Rights in the Constitution was a matter of very exaggerat-
ed declamation and party zeal, for the mere purpose of
defeating the Constitution. But, so far as the objection
was well founded in fact, it was right to remove it by
subsequent amendments ; and Congress have (as we shall
see) accordingly performed the duty with most prompt
and laudable diligence.
§440. The first amendment is, "Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exsrcise 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."
§441. The same policy, which introduced into the
Constitution the prohibition of any religious test, led to
this more extended prohibition of the interference of Con-
gress in religious concerns. We are not to attribute this
prohibition of a national rehgious establishment to an in-
difference to religion in general, and especially to Chris-
tianity, (which none could hold in more reverence, than
the framers of the Constitution,) but to a dread by the
people of the influence of ecclesiastical power in matters
of government ; a dread, which their ancestors brought
with them from the parent country, and which, unhappily
for human infirmity, their own conduct, after their emigra-
tion, had not, in any just degree, tended to diminish. It
was also obvious, from the numerous and powerful sects
existing in the United States, that there would be perpet-
ual temptations to struggles for ascendency in the National
councils, if any one might thereby hope to found a perma-
260 CONSTITUTION OF THE UNITED STATES.
nent and exclusive national establishment of its own ; and
religious persecutions might thus be introduced, to an ex-
tent utterly subversive of the true interests and good or-
der of the Republic. The most effectual mode of sup-
pressing the evil, in the view of the people, was, to strike
down the temptations to its introduction.
§ 442. How far any government has a right to interfere
in matters touching religion, has been a subject much dis-
cussed by writers upon public and political law. The right
and the duty of the interference of government in mat-
ters of religion have been maintained by many distinguish-
ed authors, as well by those, who were the warmest advo-
cates of free governments, as by those, who were attached
to governments of a more arbitrary character. Indeed,
the right of a 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 indispen-
sable to the administration of civil justice. The promul-
gation of the great doctrines of religion, the being, and
attributes, and providence of one Almighty God ; the
responsibility to Him for all our actions, founded upon
moral accountability ; a future state of rewards and pun-
ishments ; the cultivation of all the personal, social, and
benevolent virtues ; — these never can be a matter of in-
difference in any well-ordered community. It is, indeed,
difficult to conceive, how any civilized society can well
exist without them. And, at all events, it is impossible
for those, who believe in the truth of Christianity, as a
Divine revelation, to doubt, that it is the especial duty of
government to foster, and encourage it among all the cit-
izens and subjects. This is a point wholly distinct from
that of the right of private judgement in matters of relig-
ion, and of the freedom of public worship, according to
the dictates of one's conscience.
§ 443. The real difficulty lies in ascertaining the limits,
to which government may rightfully go, in fostering and
encouraging religion. Three cases may easily be sup-
posed. One, where a government affords aid to a par-
ticular religion, leaving all persons free to adopt any
AMENDMENTS LIBERTY OP THE PRESS. 261
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 ;
and a third, where it creates such an establishment, and
excludes all persons, not belonging to it, either wholly, or
in part, from any participation in the public honors, trusts,
emoluments, privileges, and immunities of the state. For
instance, a government may simply declare, that the Chris-
tian religion shall be the religion of the state, and shall be
aided, and encouraged in all the varieties of sects belong-
ing to it ; or it may declare, that the Roman Catholic or
Protestant religion shall be the religion of the state, leav-
ing 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 estabhsh the doctrines of a
particular sect, as exclusively the religion of the state,
tolerating others to a limited extent, or excluding all, not
belonging to it, from all pubhc honors, trusts, emolu-
ments, privileges, and immunities.
§ 444. Probably, at the time of the adoption of the
Constitution, and of the amendment to it, now under con-
sideration, the general, if not the universal, sentiment in
America was, that Christianity ought to receive encour-
agement from the State, so far as such encouragement was
not incompatible with the private rights of conscience,
and the freedom of religious worship. An attempt to
level all religions, and to make it a matter of state policy
to hold all in utter indifference, would have created uni-
versal disapprobation, if not universal indignation.
§ 445. The next clause respects the Hberty of speech,
and of the press. That this amendment was intended to
secure to every citizen an absolute right to speak, or write,
or print, whatever he might please, without any responsi-
bility, pubhc or private, therefor, is a supposition too wild
to be indulged by any reasonable man. That would be,
to allow every citizen a right to destroy, at his pleasure,
the reputation, the peace, the property, and even the per-
sonal safety of every other citizen. A man might then,
out of mere mahce or revenge, accuse another of infamous
262 CONSTITUTION OF THE UNITED STATES.'
crimes ; might excite against him the indignation of all
his fellow citizens by the most atrocious calumnies ; might
disturb, nay, overturn his domestic peace, and embitter
his domestic affections ; might inflict the most distressing
punishments upon the weak, the timid, and the innocent ;
might prejudice all the civil, political, and private rights
of another ; and might stir up sedition, rebellion, and even
treason, against the government itself, in the wantonness
of his passions, or the corruptions of his heart. Civil
society could not go on under such circumstances. Men
would be obliged to resort to private vengeance to make
up for the deficiencies of the law. It is plain, then, that
this amendment imports no more, than that every man
shall have a right to speak, write, and print his opinions
upon any subject whatsoever, without any prior restraint,
so always that he does not injure any other person in his
rights, property, or personal reputation ; and so always
that he does not thereby disturb the public peace, or at-
tempt to subvert the government. It is in fact designed
to guard against those abuses of power, by which, in some
foreign governments, men are not permitted to speak upon
political subjects, or to write or publish any thing without
the express license of the government for that purpose.
§ 446. A little attention to the history of other coun-
tries, in other ages, will teach us the vast importance of
this right. It is notorious, that, even to this day, in some
foreign countries, it is a crime to speak on any subject,
religious, philosophical, or political, what is contrary to
the received opinions of the government, or the institutions
of the country, however laudable may be the design, and
however virtuous may be the motive. Even to animad-
vert upon the conduct of public men, of rulers, or of repre-
sentatives, in terms of the strictest truth and courtesy, has
been, and is, deemed a scandal upon the supposed sanc-
tity of their stations and characters, subjecting the party
to grievous punishment. In some countries, no works can
be printed at all, whether of science, or literature, or phi-
losophy, without the previous approbation of the govern-
ment ; and the press has been shackled, and compelled
to speak only in the timid language, which the cringing
AMENDMENTS. LIBERTY OP SPEECH. 263
courtier, or the capricious inquisitor, has been willing to
license for publication. The Bible itself, the common
inheritance, not merely of Christendom, but of the world,
has been put exclusively under the control of government ;
and has not been allowed to be seen, or heard, or read,
except in a language unknown to the common inhabitants
of the country. To publish a translation in the vernacu-
lar tongue, has been in former times a flagrant offence.
§ 447. There is a good deal of loose reasoning on the
subject of the liberty of the press, as if its inviolabihty
were constitutionally such, that, like the King of England,
it could do no wrong, and was free from every inquiry,
and afforded a perfect sanctuary for every abuse ; that,
in short, it implied a despotic sovereignty to do every
sort of wrong, without the slightest accountability to pri-
vate or pubhc justice. Such a notion is too extravagant
to be held by any sound constitutional lawyer, with regard
to the rights and duties belonging to governments gener-
ally, or to the state governments in particular. If it
were admitted to be correct, it might be justly affirmed,
that the liberty of the press was incompatible with the
permanent existence of any free government. Mr. Jus-
tice Blackstone has remarked, that the liberty of the press,
properly understood, is essential to the nature of a free
state ; but that this consists in laying no previous re-
straints upon publications, and not in freedom from cen-
sure for criminal matter, when published. Every freeman
has an undoubted right to lay what sentiments he pleases
before the public. To forbid this is to destroy the free-
dom of the press. But, if he publishes what is improper,
mischievous, or illegal, he must take the consequences of
his own temerity. To subject the press to the restrictive
power of a licenser, as was formerly done before, and
since the Revolution, (of 1688,) is to subject all freedom
of sentiment to the prejudices of one man, and make him
the arbitrary and infallible judge of all controverted points
in learning, religion, and government. But to punish any
dangerous or offensive writings, which, when published,
shall, on a fair and impartial trial, be adjudged of a per-
nicious tendency, is necessary for the preservation of
264 CONSTITUTION OF THE UNITED STATES.
peace and good order, of government and religion, the
only solid foundations of civil liberty. Thus, the will of
individuals is still left free ; the abuse only of that free
will is the object of legal punishment. Neither is any
restraint hereby laid upon freedom of thought or inquiry ;
liberty of private sentiment is still left ; the disseminating,
or making public of bad sentiments, destructive of the
ends of society, is the crime, which society corrects.
A man may be allowed to keep poisons in his closet ;
but not publicly to vend them as cordials. And, after
some additional reflections, he concludes with this mem-
orable sentence : "So true will it be found, that to cen-
sure the hcentiousness, is to maintain the liberty of the
press."
§448. The remaining clause, secures "The right of
the people peaceably to assemble and to petition for a re-
dress of grievances," a right inestimable in itself, but
often prohibited in foreign governments, under the pre-
tence of preventing insurrections, and dangerous conspir-
acies against the government.
§ 449. This would seem unnecessary to be expressly
provided for in a repubhcan government, since it results
from the very nature of its structure and institutions. It
is impossible, that it could be practically denied, until
the spirit of liberty had wholly disappeared, and the peo-
ple had become so servile and debased, as to be unfit to
exercise any of the privileges of freemen.
§ 450. The next amendment is, "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 in-
fringed." One of the ordinary modes, by which tyrants
accomphsh their purposes without resistance, is, by dis-
arming the people, and making it an offence to keep arms,
and by substituting a regular army in the stead of a resort
to the militia. The friends of a free government can-
not be too watchful, to overcome the dangerous tendency
of the public mind to sacrifice, for the sake of mere pri-
vate convenience, this powerful check upon the designs
of ambitious men.
§ 451 . The importance of this article will scarcely be
AMENDMENTS. — RIGHTS OF THE PEOPLE. 265
doubted by any persons, who have duly reflected upon
the subject. The militia is the natural defence of a free
country against sudden foreign invasions, domestic insur-
rections, and domestic usurpations of power by rulers.
It is against sound policy for a free people to keep up
large military establishments and standing armies in time
of peace, both from the enormous expenses, with which
they are attended, and the facile means, which they af-
fqrd to ambitious and unprincipled rulers, to subvert the
government, or trample upon the rights of the people.
The right of the citizens to keep and bear arms has justly
been considered, as the palladium of the liberties of a re-
public ; since it offers a strong moral check against the
usurpations and arbitrary power of rulers ; and it will gen-
erally, even if these are successful in the first instance,
enable the people to resist and triumph over them. And
yet, though this truth would seem so clear, and the im-
portance of a well-regulated militia would seem so unde-
niable, it cannot be disguised, that among the American
people there is a growing indifference to any system of
militia disciphne, and a strong disposhion, from a sense
of its burdens, to be rid of all regulations. How it is
practicable to keep the people duly armed without some
organization, it is difficult to see. There is certainly no
small danger, that indifference may lead to disgust, and
disgust to contempt ; and thus gradually undermine all the
protection intended by this clause of our National Bill of
Rights.
§452. The next amendment is, "No soldier shall
in time of peace be quartered in any house without the
consent of the owner ; nor io time of war, but in a man-
ner to be prescribed by law." This provision speaks for
itself. In arbitrary times it has not been unusual for mil^
itary officers, with the connivance, or under the sanction
of the government, to billet soldiers upon private citi-
zens, without the slightest regard to their righ^, or com-
fort.
§ 453. The next amendment is,-" The enumeration
in the Constitution of certain rights shall not be constru-
ed to deny, or disparage others retained by the People."
23 xin.
266 CONSTITUTION OF THE UNITED STATES.
The object of this clause is to get rid of a very common
but perverse misapplication of a known maxim, that an
affirmation of a power in particular cases, implies a nega-
tion of it in all other cases ; and so, on the other hand,
that a negation of a power in some cases, implies an af-
firmation of it in all others not denied. The maxim, when
rightly understood, is perfectly sound and safe ; but it has
often been abused to purposes injurious to the rights of
the people ; and therefore the present clause was wisely
inserted to prevent any such false interpretations and glos-
ses of the Constitution.
§ 454. The next and last amendment, which has not
been already considered, is, " The powers not dele-
gated to the United States by the Constitution, nor pro-
hibited by it to the States, are reserved to the States re-
spectively, or to the People." This amendment follows
out the object of the preceding ; and is merely an af-
firmation of a rule of construction of the Constitution,
which, upon any just reasoning, must have existed without
it. Still, it is important as a security against two opposite
tendencies of opinion, each of which is equally subver-
sive of the true import of the Constitution. The one is
to imply all powers, which may be useful to the National
Government, which are not expressly prohibited; and the
other is, to deny all powers to the National Government,
which are not expressly granted. We have already seen,
that there are many implied powers necessarily resulting
from the nature of the express powers ; and it is as clear,
that no power can properly arise by imphcation from a
mere prohibition. The Government of the United States
is one of limited powers ; and no authority exists beyond
the prescribed limits, marked out in the instrument itself.
Whatever powers are not granted, necessarily belong to
the respective States, or to the people of the respective
States, if they have not been confided by them to the
State Governments.
CONCLUDING REMARKS. 267
CHAPTER XXXVIII.
Concluding Remarks.
§ 455. We have now reviewed all the provisions of
the original Constitution of the United States, and all the
Amendments, which have been incorporated into it. And
here, the task, originally proposed in these Commentaries,
is brought to a close. Many reflections naturally crowd
upon the *nind at such a moment ; many grateful recollec-
tions of the past ; and many anxious thoughts of the future.
The past is secure. It is unalterable. The seal of eter-
nity is upon it. The wisdom, which it has displayed, and
the blessings, which it has bestowed, cannot be obscured ;
neither can they be debased by human folly, or by human
infirmity. The future, is that, which may well awaken
the most earnest solicitude, both for the virtue and the per-
manence of our Republic. The fate of other republics,
their rise, their progress, their decline, and their fall, are
written but too legibly on the pages of history, if, indeed,
they were not continually before us in the startling frag-
ments of their ruins. Those republics have perished ;
and have perished by their own hands. Prosperity has
enervated them ; corruption has debased them ; and a
venal populace has consummated their destruction. The
people, alternately the prey of military chieftains at home,
and of ambitious invaders from abroad, have been some-
times cheated out of their liberties by servile demagogues ;
sometimes betrayed into a surrender of them by false pa-
triots ; and sometimes they have willingly sold them for
a price to the despot, who has bidden highest for his vic-
tims. They have disregarded the warning voice of their
best statesmen; and have persecuted and driven from
office their truest friends. They have listened to the
councils of fawning sycophants, or base calumniators of
the wise and the good. They have reverenced powei
more in its high abuses and summary movements, than in
268 CONSTITUTION OF THE UNITED STATES.
its calm and constitutional energy, when it dispensed bles-
sings with an unseen, but a hberal hand. They have sur-
rendered to faction, what belonged to the common inter-
ests and common rights of .the country. Patronage and
party, the triumph of an artful popular leader, and the dis-
contents of a day, have outweighed, in their view, all solid
principles and institutions of government. Such are the
melancholy lessons of the past history of republics down
to our own.
§ 456. It is not my design to detain the reader by any
elaborate reflections addressed to his judgement, either by
way of admonition or of encouragement. But it may not
be wholly without use to glance at one or two considera-
tions, upon which our meditations cannot be too frequent-
ly indulged.
§ 457. In the first place, it cannot escape our notice,
how exceedingly difficult it is to settle the foundations of
any government upon principles, which do not admit of
some controversy or question. The very elements, out of
which it is to be built, are susceptible of infinite modifica-
tions ; and theory too often deludes us by the attractive
simplicity of its plans, and imagination by the visionary
perfection of its speculations. In theory, a government
may promise the most perfect harmony of operations in
all its various combinations. In practice, the whole ma-
chinery may be perpetually retarded, or thrown out of
order by accidental mal-adjustments. In theory, a gov-
ernment may seem deficient in unity of design and sym-
metry of parts ; and yet, in practice, it may work with
astonishing accuracy and force for the general welfare.
Whatever, then, has been found to work well by experi-
ence, should rarely be hazarded upon conjectural improve-
ments. Time, and long and steady operation are indis-
pensable to the perfection of all social institutions. To
be of any value, these institutions must become cemented
with the habits, the feelings, and the pursuits of the peo-
ple. Every change discomposes for a while the whole
arrangements of the system. What is safe, is not always
expedient ; what is new, is often pregnant with unforeseen
evils, or attracts only by imaginary good. .
CONCLUDING REMARKS. 269
§ 458: In the next place, the slighest attention to the
history of the National Constitution must satisfy every
reflecting mind, how many difficulties attended its forma-
tion and adoption, from real or imaginary differences of
Slate interests, sectional feelings, and local institutions.
It is an attempt to create a National sovereignty, and yet
to preserve the State sovereignties ; although it is impos-
sible to assign definite boundaries in all cases to the pow-
ers of each. The influence of the disturbing causes,
which, more than once in the Convention, were on the^
point of breaking up the Union, have since immeasurably
increased in concentration and vigor. The very inequal-
ities of a government, confessedly founded in a compro-
mise, were then felt with a strong sensibility ; and every
new source of discontent, whether accidental or perma-
nent, has since added increased activity to the painful sense
of these inequalities. The North cannot but perceive, that
it has yielded to the South a superiority of Representatives
already amounting to twenty-five, beyond its due propor-
tion ; and the South imagines, that, with all this prepon-
derance in representation, the other parts of the Union
enjoy a more perfect protection of their interests, than its
own. The West feels its growing power and weight in
the Union ; and the Atlantic States begin to learn, that
the sceptre must soon, and perhaps forever, depart from
them. If, under these circumstances, the Union should
once be broken up, it is impossible, that a new Constitu-
tion should ever be formed, embracing the whole Terri-
tory. We shall be divided into several nations or con-
federacies, rivals in powder, pursuits, and interests ; too
proud to brook injury, and too near to make retaliation
distant or ineffectual. Our very animosities will, like
those of all other kindred nations, become more deadly,
because our lineage, our laws, and our language are the
same. Let the history of the Grecian and Italian repub-
lics warn us of our dangers. The National Constitution
is our last, and our only security. United we stand ; di-
vided we fall.
§ 459. If this Work shall but inspire the rising gene-
ration with a more ardent love of their country, an un-
23*.
270 CONSTITUTION OF THE UNITED STATES.
quenchable thirst for liberty, and a profound reverence
for the Constitution and the Union, then it will have ac-
complished all, that its author ought to desire. Let the
American youth never forget, that they possess a noble
inheritance, bought by the toils, and sufferings, and blood
of their ancestors ; and capable, if wisely improved, and
faithfully guarded, of transmitting to their latest posterity
all the substantial blessings of life, the peaceful enjoyment
of hberty, of property, of religion, and of independence.
^The structure has been erected by architects of consum-
mate skill and fidelity ; its foundations are solid ; its com-
partments are beautiful, as well as useful ; its arrangements
are full of wisdom and order ; and its defences are im-
pregnable from without. It has been reared for immor-
tality, if the work of man may justly aspire to such a title.
It may, nevertheless, perish in an hour, by the folly, or
corruption, or neghgence of its only keepers, the peo-
ple. Republics are created by the virtue, public spirit,
and intelligence of the citizens. They fall, when the
wise are banished from the pubhc councils, because they
dare to be honest, and the profligate are rewarded, be
cause they flatter the people, in order to betray them.
APPENDIX
DECLARATION OF RIGHTS
OF THE CONTINENTAL CONGRESS, OCTOBER 14, 1774.
Whereas, since the close of the last war, the British
Parliament, claiming a power of right, to bind the people
of America by Statutes in all cases whatsoever, hath in
some Acts expressly imposed taxes on them, arid in oth-
ers, under various pretences, but in fact for the purpose of
raising a revenue, hath imposed rates and duties payable
in these Colonies, estabhshed a Board of Commissioners,
with unconstitutional powers, and extended the jurisdiction
of Courts of Admiralty, not only for collecting the said
duties, but for the trial of causes merely arising within the
body of a county :
And whereas, in consequence of other Statutes, judges,
who before held only estates at will in their offices, have
been made dependent on the Crown alone, for their sal-
aries, and standing armies kept in times of peace ; and
whereas, it has lately been resolved in Parliament, that
by force of a Statute, made in the thirty-fifth yeai; of the
reign of King Henry the VIII., Colonists may be trans-
ported to England, and tried there, upon accusations for
treasons and misprisions, or concealments, of treasons
committed in the Colonies, and by a late Statute, such
trials have been directed in cases therein mentioned :
And whereas, in the last session of Parliament, three
Statutes were made ; one entitled, ' An Act to discon-
tinue, in such manner, and for such time, as are therein
mentioned, the landing and discharging, lading, or ship-
ping of goods, wares, and merchandize, at the town, and
within the harbor, of Boston, in the Province of Massa-
272 APPENDIX.
chusetts Bay in North America ;' another entitled, ' An
Act for the better regulating the government of the Prov-
ince of Massachusetts Bay in New England /and another
entitled, 'An Act for the impartial administration of just-
tice, in the cases of persons questioned for any act done
by them in the execution of the law, or for the suppres-
sion of riots and tumults, in the Province of the Massa-
chusetts Bay in New England :' And another Statute
was then made, " for making more effectual provision for
the government of the Province of Quebec," &,c. All
which Statutes are impolitic, unjust, and cruel, as well as
unconstitutional, and most dangerous and destructive of
American rights :
And whereas, Assemblies have been frequently dis-
solved, contrary to the rights of the People, when they
attempted to deliberate on grievances ; and their dutiful,
humble, loyal, and reasonable, petitions to the Crown for
redress, have been repeatedly treated with contempt, by
his Majesty's ministers of state :
The good People of the several Colonies of New
Hampshire, Massachusetts Bay, Rhode Island and
Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Newcastle, Kent, and Sussex, on
Delaware, Maryland, 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 Philadelphia, in order
to obtain such establishment, as that their religion, laws,
and liberties, may not be subverted ; whereupon the Dep-
uties so appointed being now assembled, in a full and
free representation of these Colonies, taking into their
most serious consideration, the best means of attaining
the ends aforesaid, do, in the first place, as Englishmen
their ancestors in Hke cases have usually done, for assert-
ing and vindicating their rights and liberties, DECLARE,
That the inhabitants of the English 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.
DECLARATION OP RIGHTS. 27.3
Resolved, N. C. D.* 1. That they are entitled to life,
liberty, and property ; and they have never ceded to any
Sovereign power whatever, a right to dispose of either,
without their consent.
Resolved, N. C. D. 2. That our ancestors, who
first settled these Colonies, were, at the time of their
emigration from the mother Country, entitled to all the
rights, hberties, and immunities, of free and natural-born
subjects, within 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 their descendants now are,
entitled to the exercise and enjoyment of all such of them,
as their local and other circumstances enable them to ex-
ercise and enjoy.
Resolved, 4. That the foundation of English liberty,
and of all free government, is, a right in the People to
participate in their legislative council ; and as the English
Colonists are not represented, and, from their local and
other circumstances, cannot properly be represented, in the
British Parliament, they are entitled to a free and ex-
clusive power of legislation in their several provincial
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 has been heretofore used and accustomed ;
but, from the necessity of the case, and a regard to the
mutual interests of both Countries, we cheerfully consent
to the operation of such Acts of the British Parliament, as
are, bonajide^ restrained to the regulation of our external
commerce, for the 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 the subjects in America, without their
consent.
Resolved, N. C. D. 5. That the respective Colonies
are entitled to the common law of England, and more es-
* JVemine contradicenie,no person opposing, or disagreeing.
274 APPENDIX.
pecially to the great and inestimable privilege of being
tried by their peers of the vicinage, according to the
course of that law.
Resolved, 6. That they are entitled to the benefit of
such of the English Statutes, as existed at the time of
their colonization ; and which they have, by experience,
respectively found to be applicable to their several local
and other circumstances.
Resolved, N. C. D. 7. That these, his Majesty's
Colonies, are hkewise entitled to all the immunities and
privileges, granted and confirmed to them by royal Char-
ters, or secured by their several codes of provincial laws.
Resolved, N. C. D. 8. That they have a right peace-
ably to assemble, consider of their grievances, and pe-
tition the King ; and that all prosecutions, prohibitory
proclamations, and commitments for the same, are illegal.
Resolved, N. C. D. 9. That the keeping a standing
army in these Colonies, in times of peace, without the
consent of the legislature of that Colony in which such
army is kept, is against law.
Resolved, N. C. D. 10. It is indispensably necessary
to good government, and rendered essential by the Eng-
lish Constitution, that the constituent branches of the
legislature be independent of each other ; that, therefore,
the exercise of legislative power, in several Colonies, by
a Council appointed, during pleasure, by the Crown, is
unconstitutional, dangerous, and destructive to the free-
dom of American legislation.
All and each of which, the aforesaid Deputies, in be-
half of themselves, and their Constituents, do claim, de-
mand, and insist on, as their indubitable rights and hber-
ties ; which cannot be legally taken from them, altered,
or abridged, by any power whatever, without their own
consent, by their representatives, in their several provin-
cial Legislatures.
DECLARATION OF INDEPENDENCE. 275
DECLARATION OF INDEPENDENCE.
A Declaration by the Representatives of the United
States of America, in Congress assembled.
When, in the course of human events, it becomes ne-
cessary for one people to dissolve the political bands
which have connected 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 man-
kind requires, that they should declare the causes which
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 Cre-
ator, 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 to abolish it, and to institute new gov-
ernment, laying its foundation on such principles, and or-
ganizing its powers in such form, as to them shall seem
most hkely to effect their safety and happiness. Pru-
dence, indeed, will dictate, that governments, long estab-
hshed, should not be changed for light and transient cau-
ses ; and, accordingly, all experience hath shown, that
mankind are more disposed to suffer, while evils are suf-
ferable, than to right themselves, 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 fu-
ture security. Such has been the patient sufferance of
these Colonies ; and such is now the necessity which con-
strains them to alter their former systems of government.
276 APPENDIX.
The history of the present King of Great Britain is a his-
tory of repeated injuries and usurpations, all having, in
direct object, the establishment 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 imme-
diate and pressing importance, unless suspended 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 accommoda-
tion 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 un-
usual, uncomfortable, and distant from the depository 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 invasions on the rights
of the people.
He has refused, for a long time, after such dissolu-
tions, to cause others to be elected ; whereby the legis-
lative powers, incapable of annihilation, have returned to
the people at large for their exercise ; the State remain-
ing, in the mean time, exposed to all the dangers of inva-
sion from without, and convulsions within.
He has endeavored to prevent the population of these
States ; for that purpose, obstructing the laws for natural-
ization of foreigners ; refusing to pass others to encour-
age their migrations hither, and raising the conditions of
new appropriations of lands.
He has obstructed the administration of justice, by re-
fusing 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 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 substance.
DECLARATION OF I^'DEPENDENCE. 277
He has kept among us, in time of peace, standing ar-
mies, without the consent of our legislatures.
He has affected to render the military independent of,
and superior to, the civil power.
He has combmed, with others, to subject us to a juris-*
diction 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 punish-
ment, for any murders 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 transporting us beyond seas, to be tried for pre-
tended offences :
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 fit instrument for introducing
the same absolute rule into these Colonies :
For taking away our charters, abolishing our most val-
uable 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 whatsoever.
He has abdicated government here, by declaring us
out of his protection, and waging war against us.
He has plundered our seas, ravaged ourtcoasts, burnt
our towns, and destroyed the lives of our people.
He is, at this time, transporting large armies of foreign
mercenaries, to complete the works of death, desolation,
and tyranny, already begun with circumstances of cruel-
ty 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
24 XIII.
278 APPENDIX.
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 fron
•tiers, the merciless Indian savages, whose known rule of
warfare is an undistinguished destruction of all ages, sex-
es, and conditions.
In every stage of these oppressions, we have petition-
ed 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 the ruler of a
free people.
Nor have we been wanting in attentions to our British
brethren. We have warned them, from time to time, of
attempts, by their legislature, to extend an unwarrantable
jurisdiction over us. We have reminded them of the
circumstances of our emigration and settlement here.
We have appealed to their native justice and magnanimi-
ty, and we have conjured them, by the ties of our com-
mon kindred, to disavow these usurpations, which would
inevitably interrupt our connexions and correspondence.
They too, have been deaf to the voice of justice and of
consanguinity. We must, therefore, acquiesce in the
necessity, which denounces our separation, and hold
them, as we hold the rest of mankind, enemies in war,
in peace, friends.
We, therefore, the representatives of the United
States of America, in General Congress assem-
bled, appealing to the Supreme Judge of the World, for
the rectitude of our intentions, do, in the name, and by
authority, of fhe good People of these Colonies, solemnly
publish and declare. That these United Colonies are,
and of right ought to be. Free and Independent
States ; that they are absolved from all allegiance to
the British crown, and that all political connexion 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
ARTICLES OF CONFEDERATION. 279
ail other acts and things, which Independent States
may of right do. And, for the support of this decla-
ration, with a firm reliance on the protection of Divine
Providence, we mutually pledge to each other, oui
lives, our fortunes, and our sacred honor.
ARTICLES OF CONFEDERATION
And perpetual union, between the States of New
Hampshire, Massachusetts Bay, Rhode Island and Prov-
idence Plantations, Connecticut, New York, New Jer-
sey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia.
ARTICLE L
The style of this confederacy shall be, " The
United States of America."
ARTICLE II.
Eacji State retains its sovereignty, freedom, and inde-
pendence, and .every power, jurisdiction, and right, which
is not by this Confederation, expressly delegated to the
United States in Congress assembled.
ARTICLE III.
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 offered to, or attacks made upon,
them, or any of them, on account of religion, sovereign-
ty, trade, or any other pretence whatever.
ARTICLE IV.
The better to secure and perpetuate mutual friendship
and intercourse among the people of the different States
in this Union, the free inhabitants of each of these States,
280 APPENDIX.
paupers, vagabonds, and fugitives from justice, excepted,
shall be entitled 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, impo-
sitions, and restrictions, as the inhabitants thereof respec-
tively ; provided, that such restriction shall not extend
so far as to prevent the removal of property imported in-
to any State, to any other State of which the owner is an
inhabitant ; provided also, that no imposition, duties, or
restriction, 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, felo-
ny, 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 pow-
er of the State from which he fled, be dehvered up, and
removed to the State having jurisdiction of his ofl^ence.
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.
ARTICLE V.
For the more convenient management of the general
interests of the United States, delegates shall be annual-
ly appointed in such manner as the legislature of each
State shall direct, to meet in Congress on the first Mon-
day iff 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 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, be-
ing a delegate, be capable of holding any office under the
United States, 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 meet
ARTICLES OF CONFEDERATION. 281
mg of the States, and while they act as members of the
committee of the States.
In determining questions in the United States in Con-
gress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not
be impeached or questioned, in any court or place out of
Congress ; and the members of Congress shall be pro-
tected in their persons from arrests and imprisonment,
during the time of their going to, and from, and attend-
ance on. Congress, except for treason, felony, or breach
of the peace.
ARTICLE VI.
No State, without the consent of the United States in
Congress assembled, shall send any embassy to, or re-
ceive 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, grant any title of nobility.
No two or more States shall enter into any treaty,
confederation, or alliance whatever, between them, with-
out the consent of the United States in Congress assem-
bled, specifying accurately the purposes for which the
same is to be entered into, and how long it shall con-
tinue.
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 pro-
posed by Congress to the courts of France and Spain.
No vessels 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 as-
sembled, for the defence 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 judge-
24* •
282 APPENDIX.
ment. of the United States in Congress assembled, shall
be deemed requisite to garrison the forts necessary for
the defence of such State : but every State shall always
keep up a well-regulated and disciplined militia, suffi-
ciently armed and accoutred ; and shall provide and con-
stantly have 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 actually invaded by enemies, or shall have re-
ceived certain advice of a resolution being formed by
some nation of Indians to 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 ;
nor shall any State grant commissions to any ship 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 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 otherwise.
ARTICLE Vn.
When land forces are raised by any State for the
common defence, 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 va-
cancies shall be filled ud by the State which first made
the appointment.
ARTICLE VIII.
All* charges of war, and all other expenses that shall
be incurred for the common defence, or general welfare,
and allowed by the United States in Congress assem-
AR'rICLES OF CONFEDERATION. 283
bled, 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 assem-
bled 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, within the time agreed upon by the Unit-
ed States in Congress assembled.
ARTICLE IX,
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 legisla-
tive 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 commodities whatever : Of establishing rules for de-
ciding, 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 granting letters of marque
and reprisal, in times of peace : Appointing courts, for
the trial of piracies and felonies, committed on the high
seas ; and establishing courts, for receiving and deter-
mining, finally, appeals in all cases of captures ; provid-
ed, 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 differen-
ces now subsisting, or that hereafter may arise, between
two or more States, concerning boundary, jurisdiction,
or any other cause whatever ; which authority shall al-
ways be exercised in the manner following : Whenev-
284 APPENDIX.
er the legislative or executive authority, or lawful agent,
of any State, in controversy with another, shall present a
petition to Congress, stating the matter in question, and
praying for a hearing, notice thereof shall be given, by
order of Congress, to the legislative or executive author-
ity of the other State in controversy ; and a day assign-
ed, for the appearance of the parties by their lawful
agents, who shall then be directed to appoint, by joint
consent, commissioners or judges, to constitute 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 redu-
ced to thirteen ; and from that number, not less than
seven, nor more than nine, names, as Congress shall di-
rect, 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 sufiicient,
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 judgement and
sentence of the court, to be appointed in the manner be-
fore 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 pro-
nounce sentence or judgement, which shall in like man-
ner be final and decisive ; the judgement, or sentence,
and other proceedings, being, in either case, transmitted to
Congress, and lodged among the acts of Congress, for the
security of the parties concerned : Provided, that every
commissioner, before he sits in judgement, shall take an
oath, to be administered by one of the judges of the su«
ARTICLES OP CONFEDERATION. 285
preme or superior court of the State, where the cause
shall be tried, ' Well and truly to hear and determine
the matter in question, according to the best of his judge-
ment, without favor, affection, or hope of reward :' Pro-
vided, also, that no State shall be deprived of territory
for the benefit of the United States.
All controversies concerning the private right of soil
claimed under different grants of two or more States,
whose jurisdictions, 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 antecedent to such settlement of juris-
diction, shall, on the petition of either party to the Con-
gress 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 jurisdiction 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 managing all affairs with the In-
dians, not members of any of the States ; provided that
the legislative right of any State within its own limits be
not infringed or 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, ex-
cepting regimental officers : Appointing all the officers of
the naval forces, and commissioning all officers whatevei
m the service of the United States : Making rules for the
government and regulation of the 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 ;
286 APPENDIX.
and to appoint such other committees and civil officers as
may be necessary for managing the general affairs of the
United States under their direction : To appoint one of
their number to preside ; provided, that no person be aK
lowed to serve in the office of President more than one
year in any term of three years. To ascertain the neces-
sary sums of money to be raised for the service of the
United States, and to appropriate and apply the same for
defraying the publick 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 proportion to the number of white inhabitants in such
State, which requisition 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 soldierlike 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 as-
sembled : 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 its 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 which 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 equipped, 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 reprisal
in time of peace ; nor enter into any treaties or alhances ;
ARTICLES OF CONFEDERATION. 287
nor coin money ; nor regulate the value thereof ; nor as-
certain the sums and expenses necessary for the defence
and welfare of the United States, 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 Uni-
ted States in Congress assembled.
The Congress of the United States shall have power
to adjourn to any time within the year, and to any place
within the United States, so that no period of adjourn-
ment be for a longer duration than the space of six months ;
and shall publish the journal of their proceedings monthly,
except such parts thereof relating to treaties, alliances, or
military operations, as in their judgement require secrecy ;
and the yeas and nays of the delegates 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.
• ARTICLE X.
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 Com-
mittee, for the exercise of which, by the articles of Con-
federation, the voice of nine States in the Congress of
the United States assembled is requisite.
ARTICLE XL
Canada, acceding to this Confederation, and joining
23S APPENDIX.
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 tlje same,
unless such admission be agreed to by nine States.
ARTICLE XII.
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 Confederation, shall be deemed and considered
as a charge against the United States, for payment and
satisfaction whereof, the said United States, and the pub-
lic faith, are hereby solemnly pledged.
ARTICLE XIIL
Every State shall abide by the determinations 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 inviola-
bly observed by every State ; and the Union shall be
perpetual. Nor shall any alteration 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 legislatures of every State.
And whereas, it hath pleased the great Governor of
the World, to incline the hearts of the legislatures we
respectively represent in Congress to approve of, and to
authorize us to ratify, the said Articles of Confederation
and Perpetual Union :
Know 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 be-
half, 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 res-
pective constituents, that they shall abide by the deter-
minations of the United States in Congress assembled,
on all questions, which, by the said Cgnfederation, are
CONSTITUTION OF THE UNITED STATES. 291
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 legis-
lature of any State, the executive thereof may make tem-
porary appointments until the next meeting of the legisla-
ture, which shall then fill such vacancies.
3. No person shall be a Senator who shall not have at-
tained 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 which he shall
be chosen.
4. The Vice-President of the United States shall be
President of the Senate, but shall have no vote, unless
they be equally divided.
5. The Senate shall choose their other officers, and
also a President pro tempore, in the absence of the Vice-
President, or when he shall exercise the office of Presi-
dent of the United States.
6. The Senate shall have the sole power to try all
impeachments. 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 pre-
side ; and no person shall be convicted without the con-
currence of two thirds of the members present.
7. Judgement in cases of impeachment shall not ex-
tend further than to removal from office, and disqualifica-
tion to hold and enjoy any office of honor, trust, or pro-
fit, under the United States ; but the party convicted
shall, nevertheless, be liable and subject to indictment,
trial, judgement, and punishment, according to law.
* SECTION 4.
1 . 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.
2. 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.
292 APPENDIX.
SECTION 5.
1 . Each House shall be the judge of the elections, re-
turns, and quahfications, of its own members, and a ma-
jority 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.
2. Each House may determine the rules of its pro-
ceedings, punish its members for disorderly behavior,
and, with the concurrence of two thirds, expel a member.
3. Each House shall keep a journal of its proceed-
ings, and, from time to time, pubhsh the same, excepting
such parts as may, in their judgement, 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.
4. Neither House, during the session of Congress,
shall, without the consent of the other, adjourn for more
than three days, nor to any other place than that in which
the two Houses shall be sitting.
SECTION 6.
1. The Senators and Representatives shall receive a
compensation 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 attend-
ance at the session of their respective Houses, and in go-
ing to, and returning from, the same ; and for any speech
or debate in either House, they shall not be questioned
in any other place.
2. No Senator or Representative shall, during the
time for which he was elected, be appointed to any civil
office under the authority of the United States, which
shall have been created, or the emoluments whereof shall
have been increased, during such time ; and no person,
holding any office under the United States, shall be a
member of either House during his continuance in office.
CONSTITUTION OF THE UNITED STATES. 293
SECTION 7.
1. 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.
2. Every bill, which shall have passed the House of
Representatives 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
objections, to the other House, by which it shall like-
wise 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 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.
3. Every order, resolution, or vote, to which the con-
currence of the Senate and House of Representatives
may be necessary, (except on a question of adjourn-
ment,) 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
re-passed by two thirds of the Senate and House of Re-
presentatives, according to the rules and hmitations pre-
scribed in the case of a bill.
SECTION 8.
The Congress shall have power,
1. To lay and collect taxes, duties, imposts, and ex
cises, to pay the debts, and provide for the common de
25*
294 APPENDIX.
fence and general welfare, of the United Slates ; but all
duties, imposts, and excises, shall be uniform throughout
the United States :
2. To borrow money on the credit of the United
States :
3. To regulate commerce with foreign nations, and
among the several States, ar^ with the Indian tribes :
4. To establish a uniform' rule of naturalization, and
uniform laws on the subject of bankruptcies, throughout
the United States :
5. To coin money, regulate the value thereof, and of
foreign coin, and fix the standard of weights and meas-
ures :
6. To provide for the punishment of counterfeiting the
securities and current coin of the United States :
7. To establish post-offices and post-roads :
8. 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 dis-
coveries :
9. To constitute tribunals inferior to the Supreme
Court :
10. To define and punish piracies and felonies, com-
mitted on the high sfeas, and offences against the law of
nations :
11. To declare war, grant letters of marque and re-
prisal, and make rules concerning captures on land and
water :
12. To raise and support armies ; but no appropriation
of money to that use shall be for a longer term than two
years :
, 13. To provide and maintain a navy :
/ 14. To make rules for the government and regulation
^of the land and naval forces :
15. To provide for calling forth the militia to execute
the laws of the Union, suppress insurrections, and repel
invasions :
16. To provide for organizing, arming, and disciplin-
mg, the militia, and for governing such part of them as
may be employed in the service of the United States,
CONSTITUTION OF THE UNITED STATES. 295
reserving to the States respectively, the appointment of
the officers, and the authority of training the militia, ac
cording to the discipline prescribed by Congress :
17. 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 govern-
ment of the United States, and to exercise like authority
over all places, purchased by the consent of the legislature
of the State in which the same shall be, for the erection
of forts, magazines, arsenals, dock-yards, and other need-
ful buildings : — And
18. 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 9.
1. The migration or importation of such persons, as
any of the States, now existing, shall think proper to ad-
mit, 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.
2. The privilege of the writ of habeas corpus shall not
be suspended, unless when, in cases of rebellion or inva-
sion, the public safety may require it.
3. No bill of attainder, or ex post facto law, shall be
passed.
4. No capitation or other direct tax, shall be laid, un-
less in proportion to the census or enumeration, herein
before directed to be taken.
5. 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.
6. No money shall be drawn from the treasury, but in
29G APPENDIX.
consequence of appropriations made by law ; and a regu-
lar statement and account of the receipts and expenditures
of all public money shall be published, from time to time.
7. No title of nobility shall be granted by the United
States : And no person, holding any office of profit or
trust under them, shall, without the consent of the Con-
gress, accept of any present, emolument, office, or tide,
of any kind whatever, from any king, prince, or foreign
state.
SECTION 10.
1. No State shall enter into any treaty, alliance, or
confederation ; grant letters of marque and reprisal ; coin
money ; emit bills of credit ; make any thing but gold and
silver coin a tender in payment of debts ; pass any bill of
attainder, ex post facto law, or law impairing the obliga-
tion of contracts, or grant any title of nobility.
2. 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 in-
spection laws ; and the net produce of all duties and im-
posts, 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 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 immi-
nent danger, as will not admit of delay.
ARTICLE II.
SECTION 1.
- 1. The Executive power shall be vested in a Presi*
dent of the United States of America. He shall hold
his office during the term of four years, and together
with the Vice-President, chosen for the same terra, be
elected as follows :
2. Each State shall appoint, in such manner as the
CONSTITUTION OF THE UNITED STATES. 297
Legislature thereof may direct, a number of Electors,
equal to the whole number of Senators and Representa-
tives, to which the State may be entitled in the Con-
gress : but no Senator or Representative, or person hold-
ing an office of trust or profit, under the United States,
shall be appointed an Elector.
3. 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 them-
selves. 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 transmit, sealed, to the
seat of the government of the United States, directed to
the President of the Senate. The President of the Sen-
ate 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 choos-
ing the President, the votes shall be taken by States, the
representation from each State having one vote ; a quo-
rum for this purpose, shall consist of a member or mem-
bers 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.
4. The Congress may determine the time of choosing
the Electors, and the day on which they shall give their
votes ; which day shall be the same throughout the Uni-
ted States.
5. No person, except a natural-born citizen, or a citi-
298 APPENDIX.
zen of the United States at the time of the adoption of
this Constitution, shall be eligible to the office of Presi-
dent ; neithier 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.
6. In case of the removal of the President from office,
or of his death, resignation, or inabihty to discharge the
powers and duties of the said office, the same shall de-
volve on the Vice-President, and the Congress may by
law provide for the case of removal, death, resignation,
or inability, both of the President and Vice-President,
declaring what officer shall then act as President, and
such officer shall act accordingly, until the disability be
removed, or a President shall be elected.
7. The President shall, at stated times, receive for
his services, a compensation, which shall neither be in-
creased 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. **
8. Before he enter on the execution of his office, he
shall take the following oath or affirmation :
9. " I do solemnly swear, (or affirm,) that I will faith-
fully 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."
SECTION 2.
1. 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 offices, and he shall have power to grant
reprieves and pardons for offences against the United
States, except in cases of impeachment.
2. He shall have power, by and with the advice and
consent of the Senate, to make treaties, provided two
CONSTITUTION OF THE UNITED STATES. 299
thirds of the Senators present concur ; and he shall nom-
inate, and hy and with the advice and consent of the
Senate, shall appoint ambassadors, other public ministers,
and consuls, judges of the Supreme Court, and all other
officers of the United States, whose appointments are not
herein otherwise provided for, and which shall be estab-
lished by law : but the Congress may by law vest the ap-
pointment of such inferior officers, as they think proper,
in the President alone, in the courts of law, or in the
heads of Departments.
3. The President shall have power to fill up all va-
cancies that may happen, during the recess of the Sen-
ate, by granting commissions, which shall expire at the
end of their next session.
SECTION 3.
1. He shall, from time to time, give to the Congress in-
formation of the state of the Union, and recommend to
their consideration such measures as he shall judge neces-
sary anc^ 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 ambassadors and
other pubhc ministers ; he shall take care that the laws
be faithfully executed, and shall commission all the offi-
cers of the United States.
SECTION 4.
1 . 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.
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 estab-
300 APPENDIX.
lish. 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 com-
pensation, which shall not be diminished during their
continuance in office.
SECTION 2.
1. 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 a^uthority ; to all cases affecting am-
bassadors, 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 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.
2. In all cases affecting ambassadors, other public
ministers, and coqsuIs, and those in which a State shall
be a party, the Supreme Court shall have original juris-
diction. In all the other cases before mentioned, the Su-
preme Court shall have appellate jurisdiction, both as lb
law and fact, with such exceptions, and under such regu-
lations, as the Congress shall make.
3. The trial of all crimes, except in cases of impeach-
ment, 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 v/ithin any State, the trial shall be
at such place, or places, as the Congress may by law have
directed.
SECTION 3.
1. 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.
CONSTITUTION OF THE UNITED STATES. 301
2. The Congress shall have power to declare the pun-
ishment 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.
1 . Full faith and credit shall be given in each State to
the pubhc 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 efiect thereof.
SECTION 2.
1. The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.
2. A person charged in any State with treason, fel-
ony, 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
crimQ.
3. 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 dis-
charged 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 3.
1. 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, without the consent of the legislatures of the
States concerned, as well as of the Congress.
2. The Congress shall have power to dispose of and
make all needful rules and regulations respecting the ter-
ritory, or other property, belonging to the United States ;
and nothing in this Constitution shall be so construed as
26 XIII.
302 APPENDIX.
to prejudice any claims of the United States, or of any
particular State.
SECTION 4.
1. The United States shall guaranty to every State
in this Union a repubUcan form of government, and shall
protect each of them against invasion ; and, on application
of the legislature, or of the executive, (when the legisla-
ture cannot be convened,) against domestic violence.
ARTICLE V. •
1. 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
vahd to all intents and purposes, as part of this Constitu-
tion, when ratified by the legislatures of three fourths of
the several States, or by conventions in three fourths there-
of, as the one or the other mode of ratification may be
proposed by the Congress : Provided, that no amend-
ment, 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 suffrage in the Senate.
ARTICLE VL
1. 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 un-
der the Confederation.
2. This Constitution, and the laws of the United States
which shall be made in pursuance thereof, and all trea-
ties 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 laws of any State to the con-
trary notwithstanding.
AMENDMENTS OF THE CON*STITUTION. 303
3. The Senators and Representatives before mention-
ed, 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, hy oath
or affirmation, to support this Constitution ; but no re-
ligious test shall ever be required as a qualification to any
office or public trust, under the United States.
ARTICLE VII.
1. The ratification of the Conventions of nine States
shall be sufficient for the estabhshment of this Constitution
between the States so ratifying the same.
AMENDMENTS TO THE CONSTITUTION.
ARTICLE L
Congress shall make no law respecting an establish-
ment 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 pe-
tition the government for a redress of grievances.
ARTICLE 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 in.
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 people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
S04 APPENDIX.
and seizures, shall not be violated ; and no warrants shall
issue, but u^ion probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons 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 in-
dictment of a grand jury, except in cases arising in the
land or naval forces, or in the militia, when in actual ser-
vice, in time of war, or public danger ; nor shall any per-
son be subject, for the same offence, 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 de-
prived 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 as-
certained by law ; and to be informed of the nature and
cause of the accusation ; to be confronted with the wit-
nesses against him ; to have compulsory process for ob-
taining witnesses in his favor ; and to have the assistance
of counsel for his defence.
ARTICLE Vn.
In suits at common law, where the value in contro-
versy 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 of the common law.
ARTICLE Vni.
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
AMENDMENTS TO THE CONSTITUTION. 305
ARTICLE IX.
The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retain-
ed by the people.
ARTICLE X.
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people.
ARTICLE XI.
The judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by citizens of another State, or by citizens or subjects of
any foreign State.
ARTICLE Xn.
1. 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 hsts they shall sign,
and certify, and transmit, sealed, to the seat of the govern-
ment of the United States, directed to the President of
the Senate ; the President of the Senate shall, in the pres-
ence 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 per-
son have such majority, then, from the persons having the
highest numbers, not exceeding three, on the list of those
voted for as President, the House of Representatives
26*
306 APPENDIX.
shall choose immediately, by ballot, the President. But
in choosing the President, the votes shall be taken by
States, the representation from each State having one
vote ; a quorum for this purpose shall consist of a mem-
ber or members from two thirds of the States, and a ma-
jority of all the States shall be necessary to a choice.
And if the House of Representatives shall not choose
a President, whenever the right of choice shall devolve
upon them, before the fourth day of March next follow-
ing, then the Vice-President shall act as President, as in
case of the death, or other constitutional disability, of the
President.
2. 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 ap-
pointed ; and if no person have a majority, then, from the
two highest numbers on the list, the Senate shall choose
the Vice-President ; a quorum for the purpose shall con-
sist of two thirds of the whole number of Senators ; a ma-
jority of the whole number shall be necessary to a choice.
3. But no person constitutionally ineligible to the office
of President, shall be eligible to that of Vice-President of
the United States. -
WASHINGTON'S FAREWELL ADDRESS
TO THE PEOPLE OF THE UNITED STATES.
september 17, 1796.
Friends and Fellow Citizens,
The period for a new election of a citizen to adminis-
ter the executive government of the United States being
not far distant, and the time actually arrived, when your
thoughts must be employed in designating the person who
is to be clothed with that important trust, it appears to me
proper, especially as it may conduce to a more distinct
expression of the public voice, that I should now apprise
Washington's farewell address. 307
you of the resolution I have formed, to decline being con-
sidered among the number of those out of whom a choice
is to be made.
I beg you, at the same time, to do me the justice to be
assured, that this resolution has not been taken, without a
strict regard to all the considerations appertaining to the
relation which binds a dutiful citizen to his country ; and
that, in withdrawing the tender of service, which silence,
in my situation, might imply, I am influenced by no dim-
inution of zeal for your future interest ; no deficiency of
grateful respect for your past kindness ; but am supported
by a full conviction that the step is compatible with both.
The acceptance of, and continuance hitherto in, the
office to which your suffi-ages have twice called me, have
been a uniform sacrifice of inclination to the opinion of
duty, and to a deference for what appeared to be your
desire. I constantly hoped, that it would have been much
earlier in my power, consistently with motives which I
was not at liberty to disregard, to return to that retirement
from which I had been reluctantly drawn. The strength
of my inclination to do this, previous to the last election,
had even led to the preparation of an address, to declare
it to you ; but mature reflection on the then perplexed
and critical posture of our affairs with foreign nations, and
the unanimous advice of persons entitled to my confidence,
impelled me to abandon the idea.
I rejoice that the state of your concerns, external as
well as internal, no longer renders the pursuit of inclina-
tion incompatible with the sentiment of duty or propriety ;
and am persuaded, whatever partiality may be retained
for my services, that, in the present circumstances of our
country, you will not disapprove my determination to re-
tire.
The impressions, with which I first undertook the ar-
duous trust, were explained on the proper occasion. In
the discharge of this trust, I will only say, that I have,
with good intentions, contributed towards the organization
and administration of the government, the best exertions
of which a very faUible judgement was capable. Not un-
conscious, in the outset, of the inferiority of my qualifica-
308 APPENDIX.
tions, experience in my own eyes, perhaps still more in
the eyes of others, has strengthened the motives to diffi-
dence of myself ; and, every day, the increasing weight of
years admonishes me, more and more, that the shade of
retirement is as necessary to me, as it will be welcome.
Satisfied that, if any circumstances have given peculiar
value to my services, they were temporary, I have the
consolation to believe, that, while choice and prudence
invite me to quit the political scene, patriotism does not
forbid it.
In looking forward to the moment which is intended to
terminate the career of my pubhc hfe, my feelings do not
permit me to suspend the deep acknowledgment of that
debt of gratitude which I owe to my beloved country, for
the many honors it has conferred upon me ; still more for
the steadfast confidence with which it has supported me ;
and for the opportunities I have thence enjoyed, of man-
ifesting my inviolable attachment, by services faithful and
persevering, though in usefulness unequal to my zeal. If
benefits have resulted to our country from these services,
let it always be remembered to your praise, and as an in-
structive example in our annals, that, under circumstances
in which the passions, agitated in every direction, were
liable to mislead, amidst appearances sometimes dubious,
vicissitudes of fortune often discouraging, in situations in
which, not unfrequently, want of success has countenanced
the spirit of criticism, the constancy of your support was
the essential prop of the efforts, and a guarantee of the
plans, by which they were effected. Profoundly pene-
trated with this idea, I shall carry it with me to my grave,
as a strong incitement to unceasing vows, that Heaven
may continue to you the. choicest tokens of its benefi-
cence ; that your union and brotherly affection may be
perpetual ; that the free Constitution, which is the work
of your hands, may be sacredly maintained ; that its ad-
ministration, in every department, may be stamped with
wisdom and virtue ; that, in fine, the happiness of the
people of these States, under the auspices of liberty, may
be made complete, by so careful a preservation and so
prudent a use of this blessing, as will acquire to them the
309
glory of recommending it to the applause, the affection,
and adoption, of every nation which is yet a stranger to it.
Here, perhaps, I ought to stop ; but a solicitude for
your welfare, which cannot end but with my life, and the
apprehension of danger, natural to that solicitude, urge me,
on an occasion like the present, to offer to your solemn
contemplation, and to recommend to your frequent re-
view, some sentiments, which are the result of much
reflection ; of no inconsiderable observation ; and which
appear to me all important to the permanency of your
felicity, as a people. These will be offered to you with
the more freedom, as you can only see in them the disin-
terested warnings of a parting friend, who can possibly
have no personal motive to bias his counsel ; nor can I
forget, as an encouragement to it, your indulgent reception
of my sentiments on a former, and not dissimilar, occasion.
Interwoven as is the love of liberty with every ligament
of your hearts, no recommendation of mine is necessary
to fortify, or confirm, the attachment.
The unity of government, which constitutes you one
people, is also now dear to you. It is justly so ; for it
is a main pillar in the edifice of your real independence ;
the support of your tranquillity at home, your peace
abroad ; of your safety ; of your prosperity ; of that very
liberty which you so highly prize. But, as it is easy to
foresee, that, from different causes, and from different
quarters, much pains will be taken, many artifices employ-
ed, to weaken, in your minds, the conviction of this truth ;
as this is the point in your political fortress, against which
the batteries of internal and external enemies will be most
constantly and actively (though often covertly and insid-
uously) directed, it is of infinite moment that you should
properly estimate the immense value of your National
Union, to your collective and individual happiness ; that
you should cherish a cordial, habitual, and immovable,
attachment to it ; accustoming yourselves to think and
speak of it as of the palladium of your political safety and
prosperity ; watching for its preservation with jealous
anxiety ; discountenancing whatever may suggest even a
suspicion that it can, in any event, be abandoned ; and
310 APPENDIX.
indignantly frowning upon the first dawning of every at-
tempt to alienate any portion of our country from the rest,
or to enfeeble the sacred ties which now link together the
various parts.
For this you have every inducement of sympathy and
interest. Citizens, by birth or choice, of a common coun-
try, that country has a right to concentrate your affections.
The name of American, which belongs to you in your
National capacity, must always exalt the just pride of pa-
triotism, more than any appellation derived from local dis-
criminations. With slight shades of difference, you have
the same religion, manners, habits, and political princi-
ples. You have, in a common cause, fought and triumphed
together : the independence and Hberty you possess are
the work of joint councils and joint efforts, of common
dangers, sufferings, and successes.
But these considerations, however powerfully they ad-
dress themselves to your sensibility, are greatly outweighed
by those which apply more immediately to your interest,
tiere every portion of our country finds the most comman-
ding motives for carefully guarding and preserving the union
of the whole.
The JSTorth, in an unrestrained intercourse with the
Southj protected by the equal laws of a common govern-
ment, finds, in the productions of the latter, great addi-
tional resources of maritime and commercial enterprise,
and precious materials of manufacturing industry. The
South, in the same intercourse, benefiting by the agency
of the Jforth, sees its agriculture grow, and its commerce
expand. Turning partly into its own channels th^ seamen
of the North, it finds its -particular navigation invigorated :
and, while it contributes, in different ways, to nourish and
increase the general mass of the National navigation, it
looks forward to the protection of a maritime strength, to
which itself is unequally adapted. The East, in like in-
tercourse with the West, already finds, and in the pro-
gressive improvement of interior communications, by land
and water, will more and more find, a valuable vent for
the commodities which it brings from abroad, or manu-
factures at home. The West derives from the East sup-
Washington's farewell address. 311
plies requisite to its growth and comfort ; and, what is,
perhaps, of still greater consequence, it must, of necessity,
owe the secure enjoyment of indispensable outlets for its
own productions, to the weight, influence, and the future
maritime strength of the Atlantic side of the Union, di-
rected by an indissoluble community of interest as one na-
tion. Any other tenure by which the West can hold this
essential advantage, whether derived from its own separ-
ate strength, or from an apostate and unnatural connexion
with any foreign power, must be intrinsically precarious.
While, then, every part of our country thus feels an
immediate and particular interest in union, all the parts
combined cannot fail to find, in the united mass of means
and efforts, greater strength, greater resource, proportion-
ably greater security from external danger, a less frequent
interruption of their peace by foreign nations ; and, what
is of inestimable value, they must derive from union an
exemption from those broils and wars between themselves,
which so frequently afflict neighboring countries, not tied
together by the same governments ; which their own ri-
valships alone would be sufficient to produce, but which
opposite foreign alliances, attachments, and intrigues,
would stimulate and embitter. Hence, likewise, they
will avoid the necessity of those overgrown military es-
tablishments, which, under any form of government, are
inauspicious to liberty, and which are to be regarded as
particularly hostile to republican liberty ; in this sense it
is, that your union ought to be considered as a main prop
of your liberty, and that the love of the one ought to en-
dear to you the preservation of the other.
These considerations speak a persuasive language to
every reflecting and virtuous mind, and exhibit the con-
tinuance of the Union as a primary object of patriotic de-
sire. Is there a doubt, whether a common government
can embrace so large a sphere ? Let experience solve it.
To listen to mere speculation, in such a case, were crim-
inal. We are authorized to hope, that a proper organi-
zation of the whole, with the auxiliary agency of govern-
ments for the respective subdivisions, will afford a happy
issue to the experiment. It is well worth a fair and full
312 APPENDIX.
experiment. With such powerful and obvious motives
to union, affecting all parts of our country^ while experi-
ence shall not have demonstrated its impracticability, there
will always be reason to distrust the patriotism of those,
who, in any quarter, may endeavor to weaken its bands.
In contemplating the causes, which may disturb our
union, it occurs, as matter of serious concern, that any
ground should have been furnished for characterizing
parties by geographical discriminations, JYorthern and
Southern, Jitlantic and Western ; whence designing men
may endeavor to excite a belief, that there is a real differ-
ence of local interests and views. One of the expedients of
party to acquire influence, within particular districts, is, to
misrepresent the opinions and aims of other districts. You
cannot shield yourselves too much against the jealousies
and heart-burnings, which spring from these misrepresen-
tations ; they tend to render alien to each other those who
ought to be bound together by fraternal affection. The
inhabitants of our western country have lately had a use-
ful lesson on this head ; they have seen, in the negotiation
by the Executive, and in the unanimous ratification by the
Senate, of the treaty with Spain, and in the universal sat-
isfaction at that event, throughout the United States, a
decisive proof how unfounded were the suspicions prop-
agated among them, of a policy in the General Govern-
ment, and in the Atlantic States, unfriendly to their inter-
ests, in regard to the Mississippi ; they have been wit-
nesses to the formation of two treaties, that with Great
Britain, and that with Spain, which secure to them every
thing they could desire, in respect to our foreign relations,
towards confirming their prosperity. Will it not be their
wisdom to rely, for the preservation of these advantages,
on the Union by which they were procured ? Will they
not henceforth be deaf to those advisers, if such there
are, who would sever them from their brethren, and con-
nect them with aliens ?
To the efficacy and permanency of your Union, a gov-
ernment for the whole is indispensable. No alliances,
however strict, between the parts, can be an adequate
substitute ; they must inevitably experience the infrac-
Washington's farewell address. 313
"tions and interruptions which all alliances, in all times, have
experienced. Sensible of this momentous truth, you have
improved upon your first essay, by the adoption of a Con-
stitution of Government better calculated than your former,
for an intimate Union, and for the efficacious management
of your common concerns. This Government, the off-
spring of our own choice, uninfluenced and unawed,
adopted upon full investigation and mature dehberation,
completely free in its principles, in the distribution of its
powers uniting security with energy, and containing with-
in itself a provision for its own amendment, has a just
claim to your confidence and your support. Respect for
its authority, compliance with its laws, acquiescence in
its measures, are duties enjoined by the fundamental max-
ims of true liberty. The basis of our political systems
is, the right of the people to make and to alter their Con-
stitutions of Government. But the Constitution which at
any time exists, till changed by an explicit and authentic
act of the whole people, is sacredly obligatory upon all.
The very idea of the power and the right of the people
to establish Government, pre-supposes the duty of every
individual to obey the estabhshed Government.
All obstructions to the execution of the Laws, all com-
binations and associations, under whatever plausible char-
acter, with the real design to direct, control, counteract,
or awe, the regular deliberation and action of the consti-
tuted authorities, are destructive of this fundamental prin-
ciple, and of fatal tendency. They serve to organize
faction, to give it an artificial and extraordinary force ; to
put, in the place of the delegated will of the nation, the
will of a party, often a small but artful and enterprising
minority of the community ; and, according to the al-
ternate triumphs of different parties, to make the public
administration the mirror of the ill-concerted and incon-
gruous projects of faction, rather than the organ of con-
sistent and wholesome plans, digested by common coun-
cils, and modified by mutual interests.
However combinations or associations of the above
description may now and then answer popular ends, they
are likely, in *the course of time and thmgs, to become
27 XIII.
314 APPENDIX.
potent engines, by which cunning, ambitious, and unprin-
cipled, men will be enabled to subvert the power of the
people, and to usurp for themselves the reins of govern-
ment ; destroying, afterwards, the very engines, which had
lifted them to unjust dominion.
Towards the preservation of your government, and the
permanency of your present happy state, it is requisite,
not only that you steadily discountenance irregular opposi-
tions to its acknowledged authority, but also that you resist
with care the spirit of innovation upon its principles, how-
ever specious the pretexts. One method of assault may
be to effect, in the forms of the Constitution, alterations
which will impair the energy of the system, and thus to
undernline what cannot be directly overthrown. In all
the changes to which you may be invited, remember that
time and habit are at least as necessary to fix the true
character of governments, as of other human institutions ;
that experience is the surest standard, by which to test
the real tendency of the existing Constitution of a country ;
that facility in changes, upon the credit of mere hypothe-
sis and opinion, exposes to perpetual change, from the
endless variety of hypothesis and opinion ; and remem-
ber, especially, that, for the efficient management of your
common interests, in a country so extensive as ours, a
government of as much vigor as is consistent with the
perfect security of liberty is indispensable. Liberty it-
self will find in such a government, with powers properly
distributed and adjusted, its surest guardian. It is, in-
deed, little else than a name, where the government is too
feeble to withstand the enterprises of faction, to confine
each member of the society within the limits prescribed
by the laws, and to maintain all in the secure and tranquil
enjoyment of the rights of person and property.
I have already intimated to you the danger of parties in
the state, with particular reference to the founding of them
on geographical discriminations. Let me now take a
more comprehensive view, and warn you in the most sol-
emn manner against the baneful effects of the spirit of
party, generally.
This spirit, unfortunately, is inseparable from our na-
Washington's farewell address. 315
ture, having its root in the strongest passions of the hu-
man mind. It exists, under diiiereiit shapes, in all govern-
ments, more or less stifled, controlled, or repressed ; but,
in those of the popular form, it is seen in its greatest
rankness, and is truly their worst enemy.
The alternate domination of one faction over another,
sharpened by the spirit of revenge, natural to party dis-
sension, which in different ages and countries has perpe-
trated the most horrid enormities, is itself a frightful des-
potism. But this leads at length to a more formal and
permanent despotism. The disorders and miseries, which
result, gradually incline the minds of men to seek securi-
ty and repose in the absolute power of an individual ; and
sooner or later the chief of some prevaihng faction, more
able or more fortunate than his competitors, turns this
disposition to the purposes of his own elevation, on the
ruins of Pubhc Liberty.
Without looking forward to an extremity of this kind,
(which nevertheless ought not to be entirely out of sight,)
the common and continual mischiefs of the spirit of party
are sufficient to make it the interest and duty of a wise
people to discourage and restrain it.
It serves always to distract the Public Councils, and
enfeeble the Public Administration. It agitates the Com-
munity with ill-founded jealousies and false alarms ; kin-
dles the animosity of one part against another ; foments,
occasionally, riot and insurrection. It opens the door to
foreign influence and corruption, which find a facilitated
access to the government itself through the channels of
party passions. Thus the pohcy and the will of one
country are subjected to the pohcy and will of another.
There is an opinion, that parties in free countries are
useful checks upon the administration of the Government,
and serve to keep alive the spirit of Liberty. This,
within certain limits, is probably true ; and in Govern-
ments of a Monarchical cast. Patriotism may look with
indulgence, if not with favor, upon the spirit of party.
But in those of the popular character, in Governments
purely elective, it is a spirit not to be encouraged. From
their natural tendency, it is certain there will always be
316 APPENDIX.
enough of that spirit for every salutary purpose. And,
there being constant danger of excess, the effort ought to
be, by force of pubhc opinion, to mitigate and assuage it.
A fire not to be quenched, it demands a uniform vigilance
to prevent its bursting into a flame, lest, instead of warm-
ing, it should consume.
It is important, likewise, that the habits of thinking in
a free country should inspire caution, in those intrusted
with its administration, to confine themselves within their
respective constitutional spheres, avoiding in the exercise
of the powers of one department to encroach upon anoth-
er. The spirit of encroachment tends to consolidate the
powers of all the departments in one, and thus to create,
whatever the form of government, a real despotism. A
just estimate of that love of power, and proneness to
abuse it, which predominates in the human heart, is suffi-
cient to satisfy us of the truth of this position. The ne-
cessity of reciprocal checks in the exercise of political
power, by dividing and distributing it into different de-
positories, and constituting each the Guardian of the Pub-
lic Weal against invasions by the others, has been evinced
by experiments ancient and modern ; some of them in our
country and under our own eyes. To preserve them
must be as necessary as to institute them. If, in the
opinion of the people, the distribution or modification of
the constitutional powers be, in any particular, wrong, let
it be corrected by an amendment, in the way which the
Constitution designates. But let there be no change by
usurpation ; for, though this, in one instance, may be
the instrument of good, it is the customary weapon by
which free governments are destroyed. The precedent
must always greatly overbalance, 'in permanent evil, any
partial or transient benefit, which the use can at any time
yield.
Of all the dispositions and habits, which lead to polit-
ical prosperity, Religion and Morality are indispensable
supports. In vain would that man claim the tribute of
Patriotism, who should labor to subvert these great pillars
of human happiness, these firmest props of the duties of
Men and Citizens. The mere Pohtician, equally with
Washington's farewell address. 317
the pious man, ought to respect and to cherish them. A
volume could not trace all their connexions with private
and public fehcity. Let it simply be asked, Where is
the security for property, for reputation, for life, if the
sense of religious obligation desert the oaths, which are
the instruments of investigation in Courts of Justice ?
And let us with caution indulge the supposition, that mor-
ality can be maintained without religion. Whatever
may be conceded to the influence of refined education on
minds of peculiar structure, reason and experience both
forbid us to expect, that national morahty can prevail in
exclusion of religious principle.
It is substantially true, that virtue or morality is a nec-
essary spring of popular government. The rule, indeed,
extends with more or less force to every species of free
government. Who, that is a sincere friend to it, can
look with indifference upon attempts to shake the founda-
tion of. the fabric ?
Promote, then, as an object of primary importance,
institutions for the general diffusion of knowledge. In
proportion as the structure of a government gives force to
public opinion, it is essential that pubhc opinion should be
enhghtened.
As a very important source of strength and security,
cherish public credit. One method of preserving it is, to
use it as sparingly as possible ; avoiding occasions of ex-
pense by cultivating peace, but remembering also that
timely disbursements to prepare for danger frequently
prevent much greater disbursements to repel it ; avoiding,
likewise, the accumulation of debt, not only by shunning
occasions of expense, but by vigorous exertions in time
of peace to discharge the debts, which unavoidable wars
may have occasioned, not ungenerously throwing upon
posterity the burden, which vs^e ourselves ought to bear.
The execution of these maxims belongs to your represen-
tatives, but it is necessary that public opinion should co-
operate. To facilitate to them the performance of their
duty, it is essential that you should practically bear in
mind, that towards the payment of debts there must be
Revenue ', that to have Revenue there must be taxes ;
27*
318 APPENDIX.
that no taxes can be devised, which are not more or less
inconvenient and unpleasant ; that the intrinsic embarrass-
ment, inseparable from the selection of the proper objects,
(which is always a choice of difficulties,) ought to be a
decisive motive for a candid construction of the conduct
of the government in making it, and for a spirit of acqui-
escence in the measures for obtaining Revenue, which the
public exigencies may, at any time, dictate.
Observe good faith and justice towards all Nations ;
cultivate peace and harmony with all. Religion and Mor-
ality enjoin this conduct ; and can it be, that good policy
does not equally enjoin it ? It will be worthy of a free,
enlightened, and, at no distant period, a great Nation, to
give to mankind the magnanimous and too novel example
of a people always guided by an exalted justice and be-
nevolence. Who can doubt, that, in the course of time
and things, the fruits of such a plan would richly repay
any temporary advantages, which might be lost by a steady
adherence to it ? Can it be, that Providence has not con-
nected the permanent felicity of a Nation with its Virtue ?
The experiment, at least, is recommended by every sen-
timent which ennobles human nature. Alas ! is it render-
ed impossible by its vices ?
In the execution of such a plan, nothing is more es-
sential, than that permanent, inveterate antipathies against
particular Nations, and passionate attachments for others,
should be excluded ; and that, in place of them, just and
amicable feelings towards all should be cultivated. The
Nation, which indulges towards another an habitual hatred,
or an habitual fondness, is in some degree a slave. It is
a slave to its animosity or to its affection, either of which
is sufficient to lead it astray from its duty and its interest.
Antipathy in one nation against another disposes each more
readily to offer insult and injury, to lay hold of slight causes
of umbrage, and to be haughty and intractable, when ac-
cidental or trifling occasions of dispute occur. Hence
frequent collisions, obstinate, envenomed, and bloody con-
tests. The Nation, prompted by ill-will and resentment,
sometimes impels to war the Government, contrary to the
best calculations of policy. The Government sometimes
Washington's FAREWELL ADDRESS. 3J9
participates in the national propensity, and adopts through
passion what reason would reject ; at other times, it
makes the animosity of the Nation subservient to projects
of hostihty instigated by pride, ambition, and other sinis-
ter and pernicious motives. The peace often, sometimes
perhaps the liberty, of Nations has been the victim.
So, likewise, a passionate attachment of one Nation for
another produces a variety of evils. Sympathy for the
fa^rite Nation, facilitating the illusion of an imaginary
common interest, in cases where no real common inter-
est exists, and infusing into one the enmities of the other,
betrays the former into a participation in the quarrels
and wars of the latter, without adequate inducement or
justification. It leads also, to concessions to the favorite
Nation of privileges denied to others, which is apt doubly
to injure the Nation making the concessions ; by unnec-
essarily parting with what ought to have been retained,
and by exciting jealousy, ill will, and a disposition to re-
taliate, in the parties from whom equal privileges are
withheld ; and it gives to ambitious, corrupted, or deluded
citizens, (who devote themselves to the favorite nation,)
facility to betray or sacrifice the interest of their own
country, without odium, sometimes even with populari-
ty ; gilding with the appearances of a virtuous sense of ob-
ligation, a commendable deference for public opinion, or
a laudable zeal for public good, the base or foohsh com-
pliances of ambition, corruption, or infatuation.
As avenues to foreign influence^ in innumerable ways,
such attachments are particularly alarming, to the truly
enlightened and independent Patriot. How many oppor-
tunities do they afford, to tamper with domestic factions,
to practise the arts of seduction, to mislead pubhc opin-
ion, to influence or awe the Public Councils ! Such an
attachment of a small or weak, towards a great and pow-
erful, nation, dooms the former to be the satellite of the
latter.
Against the insidious wiles of foreign influence, (I
conjure you to believe me, fellow-citizens,) the jealousy
of a free people ought to be constantly awake ; since
history and experience prove, that foreign influence is one
320 APPENDIX.
of the most baneful foes of Republican Government. But
that jealousy, to be useful, must be impartial ; else it be-
comes the instrument of the very influence to be avoided,
instead of a defence against it. Excessive partiality for
one foreign nation, and excessive dislike of another,
cause those whom they actuate to see danger only on one
side, and serve to veil and even second the arts of influ-
ence on the other. Real patriots, who may resist the
intrigues of the favorite, are liable to become suspected
and odious ; while its tools and dupes usurp the applause
and confidence of the people, to surrender their inter-
ests.
The great rule of conduct for us, in regard to foreign
nations, is, in extending our commercial relations, to have
with them as httle political connection as possible. So
far as we have already formed engagements, let them be
fulfilled with perfect good faith. Here let us stop.
Europe has a set of primary interests, which to us have
none, or a very remote relation. Hence she must be
engaged in frequent controversies, the causes of which
are essentially foreign to our concerns. Hence, there-
fore, it must be unwise in us to implicate ourselves, by
artificial ties, in the ordinary vicissitudes of her politics,
or the ordinary combinations and collisions of her friend-
ships or enmities.
Our detached and distant situation invites and enables
us to pursue a different course. If we remain one peo-
ple, under an efficient government, the period is not far
off*, when we may defy material injury from external an-
noyance ; when we may take such an attitude as will
cause the neutrality, we may at any time resolve upo
.to be scrupulously respected ; when belligerent natio.
under the impossibility of making acquisitions upon us,
will not lightly hazard the giving us provocation ; when
we may choose peace or war, as our interest, guided by
justice, shall counsel.
Why forego the advantages of so peculiar a situation ?
Why quit our own, to stand upon foreign ground ? Why,
by interweaving our destiny with that of any part of Eu-
rope, entangle our peace and prosperity in the toils of
Washington's farewell address. 321
European ambition, rivalship, interest, humor, or ca-
price ?
It is our true policy to steer clear of permanent alliances
with any portion of the foreign world ; so far, I mean, as
we are now at liberty to do it ; for let me not be under-
stood as capable of patronising infidelity to existing en-
gagements. I hold the maxim no less applicable to pub-
lic than to private affairs, that honesty is always the best
pohgy. I repeat it, therefore, let those engagements be
observed in their genuine sense. But, in my opinion, it
is unnecessary and would be unwise to extend them.
Taking care always to keep ourselves, by suitable es-
tablishments, on a respectable defensive posture, we may
safely trust to temporary alliances, for extraordinary emer-
gencies.
Harmony, and a liberal intercourse with all nations,
are recommended by policy, humanity, and interest. But
even our commercial policy should hold an equal and im-
partial hand ; neither seeking nor granting exclusive fa-
vors or preferences ; consulting the natural course of
things ; diffusing and diversifying, by gentle means, the
streams of commerce, but forcing nothing ; establishing,
with powers so disposed, in order to give trade a stable
course, to define the rights of our merchants, and to ena-
ble the government to support them, conventional rules
of intercourse, the best that present circumstances and
mutual opinion will permit, but temporary, and liable to
be from time to time abandoned or varied, as experience
and circumstances shall dictate ; constantly keeping in
view, that it is folly in one nation to look for disinterest-
ed favors from another ; that it must pay with a portion
of its independence for whatever it may accept under that
character ; that, by such acceptance, it may place itself
in the condition of having given equivalents for nominal
favors, and yet of being reproached with ingratitude for
not giving more. There can be no greater error than to
expect or calculate upon real favors from nation to na-
tion. It is an illusion, which experience must cure,
which a just pride ought to discard.
In offering to you, my countrymen, these counsels of an
322 APPENDIX.
old and affectionate friend, I dare not hope they will
make the strong and lasting impression I could wish ; that
they will control the usual current of the passions, or pre-
vent our nation from running the course, which has hith-
erto marked the destiny of nations. But, if I may even
flatter myself, that they may be productive of some par-
tial benefit, some occasional good ; that they may now
and then recur to moderate the fury of party spirit, to
warn against the mischiefs of foreign intrigue, to guard
against the impostures of pretended patriotism ; this hope
will be a full recompense for the solicitude for your wel-
fare, by which they have been dictated.
How far, in the discharge of my official duties, I have
been guided by the principles which have been dehnea-
ted, the public records and other evidences of my conduct
must witness to you and to the world. To myself, the
assurance of my own conscience is, that I have at least
beheved myself to be guided by them.
In relation to the still subsisting war in Europe, my
Proclamation of the 22d of April, 1793, is the index to
my Plan. Sanctioned by your approving voice, and by
that of your Representatives in both Houses of Congress,
the spirit of that measure has continually governed me, un-
influenced by any attempts to deter or divert me from it.
After deliberate examination, with the aid of the best
lights I could obtain, I was well satisfied that our country,
under all the circumstances of the case, had a right to take,
and was bound in duty and interest to take, a neutral po-
sition. Having taken it, I determined, as far as should
depend upon me, to maintain it, with moderation, perse-
verance, and firmness.
The considerations, which respect the right to hold
this conduct, it is not necessary on this occasion to detail.
I will only observe, that, according to my understanding
of the matter, that right, so far from being denied by any
of the Belligerent Powers, has been virtually admitted
by all.
The duty of holding a neutral conduct may be inferred,
without any thing more, from the obligation which justice
and humanity impose on every nation, in cases in which
Washington's farewell address. 323
It !s free to act, to maintain inviolate the relations of peace
and amity towards other nations.
The inducements of interest for observing that conduct
will best be referred to your own reflections and experi-
ence. With me, a predominant motive has been to en-
deavor to gain time to our country to setde and mature
Its yet recent institutions, and to progress without inter-
ruption to that degree of strength and consistency, which
IS necessary to give it, humanly speaking, the command
of its own fortunes.
Though, in reviewing the incidents of my admmistra-
tion, I am unconscious of intentional error, I am never-
theless too sensible of my defects, not to think it probable
that I may have committed many errors. Whatever they
may be, I fervently beseech the Almighty to avert or
mitigate the evils to which they may tend. I shall also
carry with me the hope, that my Country will never
cease to view them with indulgence ; and that, after for-
ty-five years of my life dedicated to its service with an
upright zeal, the faults of incompetent abihties will be
consigned to oblivion, as myself must soon be to the man-
sions of rest.
Relying on its kindness in this as in other things, and
actuated by that fervent love towards it, which is so nat-
ural to a man, who views in it the native soil of himself and
his progenitors for several generations ; I anticipate with
pleasing expectation that retreat, in which I promise my-
self to realize, without alloy, the sweet enjoyment of par-
taking, in the midst of my fellow-citizens, the benign
influence of good laws under a free government, the ever
favorite object of my heart, and the happy reward, as I
trust, of our mutual cares, labors, and dangers.
George Washington.
United States, September llth, 1796.
334 APPENDIX.
DEFINITIVE TREATY OF PEACE
BETWEEN THE UNITED STATES OF AMERICA, AND
HIS BRITANNIC MAJESTY.
In thb Name of the Most Holy and Undivided Trinity.
It having pleased the Divine Providence to dispose
the hearts of the most serene and most potent prince,
George the Third, hy the grace of God King of Great
Britain, France, and Ireland, Defender of the Faith, Duke
of Brunswick and Luneburg, Arch Treasurer and Prince
Elector of the holy Roman empire, &c. and of the United
States of America, to forget all past misunderstandings
and differences that have unhappily interrupted the good
correspondence and friendship which they mutually wish
to restore ; and to establish such a beneficial and satis-
factory intercourse between the two countries, upon the
ground of reciprocal advantages and mutual convenience,
as may promote and secure to both perpetual peace and
harmony : And having, for this desirable end, already laid
the foundation of peace and reconciliation, by the Provis-
ional Articles, signed at Paris, on the thirtieth of Novem-
ber, one thousand seven hundred and eighty-two, by the
Commissioners empowered on each part, which articles
were agreed to be inserted in, and to constitute the Trea-
ty of Peace proposed to be concluded between the Crown
of Great Britain and the said United States, but which
Treaty was not to be concluded until terms of peace should
be agreed upon between Great Britain and France, and
his Britannic Majesty should be ready to conclude such
Treaty accordingly ; and the Treaty between Great Brit-
ain and France having since been concluded, his Britan-
nic Majesty and the United States of America, in order to
carry into full effect the Provisional Articles above men-
tioned, according to the tenor thereof, have constituted
and appointed, that is to say : his Britannic Majesty on
his part, David Hartley, esquire, member of the Parlia-
ment of Great Britain ; and the said United States on their
DEFINITIVE TREATY OP PEACE OF 1783. 325
part, John Adams, esquire, late a Commissioner of the
United States of America at the Court of Versailles, late
Delegate in Congress from the State of Massachusetts, and
Chief Justice of the said State, and Minister Plenipoten-
tiary of the said United States to their High Mightinesses
the States General of the United Netherlands ; Benjamin
Franklin, esquire, late Delegate in Congress from the State
of Pennsylvania, President of the Convention of the said
State, and Minister Plenipotentiary from the United States
of America at the Court of Versailles ; John Jay, esquire,
late President of Congress, and Chief Justice of the State
of New York, and Minister Plenipotentiary from the said
United States at the Court of Madrid, to he the Plenipo-
tentiaries for the concluding and signing the present de-
finitive Treaty ; who, after having reciprocally communi-
cated their respective full powers, have agreed upon and
confirmed the following articles :
Art. 1. His Britannic Majesty acknowledges the said
United States, namely. New Hampshire, Massachusetts
Bay, Rhode Island and Providence Plantations, Connec-
ticut, New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and
Georgia, to be free, sovereign, and independent States ;
that he treats with them as such ; and for himself, his
heirs and successors, relinquishes all claims to the gov-
ernment, propriety, and territorial rights of the same, and
every part thereof.
Art. 2. And that all disputes which might arise in
future, on the subjectof the boundaries of the said. United
States may be prevented, it is hereby agreed and de-
clared, that the following are and shall be their bounda-
ries, namely, from the northwest angle of Nova Scotia,
namely, that angle which is formed by a line drawn due
north from the source of St. Croix river to the Highlands ;
along the said Highlands which divide those rivers that
empty themselves into the river St. Lawrence from those
which fall into the Atlantic ocean, to the northwestern-
most head of Connecticut river, thence down along
the middle of that river, to the forty- fifth degree of north
latitude ; from thence, by a line due west on said lati-
28 XIII.
326 APPENDIX.
tude, until it strikes the river Iroquois or Cataraquy ;
thence along the middle of said river into lake Ontario,
through the middle of said lake until it strikes the com-
munication by water between that lake and lake Erie ;
thence along the middle of said communication into lake
Erie, through the middle of said lake until it arrives at
the water communication between that lake and lake Hu-
ron ; thence along the middle of said water communica-
tion into the lake Huron ; thence through the middle of
said lake to the water communication between that lake
and lake Superior ; thence through lake Superior north-
ward of the isles Royal and Philipeaux, to the Long
Lake ; thence through the middle of the said Long Lake,
and the water communication between it and the lake of
the Woods, to the said lake of the Woods ; thence
through the said lake to the most northwestern point
thereof, and from thence on a due west course to the riv-
er Mississippi ; thence by a line to be drawn along the
middle of the said river Mississippi until it shall intersect
the northernmost part of the thirty-first degree of north
latitude. South, by a line to be drawn due east from the
determination of the line last mentioned, in the latitude
of thirty-one degrees north of the equator, to the middle
of the river Appalachicola or Catahouche ; thence along
the middle thereof to its junction with the Flint river ;
thence straight to the head of St. Mary's river ; and
thence down along the middle of St. Mary's river to the
Atlantic ocean. East, by a line to be drawn along the
middle of the river St. Croix, from its mouth, in the Bay
of Fundy, to its source, and from its source, directly
north, to the aforesaid Highlands, which divide the rivers
that fall into the Atlantic ocean from those which fall into
the river St. Lawrence : comprehending all islands with-
in twenty leagues of any part of the shores of the United
States, and lying between lines to be drawn due east
from the points where the aforesaid boundaries between
Nova Scotia on the one part, and East Florida on the
other, shall respectively touch the bay of Fundy, and the
Atlantic ocean ; excepting such islands as now are, or
heretofore have been, within the limits of the said Prov-
ince of Nova Scotia.
DEFINITIVE TREATY OF PEACE OF 1783. 327
Art. 3. It is agreed that the people of the United
States shall continue to enjoy unmolested the right to take
fish of every kind on the Grand Bank, and on all the other
banks of Newfoundland ; also, in the Gulf of St. Law-
rence, and at all other places in the sea, where the in-
habitants of both countries used at any time heretofore to
fish ; and also, that the inhabitants of the United States
shall have hberty to take fish of every kind on such part
of the coast of Newfoundland as British fishermen shall
use ; (but not to dry or cure the same on that island ;)
and also on the coasts, bays, and creeks, of all other of
his Britannic Majesty's dominions in America ; and that
the American fishermen shall have liberty to dry and cure
fish in any of the unsetded bays, harbors, and creeks of
Nova Scotia, Magdalen Islands, and 'Labrador, so long
as the same shall remain unsettled ; but so soon as the
same or either of them shall be settled, it shall not be law-
ful for the said fishermen to dry or cure fish at such set-
tlement, without a previous agreement for that purpose
with the inhabitants, proprietors, or possessors of the
ground.
Art. 4. It is agreed that creditors on either side shall
meet with no lawful impediment to the recovery of the
full value in sterling money, of all bona fide debts hereto-
fore contracted.
Art. 5. It is agreed that the Congress shall earnest-
ly recommend it to the Legislatures of the respective
States, to provide for the restitution of all estates, rights,
and properties, which have been confiscated, belonging
to real British subjects, and also of the estates, rights,
and properties of persons resident in districts in the pos-
session of his Majesty's arms, and who have not borne
arms against the said United States. And that persons
of any other description shall have free liberty to go to any
part or parts of any of the thirteen United States, and
therein to remain twelve months, unmolested in their en-
deavors to obtain the restitution of such of their estates,
rights, and properties, as may have been confiscated ;
and that Congress shall also earnestly recommend to the
several States, a reconsideration and revision of all acts
328 APPENDIX.
or laws regarding the premises, so as render the said laws
or acts perfectly consistent, not only with justice and
equity, but with that spirit of conciliation, which, on the
return of the blessings of peace, should universally pre-
vail. And that Congress shall also earnestly recommend
to the several States, that the estates, rights, and properties
of such last-mentioned persons, shall be restored to them,
they refunding to any persons who may be now in pos-
session, the bona fide price (where any has been given)
which such persons may have paid on purchasing any of
the said lands, rights, or properties, since the confisca-
tion. And it is agreed, that all persons who have any
interest in confiscated lands, either by debts, marriage
settlements, or otherwise, shall meet with no lawful im-
pediment in the prosecution of their just rights.
Art. 6. That there shall be no future confiscations
made, nor any prosecutions commenced against any per-
son or persons for, or by reason of, the part which he or
they may have taken in the present war ; and that no
person shall, on that account, suffer any future loss or
damage, either in his person, liberty, or property ; and
that those who may be in confinement on such charges,
at the time of the ratification of the Treaty in America,
shall be immediately set at liberty, and the prosecutions
so commenced be discontinued.
Art. 7. There shall be a firm and perpetual peace
between his Britannic Majesty and the said States, and
between the subjects of the one and the citizens of the
other, wherefore all hostilities, both by sea and land, shall
from henceforth cease : all prisoners on both sides shall
be set at liberty ; and his Britannic Majesty shall, with all
convenient speed, and without causing any destruction,
or carrying away any negroes or other property of the
American inhabitants, withdraw all his armies, garrisons,
and fleets, from the said United States, and from every
post, place, and harbor within the same ; leaving in all
fortifications the American artillery that may be therein ;
and shall also order and cause all archives, records, deeds,
and papers, belonging to any of the said States, or their
citizens, which, in the course of the war, may have fel
AN ORDINANCE. 329
len into the hands of his officers, to be forthwith restored
and delivered to the proper States and persons to whom
they belong.
Art. 8. The navigation of the river Mississippi, from
its source to the ocean, shall for ever remain free and
open to the subjects of Great Britain, and the citizens of
the United States.
Art. 9. In case it should so happen that any place or
territory belonging to Great Britain or to the United
States, should have been conquered by the arms of either
from the other, before the arrival of the said Provisional
Articles in America, it is agreed, that the same shall be
restored without difficulty, and without requiring any com-
pensation.
Art. 10. The solemn ratifications of the present Trea-
ty, expedited in good and due form, shall be exchanged
between the contracting parties, in the space of six
months, or sooner if possible, to be computed from the
4ay of the signature of the present Treaty. In witness
tvhereof, we, the undersigned, their Ministers Plenipoten-
tiary, have, in their name and in virtue of our fullpowers,
signed with our hands the present definitive Treaty, and
caused the seals of our arms to be affixed thereto. Done
at Paris, this third day of September, in the year of our
Lord one thousand seven hundred and eighty-three.
[L. s.] D. HARTLEY,
[L. s.] JOHN ADAMS,
[L. s.] B. FRANKLIN,
[L. s.] JOHN JAY.
AN ORDINANCE
FOR THE GOVERNMENT OF THE TERRITORY OF THE
UNITED STATES NORTHWEST OF THE RIVER OHIO.
Be it ordained by the United States in Congress as-
sembled. That the said Territory, for the purposes of
temporary government, be one District ; subject, howev-
28*
330 APPENDIX.
er, to be divided into two Districts, as future circumstan-
ces may, in the opinion of Congress, make it expedient.
Be it ordained by the authority aforesaid. That the
estates both of resident and non-resident proprietors in
the said Territory, dying intestate, shall descend to, and
be distributed among their children, and the descendants
of a deceased child, in equal parts ; the descendants of a
deceased child or grandchild to take the share of their
deceased parent in equal parts among them : and where
there shall be no children or descendants, then in equal
parts to the next of kin, in equal degree ; and among col-
laterals, the children of a deceased brother or sister of
the intestate shall have, in equal parts among them, their
deceased parents' share ; and there shall, in no case, be
a distinction between kindred of the whole and half
blood ; saving in all cases to the widow of the intestate,
her third part of the real estate for life, and one third
part of the personal estate ; and this law relative to de-
scents and dower, shall remain in full force, until altered
by the Legislature of the District. And until the Govern-
or and Judges shall adopt laws as herein after mentioned,
estates in the said Territory may be devised or bequeath-
ed by wills in writing, signed and sealed by him or her,
in whom the estate may be, (being of full age,) and at-
tested by three witnesses ; and real estates may be con-
veyed by lease and release, or bargain and sale, signed,
sealed, and delivered, by the person, being of full age,
in whom the estate may be, and attested by two witnes-
ses, provided such wills be duly proved, and such con-
veyances be acknowledged, or the execution thereof duly
proved, and be recorded within one year after proper
magistrates, courts, and registers, shall be appointed for
that purpose ; and personal property may be transferred
by delivery ; saving, however, to the French and Cana-
dian inhabitants, and other settlers of the Kaskaskies,
Saint Vincents, and the neighboring villages, who have
heretofore professed themselves citizens of Virginia, their
laws and customs now in force among them, relative to
the descent and conveyance of property.
Be it ordained by the authority aforesaid, That there
AN ORDINANCE. 331
shall be appointed, from time to time, by Congress, a
Governor, whose commission shall continue in force for
the term of three years, unless sooner revoked by Con-
gress : he shall reside in the District, and have a freehold
estate therein, in one thousand acres of land, while in the
exercise of his office. .
There shall be appointed, from time to time, by Con-
gress, a Secretary, whose commission shall continue in
force for four years, unless sooner revoked ; he shall re-
side in the District, and have a freehold estate therein, in
five hundred acres of land, while in the exercise of his
office ; it shall be his duty to keep and preserve the acts
and laws passed by the Legislature, and the public rec-
ords of the District, and the proceedings of the Governor
in his executive department ; and transmit authentic cop-
ies of such acts and proceedings, every six months, to
the Secretary of Congress : There shall also be appoint-
ed a court, to consist of three Judges, any two of whom
to form a court, who shall have a common law jurisdic-
tion, and reside in the District, and have each therein a
freehold estate, in five hundred acres of land, while in the
exercise of their offices ; and their commissions shall
continue in force during good behavior.
The Governor and Judges, or a majority of them, shall
adopt and pubhsh in the District, such laws of the origin-
al States, criminal and civil, as may be necessary, and
best suited to the circumstances of the District, and re-
port them to Congress, from time to time ; which laws
shall be in force in the District until the organization of
the General Assembly therein, unless disapproved of by
Congress ; but afterwards the Legislature shall have au-
thority to alter them as they shall think fit.
The Governor for the time being, shall be command-
er-in-chief of the militia, appoint and commission all
officers in the same, below the rank of general officers ;
all general officers shall be appointed and commissioned
by Congress.
Previous to the organization of the General Assembly,
the Governor shall appoint such magistrates and other
civil officers, in each county or township, as he shall find
332 APPENDIX.
necessary for the preservation of the peace and good or-
der in the same. After the General Assembly shall be
organized, the powers and duties of magistrates and other
civil officers shall be regulated and defined by the said
assembly ; but all magistrates and other civil officers,
not herein otherwise directed, sh^ll, during the continu-
ance of this temporary government, be appointed by the
Governor.
For the prevention of crimes and injuries, the laws to
be adopted or made shall have force in all parts of the
District, and for the execution of process, criminal and
civil, the Governor shall make proper divisions thereof;
and he shall proceed from time to time, as circumstances
may require, to lay out the parts of the District in which
the Indian titles shall have been extinguished, into coun-
ties and townships, subject, however, to such alterations
as may thereafter be made by the Legislature.
So soon as there shall be five thousand free male in-
habitants, of full age, in the District, upon giving proof
thereof to the Governor, they shall receive authority, with
time and place, to elect Representatives from their coun-
ties or townships, to represent them in the General Assem-
bly ; provided that, for every five hundred free male in-
habitants, there shall be one Representative, and so on,
progressively, with the number of free male inhabitants,
shall the right of representation increase, until the number
of Representatives shall amount to twenty-five ; after which
the number and proportion of Representatives shall be reg-
ulated by the Legislature ; provided, that no person be
eligible or quahfied to act as a Representative, unless he
shall have been a citizen of one of the United States
three years, and be a resident in the District, or unless
he shall have resided in the District three years ; and in
either case, shall likewise hold in his own right, in fee
simple, two hundred acres of land within the same ; pro-
vided also, that a freehold in fifty acres of land in the
District, having been a citizen of one of the States, and
being resident in the District, or the like freehold and two
years residence in the District, shall be necessary to qual-
ify a man as an elector of a Representative.
AN ORDINANCE. 333^
The Representatives, thus elected, shall serve for the
term of two years ; and in case of the death of a Repre-
tative, or removal from office, the Governor shall issue a
writ to the county or township, for which he was a mem-
ber, to elect another in his stead, to serve for the residue
of the term.
The General Assembly, or Legislature, shall consist of
the Governor, Legislative Council, and a House of Repre-
sentatives. The Legislative Council shall consist of five
members, to continue in office five years, unless sooner
removed by Congress ; any three of whom to be a quo-
rum : and the members of the Council shall be nomi-
nated and appointed in the following manner, to wit :
As soon as Representatives shall be elected, the Gover-
nor shall appoint a tim^ and place for them to meet to-
gether, and when met, they shall nominate ten persons,
residents in the District, and each possessed of a freehold
in five hundred acres of land, and return their names to
Congress ; five of whom Congress shall appoint and com-
mission to serve as aforesaid : and whenever a vacancy
shall happen in the Council, by death or removal from
office, the House of Representatives shall nominate two
persons, qualified as aforesaid, for each vacancy, and
• return their names to Congress ; one of whom Congress
shall appoint and commission for the residue of the term :
And every five years, four months at least before the ex-
piration of the time of service of the members of Council,
the said House shall nominate ten persons, qualified as
aforesaid, and return their names to Congress ; five of
whom Congress shall appoint and commission to serve as
members of the Council five years, unless sooner removed.
And the Governor, Legislative Council, and House of
Representatives, shall have authority to make laws, in all
cases, for the good government of the District, not repug-
nant to the principles and articles in this Ordinance estab-
lished and declared. And all bills, having passed by a ma-
jority in the House, and by a majority in the Council, shall
be referred to the Governor for his assent ; but no bill
or legislative act whatever, shall be of any force without
his assent. The Governor shall have power to convene,
334 APPENDIX.
prorogue, and dissolve, the General Assembly, when in
his opinion it shall be expedient.
The Governor, Judges, Legislative Council, Secreta-
ry, and such other officers as Congress shall appoint in the
District, shall take an oath or affirmation of fidelity, and
of office ; the Governor before the President of Congress,
and all other officers before the Governor. As soon as a
Legislature shall be formed in the District, the Council and
House assembled, in one room, shall have authority, by
joint ballot, to elect a Delegate to Congress, who shall
have a seat in Congress, with a right of debating, but not
of voting during this temporary government.
And for extending the fundamental principles of civil
and rehgious liberty, which form the basis whereon these
republics, their laws, and constitutions, are erected ; to
fix and establish those principles as the basis of all laws,
constitutions, and governments, which forever hereafter
shall be formed in the said Territory ; to provide, also, for
the establishment of States, and permanent government
therein, and for their admission to a share in the Federal
councils on an equal footing with the original States, at as
early periods as may be consistent with the general inter-
est :
It is hereby ordained and declared, by the authority
aforesaid, That the following Articles shall be considered
as articles of compact, between the original States and
the People and States in the said Territory, and forever
remain unalterable, unless by common consent, to wit :
Art. 1. No person, demeaning himself in a peaceable
and orderly manner, shall ever be molested on account
of his mode of worship or religious sentiments, in the
said Territory.
Art. 2. The inhabitants of the said Territory shall al-
ways be entitled to the benefits of the writ of habeas
corpus, and of the trial by jury ; of a proportionate rep-
resentation of the people in the Legislature, and of judi-
cial proceedings according to the course of the common
law. All persons shall be bailable, unless for capital of-
fences, where the proof shall be evident, or the presump-
tion great. All fines shall be moderate ; and no cruel
AN ORDINANCE. 335
or unusual punishment shall be inflicted. No man shall
be deprived of his liberty or property, but by the judge-
ment of his peers, or the law of the land, and should the
pubhc exigencies make it necessary, for the common
preservation, to take any person's property, or to demand
his particular services, full compensation shall be made
for the same. And, in the just preservation of rights and
property, it is understood and declared, that no law ought
ever to be made, or have force in the said Territory,
that shall, in any manner whatever, interfere with, or af-
fect, private contracts or engagements, bona fide, and
without fraud, previously formed.
Art. 3. Religion, morality, and knowledge, being
necessary to good government and the happiness of man-
kind, schools and the means of education shall forever
be encouraged. The utmost good faith shall always be
observed towards the Indians ; their lands and property
shall never be taken from them without their consent ;
and in their property, rights, and liberty, they never shall
be invaded or disturbed, unless in just and lawful wars
authorized by Congress ; but laws founded in justice and
humanity shall, from time to time, be made, for preven-
ting wrongs being done to them, and for preserving peace
and friendship with them.
Art. 4. The said Territory, and the States which may
be formed therein, shall forever remain a part of this
Confederacy of the United States of America, subject to
the articles of Confederation, and to such alterations
therein as shall be constitutionally made ; and to all the
acts and ordinances of the United States in Congress as-
sembled, conformable thereto. The inhabitants and set-
tlers in the said Territory shall be subject to pay a part
of the Federal debts, contracted or to be contracted, and
a proportional part of the expenses of government, to be
apportioned on them by Congress, according to the same
common rule and measure by which apportionments
thereof shall be made on the other States ; and the taxes
for paying their proportion, shall be laid and levied by
the authority and direction of the Legislatures of the Dis-
trict or Districts, or new States, as in the original States,
336 APPENDIX.
within the time agreed upon by the United States in Con-
gress assembled. The Legislatures of those Districts,
or new States, shall never interfere with the primary dis-
posal of the soil by the United States in Congress assem-
bled, nor with any regulations Congress may find neces-
sary, for securing the title in such soil, to the bona fide pur-
chasers. No tax shall be imposed on lands the property
of the United States ; and in no case shall non-resident
proprietors be taxed higher than residents. The navi-
gable waters leading into the Mississippi and St. Law-
rence, and the carrying places between the same, shall
be common highways, and forever free, as well to the
inhabitants of the said Territory, as to the citizens of the
United States, and those of any other States that maybe
admitted into the Confederacy, without any tax, impost,
or duty therefor.
Art. 5. There shall be formed in the said Territory,
not less than three, nor more than five States ; and the
boundaries of the States, as soon as Virginia shall alter
her act of cession, and consent to the same, shall become
fixed and established as follows, to wit : the western
State in the said Territory, shall be bounded by the Mis-
sissippi, the Ohio, and Wabash rivers ; a direct line
drawn from the Wabash and Post Vincents, due north,
to the Territorial line between the United States and Can-
ada ; and by the said Territorial line to the lake of the
Woods and Mississippi. The middle States shall be
bounded by the said direct line, the Wabash, from Post
Vincents to the Ohio, by the Ohio, by a direct line drawn
due north from the mouth of the Great Miami to the said
Territorial line, and by the said Territorial line. The
eastern State shall be bounded by the last mentioned direct
line, the Ohio, Pennsylvania, and the said Territorial line:
provided however, and it is further understood and declar-
ed, that the boundaries of these three States shall be sub-
ject so far to be altered, that, if Congress shall hereafter
find it expedient, they shall have authority to form one or
two States in that part of the said Territory which lies north
of an east and west line drawn through the southerly bend
or extreme of lake Michigan. And whenever any of the
AN ORDINANCE. 337
said States shall have sixty thousand free inhabitants there-
in, such State shall be admitted, by its delegates, into the
Congress of the United States, on an equal footing with the
original States, in all respects whatever ; and shall be at
liberty to form a permanent Constitution and State gov-
ernment ; provided the Constitution and government, so
to be formed, shall be republican, and in conformity to
the principles contained in these Articles ; and, so far as
it can be consistent with the general interest of the Con-
federacy, such admission shall be allowed at an earlier
period, and when there may be a less number of free in-
habitants in the State than sixty thousand.
Art. 6. There shall be neither slavery nor involun-
tary servitude in the said Territory, otherwise than in the
punishment of crimes, whereof the party shall have been
duly convicted : provided always, that any person escap-
ing into the same, from whom labor or service is lawfully
claimed in any one of the original States, such fugitive
may be lawfully reclaimed, and conveyed to the person
claiming his or her labor or service as aforesaid.
Be it ordained by the authority aforesaid, That the
resolutions of the 23d of April, 1784, relative to the
subject of this Ordinance, be, and the same are hereby
repealed and declared null and void. Done, &c.
29. XIII.
A GLOSSARY
OP THE LEGAL AND OTHER NOT-EASILY-UNDERSTOOD WORDS
AND PHRASES.
A fortiori, literally, for the stronger ground, or reason.
Allegiance, the tie, or duty, which binds the subject or citizen of a
State to aid and assist the State, or Sovereignty, in return for the
protection afforded by the latter. It imports, therefore, the obliga-
tion of a subject, or citizen, to be faithful to the State.
Ambassador, a public minister, of the highest grade, sent abroad by a
sovereign state, or prince, to transact public business with a foreign
government, in behalf of his own. There are three grades of foreign
ministers. (1.) Ambassadors, who have the highest rank and privi-
leges, and who represent, personally, their sovereign. (2.) Ministers
Plenipotentiary , who have full powers to act for their sovereign or
country. (3.) Ministers Resident, who generally possess, or may
possess, the same powers, but hold a subordinate rank to Ministers
Plenipotentiary. The explanation of the peculiar rights and duties
of each class belongs, properly, to a treatise on the law of nations.
Arrest, the seizure and detention of the person of a party, by a public
officer, under a writ or process from some court or magistrate.
Thus, when a sheriff takes a man in custody, under a writ, we say,
the sheriff arrests him, or he is under arrest.
Arrest of judgement, an order of a court, directing that no judgement
be rendered in a case, from an error of law in the proceedings.
Articles of Confederation, the form of a general government, adopted
by the States, during the Revolution, for their union. It was framed
by the Continental Congress, in 1778 ; and was finally adopted, by
all the States, in 1781, and remained in force until the present Con-
stitution of the United States was adopted, in 1788. The articles
will be found, at large, in the Appendix to this Volume, pp. 279 —
289.
Autre Droit, in the right of another, and not in one's own personal
right. Thus, an administrator or executor, who collects a debt due
to the estate of the deceased party, receives it not on his personal
account, but in the right, or as representative, of another.
Bail, a person, who becomes surety for another's appearance in a
court of justice, to answer to some civil suit, or criminal accusa-
tion ; and usually, also, that he shall abide the judgement of the
court thereon.
Bailable, literally, where bail may be taken. Thus, a suit or crimi-
nal accusation is said to be bailable, where the party is entitled, after
arrest, to be discharged on giving bail.
340 GLOSSARY.
Bill. This word has various senses, according to the things, to which
it is applied. It may be generally defined, to be a formal, written
Instrument. When we speak of a Bill before a Legislature, we mean,
a written Instrument, containing a proposed Law, drawn up in the
proper form. When the Bill is said to be passed by the Legislature,
we mean, that it has received the final assent of the Legislature.
When the Bill is passed, and is approved by the Executive, or oth-
wise becomes a Law, we call it an Act, or Statute.
Bill of Credit, a written Instrument, which contains a promise or
agreement of the State to pay or allow a certain sum of money to
the bearer or holder thereof. It is issued on the credit of the State,
and is designed to circulate as currency.
Bill of Rights, a written Instrument, containing a public declaration
of certain general rights of the people, which are held fundamental
to their security and protection.
Bills for raising Revenue. These are written Instruments, contain-
ing laws proposed to be passed by the Legislature, to create a reve-
nue, or income, to the Government ; such as a Bill to lay and collect
a tax, or duty, on houses, or lands, or goods.
Bona fide, a phrase borrowed from the Latin language, and literally
meaning, " in good faitH." We commonly apply it to a person, who
acts honestly and conscientiously in doing any thing, without sus-
pecting or knowing it to be wrong.
Bottomry Bond, literally, a Bond given by a master or owner of a
ship, or other vessel, pledging the bottom of the vessel, that is, the
vessel itself, for the repayment of money borrowed upon the credit
of the vessel, and payable upon the contingency, that the vessel per-
forms the voyage specified in the bond.
Cabinet, an abbreviated expression for Cabinet Council, meaning the
Ministers of the State, or Heads of the Departments of the Govern-
ment, who are convened by the Executive Magistrate, to assist and
advise him in the Government. Thus, in the United States, we
say, the Heads of the Departments of State, of War, of the Treas-
ury, of the Navy, of the Post Office, and of the Law, (the Attorney
General,) constitute the Cabinet, that is, they are the private confi-
dential advisers and council of the President.
Cessio Bonorum, literally, a Cession or Transfer of the Goods or Prop-
erty of a party. It is a phrase derived from the Roman or civil
law, and means, that a debtor has made a cession, or assignment, of
his property, for the benefit of his creditors.
Charter. In a general sense, this word means any written Instrument
conferring rights or creating obligations, from the Latin word charta,
paper or parchment, on which something is written. But, in legal lan-
guage, a Charter usually means a written Instrument, or grant, under
the public seal of the Government, conferring certain rights, privi-
leges, and authorities, of a public nature, upon certain citizens or
subjects. Such were the original Charters of Government, granted
by the Crown to the American Colonies.
Commission, a written Document, signed by the Executive, or other
proper officer of the Government, conferring an authority, or appoint-
ment to office, on some person. Commissions to public officers,
GLOSSARY. 341
appointed by the President of the United States, are signed by the
President, and have the great seal of the United States annexed
, thereto. To commission, is to give or grant such commission to the
proper party.
Confederation, Articles of, see Articles of Confederation.
Consul, a commercial Agent of the Government, appointed and resi-
dent in a foreign country, to attend to the commercial rights and
privileges of his own country, and its citizens, in such foreign
country.
Continental Congress, the general appellation of the general Congress
or Legislature, in which all the States of the Union were represent-
ed, by their Delegates, during the American Revolution. It was
called ' Continental,' as being for the whole of the Continent of
America, embraced within the limits of the United States, in contra-
distinction to a Provincial Congress, which was the Legislative Body
of a single State, Colony, or Province, of the Union.
Conveyance, a transfer, in writing, by one person to another, of his
right and title to land or other property. It is usually by an Instru-
ment under the seal of the person making the transfer.
Copyright, the right of an Author to the exclusive publication and sale
of his works, for the period, which is prescribed by law for its con-
tinuance, upon his complying with the requisites of law, in order to
secure the same.
Crown. This word is used as equivalent to King, Sovereign, or reign-
ing Monarch. Thus, we say, indifferently, such a grant was made
by, or such a power exists in, the Crown, the King, or the Sov-
ereign.
Declaration of Independence, the Act by which the United States
severed their connexion with the British Crown. It may be found,
at length, in the Appendix to this Volume, pp. 275 — 279.
Declaration of Rights, of the Continental Congress, a declaration,
published October 14, 1774, and which may be found, at length, in
the Appendix to this Volume, pp. 271 — 274.
Defendant, the person against whom any suit is brought ; but, in a
more limited sense, it means the person, against whom any suit is
brought, who appears in court to defend, or contest, the suit.
Duty on Tonnage, a tax laid on ships and vessels, in proportion to
their tonnage ; as, for example, a tax of six cents a ton on the ton-
nage of every American ship, or a tax of fifty cents a ton on that of
every foreign ship, arriving in the ports of the United States.
Embargo, a restraint, or detainment, of ships and vessels, from sailing
out of port, imposed by the authority of the Government. It is usu-
ally imposed for temporary purposes, in contemplation of war, or on
account of some immediate and impending public danger.
Equity. This word is commonly used as equivalent to natural jus-
tice, in contradistinction to strict Law. In the Law, it is used, to
express the jurisdiction, which belongs to Courts of Equity, to enforce
rights and remedy wrongs, in favor of parties ; which rights and
wrongs Courts of common Law have no authority to enforce or re
Estate, the right and interest, which a man has in property. Real
29*
342 GLOSSARY.
Estate is the right and interest, which a man has in land, or other
things of a kindred and permanent nature ; such, tor example, as an
interest in a mill, in a waterfall, or in a private way. Personal
Estate is the right or interest, which a man has in goods, merchan-
dises, and other movable property, or debts and credits.
Estoppel is, in Law, the stopping, or precluding, or preventing, a man
from setting up any fact, or previous act, to contradict or invalidate,
what he has since done or admitted. Thus, if a man makes a con-
veyance, by deed, of land, stating therein that he has a good title
thereto, he shall be estopped to deny that he had any title.
Excise. This word ordinarily means a tax, or duty, laid upon some
commodity or thing used, or manufactured, or sold, in a country.
Thus, a tax laid upon all coaches used, or upon all spirits manufac-
tured, or upon all goods sold at auction, in a country, is called an
excise. It is commonly used in contradistinction to " imposts," the
latter word being applied to taxes levied on goods upon their im-
portation from a foreign country, whei-eas excises are taxes on things
already in the country, or to be sold or manufactured there, and are
therefore commonly called *' internal taxes."
Ex post fact.o, literally, after the act is done. The phrase is usually
applied to laws passed to punish an act as a crime, when it was not
so at the time, when the act was done. Hence such laws are called
Ex post facto laws.
Felony. This word was originally applied to crimes, which the com-
mon law punished by a forfeiture of the lands and goods of the of-
fender, it being supposed to be derived from the feudal law, in which
"/ee" signified the fief, feud, or estate of the tenant, and *' lo7if"
which signified price or value. It is now commonly applied to de-
signate such crimes as are punished capitally, that is, by death.
Franchise, a right or privilege, granted by the King or Government
to one or more persons, which does not belong to subjects or citi-
zens generally ; and which cannot properly be exercised by them,
without such grant. Thus, to be and act as a corporation, is a fran-
chise.
General Issue, a law phrase, signifying a general denial, by the De-
fendant in a suit, of all the charges made by the Plaintiff, in his
written statements, or allegations, (commonly called a declaration,)
against the Defendant, for which the suit is brought. Thus, if an
action is brought by A against B, for an assault and battery of A,
and B pleads, that he is not guilty, this is called the general issue ;
that is, the Defendant denies the whole matter charged against him.
The Reply of the Plaintiff, putting the matter of fact on trial, by the
Jury, is called joining the issue. So, where a party, charged with
a crime, pleads not guilty, that is the general issue.
Grantee, the person to whom a grant is made. The person, who
makes the grant, is called the Grantor.
Habeas Corpus, literally. Have you the Body. The phrase designates
the most emphatic words of a writ, issued by a Judge or Court,
commanding a person, who has another in custody, or in imprison-
ment, to have his body (Habeas Corpus) before the Judge or Court,
at a partvpular time and place, and to state the cause of his imprison-
GLOSSARY. 343
ment. The person, whether a sherifl', gaoler, or other person, is
bound to produce the body of the prisoner at the time and place ap-
pointed ; and, if the prisoner is illegally or improperly in custody,
the Judge or Court will discharge him. Hence it is deemed the
great security of the personal liberty of the citizen against oppression
and illegal confinement.
Impeachment, in a juridical sense, is a written, formal accusation of a
person, as being guilty of some public offence or misdemeanor.
When the charges against him are specially described and set forth
in writing, they are called Articles of Impeachment. When, for
example, the House of Representatives of the United States prefers
or offers to the Senate written charges, against any public officer, as
being guilty of high crimes and niisdemeanors, on which it requires
him to be put upon trial, it is called an Impeachment.
fii Capite, literally, in chief, or of the head. Tenants in capite, are
those tenants of land, who hold them directly, or immediately, from
and under the King, by his gift or grant, in contradistinction to per-
sons who hold by the grant of, or under, other persons.
Indictment is a formal written accusation, by a Grand Jury, charging
a person to be guilty of a particular crime or misdemeanor, which is
particularly described and set forth in the indictment.
Infamous crime. This phrase means, in common language, a crime,
which is attended with infamy. In Law, it is usually applied to such
gross, or atrocious crimes, as involve deep moral turpitude and dis-
grace.
.Injunction, the name of a writ or process, which enjoins or commands
a man to do or not to do a particular act or thing ; and is a common
process issued by Courts of Equity, in proper cases. An injunction
of a judgement is an order to the party, who has obtained a judge-
ment in a suit, not to enforce that judgement by an execution, or
otherwise.
Imolvencxjy an inability of a debtor to pay all his debts. Insolvent
laws are such as are made for the relief of debtors unable to pay all
their debts.
Ipso facto, literally, by this very act. It means, that a certain result
immediately follows from that act. Thus, we say, if a man conveys
his estate to another, he ceases, ipso facto, (by this very act,) to be
the owner thereof.
Jure Belli, literally, by the law or right of war.
Jurisprudence is, properly speaking, the Science of the Law, in which
sense, it includes all the principles and doctrines of the Law. The
word is sometimes used in a more limited sense, and means only the
expositions and interpretations of the Law, by Judicial Tribunals.
Jury, a body composed of twelve men, selected to try questions of
fact in civil and criminal suits, and who are under oath or solemn
affirmation, to decide the facts truly and faithfully, according to the
evidence laid before them. The points, which they are to try, are
generally founded upon the written allegations of the parties, (called
the pleadings,) and the points, on which the parties require their de-
cision, are called the issues, and the decisions on those points made
by the jury, after hearing the case, are called then- verdict, or find-
344 GLOSSARY.
ing of the truth of the facts. The jury for the trial of causes is some-
times called the petit, (or small,) or traverse jury, (that is, a jury to
try questions of fact, which are traversed or denied between the
parties. )
Jury, Grand, a body composed of not less than twelve, nor more tnan
twenty-three men, who, under oath, hear the proof of any particular
crime, or offence, with which any person is charged, and if they
believe him guilty on the evidence, they present an indictment against
him.
Laiv, Civil. The phrase, " civil law," sometimes means the law,
which respects the private rights and property of persons, in contradis-
tinction to criminal law, which respects public offences. Sometimes,
it means the Roman Law, which is commonly called the civil law.
Sometimes, civil law is used in contradistinction to military law, the
latter being applicable only to persons in the military or naval service.
Law, Common. The phrase, "common law," is used, in England,
to express all the doctrines and principles of Law, which are recog-
nised and enforced in its jurisprudence, and are not founded upon
any positive existing act or statute of Parliament. It consists of all
the general customs and usages, which regulate the rights of proper-
ty, and all those general principles of justice and interpretation,
which are acted upon in Courts of Justice, and all those remedies,
which are applied for the redress of wrongs, which cannot be traced
up to any positive act or statute. The phrase, " common law,"
is sometimes used to distinguish the English law from the Roman,
which is commonly called the " civil law ;" and sometimes merely
to express, that it is the law applicable, in common to the whole
kingdom. The common Law of each of the American States is
that portion of the English common Law, which has been adopted by
the particular State, in connexion with its own peculiar and settled
usages and customs, and which is not prescribed by any act or statute
of the State Legislature.
Law, Constitutional. Constitutional Law is that branch of the Law,
which relates to the exposition and interpretation of the Constitution
of the State or Nation,
Law, Merchant. That branch of the Laws Of a State or Nation, which
treats of rights, duties, contracts, &c., respecting trade, and com-
merce, and navigation, and shipping, and sales, and insurance, and
bills of exchange, and promissory notes, &c. &c.
Law, Municipal. Municipal Law means the law of a particular com-
munity, State, or Nation, in contradistinction to the law of foreign
communities. States, or Nations.
Law. of JVations. The Law of Nations is properly that, which regu-
lates the rights and duties of Nations, in respect to each other, and
the respective subjects and citizens thereof. That branch, which
respects the rights and intercourse of the Nations, in their sovereign
capacities, is often called public international law ; that, which re-
spects the private rights and intercourse of the respective subjects and
citizens thereof, is called private international law.
Laws, Insolvent. Laws made respecting debtors, who are unable to
pay their debts, and distributing their property among their creditors.
GLOSSARY. 345
LawSi Inspection. Inspection laws are such laws as are made by a
particular State, to ascertain and fix the quality, character, and rela-
tive value, of its own products or manufactures. In order to ascer-
tain these facts, the products or manufactures are examined, or in-
spected, by skilful persons, who are often called inspectors ; as, for
example, inspectors of provisions, inspectors of flour, inspectors of
ashes, &c.
Letters of Marque and Reprisal. These are letters under seal, or
commissions, granted by a government to one or more of its citizens,
to make seizure or reprisal of the property of an enemy, or of per-
sons, who belong to another government, which government has re-
fused to do justice to the citizens of the country granting the letters
of marque and reprisal.
Magna Charta, or Magna Carta, literally, the Great Charter. This
name is given to a formal written charter, granted by King John, and
confirmed by King Henry III., of England, which solemnly recog-
nised and secured certain enumerated rights, privileges, and liberties,
as belonging to the people of England, which have ever since con-
stituted a fundamental part of the constitution or government of
England. Among other important rights, it secured the right of a
trial by jury in civil and criminal cases, and the right of the subject
to the free enjoyment of his life, his liberty, and his property, un-
less declared forfeited by the judgement of his peers, (a jury,) or
by the Law of the land. Several of its provisions constitute a part
of the Bill of Rights set forth in our present State and National Con-
stitutions.
Malversations in Office. This phrase is applied to official misdemean-
ors, corruptions, extortions, and other wrongful conduct, by public
officers.
Mandamus, literally, " we command." This is a writ issued by a
Court of Justice to some Corporation, public officer, or other person,
commanding them to do some particular thing, therein specified,
which appertains to their office or duty. It is called a Mandamus,
from this word being in the original writ, which was formerly in
Latin.
Material Men. Those persons are called, in Admiralty Courts, ma-
terial men, who supply ships with provisions, or equipments, or other
outfits, or furnish materials for repairs, and make the repairs on ships.
Mesne Process, literally, intermediate process, as contradistinguished
from final process, in any suit. In strictness, the writ first issued,
to bring a party before a court, in a suit, is called original process ;
the writ of execution, which issues to enforce the judgement in the
suit, is called the final process ; and all other process or writs, is-
sued in that suit, are mesne process. But, in America, mesne pro-
cess is ordinarily used to describe all process issued in a suit, which
is not final process.
Ministers Plenipotentiary, ) g^^ Ambassadors.
Ministers Resident. 3
Ordinance of nSl , {ox the settlement and government of the North
Western Territory of the United States, may be found, at length, in
the Appendix to this Volume, pp. 329 — 337.
346 GLOSSARY.
Parliament. This is the appellation, by which the Legislature of
Great Britain is ordinarily designated. It is composed of the House
of Lords, and House of Commons.
Patent, an abbreviated expression, signifying letters-patent, or open
letters, or grants of the government, under the great seal thereof,
granting some right, privilege, or property, to a person, who is thence
called the Patentee. Thus, the government grants the public lands,
by a patent, to the purchaser. So, a copy-right in a book, or an ex-
clusive right to an invention, is granted by a patent. When the
word patent is used in conversation, it ordinarily is limited to a pa-
tent-right for an invention.
Patentee. The party, who is the grantee of a patent from the govern-
ment.
Peers. Peers, ordinarily, means the nobility of Great Britain, who
have a seat in the House of Lords. They are called peers, from the
Latin word, pares, equals. But the word is also used to signify,
the pares, or jurymen, who are entitled to try questions of fact in
civil and criminal cases. The trial by jury is therefore often called
a trial by his (the defendant's) peers. ^
Personal Estate. See Estate.
Plaintiff, the party, who brings a suit against another, for redress of
some private wrong or breach of contract. He is so called, be-
cause he makes a plaint or complaint against the wrongdoer.
Plea, the written defence of the Defendant in any suit, in denial or
avoidance of the matter charged by the Plaintiff in that suit against
him.
Plea, Special. It is a special justification or excuse, set forth in writing
by the Defendant in a suit, which bars or destroys the Plaintiff's right
in that suit. It is used in contradistinction, generally, to the general
issue. A justification admits the act charged by the Plaintiff to be
done or omitted, and justifies the Defendant in such act or omission.
Whereas the general issue usually denies, that the act has ever been
done or omitted.
Plurality of Votes. A person is said to have a plurality of votes, who
has more votes than any other single candidate for the same office.
A person is said to have a majority of votes, who has a larger num-
ber than all the other candidates have, adding all their votes together.
Prima facie means, literally, upon the first view or appearance. It
is commonly applied to cases of evidence or presumption, where the
meaning is, that the evidence or presumption is to be taken to be
sufficient to prove certain facts, until other evidence or presumptions
are introduced to control it.
Prison Liberties, or Gaol Limits. To every public gaol or prison,
there are certain limited spaces, or local limits, outside of the walls
of the gaol or prison, within which persons imprisoned for debts are
entitled to reside, or be, upon complying with the conditions and se-
curities required to be given, that they will commit no escape. These
limits, or liberties, are commonly called the gaol or prison limits or
liberties.
Privies, in a legal sense, are those, who claim any right or property
from or under another person. Thus, the heir, or devisee, of an an-
GLOSSARY. 347
cestor, is a privy under the latter. An executor is a privy under bis
intestate. A purchaser is a privy in estate from the seller.
Process of Law. Process means the writs and other compulsive writ-
ten orders, issued in any civil or criminal case, to compel the appear-
ance of a party or witness, or to enforce obedience to the judgement,
or other order of a court of justice.
Property in Contingency, is property, to which there is no absolute
right or title in a party, but its vesting in him is dependent upon a
future uncertain event. Thus, a legacy to a man, who is under age,
if he arrives at twenty-one years, is property in contingency.
Proprietary. This phrase is equivalent to owner or proprietor. But
it is usually limited to persons, who possess a right to territory, with
the powers of government therein. Thus, Penn was called the Pro-
prietary of Pennsylvania, and Lord Baltimore, of Maryland ; because,
by grants from the King of England, not only the territory of those
Colonies, but the right of governing them, was vested in them.
Pro tempore, literally, for a time. It means, that a person is not the
regular officer holding an office, but one holding it for a short and
uncertain period. Thus, the Vice President of the United States is
the regular President of the Senate ; but, in his absence, the Senate
may appoint a President, pro tempore, to perform his duties.
Provincial Congress, see Continental Co7igress.
Real Estate, see Estate.
Records of a Court. These are the written memorials of the trans-
actions of a court of justice, drawn up in form by its regular officers,
and styled records, because the acts and doings of the Court are
therein recorded fully and truly, so as to be received as absolutely
correct.
Replication is the written reply of the Plaintiff in a suit, to the plea
put in by the Defendant in the same suit. Its true object is, to deny
or destroy the validity of the plea, as a bar to the suit.
Reprieve. When a criminal has been condemned, by the sentence of
a court of justice, to suffer a particular punishment at a particular
time, and the execution of that sentence is postponed, suspended, or
withdrawn, for an interval of time, by the proper authority, it is cal-
led a reprieve ; from reprendre, to take back.
Return-Day of Process. Whenever a writ or process is issued by a
court of justice, to an officer, or other person, to be by him executed,
according to the command therein stated, it usually contains a fixed
time, when the officer is to make a return of that writ or process, with
a written statement of his acts or proceedings done under it. That
time is the return-day ; and that written statement is technically cal-
led his Return.
Right, Possessory. A man, who is in possession of property, having a
right to possess it, is said to have a possessory right. Thus, a man,
who hires a horse and chaise for a journey, has a possessory right to
the horse and chaise for that journey, although the person, who lets
them, is the general owner. So a man in possession of land, as a
tenant, has a possessory right in the land, although it is owned by
his landlord.
8ergeant-at~Arms. The name of the officer of a legislative body, who
348 GLOSSARY.
serves processes, and executes the orders of that body upon solemn
occasions.
Socage, a word of feudal origin, and, in that system, the tenure, by
which a man holds lands, is to render therefor some certain and de-
terminate service, in contradistinction to tenure of lands by uncertain
and precarious services, where the tenant was obliged to render such
service as the grantor might, from time to time, require of him. Free
Socage is a tenure by certain and honorable service.
Stamp Act. An act or statute, which requires certain papers and
enumerated documents to be stamped with a stamp by the govern-
ment, before they have any validity ; and imposes a certain tax or
duty for the stamping such papers or documents. Thus, if the gov-
ernment should declare, that every deed or promissory note should
be written on paper stamped by the government, and require the
party to pay a fixed sum or tax for such stamped paper, the Act or
Law, making such provisions, would be called a Stamp Act.
Stand seised. A man is said to stand seised of land, who is in posses-
sion of it under a claim or title to it, either in fee, or, at least, for life.
State Trials are trials for crimes or offences in Courts of justice.
They are called State trials, because the State or Government prose-
cutes the suit or indictment.
Statute. An act or law, passed by a Legislature. It is called a
Statute, from Statutum, a thing ordered or appointed by the Legis-
lature.
Statute of Limitations. A statute or law, which limits the time with-
in which a suit or action may be brought in a court of justice. Such
statutes exist in every State in the Union.
Suit at Law is the remedy, which a person, aggrieved by any wrong
done to him, seeks, in a court of law, for redress of the wrong.
Tonnage Duty is a tax or duty laid by the Legislature, or other com-
petent authority, upon ships or vessels, in proportion to their tonnage.
Toj't is a wrong or injury done by one man to another, or to his prop-
erty or rights. It includes all trespasses ; but is a word of larger
signification.
Treaty of Peace, of 1783, is the treaty made between Great Britain
and the American States, by which Great Britain acknowledged our
Independence, and surrendered her claims to our Territory. It
closed the War for our Independence ; and will be found in the Ap-
pendix to the present Volume, pp. 324 — 329.
Trespass is a wrong or injury done by one man to another, or to his
property or rights. When the word is used, alone, it means some
wrong done by violence, or force, or some illegal act. Thus, if a
man unlawfully strikes another, or unlawfully takes possession of
the land or goods of another, he' is said to be guilty of a trespass.
V. is often put for versus, or against. Thus, a suit is said to be by
A versus B.
Viva Voce, literally, by the living voice, or orally. Thus, when a
witness gives his testimony in open court, in the presence of the au
dience, and answers, by word of mouth, we say, his testimony is
viva voce. If his testimony is written down, and read, it is called
his Deposition.
GLOSSARY. 349
Warrant is a written, sealed order, command, or writ, requiring and
authorizing an officer or other person to do a particular act. It is
usually applied to the process, by which criminals are arrested for
trial or examination.
Writ of Error is a writ, which authorizes a Court of justice to bring
a record before it, either of the same court, or of another court, in
order to examine and decide, whether there is any error of law in
the judgement, or other proceedings in that record ; and, if there be,
to correct the error.
- Writ of Habeas Corpusy see Habeas Corpus.
30 XIII.
INDEX.
A.
Absent members of Congress,
compelled to attend,90,91,292.
Absolute governments, the pow-
ers of, 46.
Account of the receipts and expen-
ditures of all public money, to
be published, 144, 145, 296.
Accusation, self, criminals not
bound to, 230, 233, 304.
Accused, incases of impeachment,
86. Privileges to the, 230-
234, 304. Not bound to testi-
fy against themselves, 230, 233,
304. Examination of witnesses
against the, 231, 235, 304.
Counsel for, 231, 236, 304.
Confessions of, 241.
Acts, public, of the States, faith to
be given to, 135, 301.
Adams, John, Vice-President of
the United States, 34. Various
offices held by, 325. Minister
Plenipotentiary for the conclud-
ing and signing the Definitive
Treaty of Peace, between the
United States of America and
his Britannic Majesty, in 1783,
325, 329.
Adjournment of Congress, 92,
292. Bills not approved by the
President at the time of, 98,
100, 293.
Admiralty and maritime jurisdic-
tion, jurisdiction of the Supreme
Court in cases of, 186, 187,
194, 196, 221, 300.
Admission of New States into the
Union, 137, 301, 307.
Affirmation, substitution of, for
oath, 252, 298, 303.
Age, of Representatives, 54, 73,
289. Of Senators, 73, 291
Of President and Vice-Presi-
dent, 167, 298.
Agreements between States, for-
bidden,156,296. See Alliances.
Alexandria, meeting of commis-
sioners at, in 1785, 33.
Aliens, suits by and against, in the
courts of the United States,
211, 300. See Foreigners.
Alliances, States forbidden to
make, 146, 296. Washington,
on domestic, 313 ; on foreign,
321. See Agreements, and
Combination.
Ambassadors, appointment of,
172, 173, 299. To be received
by the President, 176, 299.
Suits by and against, 186, 192,
213, 221, 223, 300.
Amendments to the Constitution,
161, 303. On the election of
President and Vice-President,
161,163,305. On suits by and
against the States, 203, 205,
216, 305. On the appellate ju-
risdiction of the Supreme Court,
both as to law and fact, 225,
304. On trial by jury, 230,
304. On search-warrants, 237,
303. On excessive bail, fines,
and punishments, 237,238, 304.
Mode of making, 246, 302. Re-
specting religious tolerance, 254,
303. Articles of, 303.
American, Washington on the
name, 310.
American Colonies, history of the,
11. Their title to the soil, 13.
Times and manner of the settle-
ment of the, 15. Governments
of the, 17. Rights and privi-
352
INDEX.
leges of the, 19. Legislative
powers of the, 19. Common
law of England introduced into
the, 20. Political state of the,
at the time of the Revolution,
22. Their connexion with Great
Britain and with each other, 22.
Controversies between the, de-
termined before the King in
council, 200. Declaration of
Independence of the, 275.
American Revolution, see Revo-
lution.
Annapolis, meeting of commission-
ers at, in 1786, 33.
Appellate jurisdiction of the Na-
tional Judiciary, 212, 300.
Suggestions respecting it, 213—
228. Of inferior tribunals, 214,
218. On the exclusion of, by
original jurisdiction, 215. Ex-
tent of the, 217. Meaning of
and mode of exercising,^ 224.
aualified, 227, 304.
Appointments to office, power of,
172-175, 299. By the Presi-
ident, 172, 299. By Congress
and the Heads of Departments,
172, 174, 299. When discre-
tionary in Congress, 172, 174,
299. See Commissions, and
Vacancies.
Apportionment, of Representa-
tives, 56-62, 104, 290. Of di-
rect taxes, 56-60, 97, 104, 290.
Appropriations, for armies, 122,
123, 294. Before drawing
money from the treasury, 144,
295.
Aristocracy, absolute, or despotic,
47.
Arms, on keeping and bearing,
264, 303.
Army, power of Congress as to
the, 43, 122, 141, 294. Rev-
olutionary, 122. Restrictions
respecting the, 123, 294. A
standing impolitic, 265 ; con-
demned in the Declaration of
Rights, of 1774, 274.
Arrest, members of Congress, priv-
ileged as to, 93, 292 ; under
the Confederation, 281.
Arsenals, 129, 295. Reservation
respecting, 130.
Articles, of Confederation, 279.
Of the Constitution, 289. Of
Amendments to the Constitution,
303. Provisional, of Peace, sign-
ed at Paris, in 1782, 324. Of
the Definitive Treaty of Peace,
of 1783, 325. Of compact, be-
tween the original States and
the People and States in the
Territory northwest of the river
Ohio, 334. See Confederation.
Arts and sciences, promotion of
the, 118, 294.
Assemblies of the people, 264,
303. Claimed in the Declara-
tion of Rights, of 1774, 274.
Assemblies, Provincial, 17. Dis-
solution of, by English gover-
nors, 92, 272. .
Attainder, effect of, in treason,
134,135,239,301. Bills of, not
to be passed, 144 ; by Congress,
144, 295 ; nor by the States,
146, 150, 296,
Authors, copy-rights for, 118, 294.
Ayes and noes,in Congres8,92,292.
B.
Bail, excessive, unconstitutional,
238, 304.
Baltimore, Lord, 18. William
Penn versus, 201.
Bankruptcy, power of Congress
respecting, 114, 294. Impo-
tency of the States as to, 115.
Bills, power of the President to
approve and negative, 98, 293.
Bills for raising revenue and tax-
es, 96, 293.
Bills of attainder, not to be passed
by Congress, 144, 295 ; nor by
the States, 146, 150, 296.
Bills of credit, 146, 148. States
forbidden to emit, 146,147,296.
Meaning of, 147. Emission of,
under the Confederation, 286.
Bills of indictment, 231.
INDEX.
353
Bills of Rights, of 1774, 24, 271.
Of States , 48, 256. Under the
Constitution, 255, 303 ; impor-
tance of considered, 256.
Blackstone, Sir William, on the
laity in England, 82. On ex-
culpation by witnesses, in capi-
tal cases, 235. On counsel for
accused persons, 236. On the
liberty of the press, 263.
Borrowing money, under the Con-
federation, 29, 287. Under the
Constitution, 107, 141, 294.
Boston Port Bill, 271.
Boundaries, between States, 200.
Of the United States, according
to the Definitive Treaty of 1783,
325. For States in the North-
western Territory, 336.
Bribery, impeachment for, 81,
83, 299. Persons liable to be
removed from office for, 178,
299.
Cabinet,s«e Heads of Departments.
Canada, provision for the acces-
sion of, to the Confederation,
287. Boundaries between the
United States and, according to
the Treatyof 1783, 325.
Capital offences, and second trials
for, 230, 232, 304.
Capitation taxes, 103, 104, 295.
Captures, 120, 122, 294. Juris-
diction in cases of, 194.
Cases, meaning of, in the sense of
the Constitution, 189, 190. By
implication, 191. In equity,
192, 216, 305. See Equity.
Ceded places, power of Congress
over, 129, 295. Reservation
respecting, 130.
Censorship of the Press, 262. See
Press.
Census, provision for the, 56, 58,
290. Capitation or other direct
taxes according to the, 104, 295.
Cessions, see Ceded Places.
Charter granted by James I., 15.
Charter governments, in the Amer-
30*
ican colonies, 18. Introduc-
tion of the common law into the,
20.
Chief Justice shall preside at the
trial of the President, 76, 78,
291.
Chisholm versus Georgia, 202.
Church and State, alliance be-
tween, cut off, 253, 259, 303.
Cicero condemned torture, 233.
Circuitous voyages, 105.
Citizens, privileges and immunities
of, in each State, 242, 301. See
Controversies, and Judiciary.
Citizenship, of Representatives,
54, 55, 73, 290. Of Senators,
73, 291. Of the President and
Vice-President, 167, 297. See
Naturalization.
Civil obligation of contracts, on
impairing the, 154.
Civil officers, meaning of, under
the Constitution, 81.
Clearances at custom houses, 105,
295.
Coinage of money, under the Con-
federation, 30, 285. Power of
Congress respecting, 116, 294.
Counterfeiting, 116, 294. For-
bidden to the States, 146, 147,
296.
Coke, Sir Edward, on the law of
the land, 233. On witnesses in
behalf of accused persons, 235.
Colonial governments, 17.
Colonies, see American Colonies.
Colonists, sent to England for
trial, 271.
Columbia, District of, '129, 295.
Combination among the States,
156, 245. See Alliances.
Commerce, crippled, under the
Confederation, 31. Foreign im-
positions respecting, 32, 108.
Power of Congress to regulate,
108, 109, 141, 294. State of,
at the adoption of the Constitu-
tion, 108. Meaningof the words
" to regulate commerce," 110.
See Duties, Taxes, and Trade.
Commissioners, appointed by Ma-
354
INDEX.
ryland and Virginia, meet at
Alexandria, 33. Meeting of, at
Annapolis, 33.
Commissions from the President,
176, 178, 299. See Appoint-
ments.
Committee of the States, under the
Confederation, 285.
Common defence, provision for,
42, 101, 141, 289, 293.
Common law, of England, intro-
duced into the Colonies, 20.
Conservative principle in the,
20. Its effects in the Colonies,
22. Cases at, under the Consti-
tution,189. iSee Law^,ancZ Laws.
Common socage, 16.
Compacts, see Alliances.
Compensation, of members of Con-
gress, 93, 292. Of the Presi-
dent, 168, 298. Of the judges
ofthe Supreme Court, 181, 185,
300. For private property taken
for public use, 233, 304.
Confederation, history of the, 28.
Delays and objections to the,
28. Final adoption of the, 28.
Defects in the, 29. Powers and
weakness of the, 29. Gave to
Congress no coercive authority,
30 ; nor penal sanction to their
enactments, 30 ; nor power to
lay taxes, or to collect revenue,
30, 102 ; nor to regulate com-
merce, 31. Prospective termi-
nation of the, 33. Convention
for revision of the Articles of,
34. Legislative power under the,
49. Voting in Congress under
the, 56, 68, 281. State of com-
merce under the, 108. Impoten-
cy of the, as to armies, 122.
Restricted the authority pf Con-
gress to powers expressly grant-
ed, 132, 279. Want of an execu-
tive department in the, 159 ; of
judicial power, 180. Authority
under the, to determine differ-
ences between States, 200, 283.
Disregard of treaty stipulations
under the, 250. Articles of.
279. &Ve Congress, Continental,
Confederation among States, un-
constitutional, 146, 296. See
Alliances.
Confessions, as evidence, 241.
Confiscation, in punishment for
treason, unconstitutional, 134,
135, 239, 301. In the States,
during the Revolution, 150.
Articles respecting, in the treaty
of peace, of 1783, 327, 328.
Congress, Continental, first and
second meetings of the, 24, 26.
Declaration of Rights ofthe, in
1774,24,271. Voting in, 26,
68, 281. Organization of the,
27. Its powers and its weak-
ness, 27, 29, 30. Articles
of Confederation by the, 28,
279. Had no coercive author-
ity, 30 ; nor penal sanctions
for its enactments, 30. Could
not lay taxes or collect revenue,
for the public service, 30 ; nor
regulate commerce, 31. Report
laid before the, for a General
Convention, 33. Calls a Con-
vention for revision of the Arti-
cles of Confederation, 34. Puts
into operation the Federal Con-
stitution, 34. Adjournment of,
to Princeton, 129. Compelled
to violate the Confederation, in
order to preserve it, 132. Re-
presentation of the States in the,
280. Freedom of speech and
debate in the, 281. Sole and
exclusive rights and powers of
the, 283. See Confederation.
Congress, the first under the Con-
stitution, 34. Divided into two
branches, 49, 289. Impeachment
by, 62, 63, 76, 78, 85, 290,
291, 299. Elections for, 89, 90,
291, 292. Meetings of, 90, 291.
Powers and privileges of both
Houses of, 90, 292. Judgement
of elections by, 90, 91, 292.
Quorumof, 90, 91,292. Absent
members compelled to attend, ^
90,91,292. Rules of, 91. Pun- t
INDEX.
355
ishment and expulsion of menn-
bers of, 91, 292. Journals of,
to be kept, 92, 292. Yeas and
nays of, 92, 292. Adjournment
of, 92, 292. Contempts of, 93.
Compensation of members of,
93, 292. Their privilege from ar-
rest, 93, 292. Liberty of speech
and debate in, 93, 94, 292.
Disqualifications of members of,
94, 161, 162, 292, 297. Mode
of passing laws in, 96, 293.
Power of the President to neg-
ative the laws of, 98-100, 293.
Power of, to lay and collect tax-
es, 101,103,141,293. May bor-
row money, 107, 141, 294. May
regulate commerce, 108, 109,
141, 294 ; inquiries respecting
this power, 109. On trade with
Indian tribes, 108,109,113,294.
Power of, respecting naturaliza-
tion, 114, 294 ; bankruptcies,
114, 294 ; to coin money, regu-
late the value thereof, and fix the
standard of weights and meas-
ures, 116, 294 ; as to counter-
feiting, 116, 294 ; post offices
and post roads, 117, 294; pa-
tents and copy-rights, 118, 294 ;
to constitute tribunals inferior to
the Supreme Court, 119, 181,
218, 294, 299 ; to define, and
punish piracies and felonies,
committed on the high seas, and
offences against the law of na-
tions, 119, 294; to declare war,
120, 141, 294 ; grant letters of
marque and reprisal, 120, 121,
294 ; to make rules concerning
captures, 120, 122, 294 ; to
raise and support armies, 122,
123, 141, 294 ; to provide and
maintain a navy, 124, 141, 294;
to make rules for land and na-
val forces, 124, 294; to provide
for calling forth the militia, 125,
127, 294 ; for organizing and
disciplining the militia, 126,
294. Power of, over the Seat of
the Government, 128, 129, 295;
over ceded places for forts, mag-
azines, arsenals, dock-yards,
and other needful buildings,
128, 129, 295 ; to make all nec-
essary and proper laws for car-
rying their powers into effect,
131,295. Implied and inciden-
tal powers of, 131, 133, 141,
191. Power of, respecting trea-
son, 134, 239, 301 ; respecting
the faith and credit to be given
in each Slate to the public acts,
records, and judicial proceedings
of every other State, 135,301 ; as
to the admission of New States,
137,140, 301, 336; respecting
the territory, or other property, of
the United States, 138, 301. Pro-
hibitions on the powers of, 141,
266, 305 ; respecting the slave-
trade, 142, 295 ; respecting the
writ o^ habeas corpus, 143, 295 ;
respecting bills of attainder, and
ex post facto laws, 144, 239,
295 ; respecting appropriations
before drawing money from the
treasury, 144, 295 ; as to creat-
ing titles of nobility, 145, 296.
Power of, respecting Electors,
166, 297. Provision by, for va-
cancy of the Presidency and
Vice-Presidency, 168, 298 ; for
appointment of inferior officers,
172, 174, 299. The President
to give information to, and re-
commend measures, 176, 299.
Power of the President to con-
vene and adjourn, 176, 299.
Authority given by, to the post-
master-general, to bring suits,
205. Restriction by, on appel-
late jurisdiction, 212-224, 226,
227, 300, 304. Power of, as to
designating places for trials, 228,
300 ; respecting amendments to
the Constitution, 246, 302.
Duty of courts, respecting un-
constitutional laws passed by,
251. Oaths to be taken by
members of, 251, 303. No
religious test required, 252, 253,
356
INDEX.
303. Amendments to the Con-
stitution, adopted by, 254, 303.
Shall make no law respecting
an establishment of religion, or
prohibiting the free exercise
thereof, 255, 259, 303 ; or
abridging the freedom of speech,
or of the press, 255, 259, 261,
303 ; or the rights of the peo-
ple peaceably to assemble, and
to petition the government for a
redress of grievances, 255, 259,
264, 303. Recommendations
required to be made by the, ac-
cording to the treaty of 1783,
327, 328. See Commerce, Con-
gress, Continental, Impeach-
ments, Judiciary, Representa-
tives, Senators, and States.
Connecticut, settled, 16. Charter
government of, 19. Adopts the
Constitution, 35.
Conscience, rights of, 252, 253,
255, 259, 303.
Constitution of the United States
of America, 33, 289. Origin of
the, 33. Adoption of the, 34,35,
303. Remarks on the framers of
the, 35, 247. Exposition of the,
36. Formed by the people, and
not by the States, 36. Remarks
on the interpretation of the, 36.
Final interpreter of the, 37. The
Preamble of the, and its exposi-
tion,37, 289. Distribution of pow-
ers by the, 46, 289. Separation
of the legislative, the executive,
and the judicial, departments by
the, 47, 49. On the House of
Representatives, 49, 50, 289.
On the Senate and Senators, 49,
64, 67, 290. On impeachments,
62,63,76, 291, 298, 299. On
elections and meetings of Con-
gress, 89, 291. On the powers
and privileges of both Houses,
90, 292. On the mode of pas-
sing laws, 96, 293. On tax-
ation, 101, 141, 293. On
borrowing money, 107, 294.
On regulating commerce, 108,
109, 294. On trade with Indian
tribes, 108, 113, 294. On nat-
uralization, 114, 294. On bank-
ruptcy, 114, 294. On coinage
of money, 115, 294. On post-
offices, and post roads, 117, 294.
On patents and copy-rights, 118,
294. On the punishment of
piracies and felonies, 119, 294.
On the declaration of war, 120,
141, 294. On the army, 122,
294. On the navy, 124, 294.
As to militia, 125, 294. On the
Seat of the Government, and oth-
er ceded places, 128, 295. Gen-
eral power of Congress under
the, to make necessary and prop-
er laws, 131, 295. Onthe punish-
ment of treason, 134, 239, 301.
On State Records, 135, 301.
On the admission of New States,
137, 301. On the government
of Territories, 138, 301. Pro-
hibitions on the United States
by the, 142, 305 ; on the States
by the , 146, 296. On the struc-
ture, organization, and powers,
of the Executive department,
158, 296. On the powers and
duties of the President, 170, 298.
On the Judicial department,
179, 299. On the powers and
jurisdiction of the Judiciary,
186, 300, 304, 305. On trial
by jury, 228, 300. Definition
of treason by the, 239, 300. On
the privileges of citizens, 242,
301. On fugitive criminals and
slaves, 242, 243, 301. Guaran-
tee of republican government by
the, to the States, 244, 302.
Mode of making amendments to
the, 246, 302. Considered as
an experiment, 247, 267. On
public debt, 248, 302. Supre-
macy of Laws, treaties, and the,
249,302. On oath of office, 251,
298, 303. On religious tests,
252, 253, 303. Ratification of
the, 254, 303. Amendments to
the, 254, 303, Regarded as a
INDEX.
357
Bill of Rights, 255, 259, 303.
Powers not delegated to the
United States by the, 266, 305.
Concluding remarks on the, 267.
Disturbing causes of the, 269.
See Congress, Impeachment,
Judiciary, President, Represen-
tatives, Senate, Senators, and
States.
Constitutional questions, impor
tance of independence in the
Judiciary as to, 184. Jurisdic-
tion in, 186, 188, 190, 300.
Constructive treasons, 240.
Consuls, appointment of, 172, 173,
299. Suits by and against, 186,
193, 213, 223, 300.
Contempts of Congress, 93.
Continental Congress, see Con-
gress, Continental.
Contracts, laws impairing the obli-
gation of, prohibited, 146, 150,
248, 296, 302. Remarks on,
150. Express and implied, 151.
The obligation of, 152. What
impairs, 154. Insolvent laws
by States respecting, 155.
Controversies, judicial power in,
where the United States is a
party, 186, 187, 199, 300. Be-
tween two or more States, 186,
187, 199,200, 221, 300. Be-
tween a State and citizens of an-
other State, 186, 187, 199, 201,
300. Between citizens of differ-
ent States, 186, 187, 205, 221,
300 ; of the same State, claiming
lands under grants of different
States, 186, 187, 209, 221, 300.
Between a State, or the citizens
thereof, and foreign States, citi-
zens, or subjects, 186, 187, 210,
211, 221, 300.
Conventions, at Alexandria and
Annapolis, 33. At Philadel-
phia, for forming the Consti-
tution, 34. For amendments to
the Constitution, 246, 302.
Ratifications of, 254, 303.
Conviction, in cases of impeach-
ment, 76, 79, 88, 291. Testi-
mony necessary to, 76, 291 ; in
treason, 241, 300.
Copy-rights, 118, 294.
Corporations, non-identification of
States with, 204. Not, consti-
tutionally, citizens, 208. For-
eign , may sue in the courts of the
Union, 211.
Corruption of blood, in treason,
134, 135, 301.
Council, The, under the Provincial
Governments, 17, 274.
Counsel for accused persons, 236,
304. See Accused.
Counterfeiting securities and mon-
ey, 116, 294.
Country, trial by the, 228. See
Jury.
Credit, States cannot emit bills of,
146, 147, 296. Meaning of
bills of, 147. Emission of bills
of, in the Revolution, and un-
der the Confederation, 148,
286. Washington on public,
317. See Debts.
Crimes, impeachable, 81, 83, 88,
299. Committed upon the high
seas, 119, 198, 294. Mode and
place of trying, 228, 229, 300,
304. Second trials for, 230,
232, 304. See High Seas, Im-
peachmenti and Offences.
CriminalSjOn delivering up fugitive,
140, 242, 301, 337. Trial of,
228, 229, 300, 304. Not bound
to accuse themselves, 230, 233,
304. Not to be twice tried, 230,
233, 304. Delivering up fugi-
tive, under the Confederation,
280.
Crown, see King.
Currency, of the country, 116,
294. Paper, 148. See Money.
Custom-house entries and clear-
ances, 105, 295.
Customs, use of the word, 103.
D.
Dane, Nathan, ordinance by, for
the government of the Terri-
tory of the United States north-
358
INDEX.
west of the river Ohio, 139,
329.
Debate, liberty of, in Congress,
93, 94, 292. In the Continen-
tal Congress, 281.
Debts, public, under the Confed-
eration, 32. To foreigners, un-
paid, 41. Prohibitions on the
States respecting, 146, 149, 296.
Tender in payment of, 146,
149, 296. State, at the adop-
tion of the Constitution, 216.
Contracted before the adoption
of the Constitution, valid after-
ward, 248, 302. Washington
on the public, 317.
Decimal mode of calculation, 116.
Declaration of Independence, 12,
24, 27, 275.
Declaration of Rights, in 1774,
24, 271.
Declaration of war, 120, 141, 294.
Defence, the common, provision
for, 42, 101, 141, 289,293.
Definitive Treaty of peace, be-
tween the United States of
America and his Britannic Maj-
esty, 324. See Peace.
Delaware, settlement of, 12, 16.
Proprietary government of, 18.
Adopts the Constitution, 35.
Delegates, to the Continental Con-
gress, 26, 272, 280. For re-
vising the Articles of the Con-
federation, 34. The choice of,
and representation by, in the
Continental Congress, 280.
Democratic governments, features
of, 47.
Departments, see Heads of the
Departments.
Despotic governments, features
of, 46.
Direct taxes, apportionment of,
56-60, 97, 104, 290. Pov»%r
of Congress to lay and collect,
103, 295. Meaning of, 103.
Discovery, title founded upon the
right of, 13. Effect of, upon
the Indian title, 14.
Disqualifications of members of
Congress, 94, 161, 162, 292,
297.
Distribution of powers, in govern-
ments, 46.
District of Columbia, 129, 295.
Division, of legislative, executive,
and judicial, powers, 47. Of
legislative powers, 49, 289.
Dock-yards, 129, 295. Reserva-
tions respecting, 130.
Domestic insurrections, suppres-
sions of, 244, 302.
Domestic manufactures, encour-
agement of, 113.
Domestic tranquillity, on insuring,
42, 289.
Dutch, early settlements by the,
in New York and Delaware, 12.
Duties, evils of want of uniformi-
ty in, among the States, 44.
Power of Congress to lay and
collect, 101, 293. Use of the
word, 103. Uniformity in, re-
quired, 104, 294. On imports,
105, 296. Not to be laid on
exports, 105, 295, 296. By
the States, unconstitutional,
106, 156, 296.
East Greenwich, manor of, held
in free and common socage, 16.
Education, Washington on institu-
tions for, 317.
Elections for Congress, 89, 90,
291, 292. Judges of, 90, 91,
292.
Electors of President and Vice-
President, choice of, 161, 297.
Their mode of electing, 162,
163, 297, 305. Vote by ballot,
163, 165, 297,305. Time of
choosing, 166, 297. Time of
their voting, 166, 297.
Electors of Representatives, quali-
fications for, 50, 51, 289.
Emigrants, 142, 295. See Natur-
alization.
Emission of bills of credit, by the
States, unconstitutional, 146,
147, 296.
INDEX.
359
Emit, meaning of, 148.
England, see Peace.
Enlistments in the Revelation,
122.
Equity, cases of law and, 186,
189, 192, 216, 300.
Establishments of religion, uncon-
stitutional, 255, 259, 303.
Europeans, claim of, to the soil of
America, 13.
Ex post facto laws, prohibition
of, by the Union, 144, 295 ; by
the States, 146, 150, 296.
Excises, power of Congress to lay
and collect, 101, 293. Use of
the word, 103. Uniformity in,
required, 104, 294.
Executed and executory contracts,
151.
Execution of the laws, the Presi-
dent to take care as to the,
177, 299.
Executive department, structure,
organization, and powers of the,
158 ; the President, 159, 296.
Three practical questions re-
specting the, considered, 159.
Unity in the, 159. See Presi-
dent.
Expenditures of public money, ac-
count of, to be published, 144,
145, 296.
Exports, no duties on, 105, 295.
Duties on, by the States, 106,
296.
Express contracts, 151.
Expulsion from Congress, 91, 292.
F.
Fact, jurisdiction of the Supreme
Court as to the law and, 224,
226, 300, 304.
Faith and credit to be given to the
acts, records, and judicial pro-
ceedings of the States, 135, 242,
301.
Farewell Address of Washington,
306.
Federal Constitution, see Consti-
tution.
Felonies, 119, 242, 294, 301.
Fines, excessive, not to be impos-
ed, 238, 304.
First Colony, under the charter
of James I., 15.
Fisheries, privileges as to, accord-
ing to the treaty of 1783, 327.
Florida, acquisition of, 138.
Foreign alliances, Washington on,
321. See Alliances.
Foreign commerce, regulation of,
108, 109, 141, 294. See Com-
merce.
Foreign corporations, see Corpora-
tions.
Foreign debts, non-payment of, 4 1 .
See Debts.
Foreign influence, Washington on,
319.
Foreign judgements, proof of, 135.
Foreign ministers, to be received
by the President, 176, 299.
Jurisdiction of the Judiciary
over, 186, 192, 213, 221, 223,
300.
Foreign powers, resistance to, by
individual States, 43. The faith
to be given to the acts, records
and judicial proceedings of, 135.
Presents and favors from, pro-
hibited, 145, 296. Controversies
with, 210, 300. Cannot be
compelled to become parties,
211.
Foreigners, justice towards, 40.
Jurisdiction in cases affecting,
196. See Aliens.
Forfeiture, see Confiscation.
Forgeries, 116, 294.
Forts, 129, 295. Reservation re-
specting, 130,
France, peace between Great Brit-
ain and, 324.
Franklin, Benjamin, various offices
held by, 325. Minister Plenipo-
tentiary for concluding and sign-
ing the Definitive Treaty of
Peace, between the United States
of America and his Britannic
Majesty, in 1783, 325, 329.
Freedom of the press, 255, 261,
303.
360
INDEX.
Freedom of speech, see Liberty.
Freedom, religious, 139, 252, 253,
255, 269, 303, 334.
Fugitive criminals and slaves, on
delivering up, 140, 242, 301,
337. Under the Confedera-
tion, 280.
G.
General welfare, on promoting the,
44, 102, 289, 294.
George III., injuries and usurpa-
tions by, 276. Definitive Trea-
ty of Peace between the United
States of America and, 324.
Peace between France and,
324. See King.
Georgia, settled, 16. Government
of, at the commencement of the
Revolution, 18. Adopts the
Constitution, 35. Chisholm ver-
sus, 202.
Germany, wars in, previous to the
institution of the Imperial cham-
ber, 200.
Glossary, 339.
Gold, to be legal tender in pay-
ment of debts, 146, 149, 296.
Governments, the Colonial, 17.
Provincial, 17. Proprietary, 17,
18. Charter, 17, 18. The
Revolutionary, 26. The three
great powers of, 46. Of the
Territory northwest of the Ohio,
139, 329. Republican, guaran-
tied to the States, 244,245,302.
Rights of, as to religious inter-
ference, 260. Difficulty of fix-
ing principles for, 268. Re-
marks on, in the Declaration of
Independence, 275.
Governors, under Provincial gov-
ernments, 17. Under proprie-
tary governments, 18. Under
charter governments, 19. Ap-
proval of Speakers by, 62.
Prorogued and dissolved Assem-
blies, 92, 272. Powers and
privileges of, according to the
Ordinance for the government
of the Territory northwest of
the Ohio, 139, 331.
Grand Bank, the privilege to take
fish on the, according to the
treaty of 1783, 327.
Grand Jury, 231. See Jury
Grants, 151, 152.
Great Britain, see Peace.
Guarantee of a republican form of
government to the States, 244,
245, 302.
H.
Habeas corpus writ, provision for
the right to the, in the North-
western Territory, 139, 324.
Privilege of, and suspension of
it, 143, 295. Meaning of the,
143. On the exercise of au-
thority respecting, 224.
Hardwicke, Lord, on appellate ja-
risdiction, 201.
Hartley, David, British minister
plenipotentiary for signing the
Definitive Treaty of Peace, be-
tween the United States of
America and his Britannic Ma-
jesty, in 1783, 324, 329.
Heads of the Departments, restric-
tions respecting the, 94, 95, 292.
President may require the opin-
ions of the, 170, 171, 298.
Appointments by the, 172, 174,
299.
Henry III., 20.
High seas, definition of, 119. Pun-
ishments of crimes upon the,
119,294. Jurisdiction in cases
of crimes committed upon the,
187,196,198,300. 5fee Crimes.
History, of the American Colonies,
1 1. Of the Confederation, 28.
House of Commons, election of
Speaker by the, 62. Impeach-
ment by the, 63. Money bills
originate in the, 97. On the
right to witnesses, by accused
persons, 235.
House of Lords, a court, 63. Re-
strictions on the, as to money
bills, 97.
House of Representatives, in the
colonies, 17, 19. See Represen-
tatives.
INDEX.
361
I.
Ignored bills, 232.
Impairing contracts, laws for, un-
constitutional, 146, 150, 248,
296, 302. Meaning of, 154.
See Contracts.
Impeachment, by the House of
Representatives, 62, 63, 85,
87, 290. Trial of, before the
Senate, 76, 85, 291. Of the
President of the United States,
76,78,83,291, Requirements
necessary for conviction, 76, 79,
291. Mode of trial in, 78, 291.
The judgement to be rendered
in cases of, 79, 88, 291. Per-
sons liable to, 81, 83, 178, 299.
Extent of the power of, 81, 299.
Offences for, 81, 83, 88, 299.
Summary^tatement of the pro-
ceedings respecting, 85. No
pardon upon conviction of, 88,
170, 172, 298.
Implication, cases arising by, 191.
Implied contracts, 151.
Implied powers of Congress, 131,
133, 141, 191.
Implied prohibitions on the States,
157.
Importation and migration of
slaves, 142, 295.
Imports, on duties on, 105, 296.
See Duties.
Imposts, power of Congress to
lay, and collect, 101, 293. Use
of the word, 103. Uniformity
in, required, 104, 294.
In capite, 16.
Incidental powers, of Congress,
131, 141, 191. Of the Presi-
dent of the United States,
178.
Independence, declared, 12, 24,
27, 275. Admitted by Great
Britain, 24, 325.
Indians, title of the, to the soi^, 12.
Rights and privileges retained
by the, 14. Power of Congress
to regulate commerce with the,
108, 109, 294. Trade with,
113. Good faith to be observed
31
towards, m the Northwestern
Territory, 335.
Indictments, 230, 231, 232, 304.
Indirect taxes, meaning of, 103.
Inferior courts, establishment of,
119, 181, 218,294, 299.
Influence, foreign, Washington
on, 319.
Inhabitancy, of Representatives,
54, 55, 74, 290. Of Senators,
73,291. Of the President and
Vice-President, 167, 298.
Innocent persons, punished, 135.
Innovations in the government,
Washington on, 314. See
Amendments.
Insolvent laws, power of Congress
respecting, 114, 294. By the
States, 155.
Inspection laws, provision as to,
106, 296.
Institutions, Washington on liter-
ary, 317.
Insurrections, suppression of do-
mestic, 244, 302.
Invasion, protection against, 244,
302.
Inventions, patents for, 118, 294.
James I., charter granted by, 15.
Jay, John, various offices held
by, 325. Minister Plenipoten-
tiary for concluding and signing
the Definitive Treaty of Peace,
between the United States of
America and his Britannic Ma-
jesty, in 1783, 325, 329.
Jeopardy of life and limb, 230,
232, 304.
John, King of England, Magna
Charta wrung from, 20.
Journals of Congress to be kept,
92, 292.
Judgement to be rendered in cases
of impeachment, 79, 88, 291.
Not pardonable by the Presi-
dent, 88, 170, 172, 298. See
Impeachment.
Judgements, foreign, proof of,135.
Judges, appointment and tenure
XIII.
362
INDEX.
of office of, 174, 181, 182,
299, 300. Compensation of,
185, 300. Impeachable, 185.
Tenure of office of, in different
States, 206. Functions of the
National, 228. In the Territory
northwest of the river Ohio, 331.
Judicial power of the Senate, 76,
291.
Judiciary, under the Constitution,
48, 289. Appointments of
judges, and tenure of office in
the, 174, 181, 182, 299, 300.
Indispensableness of the, 179,
180. Montesquieu on the, 180.
Two ends of government to be
attained by the, 181. Estab-
lishments of courts, 181, 299.
Provision for the independence
of the, 182, 183, 300. Ju-
risdiction of the, 186; in cases
arising under the Constitution,
186, 188, 190, 221, 223, 300 ;
under the laws of the United
States, 186, 188, 190, 216, 221,
223, 300 ; under treaties, 186,
189, 190, 216, 221, 223,300 ;
incases of law and equity, 186,
189, 192, •216, 300, 305; in
cases affecting ambassadors, and
other public ministers, 186,
192, 213, 221, 223, 300 ; con-
suls, 186, 193, 213, 223, 300 ;
of admiralty and maritime juris-
diction, 186, 187, 194, 196,
221, 223, 300 ; of captures,
187, 194, ; of crimes upon the
high seas, 186, 187, 196, 198,
300 ; of controversies, to which
the Ignited States is a party,
186, 187, 199, 223, 300 ; of
controversies between States,
186, 187, 199, 200, 221,300 ;
between a State and citizens of
another State, 186, 187, 199,
201, 223, 300 ; in suits brought
by and against a State, 186,
202, 217, 305. Jurisdiction of
the, in controversies between
citizens of different States, 186,
187, 205, 221, 300 ; of the
game State claiming grants of
different States, 186, 1S7, 209,
221, 300 ; between a State, or
the citizens thereof, and foreign
States, citizens or subjects, 186,
187, 210, 211, 221, 223, 300.
The mode of exercising juris-
diction by the, 212, 300. De-
tails respecting the original and
appellate jurisdiction of the, 212
-227. Bound by the Constitu-
tion, laws, and treaties, 219,
302. Object of the, 222. Ex-
clusive powers of the, 223.
Non-interference of, with State
courts, 224. Jurisdiction of the,
both as to law and fact, 224,
226, 300, 304.
Jurisdiction, see Appellate, Judic-
iary, and Original."
Jury, trial by, and i|fi incidents,
228, 300, 304. Object of it,
229. Grand, 231.
Justice, establishment of, 40, 289.
Administration of, 40. Evils
requiring, 41. National, en-
joined by Washington , SIS. See
Judiciary.
K.
King, authority of the, in the Pro-
vincial governments, 17-21.
Rights and prerogatives of the,
23. Approbation of the Speaker
of the House of Commons by
the, 62. May prorogue Parlia-
ment, 92. Negatived laws pro-
hibiting the slave trade, 143.
Jurisdiction of the, in controver-
sies between Colonies, 200.
See George III.
Knowledge, importance of, in
Members of Congress, 52.
Washington, on institutions for,
317.
Laity in England, 82.
Lands, under the Articles of Con-
federation, 29. Ceded to the
government, 128, 295. Juris-
diction in certain controversiei
respecting, 209.
INDEX.
363
Law and equity, cases of, 186,
189, 192, 216, 300.
Law and fact, jurisdiction of the
Supreme Court as to, 224, 226,
300, 304.
Law of the land, 233.
Law of nations, offences against,
119, 294.
Laws, for new countries, 21.
Inefficacy of, under the Con-
federation, 30. Mode of pas-
sing, in Congress, 96, 293.
Power of Congress to make nec-
essary and proper, 131, 295.
Ex post factOfhy Congress, 144,
295 ; by the States, 146, 150,
296. Impairing the obligation
of contracts, 146, 150, 248,
296, 302. Uniformity in inter-
preting, 181. Duty of the Pres-
ident respecting the faithful ex-
ecution of the, 177, 299. Ju-
risdiction in cases under the
United States', 186, 188, 190,
216,221,223,300. Suprema-
cy of the Constitution, treaties,
and, 249, 302. Washington,
on oppositions to the, 313. See
Common, Congress, and Ju-
diciary.
Legal tender in payment of debts,
146, 149, 296.
Legislation in ceded places, 129,
130, 295.
Legislative powers under the colo-
nial governments, 17-19. Un-
der the Confederation and Con-
stitution, 47, 49, 289. Advan-
tages of the division of, in Con-
gress, 49.
Legislature, see Congress, Repre-
sentatives, and Senate.
Letters of marque and reprisal,
120, 121, 294. By the States,
unconstitutional, 146, 296.
Levies for the Revolutionary ar-
my, 122.
Liberty, on securing the blessings
of, 45, 289. Of speech and de-
bate in Congress, 93, 94, 292.
Religious, 252, 253, 255, 259,
303. Of speech, 255, 261, 303.
Of the press, 255, 261, 303 ;
restricted in foreign countries,
262 ; loose reasoning on it, 263.
Of speech and debate, under the
Confederation, 281.
Licensing the press, 263.
Licentiousness of the press, 264.
Life or limb, second trials for, 230,
232, 304.
Literary institutions, Washington
on, 317.
Loyalists, articles respecting, in
the treaty of 1783, 327.
Louisiana, acquisition of, 108,
138.
M.
Mably, Abbe, on neighboring
states, 38.
Magazines, 129, 295. Reservation
respecting, 130.
Magna Charta, 20. Valuable pro-
visions in the, 257.
Mail routes, 117, 294.
Maritime jurisdiction, power of the
Judiciary in cases of admiralty
and, 186, 187, 194, 196, 221,
223,300.
Marque, letters of, and reprisal,
120, 121, 294. By the States,
unconstitutional, 146, 296.
Maryland, settled, 16. Proprietary
government of, 18. Accedes to
the Confederation, 28. Com-
missioners appointed by, in
1785, 33. Adopts the Consti-
tution, 35.
Massachusetts, settled, 16. Union
of, with Plymouth, 16. Charter
government of, 19. Recom-
mends a Continental Congress,
26. Adopts the Constitution,
35.
Maximilian, institution of the im-
perial chamber by, 200.
Measures and weights, power of
Congress as to, 116, 294.
Meetings of Congress, 90, 291.
Migration and importation of
slaves, 142, 295.
364
INDEX.
Military establishments, Washing-
ton on, 311.
Military officers, distinction be-
tween civil and, 82. Trial and
punishment of, 82. Appoint-
ment of, under the Confedera-
tion, 282,285.
Militia, power of Congress over
the, 125, 294. Discipline and
government of the, 126, 294.
Commander of the, when cal-
led out, 128, 298. Amend-
ment of the Constitution re-
specting the, 264, 303. Right
of the, to bear arms, 264, 265,
303. Importance of the, 265.
Clause respecting, in the Con-
federation, 282.
Ministers, public, appointment of,
172, 173, 299. To be received
by the President, 176, 299. Ju-
risdiction of the Judiciary as to,
186, 192, 213, 221, 223, 300.
Mississippi River and its tributa-
ries, freedom of the, according
to the Ordinance for the gov-
ernment of the Northwestern
Territory, 140, 336. A boun-
dary of the United States, 326.
Freedom of the, according to
the treaty of 1783, 329.
Mode of passing laws in Congress,
96, 293.
Money, borrowing, under the Con-
federation, 29, 287, 288. Coin-
age of, under the Confedera-
tion, 30, 287. Power of Con-
gress for borrowing, 107, 141,
294 ; as to coining, 115, 294 ;
regulating the value of, 116,
294 ; and counterfeiting, 116,
294. Appropriation of, for ar-
mies, 122, 123, 294. On ap-
propriating, before drawing
from the treasury, 144, 295.
States forbidden to coin, 146,
147, 296. See Bills, and Pa-
per.
Montesquieu, on the judiciary, 180.
Morality, indispensable to political
prosperity, 316. See Religion.
N.
National justice, 40, 289. Enjoin-
ed by Washington, 318.
National prejudices, Washington
on, 318.
Naturalization, power of Congress
respecting, 114, 294. See Cit-
izenship.
Naval officers, trial of, 82.
Navigation, power of Congress
over, 110. See Commerce.
Navy, power of Congress as to,
43, 124, 141, 294.
Necessary and proper, meaning of,
as to powers of Congress, 131,
133.
Negative of the President on laws,
98, 293.
Neighboring Stales, Abbe Mably
on, 38.
Neutrality, Washington on, 322.
New countries, laws of England
for, 21.
New England, origin of the States
of, 15.
New Hampshire, settled, 16. Gov-
ernment of, at the commence-
ment of the Revolution, 18.
New Jersey, settled, 16. Adopts
the Constitution, 35.
New States, admission of, into the
Union, 137, 301, 336.
New York, settled, 12, 16. Gov-
ernment of, at the commence-
ment of the Revolution, 18.
Concessions of territory by, 29.
Adopts the Constitution, 35.
New-York city, the seat of govern-
ment, 34.
Nobility, prohibition of titles of, by
Congress, 145, 296 ; by the
States, 146, 156, 296. -
Nominations by the President,
172, 173, 299.
North Carolina, settled, 16. Gov-
ernment of, at the commence-
ment of the Revolution, 18.
Proceedings of, respecting the
adoption of the Federal Consti-
tution, 34.
Northeastern boundary of the Uni-
NDEX.
365
ted States, according to the trea-
ty of 1783, 325.
Northern Colony, under the char-
ter of James f., 15.
Northwestern boundary of the
United States, according to the
treaty of 1783, 326.
Northwestern Territory, 138. Peo-
pling of the, 139. Dane's ordi-
nance for the government of the,
139, 329. Division of the, into
States, 140, 336. Articles of
compact between the original
States and the people and States
of the, 334.
Oaths of office, of the President,
169, 298. Of Senators and
Representatives, 252, 303. Of
executive and judicial officers,
252,253,303. Of State officers,
252, 303. Washington on, 317.
Obligation of contracts, impairing
the, 146, 150, 154, 296. Mean-
ing of, 152.
Offences, for impeachment, 81 , 83,
88, 299. Against the law of na-
tions, 119, 294. 5fce Crimes.
Office, tenure of, by Representa-
tives, 50,52,289 ; by Senators,
67,71,290. Disqualifications of
members of Congress respect-
ing, 94, 292. Prohibition to
hold foreign, 145, 296. Tenure
of, by the President, 159, 160,
296 ; by the Vice-President,
159, 161, 296. Appointments
to, 172-175, 299. Removal
from, 174. Tenure of, 174 ;
by judges, 181, 182, 300 ; by
judges in different States, 206.
See Appointments, Oaths, Qual-
ifications, and Vacancies.
Officers, United States', to be
commissioned by the President,
178,299. Appointment of mili-
tary, under the Confederation,
282, 285.
Ordinance of the Continental Con-
gress, of the 13th of July, 1787,
SI*
for the government of the terri-
tory of the United States north-
west of the Ohio, 139, 329.
Original and appellate jurisdiction
of the National Judiciary, 212,
300. Suggestions respecting it,
213-228. Of inferior tribunals,
214, 218. On the exclusion of
the one by the other, 215.
P.
Paper money, prohibited, 146,
147, 148, 149, 296. In the
Revolution, 148, 149.
Pardons, not extending to impeach-
ment, 88, 170, 172, 298. By
the President, 171, 298.
Parliament, powers and rights of,
over the Colonies, 23, 271.
Stamp Act passed by, 24. May
be prorogued by the King, 92.
Parties to a suit, 186, 203, 300,
304,305.
Party, Washington on the effects
andevilsof, 312, 314.
Patents for inventions, 118, 294.
Peace of 1783, indifference of the
States as to taxation after the,
during the Confederation, 31.
Disregard of the, under the
Confederation, 250. Definitive
Treaty of, between the United
States of America and his Bri-
tannic Majesty, 324. Provis-
ional Articles of, signed at Paris,
in 1782, 324.
Penal sanctions, the Confederation
without, 30.
Penn, William, 18. Versus Lord
Baltimore, 201.
Pennsylvania, Delaware a depen-
dency upon, 12. Settled, 16.
Proprietary government of, 18.
Adopts the Constitution, 35.
People, the Constitution framed by
the, 36. Elect Representatives,
50, 289. Right of the, to as-
semble, and petition for redress
of grievances, 264, 303.
Per pais, trial, 228.
Petition, right of, 264, SOS. Claim-
566
INDEX.
ed in the Declaration of Rights
of 1774, 274. Rejected by the
King of Great Britain, 278.
Philadelphia, Convention at, for
forming the Constitution, 34.
Piracies, power to define and pun-
ish, 119, 294.
Places of trial of crimes, 228,229,
300, 304.
Pledges of Electors, 166, 167.
Plymouth Company, 15. Settle-
ment by the, 15, 16. Union of,
. with Massachusetts, 16.
Poll taxes, 103, 104, 295.
Postmaster-general, suits by the,
205.
Post offices, 117, 294.
Post roads, 117, 294.
Powers and privileges, of both
Houses of Congress, 90, 292.
Reserved to the States and peo-
ple, 266, 305. See Congress,
President, Representatives, Sen-
ate, Senators, and States.
Preamble of the Constitution and
the exposition of it, 37, 289.
Presentments, 230, 231, 232, 304.
Presents to persons in office, from
foreign powers, prohibition of,
145, 296.
President of the Senate, Vice-
President of the United States,
74, 291. Senatorial chair vacat-
ed by the, 76, 291. See Vice-
President.
President of the United States,
impeachment and trial of the, 76,
78, 83, 291. Cannot pardon, in
trials by impeachment, 88, 170,
172, 298. Power of the, to ap-
prove and negative laws, 98,
293. Bills not approved by the,
at the adjournment of Congress,
93, 100, 293. Commander-in-
chief of the army, navy, and
militia, 127, 170, 298. Power
of, to call out the militia, 127.
Duration and tenure of office of
the, 159, 160, 296. Re-eligi-
bility of the, 160, 161. Vice-
President performing the duties
of, 161, 163, 164, 168, 298,
306. Modeof electing the, 161,
163, 164, 296, 297, 395.
Qualifications for, 167, 297.
Resignation of the, 168, 298.
Provision for vacancy of the
office of, 168, 298, 306. His
compensation, 168, 169, 298.
Oath taken by the, 169, 298.
Powers of, 170, 298 ; to re-
quire the opinions of the Heads
of Departments, 170, 171,
298 ; to grant reprieves and
pardons, 171, 298 ; tro make
treaties, 172, 298 ; appoint-
ments to office, 172-175, 299.
Removal from office by the,
174. Duties of, 175, 299. To
give information to Congress,
and recommend measures, 176,
299. To convene and adjourn
Congress, 176, 299. To re-
ceive ambassadors and other
public ministers, 176, 299. To
take care that the laws be faith-
fully executed, 177, 299. To
commission all the officers of
the United States, 178, 299
Incidental powers of the, 178.
Press, liberty of the, 255 ,261, 303
Restriction of the, in foreigo
countries, 262. Loose reasoning
on the, 263. Licensing the,
263. Licentiousness of the, 264.
Princeton, adjournment of the
Continental Congress to, 129.
Private property, on taking for
public uses, 230, 233, 304.
Privilege from arrest, 93,281,292.
Privileges of citizens, 242, 301.
See Controversies, and Judic-
iary.
Prizes, jurisdiction in cases of, 194,
195. See Captures.
Prohibitions, on the United States,
142, 295. On the States, 146,
296. Of religious tests, 252,
253, 259, 303. Of religious es-
tablishments, 255, 259, 303.
Property, private, taken for public
use, 230, 233, 304.
INDEX.
367
Proprietary governments, in the
American colonies, 17, 18. In-
troduction of the common law
into, 20.
Proroguing, by the King, and by
governors, 92.
Protecting domestic manufactures,
113.
Provincial Assemblies, 17. Disso-
lution of, by English governors,
92, 272.
Provincial governments, in the
American colonies, 17. Intro-
duction of the common law into
the, 20.
Provisional Articles of Peace, sign-
ed at Paris, in 1782, 324.
Public acls, records, and judicial
proceedings, the faith to be giv-
en to, 135, 301.
Public credit, Washington on, 317.
Public debts, see Debts.
Public lands, owned by the Crown,
29. Concessions of, by Virginia
and New York, 29. See Ceded
places.
Public ministers, appointment of,
172, 173, 299. To be received
by the President, 176, 299. Ju-
risdiction of the Judiciary over,
186, 192, 213, 221, 223, 300.
Public money, see Money.
Punishments, on the infliction of,
under the Confederation, 30. In
cases of impeachment, unpar-
donable, 88, 170, 171, 298. Of
members of Congress, 91, 292.
For counterfeiting securities and
current coin, 116, 294. Of pi-
racies, felonies, and- offences
against the law of nations, 119,
294. Of treason, 134, 135,
301. Of innocent persons, 135.
Cruel and unjust, not to be in-
flicted, 238, 304.
Qualifications, for electors of Rep-
resentatives, 50, 51, 289. For
Representatives, 54, 73, 289.
For Senators, 73, 291. For
President and Vice-President,
167, 297, 306.
Quartering soldiers, 265, 303.
Quorum, in the Houses of Con-
gress, 90, 91, 292. In voting
for President and Vice-Presi-
dent, 162, 163, 297, 306.
Ratifications of the Constitution,
254, 303.
Recaptures, 196,
Receipts of public money, account
of, to be published, 144, 145,
296.
Records and laws of States, admis-
sion and proof of, 135, 301.
Effect to be given to, 136.
Regulate commerce, power of
Congress to, 108, 109, 110,
141, 294. Meaning of the
words, 109. See Commerce.
Religion, freedom of, 252, 253,
255, 259, 303. Right of gov-
ernment to interfere in, 260.
W^ashington on the necessity of,
to political prosperity, 316.
Religious establishments, unconsti-
tutional, 255, 259, 303.
Religious tests, 252, 253, 259,
303.
Removals from office by the Pres-
ident, 174.
Representation, in Parliament,
24, 273. The principle of, 50,
57. The right of, 273. In the
Territory northwest of the river
* Ohio, 332.
Representatives under the Colonial
Governments, 17, 19.
Representatives, House of, in Con-
gress, 49, 50, 289. Election of,
by the people, 50, 89, 289 ;
advantages of it, 50, 51. Quali-
fications of electors of, 50, 51,
289. Serve two years, 52, 289.
Knowledge and experience re-
quisite in, 52. Qualifications of,
54, 73, 289 ; as to age, 54, 73,
289 ; as to citizenship, 54, 55,
73, 290 ; as to inhabitancy, 54,
368
INDEX.
55, 74, 290. Apportionment of,
56-62, 104, 290. Restriction as
to the number of, 56, 61, 290.
On the manner of apportioning,
58, 290. Supplying vacancies in
the, 62, 290. Choice of Speak-
er, and other officers by the, 62,
290. The power of impeach-
ment in the, 62, 63, 85, 87, 290.
Not impeachable, 83. Punish
for contempts, 85, 98. Disqual-
ifications of, 94, 292. Bills for
raising revenue, to originate with
the, 96, 293. Cannot be elec-
tors of President and Vice-Pres-
ident, 161, 297. Choice of
President by, 162, 163, 165,
297, 305. See Congress.
Reprieves, granted by the Presi-
dent, 171, 298. See Pardons.
Reprisal, letters of marque and,
120, 121, 294. Forbidden to
the States, 146, 296.
Republican form of government,
guarantied to the several States,
244, 245, 302.
Republics, remarks on, 267, 270.
Reserved powers and rights, of the
people, 264, 265, 266, 305.
Of the States, under the Confed-
eration, 279.
Resignation of President, 168,
298.
Resolves, contained in the Declar-
ation of Rights, 273.
Retrospective laws, prohibition of,
by the Union, 144, 295 ; by th^
States, 146, 150, 296.
Revenue, measures of Great Brit-
ain for raising, in the American
Colonies, 24, 271. Want of
power respecting, under the
Confederation, 30. Bills for
raising, 96, 293. Power of
Congress to raise, 101, 293.
See Duties, and Taxes.
Revolution, the American, politi-
cal state of the Colonies at the
time of the, 22. Origin of the,
24. Government during the,
26. Army of the, 122. Bills
of credit in the, 148,286. Le-
gal tender during the, 149. Con-
fiscation laws, 150. Aliens made
by the, 212.
Rhode Island, settled, 16. Char-
ter government of, 19. Pro-
ceedings of, respecting the Fed-
eral Constitution, 34.
Rights, of discovery, 13. Declar-
ation of, by the Continental Con-
gress, in 1774, 24, 271. Reserv-
ed to the States and people, 264,
265, 266, 305. Claimed in the
Declaration of Independence,
275. See Bill of Rights.
Rules of Congress, 91, 292.
S.
Salary of the President, 168, 169,
298. See Compensation.
Salvage, 196.
Search-warrants, 237, 303.
Seat of the government and other
ceded places, power of Congress
over the, 128, 295.
Second trials, prohibition of, 230,
232, 304. See Trials.
Secrecy in Congress, 92, 292.
Self-accusation, criminals not
bound to, 230, 233, 304.
Senate, in Congress, importance of
its existence, 64. Nature of the
representation and vote in the,
67, 290. Supply of vacancies
in the, 72, 291. President of
the, 74, 291. Choice of officers
by the, 74, 75, 291. Trial for
impeachment, by the, 76, 78,
85, 291. Power of the, in re-
gard to treaties and appoint-
ments by the President, 172,
182,299. Filling of vacancies
during the recess of the, 175,
299. To concur in the appoint-
ment of judges, 182, 299. See
Congress, and Senators.
Senators, 67-69, 89, 290. Num-
ber of, 67, 70, 290. Chosen by
the legislatures, 67, 69, 290.
Their term of service, 67, 71,
INDEX.
369
the, 72, 290. Qualifications of,
73, 291. On the impeachment
of, 83. Disqualifications of,
94, 292. Cannot be electors of
President and Vice-President,
161 , 162, 297. See Congress,
and Senate.
Settlement of the United States,
and notice of the, 15.
Ships of war, not to be kept by
the States in time of peace, 156,
296.
Silver to be legal tender in pay-
ment of debts, 146, 149, 296.
Slave trade, abolition of the, by
the United States, 142, 295.
Slaves, apportionment of Repre-
sentatives according to, 56, 57,
290. Prohibition of, in the
Northwestern Territory, 140,
337. Importation of, 142, 295.
Duties on, 142, 295. Examin-
ation of, by torture, 233. ' On
delivering up fugitive, 243,
301,337.
Soil, Indian right to the, 12. Eu-
ropean claim to the, 13.
Soldiers, on quartering, 265, 303.
South Carolina, settled, 16. Gov-
ernment of, at the commence
ment of the Revolution, 18.
Adopts the Constitution, 35.
Southern Colony, under the char-
ter of James I., 15.
Speaker, of the House of Repre-
sentatives, choice of, 62, 290.
Of the House of Commons,
must be approved by the King,
62.
Speech, see Liberty.
Stamp Act, 24.
Standard of weights and meas-
ures, 116, 294.
Standing armies, impolicy of, 265.
Resolution respecting the Bri-
tish, in America, 274.
State Bills of Rights, 48, 256.
See Bills of Rights, and
. Church.
State courts, remarks on the ju-
risdiction of, 219. Non-inter-
ference of the National with,
224. See Appellate, and Ju-
diciary.
State debts, 216. See Debts.
States, governments of the, during
the Revolution, 27. Confeder-
ation adopted by the, 28, 279,
Constitution adopted by the,
34,1-303. Abbe Mably on
neighboring, 38. Importance
of union among the, 38, 43,
310. Separation of, into con-
federacies, 39. Burdens on,
if disunited, 43. Voting by,
under the Confederation, 56,
68, 281. Apportionment of di-
rect taxes among the, 56-60, 97,
104, 290, 295. Restraints on,
respecting taxation and duties,
106, 188, 296. Paramount
authority of the Union and the,
107. Taxation by, 111,296.
Impotency of, respecting natur-
alization and bankrupt laws,
114, 115. Not to engage in
war, 120, 156, 296. Rights
reserved by the, over ceded
places, 130. The faith and
credit to be given to the public
acts, records, and judicial pro-
ceedings of the, 135, 301. Ad-
mission of New, into the Union,
137, 140, 301, 336. The de-
livering up of fagitive criminals
and slaves by, 140, 242, 243,
301, 337. Prohibitions on the,
146, 156, 188, 296 ; as to trea-
ties, alliances, and confedera-
tions, 146, 156, 296 ; as to
granting letters of marque and
reprisal, 146, 296 ; as to coin-
ing money, 146, 147, 296; as
to emission of bills of credit,
146, 147, 296 ; as to making
any thing but gold and silver
coin a legal tender in payment
of debts, 146, 149, 296 ; as to
passing any bill of attainder, ex
post facto law, or law impairing
the obligation of contracts, 146,
150, 296 ; as to granting titles
370
INDEX.
of nobility, 146, 156, 296. Du-
ties by, unconstitutional, 156,
296. Not to keep troops, or
ships of war, in time of peace,
156, 296. Implied prohibitions
on the, 157. Voting by, in the
choice of President, 162, 163,
297, 306. Importance of the
National Judiciary to tne tran-
quillity and sovereignty of the,
186, 187. Jurisdiction in con-
troversies between, 186, 187,
199, 200, 221, 223, 300 ; be-
tween a State and citizens of
another State, 186, 187, 199,
201, 223, 300 ; in suits brought
by, and against a State, 186,
202, 217, 305 ; between citi-
zens of different, 186, 187,
205, 221, 300; of the same
State claiming lands under grants
of different, 186, 187, 209, 221,
300 ; between a State and the
citizens thereof, and foreign
States, citizens, or subjects,
186, 187, 210, 211, 221, 223.
In debt, at the adoption of the
Constitution, 216. Privileges
and immunities of citizens of
the, 242, 301. Guarantee of
republican government to the,
244, 245, 302. Power of, as to
amendments of the Constitu-
tion, 246, 302. Disregard of
treaty stipulations by the, un-
der the Confederation, 250.
Oath of office to be taken by
members of the governments
of, 252, 303. Ratification of
the Constitution by the, 254,
303. Powers not delegated to
the United States, by the, 266,
305. Representation of the,
under the Confederation, 280.
Restrictions on the, by the Con-
federation, 281. Committee
of the, under the Confederation,
285, 287. See Confederation,
Congress, and Union.
Supremacy of the Constitution,
!aw8, and treaties, 249, 302.
Supreme Court, 181, 299. Pos-
itively required, 182. See Ju-
diciary.
Swedes, in Delaware, 12.
T.
Tacitus, on examination by torture,
233.
Tariff, 113.
Taxation, under the Confederation,
28, 30. Power of Congress
respecting, 101, 141, 293; limit
to this power, 104, 293. By
individual States, 111, 296. See
Taxes.
Taxes, weakness of the Continen-
tal Congress respecting, 30, 102.
Apportionment of direct, 56-
60, 97, 104, 290. Bills for
raising, 96, 97, 293. Power of
Congress to lay and collect, 101,
103, 141, 293. Direct and indi-
rect, 103. Laying, and reg-
ulating commerce. 111. On
imported slaves, 142, 295. See
Taxation.
Tender, in payment for debts, 146,
149, 296.
Tenure of office, of Representa-
tives, 50, 52, 289. Of Sena-
tors, 60, 71, 290. Of Presi-
dent, 159, 160, 296. Of Vice-
President, 159, 161, 296. Of
Judges, 181, 182, 300. By
Judges, in different States, 206.
Territories, government of, 138,
301. Ordinance for, by Nathan
Dane, 139, 329.
Testimony, see Witnesses.
Tests, religious, unconstitutional,
252, 253, 259, 303. See Reli-
gion.
Title to the soil of America, claim-
ed by the Indians, 12 ; by the
Europeans, 13.
Titles of nobility, unconstitutional,
145, 146, 156, 296.
Tonnage duties by the States, un-
constitutional, 106, 156. 296.
See Duties.
Tories, see Loyalists.
INDEX.
371
Torture, examination by, con-
demned, 233.
Trade with the Indians, 113. See
Commerce.
Tranquillity, on insuring domestic,
42, 244, 289, 302.
Transportation to England, for tri-
al, 271.
Treason, impeachment for, 81, 83,
299. Punishment of, 134, 135,
301. Persons liable to removal
from office for, 178 , 299. Defi-
nition of, 239, 300. Construc-
tive, 240. Two kinds of, 240.
Evidence of, 241, 300. Trans-
portation to England for trial
for, 271.
Treasury, drawing money from
the, 144, 295.
Treaties, under the Confederation,
29,283. Ofpeace,inl783, 31,
250. States forbidden to enter
into, 146, 296. Power of the
President and Senate respecting,
172, 298. Supremacy of Con-
stitution, laws, and, 249, 302.
Definitive,of peace, between the
United States of America and
his Britannic Majesty, in 1783,
324 ; provisional articles of, in
1782, 324. Between France
and Great Britain, 324. See
Judiciary.
Trial, of impeachment, 76, 78,
291. By jury, 227, 228, 300,
304. Of crimes, 228, 300.
Places for, 228, 229, 300, 304.
Prohibition of second, 230, 232,
304. Transportation of colo-
nists to England for, 271. Rights
respecting, claimed in the Dec-
laration of Rights, of 1774, 274.
See Accused.
Troops, in time of peace, not to
be kept by the States, 156, 296.
Quartering, 265, 303.
True bills of indictment, 232.
U.
Ulpian, on examination by torture,
233.
Unconstitutionality of laws, 251.
Uniformity, of duties, imposts, and
excises, 44, 101, 104, 294, 295.
Of interpretation and operation
of the powers of government and
its laws, 181. Of judicial de-
cisions, 221, 253.
Union, of the States, condition of
the, during the Revolution, and
under the Confederation, 26,
28, 29, 32, 38. Importance of,
38, 43, 310. Conflict of, with
individual States, 107. Admis-
sion of New States into the,
137, 301,336. Provision for
the accession of Canada to the,
under the Confederation, 287.
Washington on the importance
of, 310. Causes which may
disturb the, 312. See States.
United States, Definitive Treaty
of Peace between his Britannic
Majesty and the, 324. Bounda-
ries of the, according to the
treaty of 1783, 325. See Con-
gress, Constitution, and States.
Unity of the Executive, 159.
Usurpation, Washington on, 316.
Vacancies, in the House of Repre-
sentatives, on supplying, 62,
290. In the Senate, 72, 291.
Of the Presidency and Vice-
Presidency, 168, 298, 306.
Appointments to fill, during the
recess of the Senate, 175, 299.
See Appointments, and Office.
Veto, the power of the President,
98, 293. 'Restraint upon it, 98,
99, 100, 293.
Vice-President of the United
States, 34. President of the
Senate, 74, 291; reasons for it,
74. Vote of the, 74, 291.
Vacation of the Senatorial chair
by the, 76. Impeachment of
the, 81, 83, 299. Term of
office of the, 159, 161, 296.
Acting as President, 161, 163,
164, 168, 298, 306. Originally
^72
INDEX.
an equal candidate for the office
of President, 161, 297. Mode
of electing, 161, 163, 164,296,
306. Qualifications for, 167,
297, 306. Provision for vacan-
cy of the office of, 168, 298, 306.
Virginia, the nanle given to the
Southern Colony, 15. Settle-
ment of, 15, 16. Government
of, at the commencement of the
Revolution, 18. Concession of
public lands by, 29. Commis-
sioners appointed by, in 1785,
and in 1786, 33. Adopts the
Constitution, 35.
Virtue, see Morality.
Voting, in Congress, under the
Confederation, 56, 68, 281 ;
under the Constitution, 57, 68.
By the President of the Senate,
74, 291. For the choice of
President and Vice-President,
162, 163, 297, 305.
Voyages, former circuity of, 105.
W.
War, declaration of, 120, 141,
294. States not to engage in,
120, 156, 296.
Warrants for search, 237, 303.
Washington, George, inaugurated
President of the United States,
34. Militia called out under his
administration, 127. Selection
of the Seat of the Government
by, 129. President of the Fed-
eral Convention, and Deputy
from Virginia, 254. Farewell
Address of, 306.
Weights and measures, 116, 294.
Welfare, general, on promoting
the, 44, 102, 289, 294.
Witnesses, persons accused not
bound to be, against them-
selves, 230, 233, 304. Ex-
amination of, by torture, 233.
In behalf of accused persons,
234, 235, 304. Tviro, neces-
sary to conviction of treason,
241, 300.
Yeas and nays in Congress, 92,
292.
END.
>'^ OF THI;
'UHIVERSr
T TCTT
[ •
a...
R]
RmjRN TO deI?^^ '^SE
This book >. ^ ^fcl^ I «
Renewals may li L^°/^2.3lo5 "^"^^^ o°lf:
^^^f iUpTu]
iPRl 12009
li
'«'^''a?7^«?r7i2.|x
Y.B 6.6360
UNIVERSITY OF CALIFORNIA UBRARY
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11