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[Transcriber's Note: In the original book, questions appeared at the
bottom of each page. These questions have been compiled at the end of
the text.]
The Government Class Book;
Designed for the Instruction of Youth in the Principles of
Constitutional Government and the Rights and Duties of Citizens.
By Andrew W. Young,
Author of "Science of Government," "First Lessons in Civil Government,"
"American Statesman," "Citizen's Manual of Government and Law."
NEW-YORK:
J. C. DERBY & N. C. MILLER,
5 SPRUCE STREET, TRIBUNE BUILDINGS.
1865.
Entered, according to Act of Congress, in the year 1859, by Andrew W.
Young, in the Clerk's Office of the District Court of the United States
for the Northern District of New York.
Preface.
The utility of the diffusion of political knowledge among a people
exercising the right of self-government, is universally admitted. The
form of government established by the people of the United States,
though well adapted to promote the general welfare, is highly
complicated; and the knowledge requisite to administer it successfully
can not be acquired without much study. From the fact that a large
portion of the American people are greatly deficient in this knowledge,
we may justly conclude that it will never become general, until it shall
have been made an object of school instruction.
The administration of the government of this great and rapidly
increasing republic, will, in a few years, devolve upon those who are
now receiving instruction in the public schools. Yet thousands annually
complete their school education, who have never devoted any time to the
study of the principles of the government in which they are soon to take
a part--who become invested with political power without the preparation
necessary to exercise it with discretion. The schools are regarded as
the nurseries of our future statesmen. They share largely in the bounty
of the state; yet few of them render in return even the rudiments of
political science to those who are to become her legislators, and
governors, and judges. Not only in the common schools generally, but in
a large portion of the high schools and seminaries, this science is not
included in the course of instruction.
To many of the most enlightened friends of education and of our free
institutions, it has long been a matter of surprise as well as regret,
that those to whom the educational interests of the states are more
immediately intrusted, should so long have treated the study in question
as of minor importance, or have suffered it to be excluded by studies of
far less practical utility. The Regents of the University of the State
of New York have repeatedly noticed the neglect of this study in the
academies and seminaries subject to their visitation; and they mention
it as a remarkable fact, that in many of them preference is given to the
study of the Grecian and Roman antiquities. They say: "The
constitutions, laws, manners, and customs of ancient Greece and Rome are
made subjects of regular study, quarter after quarter, while our own
constitutional jurisprudence, and the every day occurring principles of
our civil jurisprudence, are not admitted as a part of the academic
course!"
To persons who are to engage in any of the industrial or professional
pursuits, a preparatory course of training or discipline is deemed
indispensable to success. Yet many assume the weighty responsibilities
of freemen, and allow their sons to do the same, with scarcely any
knowledge of a freeman's duties. On the intelligent exercise of
political power, the public prosperity and the security of our liberties
mainly depend. Every person, therefore, who is entitled to the rights of
a citizen, is justly held responsible for the proper performance of his
political duties. And any course of popular instruction which fails to
impart a knowledge of our system of government, must be materially
defective.
With a view to supply this deficiency, the author, many years since,
prepared his "Introduction to the Science of Government." This work soon
attained considerable popularity, both as a class book in schools, and
as a book for private reading and reference for adults. Not being
deemed, however, sufficiently _elementary_ for the children and youth
in most of our common schools, another work, entitled, "_First Lessons
in Civil Government_," was written to meet the capacities of younger or
less advanced scholars than those for whom the previous work was
designed.
The favorable reception of these works by the public, and the assurances
of their usefulness to thousands who have studied them, are to the
author a source of high gratification, and an ample reward for many
years of arduous labor. The value of these works has, however, been in a
measure impaired by changes in the government and laws since the time of
their first publication. The latter, especially, descending so minutely
into the details of the government of the state for which alone it is
intended, requires frequent revisions.
It has occurred to the author that a new work, more permanent in the
character of its matter, and adapted for use in all the states, is
demanded to supply the deficiency in the present course of education.
Stimulated by a desire to bear some part in laying a solid foundation
for our republican institutions, and encouraged by the success of his
former labors in this department of education, he has, after a
suspension of several years, resumed his efforts in this enterprise, in
the hope that, with the coöperation of teachers, and those having
official supervision of the schools, it may be carried forward to an
early consummation; when the principles of government shall be made a
subject of regular study in the schools, and the elements of a sound
political education shall be accessible to the mass of American youth.
And he flatters himself, that the attention he has given to this subject
has enabled him to prepare a work adapted, in a good degree, to meet the
existing want of the schools.
Many words and phrases, as they occur in the course of the work, have
been defined; and an attempt has been made to explain the several
subjects in such a manner as to render them intelligible to youth.
The object which it is the purpose of this work to aid in effecting,
claims the earnest attention of parents. Every father, at least, is
bound to see that his sons have the means of acquiring a good political
education. He can not innocently suffer them to pass from under his
guardianship unprepared to discharge their political duties.
The study of this work should not be confined to male pupils. It has
long been considered a striking defect in our system of education, that
females are not more generally instructed in the principles of civil
government, and in matters of business. Although they take no active
part in public affairs, the knowledge here commended would enable them
to exert a far more powerful and salutary influence upon our national
character and destiny. As wives, mothers, teachers, and especially as
counselors of the other sex, they could apply this knowledge to valuable
purposes. And the question is submitted, whether it would not contribute
more to their usefulness than some of those accomplishments which form
so large a part of a modern female education, and which are usually lost
amidst the cares of married life.
To preserve and transmit the blessings of constitutional liberty, we
need a healthful patriotism. But a genuine love of country is hardly to
be expected where there is not a proper appreciation of our political
institutions, which give it its preeminence among nations. And how can
they be duly appreciated if they are not understood? It has been one of
the objects of the writer to bring to view the chief excellencies of our
system of government, and thus to lay, in the minds of youth, the basis
of an enlightened and conservative patriotism.
That this work, as an elementary treatise on civil government, is not
susceptible of improvement, is not pretended. Such as it is, it is
submitted to the judgment of a candid public. If it shall prove in any
considerable degree useful, the author's highest expectations will have
been realized.
To Teachers.
To the meritorious, though often undervalued labors of the instructors
of American youth, is our country greatly indebted for the successful
working of its system of free government; and upon the labors of their
successors rest, in an equal degree, all well-founded hopes of its
future political prosperity.
The general introduction and profitable study of this work, depend much
upon a hearty and active coöperation of teachers in the enterprise which
it is intended to promote. From all who desire to make themselves in the
highest degree useful in their profession, such coöperation is
confidently anticipated.
The advantage of instructing a class in civil government, is not
confined to the pupils. The teacher will find the exercise both
interesting and profitable to himself. Although pains have been taken to
adapt the work to the capacities of youth, the definition of many terms
and phrases, and the further explanation of many subjects, have
necessarily been left to be supplied by teachers. The study and
investigation which may in some cases be required to qualify them for
the task, will be amply rewarded by their own advancement in political
knowledge.
No intelligent teacher, it is presumed, will object to the introduction
of this study, on the ground that there is not sufficient time or room
for an additional exercise. Useful as all the branches now taught may be
justly deemed, all of them are not, as is a knowledge of government,
indispensable to the security of our liberties. The latter is of far
greater importance to an American citizen, than a knowledge of some
portions of arithmetic and the higher mathematics; and in the opinion of
some distinguished educators the time now devoted to these, in many
schools, is sufficient to acquire a tolerable political education. It is
believed, however, that this study need not exclude, or essentially
interfere with, any of the studies pursued in the schools generally. By
the more advanced scholars in the common schools, the work may be used
as a reading book, and thus a two-fold advantage be gained from its use.
To assist the more inexperienced teachers in conducting the exercise, a
few questions have been appended to the chapters. Questions may be added
by the teachers at pleasure, or to such extent as may be thought
necessary. And it is believed the recitations may be made more
profitable to pupils, by requiring them, so far as may be, to give
answers in their own words. To some of the printed questions, no answers
are furnished by the chapters and sections referred to, but may be found
in the Synopsis of the State Constitutions, or other parts of the work.
Occasionally questions have been inserted to which no part of the work
furnishes the answers.
Contents
Principles of Government.
Chapter I.
Mankind fitted for Society, and for Civil Government and Laws
Chapter II.
Rights and Liberty, defined
Chapter III.
Laws defined
Chapter IV.
Different Forms of Government. Monarchy; Aristocracy; Democracy;
Republic
State Governments.
Chapter V.
The Nature and Objects of a Constitution, and the manner in which
it is made
Chapter VI.
Qualifications of Electors; or, by whom Political Power is
exercised in the States of this Union
Chapter VII.
Elections
Chapter VIII.
Division of the Powers of Government
Chapter IX.
States Legislatures--how constituted
Chapter X.
Meetings and Organization of the Legislature
Chapter XI.
Manner of Enacting Laws
Chapter XII.
Executive Department. Governor and Lieutenant Governor
Chapter XIII.
Assistant Executive State Officers
Chapter XIV.
Counties and County Officers. Powers and Duties of County Officers
Chapter XV.
Towns and Town Officers. Powers and Duties of Town Officers
Chapter XVI.
Incorporation and Government of Cities, Villages, &c.
Chapter XVII.
Judicial Department. Justices' Courts
Chapter XVIII.
Trial by Jury; Execution; Attachment; Appeals; Arrest of Offenders
Chapter XIX.
Courts other than Justices' Courts; Grand and Petit Juries, &c.
Chapter XX.
Chancery or Equity Courts; Probate Courts; Court of Impeachment
Chapter XXI.
Assessment and Collection of Taxes
Chapter XXII.
Education. School Funds; Schools, &c.
Chapter XXIII.
Canals and Railroads
Chapter XXIV.
Banks and Insurance Companies
Chapter XXV.
The Militia
Government of the United States.
Chapter XXVI.
Causes of the Revolution
Chapter XXVII.
Nature of the Union under the Confederation
Chapter XXVIII.
Nature of the Union under the Constitution
Chapter XXIX.
Legislative Department. House of Representatives
Chapter XXX.
The Senate
Chapter XXXI.
Power of Congress to lay Taxes, Duties, &c.; Power to Borrow Money
Chapter XXXII.
Power to Regulate Commerce. Commerce with Foreign Nations
Chapter XXXIII.
Power to Regulate Commerce, continued. Navigation; Commerce among
the States, and with the Indian Tribes
Chapter XXXIV.
Powers of Congress in Relation to Naturalization; Bankruptcy;
Coining Money; Weights and Measures; Punishment of Counterfeiting
Chapter XXXV.
Powers of Congress in Relation to Post-Offices; Copy-Rights and
Patents; Inferior Courts
Chapter XXXVI.
Powers of Congress in Relation to Piracy and Offenses against the
Law of Nations; War; Marque and Reprisal; Public Defense; District
of Columbia; Implied Powers
Chapter XXXVII.
Prohibitions on Congress
Chapter XXXVIII.
Prohibition on the States
Chapter XXXIX.
Executive Department. President and Vice-President; their Election,
Qualifications, &c.
Chapter XL.
Powers and Duties of the President; Treaties; Public Ministers;
Appointments and Removals
Chapter XLI.
Auxiliary Executive Departments. Departments of State, of the
Treasury, of the Interior, of War, of the Navy, of the Post-Office;
Attorney General
Chapter XLII.
Judicial Department. District Courts; Circuit Courts; Supreme Court
Chapter XLIII.
Treason Defined, its Punishment
Chapter XLIV.
State Records; Privileges of Citizens; Fugitives; Admission of New
States; Power over Territory; Guaranty of Republican Government
Chapter XLV.
Provision for Amendments; Assumptions of Public Debt; Supremacy of
the Constitution, &c.; Oaths and Tests; Ratification of the
Constitution
Chapter XLVI.
Amendments to the Constitution
Common and Statutory Law.
Chapter XLVII.
Rights of Persons. Personal Security; Personal Liberty; Religious
Liberty; Liberty of Speech, and of the Press; Right of Property
Chapter XLVIII.
Domestic Relations. Husband and Wife
Chapter XLIX.
Domestic Relations, continued. Parent and Child; Guardian and Ward;
Minors; Masters, Apprentices, and Servants
Chapter L.
Rights of Property. How Title to Property is acquired; Wills and
Testaments; Title to Property by Descent
Chapter LI.
Deeds and Mortgages
Chapter LII.
Incorporeal Hereditaments, Right of Way; Aquatic Rights, &c.
Chapter LIII.
Leases. Estates for Life; Estates for Years; Estates at Will;
Estates by Sufferance; Rent, &c.
Chapter LIV.
Contracts in General
Chapter LV.
Contracts of Sale
Chapter LVI.
Fraudulent Sales; Assignments; Gifts, &c.
Chapter LVII.
Bailment
Chapter LVIII.
Principal and Agent, or Factor; Broker; Lien, &c.
Chapter LIX.
Partnership
Chapter LX.
Promissory Notes
Chapter LXI.
Bills of Exchange; Interest; Usury
Chapter LXII.
Crimes and Misdemeanors
Law of Nations.
Chapter LXIII.
Origin and Progress of the Law of Nations; the Natural, Customary,
and Conventional Laws of Nations
Chapter LXIV.
The Jurisdiction of Nations; their mutual Rights and Obligations;
the Rights of Embassadors, Ministers, &c.
Chapter LXV.
Offensive and Defensive War; just Causes of War; Reprisals;
Alliances in War
Chapter LXVI.
Declaration of War; its Effect upon the Person and Property of the
Enemy's Subjects; Stratagems in War; Privateering
Chapter LXVII.
Rights and Duties of Neutral Nations; Contraband Goods; Blockade;
Right of Search; Safe Conducts and Passports; Truces; Treaties of
Peace
Synopsis of the State Constitutions.
Maine
New Hampshire
Vermont
Massachusetts
Rhode Island
Connecticut
New York
New Jersey
Pennsylvania
Delaware
Maryland
Virginia
North Carolina
South Carolina
Georgia
Florida
Alabama
Mississippi
Louisiana
Texas
Arkansas
Missouri
Tennessee
Kentucky
Ohio
Indiana
Illinois
Michigan
Wisconsin
Iowa
California
Minnesota
Constitution of the United States
Government Class Book.
Principles of Government.
Chapter I.
Mankind fitted for Society, and for Civil Government and Laws.
§1. Mankind are social beings. They are by nature fitted for society. By
this we mean that they are naturally disposed to associate with each
other. Indeed, such is their nature, that they could not be happy
without such association. Hence we conclude that the Creator has
designed men for society. It can not, therefore, be true, as some say,
that the savage state is the natural state of man.
§2. Man is so formed that he is dependent upon his fellow men. He has
not the natural strength of other animals. He needs the assistance of
creatures like himself to protect and preserve his own being. We can
hardly imagine how a person could procure the necessaries of life
without such assistance. But men have the gifts of reason and speech. By
conversation they are enabled to improve their reason and increase their
knowledge, and to find methods of supplying their wants, and of
improving their social condition.
§3. But, although men need the assistance of each other, they are so
formed that each must have the care of himself. If every man were fed
and clothed from a common store, provided by the labor of all, many,
depending upon the labor of others, would be less industrious than they
now are. By the present arrangement in society, which obliges every man
to provide for his own wants, more is earned, a greater number are cared
for, and the general welfare is better promoted than would be done if
each labored for the benefit of all.
§4. From this arrangement comes the right of property. If each man's
earnings should go into a common stock for the use of all, there would
be nothing that any one could call his own. But if each is to provide
for himself, he must have a right to use and enjoy the fruits of his own
labor.
§5. But all men in society have the same rights. Therefore, in laboring
to supply our wants, and to gratify our desires, we can not rightfully
do so any further than is consistent with the rights of others. Hence we
see the necessity of some established rules for securing to every member
of society the free enjoyment of what justly belongs to him, and for
regulating his conduct toward his fellow-members.
§6. These rules for regulating the social actions of men, are called
laws. _Law_, in a general sense, is a rule of action, and is applied to
all kinds of action. But in its limited and proper sense, it denotes the
rules of human action prescribing what men are to do, and forbidding
what they are not to do.
§7. We have seen that man is fitted for society, and that laws are
necessary to govern the conduct of men in the social state. We see also
that mankind are fitted by nature for government and laws. Man is also a
moral being. The word _moral_ has various significations. Sometimes it
means only virtuous, or just; as, a moral man; that is, a man of moral
character, or who lives a moral life; by which is meant that the conduct
of the man is just and right.
§8. But in a wider sense, the word moral relates to the social actions
of men, both right and wrong. Thus, in speaking of the character of a
man, we say, his morals are good, or his morals are bad. And of an
action, we say, it is morally right, or it is morally wrong. Man's
having a moral nature implies that he has a sense of right and wrong, or
at least the power or faculty of acquiring it; and, being a moral agent,
he is accountable for his actions.
§9. Thus we have seen that men are social, reasonable, and moral beings.
They have power to discern their own wants and the wants of their fellow
men; to perceive what is right and what is wrong; and to know that they
ought to do what is right and to forbear to do what is wrong. Their
reason enables them to understand the meaning of laws, and to discover
what laws are necessary to regulate the social actions of men. Hence we
conclude that they are fitted and designed for society, and for
government and law.
§10. The youngest reader probably knows, that in speaking of society, we
do not refer to any of those associations usually called societies, but
to _civil_ society, composed of the people of a state or nation. A
_nation_, or _state_, is a large number of persons united under some
form of government; as, the French nation; the British nation; or the
state of New-York; the state of Virginia. Sometimes it signifies the
ruling or governing power of a state or nation, as, the state has
provided for educating its citizens, and for supporting the poor.
§11. The object of the people in forming a state association, or, as is
sometimes said, of entering into civil society, is to promote their
mutual safety and happiness. In uniting for this purpose, they agree to
be governed by certain established rules and principles; and the
governing of the people of a state or nation according to these rules,
is called _civil government_. The word _government_ also signifies the
rules and principles themselves by which the people are governed; and
sometimes the persons who administer the government--that is those who
make the laws of a state and carry them into effect--are called _the
government_.
Chapter II.
Rights and Liberty, defined.
§1. We have spoken of the rights of men, and of laws as designed to
secure to men the free enjoyment of their rights. But a more particular
definition of rights and laws will be useful to young persons just
commencing the study of civil government.
§2. A _right_ means ownership, or the just claim or lawful title which a
person has to anything. What we have acquired by honest labor, or other
lawful means, is rightfully our own; and we are justly entitled to the
free use and enjoyment of it. We have a right also to be free in our
actions. We may go where we please, and do what ever we think necessary
for our own safety and happiness; provided we do not trespass upon the
rights of others; for it must be remembered that others have the same
rights as ourselves.
§3. The rights here mentioned are _natural_ rights. They are so called
because they are ours by nature or by birth; and they can not be justly
taken from us or alienated. Hence they are also called _inalienable_. We
may, however, forfeit them by some offense or crime. If, for example, a
man is fined for breaking a law, he loses his right to the money he is
obliged to pay. By stealing, he forfeits his liberty, and may be justly
imprisoned. By committing murder, he forfeits his right to life, and may
be hanged.
§4. Rights are also called personal, political, civil, and religious.
_Personal rights_, or the _rights of persons_, are rights belonging to
persons as individuals, and consist of the right of _personal security_,
or the right to be secure from injury to our bodies, or persons, or our
good names; the right of _personal liberty_, or the liberty of moving,
acting, or speaking without unjust restraint; and the _right of
property_, or the right to acquire and enjoy property. The terms
_rights of person_ and _rights of persons_, or _personal rights_, have
not the same meaning. The rights of person, as the term is generally
used, does not include the right of property; personal rights include
both the right of property and the rights of person.
§5. _Political rights_ are those which belong to the people in their
political capacity. The word _political_, in a general sense, relates to
government. The whole body of the people united under one government, is
called the political body, or body politic. The right of the people to
choose and establish for themselves a form of government, or
constitution, and the right to elect persons to make and execute the
laws, are political rights. The right of voting at elections is
therefore a political right.
§6. _Civil rights_ are those which are secured to the citizens by the
laws of the state. Some make no distinction between civil rights and
political rights. In a proper sense--that in which the terms are here
used--there is this difference: political rights are those secured by
the political or fundamental law, called the constitution; civil rights
are more properly those which are secured by the civil or municipal
laws. The difference will more clearly appear from the definition
elsewhere given of the political and civil laws. (Chap. III. §5, 6.)
§7. _Religious rights_ consist in the right of a man to make known and
maintain his religious opinions, and to worship God in that way and
manner which he believes in his conscience to be most acceptable to his
Maker. This right is called also the _right of conscience_. But in
exercising this right, a man may not abuse it by violating the rights of
others, or disturbing the peace and order of society.
§8. Now, although human rights are thus divided into classes and
differently defined, they are all natural rights. It is generally held
in this country as a truth, that "all men are created equal;" that is,
born with the same rights. And if men, as social and moral beings, are
fitted by _nature_ and designed for government and laws, we conclude
that their political, civil, and religious rights, and all other rights
to which they are entitled by the law of nature, are natural rights.
§9. _Liberty_ is the being free to exercise and enjoy our rights, and is
called natural, political, civil, or religious, according to the
particular class of rights referred to. Thus the exercise of rights
guarantied by the constitution or political law, is called political
liberty. The free enjoyment of rights secured by the civil or municipal
laws, is called civil liberty. And freedom of religious opinion and
worship is called religious liberty.
§10. Hence liberty itself is a natural right. The words _right_ and
_liberty_, however, have not the same meaning. We may have a right to a
thing when we have not the liberty of using it. John has a pencil which
is justly his own; but James takes it from him by force. John's liberty
to enjoy the use of his pencil is lost, but his right to it remains.
James has no right to the use of the pencil, though he enjoys the use of
it.
§11. This example serves also to explain further the use of the
different terms applied to rights and liberty. John's right to his
pencil, being guarantied to him by the laws of civil society, is a
_civil_ right. It is with equal propriety called a _natural_ right,
because, by the law of nature, he has a right to the use of his pencil.
Chapter III.
Laws, defined.
§1. Law has been briefly defined. (Chap. 1. §6.) As in the case of
rights and liberty, laws are distinguished by different names; as, the
law of nature, or natural law; the moral law; the law of revelation, or
revealed law; the political law; the civil or municipal law.
§2. The _law of nature_, is of the highest possible authority, being
established by the supreme Lawgiver himself. It is called the law of
nature, because it is right in itself--right in the nature of things,
and ought to be obeyed, though no positive command had ever been given
to men. It is a perfect rule of right for all moral and social beings.
It is that eternal rule of right to which God himself conforms.
§3. The law of nature, as a rule of human action, arises out of man's
relation to his Maker and to his fellow men. As a creature, he must be
subject to the laws of his Creator, on whom he is dependent. He is also
in a measure dependent upon his fellow beings. All being created equal,
each is bound by the principles of natural justice to render to others
that assistance which is necessary to make them as happy as himself, or
which they justly owe to him in return.
§4. The _moral law_ is that which prescribes to men their duties to God
and to each other. As a rule of human conduct therefore, it corresponds
exactly to the law of nature. The moral law is briefly expressed in the
decalogue or ten commandments, and is still more briefly summed up in
the two great commandments, to love God with all our heart and to love
our neighbor as ourselves. God being its author, it is called the
_divine law_; and, being found in the Holy Scriptures, in which his will
is revealed to mankind, it is called the _revealed law_, or _law of
revelation_.
§5. _Political law_, as has been observed, is that system or form of
fundamental rules, called the constitution, by which the people in their
political capacity, or as a body politic, agree to be governed. The
nature of this law will more clearly appear from a more particular
definition of constitution, and from a description of the manner in
which a constitution is made. (Chap. V.)
§6. The word _municipal_ was used by the Romans to designate that which
related to a _municipium_, which was a free town, or city. The rights of
a citizen of such free city or town were called _municipal rights_, and
its officers were called _municipal officers_. In this country, the word
is not only used in this limited sense, but is extended to what
pertains to a state. Hence the body of laws which prescribe the duties
of the citizens of a state, are called the _municipal_ or _civil law_.
And the term is used to distinguish the laws made by the legislature, or
law-making power of the state, from the constitution, or political law,
adopted by the people in their political capacity.
§7. If, as has been said, the laws of the Creator form a perfect rule of
conduct for all mankind, and ought in all cases to be obeyed, then all
human law ought to agree with the divine law. If a human law is contrary
to the divine law, or if it requires us to disobey the commands of God,
it is not binding, and should not be obeyed. So the Scriptures teach.
They speak approvingly of men who disobeyed human authority, and who
gave as the reason, that it was their duty to obey God rather than men;
and they furnish many examples of good men who submitted to severe
punishment, even to death, rather than do what they knew to be contrary
to the divine will.
§8. But although the divine will as revealed in the Scriptures, is a
perfect rule or law for all mankind, and although human laws ought to
conform to the divine law, yet it would be impossible to govern the
people of a state by that law alone. The divine law is broad, and
comprehends rules to teach men their whole duty; but it does not specify
every particular act of duty. Much of it consists of general principles
to which particular acts must be made to conform. It requires men to
deal justly with each other; but men do not always agree as to what is
right. Human laws, therefore, become necessary to declare what shall be
considered just and right between man and man.
§9. It may be observed, further, that all the divine precepts could not
be carried into effect in civil government. They are spiritual, and
reach to the thoughts and intents of the heart. They require us to love
our Creator supremely, and our neighbor as ourselves; in other words, to
do to others as we would that they should do to us. But as the
omniscient God only knows when men fail in these duties, no human
authority could enforce such a law. Human laws, therefore, have respect
chiefly to the outward acts of men, and are designed to regulate their
intercourse with each other.
§10. Although the laws of the state can not compel men to fulfill the
great law of love, it is nevertheless morally binding upon all. A
perfectly holy Creator could consistently require of his moral and
accountable creatures nothing less than supreme love to himself, and
equal love to one another. This, as has been remarked, is in accordance
with the law of nature, which is right in the nature of things. (Chap.
III. §2, 3.)
§11. While the divine law accords perfectly with the principles of
natural justice, the giving of it to mankind manifests the wisdom and
benevolence of the supreme Lawgiver. Man is so formed, that it is for
his highest happiness strictly to obey this law. The generous man, in
relieving the wants of others, contributes to his own happiness. The boy
who divides an apple with his fellow, is more happy than he would be if
he retained the whole to himself. It is generally true, that, in
performing acts of kindness and charity to others, we most effectually
promote our own happiness, and feel the saying to be true, "It is more
blessed to give than to receive."
Chapter IV.
Different Forms of Government. Monarchy; Aristocracy; Democracy;
Republic.
§1. Governments have existed in a great variety of forms. The earliest
governments of which we have any knowledge, are the patriarchal.
_Patriarch_, from the Greek, _pater_, father, and _arkos_, chief, or
head, means the father and ruler of a family. This kind of government
prevailed in the early ages of the world, and in a state of society in
which the people dwelt together in families or tribes, and were not yet
formed into states or nations. The patriarchal government existed before
the flood, and for a long period afterward. Abraham, Isaac, and Jacob,
the fathers of the Hebrew race, as also the sons of Jacob, the heads of
the twelve tribes, were called patriarchs.
§2. After their departure from Egypt, the government of the Hebrews was
a _theocracy_. This word is from _theos_, God, and _kratos_, power, and
signifies a government by the immediate direction of God. The laws by
which they were governed were given to them on Mount Sinai by God
himself, their leader and king. This theocratic form of government, with
some changes, existed until the coming of the Messiah.
§3. But the forms of government which have most prevailed, are
designated by the terms, monarchy, aristocracy, and democracy, or
republic. These words severally indicate by what persons, and in what
manner, the governing power of a state is exercised. This power is
usually called the _sovereign_, or _supreme_ power. Where kings rule,
they are called sovereign; and where the power is in the hands of the
people, the people are sovereign. In the strict sense of the term,
however, entire sovereignty, or supreme power, exists only where power
is exercised by one man, or a single body of men, uncontrolled or
unrestrained by laws or by any other power. But in a more general sense,
it is that power in a state which is superior to all other powers within
the same.
§4. A form of government in which the supreme power is in the hands of
one person, is called a monarchy. The word _monarch_ is from two Greek
words, _monos_ sole or only, and _arkos_, a chief; and is a general name
for a single ruler, whether he is called king, emperor, or prince. A
government in which all power resides in or proceeds from one person, is
an _absolute_ monarchy. If the power of the monarch is restrained by
laws or by some other power, it is called a _limited_ monarchy.
§5. A monarchy is called _hereditary_ in which the throne passes from
father to son, or from the monarch to his successor, by inheritance. On
the death of a sovereign, the eldest son is usually heir to the crown;
or if there is no son, it falls to the daughter, or some other relative.
A monarchy is _elective_, where, on the death of the ruler, his
successor is appointed by an election. A few such monarchies have
existed.
§6. An absolute monarchy is sometimes called _despotism_. The word
_despot_ is from the Greek, and means _master_, or _lord_. It has nearly
the same meaning as _tyrant_, which also is from the Greek, and
signifies _king_. These words at first meant simply a single ruler. They
are now applied, for the most part, to rulers who exercise authority
over their subjects with severity. In an absolute despotism, the monarch
has entire control over his subjects. They have no law but the will of
the ruler, who has at command a large force of armed men to keep his
people in subjection. The governments of Russia and Turkey are highly
despotic.
§7. An _aristocracy_ is a form of government in which the power is
exercised by a privileged order of men, distinguished for their rank and
wealth. The word _aristocracy_ is from the Greek word _aristos_, best,
and _kratos_, power, or _krateo_, to govern; and means a government of
the best. It is also used for the nobility of a country under a
monarchical government. _Nobles_ are persons of rank above the common
people, and bear some title of honor. The titles of the English nobility
are those of duke, marquis, earl, viscount, and baron. These titles are
hereditary, being derived from birth. In some cases they are conferred
upon persons by the king.
§8. A _democracy_ is a government of the people; the word democracy
being from the Greek _demos_, the people, and _krateo_, to govern. In a
government purely democratic, the great body of freemen meet in one
assembly to make and execute the laws. There were some such governments
in ancient Greece; but they necessarily comprised small territories,
scarcely more than a single town. The freemen of a state could not all
meet in a single assembly.
§9. The government of this country, though a government of the people,
is not one of the kind just described; it is a republic. A _republic_ is
a government in which the power to enact and execute the laws is
exercised by representatives, who are persons elected by the people to
act for them. Yet, as not only the election of representatives, but the
adoption of the constitution or form of government itself is the act of
the people; and as, therefore, all power comes from the people, the
government is also democratic; and is properly called a _democratic
republic_, or a _representative democracy_.
§10. A republic is sometimes also called a _commonwealth_. _Common_
signifies general, and is applied to what belongs to or is used by the
people generally. _Weal_ means welfare or happiness. _Wealth_ also was
formerly sometimes used for weal. Hence _commonwealth_ means strictly
the _common good_, or the _common happiness_. In a general sense it
signifies a state; but it is properly applied to a free state, one in
which the people enjoy common rights and privileges. Hence every state
in the union is a commonwealth or republic.
State Governments.
Chapter V.
The Nature and Objects of a Constitution, and the Manner in which it is
made.
§1. Of all the different forms of government which have existed, a
republican government, on the plan of that which has been established in
this country, is believed to be best adapted to secure the liberties of
a people, and to promote the general welfare. Under the reign of a wise
and virtuous ruler, the rights of person and property may be fully
enjoyed, and the people may be in a good degree prosperous. But the
requisite virtue and wisdom have seldom been found in any one man or a
few men. And experience has proved that the objects of civil government
may be best secured by a written constitution founded upon the will or
consent of the people.
§2. The word _constitute_ is from the Latin, and signifies _to set_, to
fix, to establish. _Constitution_, when used in a political sense, means
the established form of government of a state. In a free government,
like ours, it is properly called the _political law_, being established
by the people as a body politic, or political body. (Chap. III,
§5.) It is also called the _fundamental law_, because it is the
_foundation_ of all other laws of the state, which are enacted by the
legislature for regulating intercourse between the citizens, and are
called the _municipal_ or _civil_ law, and must conform to the
fundamental, or political law.
§3. A constitution is in the nature of an agreement between a whole
community or body politic and each of its members. This agreement or
contract implies, that each one binds himself to the whole, and the
whole bind themselves to each one, that all shall be governed by certain
laws and regulations for the common good.
§4. The nature of a constitution will further appear from the manner in
which it is made. It is evident that a people, in establishing a
constitution, must have some right or authority to act in the business.
Whence this right is derived, we will not now stop to inquire. There is,
however, somewhere power to enact a law authorizing the people to make a
constitution and prescribing the manner in which it is to be made.
§5. In forming a constitution, the people must act collectively. But
their number is too large to meet in a single assembly. Therefore they
choose a small number to act for them. One or more are chosen in each
county, or smaller district, and are called delegates. A _delegate_ is a
person appointed by another with power to transact business as his
representative. The assembly composed of the delegates so elected, is
called _convention_; a name given to most public meetings other than
legislative assemblies. Delegate and representative are words of nearly
the same meaning. The latter, however, usually designates a person
chosen to assist in making the laws of the state.
§6. The rules agreed upon by the convention as a basis of government,
are arranged in proper form. The several portions relating to the
different subjects are called articles, and numbered; and the articles
are divided into sections, which also are numbered. But what has been
thus prepared by the convention is not yet a constitution. It is only a
draft of one, and can not become a constitution without the consent of
the people to be given at an election. If a majority of the persons
voting at such election vote in favor of the proposed constitution, it
is adopted, and becomes the constitution of the state.
§7. One of the most valuable rights of the people under a free
government, is the right to have a constitution of their own choice.
Indeed it is in this right that their freedom principally consists. It
is by the constitution that their rights are secured. All the people
join in establishing the constitution; but they do not all unite in
making and executing the laws; in other words, they do not themselves
administer the government; this is done by their representatives. But if
these should enact unjust and oppressive laws; the people, having by
their constitution reserved the right to displace them, may do so by
electing others in their stead.
§8. In an absolute monarchy the people have no political rights--the
right to establish a form of government for themselves, and the right to
elect those who are to make and administer the laws. The monarch has
entire control over his subjects. He can take their lives and property
when he pleases. His will is their law; and he has at command a large
force of armed men to keep his people in subjection.
§9. In a limited monarchy, the people have some political rights. Such a
monarchy is Great Britain. The king or sovereign is in a measure
restrained by laws; and he can not make laws alone. The laws are framed
and agreed to by parliament, and must be approved by the king or queen.
Parliament consists of two bodies of men, the house of lords and the
house of commons. The members of the latter are elected by the people,
who, in such election, exercise a political right.
§10. But the political right of establishing a constitution or form of
government, is not enjoyed by the people of that country. They have no
written instrument, like ours, called constitution, adopted by the
people. What is there called the constitution, is the aggregate or sum
of laws, principles, and customs, which have been formed in the course
of centuries. There is therefore no restraint upon the power of
parliament; hence no law which may be enacted is contrary to the
constitution; and the people have not the same security against the
enactment of unjust laws as the people of the United States.
Chapter VI.
Qualifications of Electors; or, by whom Political Power is exercised in
the States of this Union.
§1. One of the first provisions usually inserted in a constitution of a
free state, is that which declares who shall be allowed to take a part
in the government; that is, to whom the political power shall be
intrusted. As this power is exercised by voting at elections, the
constitution very properly prescribes the qualifications of electors,
or, in other words, declares what shall be necessary to entitle a man to
the right of voting, or the right of suffrage. When, therefore, we speak
of the people politically, we mean those only who are qualified
electors.
§2. To be competent to exercise the right of suffrage, a person must be
a freeman, or, as we sometimes say, he should be his own master. While
under the control of a parent or guardian, he might be constrained to
act contrary to his own judgment. All our state constitutions,
therefore, give this right only to free male citizens of the age of
twenty-one years and upwards; twenty-one years being the age at which
young men become free to act for themselves.
§3. But even if this freedom were obtained at an earlier age, it would
not be expedient to bestow this right upon persons so young. They have
not the necessary knowledge and judgment to act with discretion. Some
are competent at an earlier age; but a constitution can make no
distinction between citizens. It has therefore, in accordance with the
general opinion, fixed the time at the age of twenty-one, when men shall
be deemed capable of exercising the rights and performing the duties of
freemen.
§4. That a man may vote understandingly, he must have resided long
enough in the state to have become acquainted with its government and
laws, and to have learned the character and qualifications of the
persons for whom he votes. State constitutions therefore require, that
electors shall have resided in the state for a specified period of time,
varying, however, in the different states from three months to two
years. In most of the states, they must also have resided for some
months in the county or district, and be residents of the town in which
they offer to vote.
§5. But in giving the right of suffrage to all free male citizens
twenty-one years of age, it is not given to every _man_, because all
_men_ of that age are not citizens. Persons born in foreign countries
and residing here are _aliens_, and are not entitled to the political
rights of persons born in this country. They are presumed to have too
little knowledge of our government, and to feel too little interest in
public affairs, on their first coming hither, to be duly qualified for
the exercise of political power. Laws, however, have been enacted for
naturalizing aliens after they shall have resided here long enough to
become acquainted with and attached to our government. By naturalization
they become citizens, entitled to all the privileges of native or
natural born citizens, (Chap. XXXIV, §3, 4.)
§6. The constitutions of most of the states confer the rights of an
elector on _white_ male citizens only. Maine, New Hampshire, Vermont,
Massachusetts, and Rhode Island, are the only states in which colored
men have the same electoral rights as white citizens. In New York, men
of color owning a freehold estate (an estate in lands) of the value of
$250, are qualified voters.
§7. It is provided also in state constitutions, that electors committing
infamous crimes are disfranchised. _Franchise_ is a right or privilege
enjoyed by the citizens of a state. Hence the right of voting at
elections is called the _elective franchise_; and an elector, when
deprived of this privilege, is _disfranchised_. An _infamous crime_ is
one which is punishable by imprisonment in a state prison. Men guilty of
high crimes are deemed unfit to be intrusted with so important a duty as
that of electing the persons who are to make and execute the laws of the
state. It is provided, however, that if such persons are pardoned before
the expiration of the term for which they were sentenced to be
imprisoned, their forfeited rights are restored.
§8. By the earliest constitutions of many of the old states, electors
were required to own property, or to have paid rents or taxes, to a
certain amount. In the election of the higher officers, freeholders only
were entitled to vote. A _freeholder_ is an owner of real estate,
(property in lands,) which he holds in his own right, and may transmit
to his heirs. In the constitutions of the newer states, property has not
been made a qualification of an elector; and in the amended
constitutions of the old states this restriction upon the elective
franchise has been removed, until it has nearly ceased to exist in the
United States. It is now enjoyed by all white male freemen, with few
exceptions, in almost every state of the Union.
Chapter VII.
Elections.
§1. For the convenient exercise of political power, as well as for the
purposes of government generally, the territory of a state is divided
into districts of small extent. It has been remarked, that the people of
a state, being too numerous to meet in one assembly to make laws and
transact the public business, elect a small number to represent them.
But to elect these representatives and other officers, and to adopt the
constitution, or fundamental law of the state, are political duties,
which must be performed by the people in person, and in a _collective_
capacity. Hence the necessity of small territorial divisions, in which
the people may assemble for political purposes.
§2. A state is divided into counties, and these are divided into towns
or townships. The people of every county and every town have power to
manage their local concerns. The corporate powers of counties and towns,
and the election and the powers and duties of county and town officers,
will be given in subsequent chapters.
§3. The electors of the state meet every year in their respective towns
for the election of officers. Meetings for electing town officers are,
in a majority of the states, held in the earlier part of the year. Most
officers elected by the people, other than town officers, are chosen at
the general state election, which, in most of the states, is held in
October or November.
§4. Elections are conducted by persons designated by law, or chosen by
the electors of the town for that purpose. It is their duty to preserve
order, and to see that the business is properly done. They are usually
called _judges of elections_, or _inspectors of elections_. Persons
also, (usually two,) serve as clerks. Each clerk keeps a list of the
names of the persons voting, which is called a _poll-list. Poll_, which
is said to be a Saxon word, signifies _head_, and has come to mean
person. Thus, so much a head means so much for every _person_ By a
further change it has been made to signify an election, because the
persons there voting are numbered. Hence, "going to the polls" has
obtained the same meaning as going to an election.
§5. When the inspectors are ready to receive votes, one of them makes it
known by proclaiming with a loud voice, that "the polls are now open."
The inspectors receive from each voter a ballot, which is a piece of
paper containing the names of the persons voted for, and the title of
the office to which each of them is to be elected. _Ballot_, from the
French, means a little ball, and is used in voting. Ballots are of
different colors; those of one color signifying an affirmative vote, or
_yes_; those of another color a negative vote, or _no_. From this has
come the application of the word ballot to the written or printed ticket
now used in voting.
§6. If no objection is made to an elector's voting, the ballot is put
into the box, and the clerks enter his name on the poll-list. If the
inspectors suspect that a person offering to vote is not a qualified
elector, they may question him upon his oath in respect to his
qualifications as to age, the term of his residence in the state and
county, and citizenship. Any bystander also may question his right to
vote. This is called _challenging_. A person thus challenged is not
allowed to vote until the challenge is withdrawn, or his qualifications
are either proved by the testimony of other persons, or sworn to by
himself.
§7. In a few states, the voters are registered. A list is kept of the
names of all who have, upon examination, been ascertained to be
qualified electors; and those only whose names are on the register are
allowed to vote. Thus many interruptions to voting by the examination of
voters at the polls, and much illegal voting, are prevented. Voters in
some states are also required to take what is called the "elector's
oath," in which they promise to be true and faithful to the state and
its government, and to the constitution of the United States; and to
give their votes as they shall judge will conduce to the best good of
the same.
§8. After the polls are closed, the box is opened, and the ballots are
counted. If the number of ballots agrees with the number of names on the
poll-lists, it is presumed no mistake has been made, either in voting or
in keeping the lists. If the election is one for the choosing of town
officers, it is there determined who are elected, and their election is
publicly declared.
§9. The election of county and state officers can not be determined by
the town canvassers. A statement of the votes given in each town for the
persons voted for, is sent to the county canvassers, who, from the
returns of votes from all the towns, determine and declare the election
of the officers chosen for the county. To determine the election of
state officers, and of such others as are elected for districts
comprising more than one county, a statement of the votes given for the
several candidates, is sent by the several boards of county canvassers
to the state canvassers, who, from the returns of votes from the several
counties, determine the election of the state officers.
§10. In a few states, voting at elections is done _viva voce_. These
words mean by word of mouth. In voting in this manner, the elector
speaks the name of the person for whom he votes.
§11. In most of the states, persons are elected by a plurality of votes.
An election by _plurality_ is when the person elected has received a
higher number of votes than any other, though such number be less than a
majority of all the votes given. Suppose, for example, three candidates
receive 1000 votes: One receives 450; another, 300; the third, 250
votes. The first, having the highest number, though not a majority, is
elected. In the New England, or eastern states, a _majority_, that is,
more than one-half of all the votes given, is necessary to the election
of many of the higher officers. The least number of votes out of 1000,
by which a person can be elected by this rule, is 501.
§12. Either of these modes is liable to objection. When a simple
plurality effects an election, 1,000 votes may be so divided upon three
candidates as to elect one by 334 votes; or of four candidates, one may
be elected by 251 votes, and against the wishes of nearly three-fourths
of the electors. An objection to the other mode is, that if no person
receives a majority of all the votes, another election must be held.
Numerous trials have, in some instances, been necessary to effect a
choice; and the people of a district have remained for a time without a
representative in the state or national legislature.
Chapter VIII.
Division of the Powers of Government.
§1. Having shown the nature of a constitution and the manner in which it
is made and adopted, it will next be shown how the powers of government
under a state constitution are divided. As the excellence of a form of
government consists much in a proper separation and distribution of
power, this subject deserves special attention.
§2. We notice first the separation of the political and civil powers.
The words _political_ and _civil_ are often used as having the same
meaning. Thus, speaking of the system of government and laws of a
country, we use the general term, "political institutions," or "civil
institutions;" either of which is deemed correct. But these words have
also a particular signification, as has already been shown in the
distinction made in preceding chapters between political rights and
civil rights, and between the political law and the municipal or civil
laws. (Chap. II, and III.) Hence it appears, that what we mean by
political power is the power exercised by the people in their political
capacity, in adopting their constitution and electing the officers of
the government; and that, by the civil power is meant the power
exercised by these officers in administering the government.
§3. In an absolute government, no such distinction exists; all power is
centered in the supreme ruler. There is no political law binding on him.
Being himself restrained by no positive laws or regulations that have
been adopted by the people, or that may be altered by them, the people
have no political rights. In a mixed government, or limited monarchy,
political power is exercised to some extent. Although there is no
written constitution adopted by the people, as in a republic, the
members of one branch of the law-making power are elected by the people.
In such election they are said to exercise political power.
§4. We notice next the division of the civil power. This power, in well
constructed governments, is divided into three departments, the
legislative, the executive, and the judicial. The legislative department
is that by which the laws of the state are made. The legislature is
composed of two bodies, the members of which are elected by the people.
In limited monarchies where one branch of the legislature is elective,
the other is an aristocratic body, composed of men of wealth and
dignity, as the British house of lords.
§5. The executive department is intrusted with the power of executing,
or carrying into effect, the laws of the state. There is in this
department a governor, assisted by a number of other officers, some of
whom are elected by the people; others are appointed in such manner as
the constitution or laws prescribe. The powers and duties of the
governor of a state will be more particularly described in another
place.
§6. The judicial department is that by which justice is administered to
the citizens. It embraces the several courts of the state. All judges
and justices of the peace are judicial officers; and they have power,
and it is their business to judge of and apply the law in cases brought
before them for trial. A more particular description of the powers and
duties of judicial officers, and the manner of conducting trials in
courts of justice, will be given elsewhere. (Chap. XVII-XX.)
§7. Experience has shown the propriety of dividing the civil power into
these three departments, and of confining the officers of each
department to the powers and duties belonging to the same. Those who
make the laws should not exercise the power of executing them; nor
should they who either make or execute the laws sit in judgment over
those who are brought before them for trial. A government in which the
different powers of making, executing, and applying the laws should be
united in a single body of men, however numerous, would be little better
than an absolute despotism.
§8. Again, the legislative department of the civil power is divided.
Under all our state constitutions, the legislature consists of two
branches, both of which must agree to a proposed measure before it
becomes a law; and in many of the states, it must also be approved by
the governor. This is making the chief executive officer a third branch
of the law-making power; and is not in accordance with the principle of
keeping the several departments of the civil power separate and distinct
from each other. The reason for this departure from the general
principle mentioned, will be stated in another chapter. (Chap. XI. §16.)
Chapter IX.
State Legislatures--how constituted.
§1. The legislature of every state in the union is composed of two
houses--a senate and a house of representatives. The latter, or, as it
is sometimes called, the lower house, in the states of New York,
Wisconsin, and California, is called the assembly; in Maryland and
Virginia, the house of delegates; in North Carolina, the house of
commons; and in New Jersey, the general assembly. In most of the
states, the two houses together are called _general assembly_.
§2. The senate, as well as the other house, is a representative body;
its members being elected by the people to represent them. Why, then, is
only one of the two branches called the house of representatives?
Perhaps for this reason: Under the governments of the colonies, while
yet subject to Great Britian, there was but one representative assembly.
The other branch of the legislature was called a _council_, consisting
of a small number of men who were appointed by the king. After the
colonies became free and independent states, a senate was substituted
for the old council, and although it is an elective body, the other
house, being much more numerous, is called, by way of distinction, the
_house of representatives_.
§3. Senators are chosen annually in the six New England states, namely,
Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and
Connecticut. In the other states they are elected for terms of two,
three, or four years. In most of the states in which senators are
elected for longer terms than one year, they are not all elected at the
same time. They are divided into classes; and those of one class go out
of office one year, and those of another class another year; so that
only a part of the senators are elected every year, or every two, or
three, or four years.
§4. The senate, as distinguished from the house of representatives, is
sometimes called the upper house. It was designed to be a more select
body, composed of men chosen with reference to their superior ability,
or their greater experience in public affairs.
§5. Senators are differently apportioned in different states. In some
states they are apportioned among the several counties, so that the
number to be elected in each county shall be in proportion to the number
of its inhabitants. In others they are elected by districts, equal in
number to the number of senators to be chosen in the state, and a
senator is elected in each district. The districts are to contain, as
nearly as may be, an equal number of inhabitants; and sometimes they
comprise several counties.
§6. Representatives are apportioned among the counties in proportion to
the population in each. In some states they are elected in districts of
equal population, counties being sometimes divided in the formation of
districts. In the New England states, representatives are apportioned
among the towns. In about one-half of the states, they are elected
annually; in the others, (including-most of the southern and western
states,) they are elected every two years.
§7. The different modes of apportioning members of the legislature have
in view the same object--equal representation; that is, giving a member
to the same number of inhabitants in one county or district as to an
equal number in another. But in some counties the population increases
more rapidly than in others. The representation then becomes unequal,
being no longer in proportion to population.
§8. In order to keep the representation throughout the state as nearly
equal as possible; in other words, to secure to the people of every
county or district their just proportion of the representatives, the
constitution requires that, at stated times, the people of the state
shall be numbered, and a new apportionment of senators and
representatives be made among the several counties according to the
number of inhabitants in each county; or if the state is one in which
members of the legislature are chosen in districts, a new division of
the state is made into districts.
§9. But the periods of time between the enumerations of the people, are
not the same in all the states. In some states the enumerations are made
every ten years; in others, shorter periods have been fixed, from eight
down to four years. This enumeration or numbering of the people is
called taking the census. _Census_ is from the Latin, and was used by
the ancient Romans to signify a declaration or statement made before the
censors by the citizens, containing an enumeration or register of
themselves, their wives, children, servants, and their property and its
valuation. In the United States, although the census sometimes includes
a similar register, the word usually means simply an enumeration of the
people.
§10. The constitution also prescribes the qualifications of senators and
representatives. If, as qualifications for an elector, full age,
citizenship, and a considerable term of residence in the state and
county, are properly required, as we have seen, (Chap. VI. §2-5,) they
must be at least equally necessary for those who make the laws. In no
state, therefore, are any but qualified electors eligible to the office
of senator or representative. In some states, greater age and longer
residence are required; and in some, the age and term of residence have
been still further increased in the case of senators. The property
qualification formerly necessary for members of the legislature, as well
as for voters, has been almost entirely abolished. (Chap. VI. §8.)
§11. If a member of the legislature dies, or resigns his office before
the expiration of the term for which he was chosen, the vacancy is
filled by the election of another person at the next general election,
or at a special election called for that purpose, or in such other
manner as the constitution may provide. But a person chosen to fill a
vacancy, holds the office only for the remainder of the term of him
whose place he was chosen to supply.
Chapter X.
Meetings and Organization of the Legislature.
§1. The legislature meets as often as the constitution requires, to
enact such laws as may be necessary to promote the public welfare, and
to perform such other duties as are assigned to it by the constitution
and the laws. In about half of the states, sessions are held annually;
in the others biennially, or once in two years. A legislative session
includes the daily meetings of a legislature from the time of its first
assembling, to the day of final adjournment. Thus we say the session
commenced in January and ended in March. The word _session_ has
reference also to a single sitting, from the hour at which the members
assemble on any day, to the time of adjournment on the same day. Thus we
say, the legislature holds a daily session of four hours; or, it holds
two sessions a day, as the case may be.
§2. Meetings of the legislature are held at a place permanently fixed by
the constitution; at which place the principal state officers keep their
offices. Hence it is called the _seat of government_, or perhaps more
frequently, the _capital_ of the state. _Capital_ is from the Latin
_caput_, the head, and has come to mean chief, or the highest. A capital
city is therefore the chief city of a state or kingdom. But the word
_capital_, applied to a city, now generally indicates the seat of
government.
§3. When the two houses have assembled in their respective chambers,
some person designated for that purpose administers to the members of
each house the oath of office, in which they solemnly swear (or affirm,)
that they will support the constitution of the United States, and the
constitution of the state, and faithfully discharge the duties of their
office.
§4. Each house then proceeds to _organize_ for business, by appointing
proper officers, and determining the right of members to seats in the
house. In organizing a legislative body, the first thing done is the
election of a presiding officer, or chairman, who is usually called
_speaker_. The lieutenant-governor, in states in which there is one,
presides in the senate, and is called _president of the senate_. In the
absence of the presiding officer, a temporary speaker or president is
chosen, who is called speaker or president _pro tempore_, commonly
abbreviated, _pro tem._, which is a Latin phrase, meaning _for the
time_.
§5. The duty of the person presiding is to keep order, and to see that
the business of the house is conducted according to certain established
rules. When a vote is to be taken, he puts the question, which is done
by requesting all who are in favor of a proposed measure, to say _aye_,
and those opposed to say _no_. And, when a vote has been taken, he
declares the question to be carried or lost. This part of a speaker's
business is similar to that of the chairman of an ordinary public
meeting.
§6. The other officers chosen by each house are, a _clerk_ to keep a
record or journal of its proceedings; to take charge of papers, and to
read such as are to be read to the house; and to do such other things as
may be required of him; a _sergeant-at-arms_, to arrest members and
other persons guilty of disorderly conduct, to compel the attendance of
absent members, and to do other business of a like nature: also one or
more _door-keepers_. The officers mentioned in this section are not
chosen from the members of the house.
§7. The constitution does not prescribe to either house the order of
business, or the particular manner in which it shall be done; but
authorizes each house to determine for itself the rules of its
proceedings. But there are sundry things which it expressly enjoins. It
determines what portion of the members shall constitute a quorum to do
business. _Quorum_ is the Latin of the English words, _of whom_, and has
strangely come to signify the _number_ or _portion_ of any body of men
who have power to act for the whole. Thus with reference to a
legislative body consisting of a certain number of members, instead of
saying, A majority _quorum_ shall have power to act; or, A majority _of
whom_ shall have power to act, our constitutions generally say, A
majority shall constitute a quorum to do business. In some states, more
than a bare majority is required for a quorum.
§8. Constitutions generally require also that the proceedings of
legislative bodies shall be open to public inspection. The doors may be
closed against spectators only when the public good shall require
secrecy. And that the people may be fully informed of what is done, each
house is required to keep and publish a journal of its proceedings.
§9. Provision is also made, either by the constitution or by laws
against injury or interruption to the business of the legislature.
Members may not, by any prosecution at law, except for crimes and
misdemeanors, be hindered during their attendance at the sessions of the
legislature, nor in going to or returning from the same. Each house may
compel the attendance of absent members. It may for good cause expel a
member, and punish, not only its members and officers, but other
persons, for disorderly conduct, or for obstructing its proceedings.
Chapter XI.
Manner of Enacting Laws.
§1. When the two houses are duly organized and ready for business, the
governor sends to both houses a written communication called _message_,
in which, as the constitution requires, he gives to the legislature
information of the condition of the affairs of the state, and recommends
such measures as he judges necessary and expedient. The message is read
to each house by its clerk.
§2. But the measures to which the governor calls the attention of the
legislature, are but a small portion of those which are considered and
acted upon. Many are introduced by individual members. Others are
brought into notice by the petitions of the people in different parts of
the state. _Petition_ generally signifies a request or prayer. As here
used, it means a written request to the legislature for some
favor--generally for a law granting some benefit or relief to the
petitioners. Petitions are sent to members, usually to those who
represent the counties or districts in which the petitioners live, and
are by these members presented to the house.
§3. Now it is evident, that a proper consideration of the numerous
subjects pressed upon the attention of the legislature--some of them of
very great importance--must require much labor. If the necessary
investigation of so many subjects should occupy the time of the whole
house, there would not be time enough to act upon one-half of them.
Therefore, in order to dispatch business, the labor of the house must be
divided, that the investigation of all the different subjects may be
going on at the same time.
§4. Hence arises the practice which prevails in all legislative bodies,
of the appointment of committees. As soon as may be, after a house is
organized, committees are appointed on all subjects usually acted on in
the legislature. A legislative committee is generally composed of three,
five, or seven members, who examine the subjects referred to them, and
report the result of their examination to the house. Committees are
appointed by the presiding officer of each house. Occasionally, though
very rarely, they are elected by the house itself.
§5. Some or all of the following committees are appointed in every
legislature: a committee on finance, or the funds, income, and other
money matters of the state, sometimes called the committee of ways and
means; a committee on agriculture; a committee on manufactures;
committees on the incorporation of cities and villages; on banks and
insurance companies; on railroads; on canals; on education; on
elections; on public printing, besides many others. So numerous are
these subjects, that in constituting the committees, every member may be
put on some committee.
§6. All matters relating to these subjects of a general nature, which
arise during the session, are referred to their appropriate committees.
Thus, a question or proposition relating to banks, is referred to the
committee on banks; matters relating to rail-roads, are referred to the
committee on rail-roads; those relating to schools, are referred to the
committee on education, &c. As these committees continue during the
session, they are called _standing_ committees. When a question arises
having no relation to any subject on which there is a standing
committee, it is usually referred to a _special_ or _select_ committee
appointed to consider this particular matter.
§7. Committees meet in private rooms, during hours when the house is not
in session; and any person wishing to be heard in favor of or against a
proposed measure, may appear before the committee having it in charge.
Having duly considered the subject, the committee reports to the house
the information it has obtained, with the opinion whether the measure
ought or ought not to become a law. Measures reported against by
committees, seldom receive any further notice from the house.
§8. From what has been said, the utility of committees is readily seen.
Although no proposed measure can become a law unless acted on and
approved by the two houses, its necessity may be inquired into, and the
information necessary to enable the house to act understandingly upon
the question, may be obtained, as well by a few members as by the whole
house. By the daily examination of so many subjects in committee, a
large amount of business is soon prepared for the house to act upon, and
much of its time is saved.
§9. If a committee reports favorably upon a subject, it usually brings
in a bill with its report. A _bill_ is the form or draft of a law. Not
all bills, however, are reported by committees. Any member of the house
desiring the passage of a law, may give notice that he will, on some
future day, ask leave of the house to introduce a bill for that purpose;
and if, at the time specified, the house shall grant leave, he may
introduce the bill. But at least one day's previous notice must be given
of his intention to ask leave, before it can be granted.
§10. The different steps in the progress of a bill, or the different
forms of action through which it has to pass, are numerous. A minute
description of them in a work designed chiefly for youth, will scarcely
be expected. A thorough knowledge of the proceedings of legislative
assemblies, can be practically beneficial, in after life, to but few of
those who shall study this elementary treatise. Those who shall
hereafter have occasion for this knowledge, will find works adapted to a
more mature age, in which the subject is fully treated.
§11. A bill, before it is passed, must be read three times; but it may
not be read twice on any one day without unanimous consent, that is, the
consent of the whole house; or, as is believed to be the rule in some
bodies, the consent of three-fourths, or two-thirds of the house. In
some legislatures, the rule allows the first and second readings to be
on the same day. A bill is not to be amended until it shall have been
twice read. Nor is it usual for it to be opposed until then; but it may
be opposed and rejected at the first reading.
§12. After a bill has been twice read, and fully debated and amended, it
is proposed to be read on a future day the third time. If the question
on ordering the bill to a third reading is not carried, the bill is
lost, unless revived by a vote of the house to reconsider. But if the
question to read the third time is carried, the bill is accordingly read
on a future day, and the question taken on its final passage.
§13. When the final vote is to be taken, the speaker puts the question:
"Shall the bill pass?" If a majority of the members present vote in the
affirmative, (the speaker also voting,) the bill is passed; if a
majority vote in the negative, the bill is lost. Also if the ayes and
noes are equal, it is lost, because there is not a majority in its
favor. In a senate where a lieutenant-governor presides, not being
properly a member, he does not vote, except when the ayes and noes are
equal; in which case there is said to be a _tie_; and he determines the
question by his vote, which is called the _casting_ vote. In some
states, on the final passage of a bill, a bare majority of the members
present is not sufficient to pass it, in case any members are absent.
The constitutions of those states require the votes of a majority of
_all the members elected_ to each house.
§14. When a bill has passed one house it is sent to the other, where it
must pass through the same forms of action; that is, it must be referred
to a committee; reported by the committee to the house; and be read
three times before a vote is taken on its passage. This vote having
been taken, the bill is returned to the house from which it was
received. If it has been amended, the amendments must be agreed to by
the first house, or the second must recede from their amendments, or the
amendments must be so modified as to secure the approval of both houses,
before the bill can become a law.
§15. Some young reader may inquire why a bill should take so long and
slow a course through two different houses; and why one body of
representatives is not sufficient. The object is to secure the enactment
of good laws. Notwithstanding bills go through the hands of a committee
and three different readings in the house; yet through undue haste,
wrong information, or from other causes, a house may, and often does,
commit serious errors. Legislatures are therefore divided into two
branches; and a bill having passed one house is sent to the other where
the mistakes of the former may be corrected, or the bill wholly
rejected.
§16. But in many of the states, a bill, when passed by both houses, is
not yet a law. As the two houses may concur in adopting an unwise
measure, an additional safeguard is provided against the enactment of
bad laws, by requiring all bills to be sent to the governor for
examination and approval. If he approves a bill, he signs it, and it is
a law; if he does not sign it, it is not a law. In refusing to sign a
bill, he is said to _negative_, or _veto_ the bill. _Veto_, Latin,
means, _I forbid_.
§17. But no governor has full power to prevent the passage of a law. If
he does not approve a bill, he must return it to the house in which it
originated, stating his objections to it; and if it shall be again
passed by both houses, it will be a law without the governor's assent
But in such cases greater majorities are generally required to pass a
law. In some states, a majority of two-thirds of the members present is
necessary; in others, a majority of _all the members elected_. In a few
states, only the same majorities are required to pass a bill against
the veto as in the first instance. Or if the governor does not return a
bill within a certain number of days, it becomes a law without his
signature, or without being considered a second time. In some states,
bills are not sent to the governor, but are laws when passed by both
houses and signed by their presiding officers.
Chapter XII.
Executive Department. Governor and Lieutenant-Governor.
§1. The chief executive power of a state is, by the constitution, vested
in a governor. The governor is chosen by the people at the general
election; in South Carolina by the legislature. The term of office is
not the same in all the states. In the six New England states, the
governors are chosen annually; in the other states, for the different
terms of two, three, and four years.
§2. The qualifications for the office of governor are also different in
the different states. To be eligible to the office of governor, a person
must have been for a certain number of years a citizen of the United
States, and for a term of years preceding his election a resident of the
state. He must also be above a certain age, which, in a majority of the
states, is at least thirty years; and in some states he must be a
freeholder.
§3. The powers and duties of a governor are numerous. He communicates by
message to the legislature, at every session, information of the
condition of the state of its affairs generally, and recommends such
measures as he judges necessary and expedient. He is to take care that
the laws be faithfully executed, and to transact all necessary business
with the officers of the government. He may convene the legislature on
extraordinary occasions: that is, if, at a time when the legislature is
not in session, a matter should arise requiring immediate attention, the
governor may call a special meeting of the legislature, or as it is
usually termed, an extra session.
§4. A governor has power to grant reprieves and pardons, except in cases
of impeachment, and, in some states, of treason. To _reprieve_ is to
postpone or delay for a time the execution of the sentence of death upon
a criminal. To _pardon_ is to annul the sentence by forgiving the
offense and releasing the offender. A governor may also _commute_ a
sentence; which is to exchange one penalty or punishment for another of
less severity; as, when a person sentenced to suffer death, is ordered
to be imprisoned.
§5. The governor has power also, in some of the states, with the consent
of the senate, to appoint the higher officers of the militia of the
state, and the higher civil officers in the executive and judicial
departments. In a few of the states, there are executive councils whose
advice and consent are required in such cases. In making such
appointments, the governor nominates, that is, he _names_ to the senate,
in writing, the persons to be appointed. If a majority of the senators
consent, the persons so nominated are appointed. Many other duties are
by the constitution devolved upon the governor.
§6. A lieutenant-governor has few duties to perform. He presides in the
senate, in which he has only a casting vote. In the state of New York,
he serves in some of the boards of executive officers. In nearly
one-half of the states the office of lieutenant-governor does not exist.
The chief object of electing this officer seems to be to provide a
suitable person to fill the vacancy in the office of governor in case
the latter should die, resign, be removed, or otherwise become
incompetent.
§7. When the lieutenant-governor acts as governor, the senate chooses
from its own number a president. If the offices of both the governor and
lieutenant-governor should become vacant, the president of the senate
must act as governor. If there should be neither a governor, a
lieutenant-governor, nor a president or speaker of the senate, then, the
speaker of the house of representatives would become the acting
governor. This is believed to be the rule for supplying vacancies in
most if not all of the states.
Chapter XIII.
Assistant Executive State Officers.
§1. Among the executive officers who assist in the administration of the
government, there are in every state, some or all of the following: a
secretary of state, a controller or auditor, a treasurer, an
attorney-general, a surveyor-general. The mode of their appointment and
the terms of their respective offices, are prescribed by the
constitution or by law. In some states they are appointed by the
governor and senate; in others by the legislature; and in others they
are elected by the people. They keep their offices at the seat of
government of the state.
§2. The _secretary of state_ keeps a record of the official acts and
proceedings of the legislature and of the executive departments, and has
the care of the books, records, deeds of the state, parchments, the laws
enacted by the legislature, and all other papers and documents required
by law to be kept in his office. He causes the laws passed by the
legislature to be published in one or more newspapers, as directed by
law; and also to be printed and bound in a volume, and distributed among
the state officers for their use, and among the county and town clerks,
to be kept in their offices for the use of the people who wish to
examine the laws. Also one or more copies are exchanged with each of the
other states for copies of their laws to be kept in the state library.
Various other duties are performed by the secretary.
§3. The _state auditor_, in some states called _controller_, manages
the financial concerns of the state; that is, the business relating to
the money, debts, land and other property of the state. He examines and
adjusts accounts and claims against the state, and superintends the
collection of moneys due the state. When money is to be paid out of the
treasury, he draws a warrant (a written order,) on the treasurer for the
money, and keeps a regular account with the treasurer of all moneys
received into and paid out of the treasury. And he reports to the
legislature or other proper officers, a statement of the funds of the
state, and of its income and expenditures during each year.
§4. The _treasurer_ has charge of all the public moneys that are paid
into the treasury, and pays out the same as directed by law; and he
keeps an accurate account of such moneys, specifying the names of the
persons from whom they are received, to whom paid, and for what
purposes. He also exhibits annually a statement of moneys received and
paid out by him during the year, and of the balance in the treasury.
§5. Auditors, treasurers, and other officers intrusted with the care and
management of money or other property, are generally required, before
they enter on the duties of their offices, to give bonds, in sums of
certain amount specified in the law, with sufficient sureties, for the
faithful performance of their duties. The sureties are persons who bind
themselves to pay the state all damages arising from neglect of duty on
the part of the officers, not exceeding the sum mentioned in the bond.
§6. The _attorney-general_ is a person learned in the law, appointed to
act for the state in law-suits in which the state is a party. He
prosecutes persons indebted to the state, and causes to be brought to
trial persons charged with certain crimes. He also gives his opinion on
questions of law submitted to him by the governor, the legislature, and
the executive officers. In some states there is no attorney-general. In
such states prosecutions in behalf of the state are conducted by the
state's attorney for each county.
§7. The _surveyor-general_ superintends the surveying of the lands
belonging to the state. He keeps in his office maps of the state,
describing the bounds of the counties and townships; and when disputes
arise respecting the boundaries, he causes surveys to be made, if
necessary, to ascertain such bounds. He performs certain other duties of
a similar nature. In many of the states there is no surveyor-general,
the duties of that office being done by a county surveyor in each
county.
§8. There is also, in many of the states, a _superintendent of schools_,
called in some states, _superintendent of public instruction_, whose
principal duties are described in a subsequent chapter. (Chap. XXII,
§10.)
§9. There is also a printer to the state, or _state printer_, whose
business it is to print the journal, bills, reports, and other papers
and documents of the two houses of the legislature, and all the laws
passed at each session. State printers are either chosen by the
legislature, or employed by persons authorized to make contracts for the
public printing; or the printing is let to the lowest bidder.
§10. There are other officers employed by the state, among whom are the
following: a _state librarian_, who has charge of the state library,
consisting of books containing matter of a public nature, such as the
laws of all the states, and of the United States, with a large
collection of miscellaneous books; persons having the care of the public
buildings and other property of the state; superintendents of state
prisons, lunatic asylums, and other state institutions, whose duties are
indicated by their titles, and need no particular description.
Chapter XIV.
Counties ind County Officers. Powers and Duties of County Officers.
§1. Some of the purposes for which a state is divided into small
districts have been mentioned. (Chap. VII, §1.) There are other reasons,
equally important, for these territorial divisions. Laws for the whole
state are made by the legislature; but certain regulations may be
necessary for the people in some parts of the state which are not needed
in others, and which the people of these places can better make for
themselves. It is the business of the governor and his assistant
executive state officers to execute or carry into effect the laws of the
state; but they could not see this done in every place, or in every
minute portion of the state. Again, for the convenience of those who may
be obliged to go to law to obtain redress for injuries, courts of
justice must be established near the residence of every citizen.
§2. But in order to carry out these objects, a state must be divided
into small districts with fixed boundaries, that it may be known what
persons come under certain regulations, and over whom these local
officers are to exercise authority. The smallest territorial divisions
of a state are called _townships_, or _towns_, which contain generally
from twenty-five to one hundred square miles, and which, if in a square
form, would be from five to ten miles square. But for certain purposes
larger districts than townships have been found necessary. These are
formed by the union of several townships, and are called _counties_.
These divisions are the same as those of England, the country from which
the colonies (now states) were chiefly settled.
§3. Counties in England were formerly districts governed by _counts_ or
earls; from which comes the name of _county_. A county was also called
_shire_; and an officer was appointed by the count or earl to perform
certain acts in the principal town in the county, which was called
_shire town_, and the officer was called _shire-reeve_, or _sheriff_,
whose powers and duties were similar to those of the sheriff of a county
in this country. The shire town is that in which the court-house and
other county buildings are situate, and where the principal officers of
the county transact their business. In a few counties there are two
towns in which the courts are held alternately. Hence each division is
called a _half-shire_.
§4. Counties and towns are bodies politic, or bodies corporate.
_Corporate_ is from the Latin, _corpus_, which means _body_. A
_corporation_, or body politic, is an association of persons authorized
by law to transact business under a common name, and as a single person.
The laws of the state give such authority to the inhabitants of counties
and towns. The people of a town or county have power, to some extent, to
manage their own internal affairs, and to make rules and regulations for
their government; and they may buy, hold, and sell property, and sue and
be sued, as an individual. Similar powers are given to rail-road,
banking, insurance, and other incorporated companies. But there is in
some respects a difference between these corporations and those which
are created for purposes of government, as states, counties, towns,
cities, and villages, which will be noticed in another place. (Chap.
XVI.)
§5. As a county possesses various corporate powers, there must be among
its officers some in whose name these powers are to be exercised. In
some states there is a board of _county commissioners_, (usually three,)
who exercise corporate powers. In a few, these powers are exercised by
and in the name of the _board of supervisors_, which is composed of the
supervisors of the several towns in the county, of whom there is one
supervisor in each town. These boards, or such officers in other states
as exercise these powers, have generally the power also to examine and
settle the accounts against the county, and to make orders and contracts
in relation to the building or repairing of the court-house, jail, and
other county buildings; and to perform such other acts as the laws
require.
§6. There is in each county a _treasurer_ to receive and pay out the
moneys required to be collected and paid out in the county. There is
also, in some states, a county _auditor_ to examine and adjust the
accounts and debts of the county, and to perform certain other duties.
The business of county treasurers and auditors in their respective
counties, is of the same nature as that of state auditors and
treasurers. In states in which there is no county auditor, the duties of
auditor are performed by the treasurer, and some other county officer or
officers.
§7. There is also in each county a _register_ or _recorder_, who records
in books provided for that purpose, all deeds, mortgages, and other
instruments of writing required by law to be recorded. In New York, and
perhaps in some other states, the business of a register or recorder is
done by a county clerk, who is also clerk of the several courts held in
the county, and of certain boards of county officers. In some states,
deeds, mortgages, and other written instruments, are recorded by the
town clerks of the several towns.
§8. Another county officer is a _sheriff_, whose duty it is to attend
all the courts held in the county; to execute all warrants, writs, and
other process directed to him by the courts; to apprehend persons
charged with crime; and to take charge of the jail and of the prisoners
therein. It is his duty, also, to preserve the public peace; and he may
cause all persons who break the public peace within his knowledge or
view, to give bonds, with sureties, for keeping the peace, and for
appearing at the next court to be held in the county, and to commit them
to jail if they refuse to give such bonds. A sheriff is assisted by
deputies.
§9. There are in each county one or more _coroners_, whose principal
duty is, to inquire into the cause of the death of persons who have died
by violence, or suddenly, and by means unknown. Notice of the death of a
person having so died is given to a coroner, who goes to the place of
such dead person. A jury is summoned to attend the examination;
witnesses are examined; and the jury give their opinion in writing as to
the cause and manner of the death. Such inquiry is called a _coroner's
inquest_. In one or two states, the office of coroner, it is believed,
does not exist; in which case the inquest is held by a justice of the
peace, or some other officer.
§10. An attorney, elected or appointed for that purpose, attends all
courts in which persons are tried in the county for crimes committed
therein, and conducts the prosecutions in the trial of the offenders. In
states where there is no attorney-general for the state, the prosecuting
attorney for each county serves in this capacity, in trials in which the
state is a party. As all crimes and breaches of the peace are considered
as committed against the state, and prosecuted in its name, this
attorney is sometimes called _state's attorney_.
§11. In some states there is a _county-surveyor_, whose duties within
his county are similar in their nature to those of a state
surveyor-general.
§12. County officers are generally elected by the people of the county.
Some of them are, in some of the states, appointed by some authority
prescribed by the constitution or laws of the state.
Chapter XV.
Towns and Town Officers. Powers and Duties of Town Officers.
§1. The districts of territory into which counties are divided, are, in
some states, called _towns_. In others they are called, and perhaps more
properly, _townships_; and the name of _town_ is given to an
incorporated village, or a city. We shall, however, in this work, apply
to these territorial divisions the shorter name of _towns_, as they are
called in most of the old states.
§2. The electors of the several towns meet once a year for the election
of town officers, and for certain other business purposes. The electors
of a town have power, at their annual town meetings, to order money to
be raised for the support of the poor, for the building and repairing of
bridges, and for other town purposes; to make regulations concerning
fences; to fix the compensation of town officers in certain cases; and
to perform such other duties as come within the usual powers of towns.
The powers of towns, however, are not precisely the same in all the
states.
§3. Among the town officers elected at town meetings, are the following;
not all of them, however, are elected in any one state: One or more
persons who have the general oversight and direction of town affairs,
called by some name corresponding to the nature of their duties; a town
clerk; one or more assessors; justices of the peace; overseers of
highways; overseers of the poor; school officers; constables; a
collector of taxes; a treasurer; fence-viewers; pound-keepers, &c. In
some states there are also sealers of weights and measures; persons to
measure and inspect wood, lumber, bark, and other commodities.
§4. The officers first mentioned in the preceding section, are, in the
New England states, called _selectmen_, of whom there are at least
three, and may in no state be more than nine, in each town. In a few
states they are called _trustees of townships_, and are three in number.
In a few other states, there is in each town one such officer, called
_supervisor_. The powers and duties of these officers are more numerous
in some states than in others. They have power to lay out roads, and lay
out and alter road districts; to do certain acts relating to roads,
bridges, taxes, common schools, the support of the poor, &c.; and to
examine and settle all demands against the town. In some of the states,
some of these duties are performed by other officers.
§5. The _town-clerk_ keeps the records, books, and papers of the town.
He records in a book the proceedings of town meetings, the names of the
persons elected, and such other papers as are required by law to be
recorded. In some states, deeds and other conveyances are required to be
recorded by the clerks of towns.
[For a description of the duties of _assessors_ and _justices of the
peace_, see Assessment and Collection of Taxes, and Justices' Courts.]
§6. For the repairing of _highways_, a town is divided by the proper
officers into as many road districts as may be judged convenient; and a
person residing in each district is chosen, called _overseer_ or
_supervisor_, or _surveyor_ of _highways_, whose duty it is to see that
the roads are repaired and kept in order in his district. In some states
a tax is laid and collected for this purpose; and each person assessed
may perform labor or furnish materials to the amount of his tax. In
other states, road taxes are assessed upon the citizens in days' labor,
according to the value of their property; every man, however, being
first assessed one day for his head, which is called a _poll-tax_.
Persons not wishing to labor, may pay an equivalent in money, which is
called _commuting_.
§7. _Overseers of the poor_ provide for the support of the poor
belonging to the town who need relief, and have no near relations who
are able to support them. In some states there is in each county a
poor-house, to which the poor of the several towns are sent to be
provided for; the expense to be charged to the towns to which such poor
persons belonged.
§8. The principal duties of a _constable_ are, to serve all processes
issued by justices of the peace in suits at law for collecting debts,
and for arresting persons charged with crimes. The business of a
constable in executing the orders of a justice of the peace, is similar
to that of a sheriff in relation to the county courts.
§9. The town _treasurer_ receives all moneys belonging to the town, and
pays them out as they may be wanted for town-purposes; and accounts
yearly to the proper officers. The office of town treasurer does not
exist in all the states.
§10. The duties of _fence-viewers_ relate chiefly to the settling of
disputes between the owners of adjoining lands concerning division
fences, the examining or viewing of fences when damage has been done by
trespassing animals; and the estimating of damages in such cases.
§11. The town _sealer_ keeps correct copies of the standard of weights
and measures established by the state. Standard copies are furnished by
the state sealer to each county sealer, at the expense of the county,
and the county sealer furnishes each town sealer a copy at the expense
of the town. The town sealer compares the weights and measures brought
to him with the copy in his possession, and sees that they are made to
agree with it, and seals and marks them. A person selling by a weight or
measure that does not agree with the standard, is liable to the
purchaser for damages--generally to several times the amount of the
injury.
For a particular description of the duties of town officers, reference
must be had to the laws of the several states.
Chapter XVI.
Incorporation and Government of Cities, Villages, &c.
§1. Cities and incorporated villages have governments peculiar to
themselves. Places containing a large and close population need a
different government from that of ordinary towns or townships. Many of
the laws regulating the affairs of towns thinly inhabited, are not
suited to a place where many thousand persons are closely settled.
Besides, the electors in such a place would be too numerous to meet in a
single assembly for the election of officers or the transaction of other
public business.
§2. Whenever, therefore, the inhabitants of any place become so numerous
as to require a city government, they petition the legislature for a law
incorporating them into a city. The law or act of incorporation is
usually called a _charter_. The word _charter_ is from the Latin
_charta_, which means paper. The instruments of writing by which kings
or other sovereign powers granted rights and privileges to individuals
or corporations, were written on paper or parchment, and called
_charters_. In this country, it is commonly used to designate an act of
the legislature conferring privileges and powers upon cities, villages,
and other corporations.
§3. The chief executive officer of a city is a _mayor_. A city is
divided into wards of convenient size, in each of which are chosen one
or more _aldermen_, (usually two,) and such other officers as are named
in the charter. The mayor and aldermen constitute the _common council_,
which is a kind of legislature, having the power to pass such laws,
(commonly called _ordinances_,) and to make such orders and regulations,
as the government of the city requires. The mayor presides in meetings
of the common council, and performs also certain judicial and other
duties. There are also elected in the several wards, assessors,
constables, collectors, and other necessary officers, whose duties in
their respective wards are similar to those of like named officers in
country towns, or townships.
§4. The inhabitants of cities, however, are not wholly governed by laws
made by the common council. Most of the laws enacted by the legislature
are of general application, and have the same effect in cities as
elsewhere. Thus the laws of the state require, that taxes shall be
assessed and levied upon the property of the citizens of the state to
defray the public expenses; and the people of the cities are required to
pay their just proportion of the same; but the city authorities lay and
collect additional taxes for city purposes.
§5. In cities there are also courts of justice other than those which
are established by the constitution or general laws of the state. There
is a court for the trial of persons guilty of disturbing the peace, and
of such other minor offenses as are usually punishable by imprisonment
in the county jail, called _police court_. It is held by a _police
justice_, elected by the people, or appointed in such manner as the law
prescribes. In some of the larger cities, there are courts of _civil_ as
well as criminal jurisdiction, differing from those which are common to
counties generally.
§6. The government of incorporated _villages_ is not in all respects
like that of cities. The chief executive officer of such a village is,
in some states, called _president_. The village is not divided into
wards; the number of its inhabitants being too small to require such
division. Instead of a board of aldermen, there is a board of _trustees_
or _directors_, who exercise similar powers. The president of a village
is generally chosen by the trustees from their own number. In some
states, incorporated villages are called _towns_; and their chief
executive officer is called _mayor_.
§7. The necessity and effect of incorporating a village may not yet
clearly appear to every reader. Let us illustrate. By a general law of
the state, or by a vote of the electors of a township in pursuance of
such law, cattle may run at large in the highways. This might be to many
persons in a village, a great annoyance, which can be prevented or
abated only by confining the cattle. Or, sidewalks may need to be made.
Or, it may be deemed necessary to provide means for extinguishing fires,
by purchasing fire-engines and organizing fire companies. In an
unincorporated village there is no power to compel the citizens to do
these things. Those, therefore, who desire that the citizens should have
power to make all needful regulations for the government of the village,
petition the legislature for an act of incorporation granting the
necessary powers.
§8. The constitutions of some states require the legislature to pass a
general law prescribing the manner in which the people of any village
may form themselves into a corporation, with the necessary powers of
government, with out a special law for that purpose.
§9. Besides these _territorial_ corporations for purposes of government,
as counties, towns, cities, &c., there are _incorporated companies_ for
carrying on business of various kinds, as turnpike and rail-road
companies, and companies for the purposes of banking, insurance,
manufacturing, &c. These kinds of business, to be carried on
successfully, sometimes require a larger amount of money than one man
possesses. A number of persons, therefore, unite their capital under an
act of incorporation granting them power to manage their business which
they could not have in an ordinary business partnership. Besides, a
common partnership must end on the death of any one of the partners; but
an incorporated company is not thus affected by the death of its
members.
§10. It is in the nature of corporations to have a perpetual existence.
A corporation may live after the persons who first composed it are all
dead; for those who come after them have the same powers and privileges.
A town or city incorporated a hundred years ago, is the same town or
city still, although none of its first inhabitants are living. So a
railroad or banking corporation may exist after the death of many, or
even all of the original corporators.
§11. But there are certain particulars in which all corporations are not
the same. A state has been defined to be a body politic, or corporation.
(Chap. I. §10; III, §5.) But it differs from other government
corporations, as counties, towns, cities, &c., in this: the latter are
formed by acts of the legislature; but a state is formed by the people
in their political capacity in establishing the constitution.
§12. Again, all these government corporations differ from incorporated
business companies. In forming a town or city, many persons are brought
into the corporation against their wishes or consent; because, in
governments, all who live within certain prescribed bounds must come
under the same laws; but of an incorporated business association, as of
a common business partnership, none become members but by their own act
or choice. There is another difference: The latter are what are called
_stock_ companies; and although they may be continued after the death of
the first corporators, those who afterward come into the association, do
so by becoming owners of the capital stock of those who preceded them.
This latter difference will more clearly appear from the more particular
description, elsewhere given, of the incorporated companies, and of the
manner in which the stock is transferred. (Chap. XXIII, §11--15.)
Chapter XVII.
Judicial Department. Justices' Courts.
§1. Having seen how the legislative and executive departments of a state
government are constituted, and how the laws are made and executed, the
manner in which the local affairs of counties and towns are conducted,
and the powers and duties of their respective officers; we proceed to
describe the _judicial_ department, the powers and duties of judicial
officers, and the manner in which justice is administered.
§2. It is the business of the legislature to determine what acts shall
be deemed public offenses, or crimes, and to make laws for securing
justice to the citizens in their dealings and general intercourse with
each other; but to judge of and apply the laws; that is, to determine
what the law is and whether it has been broken, and to fix the just
measure of damage or of punishment, and to order such decision to be
carried into effect, are duties which, as has been observed, have been
wisely assigned to a separate and distinct department. (Chap. VIII. §7.)
§3. A government without some power to decide disputes, to award
justice, and to punish crime according to the laws of the state, would
not be complete. To allow every man to be his own judge in cases of
supposed injury, and to redress his own wrongs, would endanger the
rights of others. Justice is best secured to the citizens by
establishing courts for the redress of injuries and the punishment of
crimes; and that no person may suffer unjustly, it is provided that
every person charged with crime or any other wrong, is entitled to a
fair and impartial trial.
§4. For the convenience of persons who may be compelled to seek relief
at law, courts are established in every town. These are courts of the
lowest grade, and are called _justices' courts_, being held by justices
of the peace who are, in most of the states, elected by the people of
the several towns. They are called the lowest courts, because they have
jurisdiction only in cases in which the smallest sums or damages are
claimed, or in which only the lowest offenses are tried. The word
_jurisdiction_ is from the Latin _jus_, law, or _juris_, of the law, and
_dictio_, a pronouncing or speaking. Hence the _jurisdiction_ of a court
means its power to pronounce the law.
§5. Although justices of the peace are generally elected in the towns,
their jurisdiction extends over the county; that is, they have power to
try causes arising in any part of the county, or between citizens
residing in other towns. The jurisdiction of justices of the peace is
generally prescribed by law. The law prescribes the sum that may be sued
for, or the amount of damage that may be recovered in a justice's court,
and the grade of offenses that may be tried in it. In some states
justices of the peace may try suits only in which the sum in controversy
does not exceed $50; but in most of them, the jurisdiction of a justice
extends, it is believed, to sums of $100 or more.
§6. Causes, in which money is claimed for damage or for debt, are called
_civil_ causes; those for the trial of persons charged with crime, or
some misdemeanor, are called _criminal_ causes. All crimes, strictly
speaking, are misdemeanors. In common usage, however, the word
_misdemeanor_ denotes a smaller offense, such as is usually punishable
by fine, or by imprisonment in a county jail, and not in a state prison.
Causes, actions, and suits, are words of similar meaning in law
language, being generally used to signify prosecutions at law, or
lawsuits. The party that sues is called _plaintiff_; the party sued is
the _defendant_.
§7. Prosecutions at law are conducted in nearly the same manner in the
different states. The following is a sketch of the proceedings in an
ordinary civil suit in a justice's court: The justice, at the request of
the plaintiff, issues a _summons_, which is a writ or precept addressed
to a constable of the town, in some states to any constable of the
county, commanding him to summon the defendant to appear before the
justice on a day and at an hour specified, to answer the plaintiff
(naming him) in a suit, the nature of which is stated in the summons.
§8. The constable serves the summons by reading it or stating the
substance of it to the defendant; and if requested, gives him a copy of
it. If he does not find the defendant, he leaves a copy at his place of
residence with some one of the family of proper age. At or before the
time named for trial, the constable returns to the justice the summons
with an indorsement stating the day on which it was served, and whether
served personally or by copy. If served by copy, and the defendant does
not appear at the time named for trial, a new summons is issued, as the
practice is in some states--perhaps all of them; and the trial may not
proceed unless a summons has been personally served.
§9. The parties may appear in person, or by attorney. An _attorney_ is
any person lawfully appointed to transact business for another; hence
the word attorney does not always mean an attorney at law, or lawyer,
who is properly an officer of a court of law. When the parties have
appeared and answered to their names, they make their _pleadings_; that
is, the plantiff declares for what he brings his suit; and the defendant
states the nature of what he has to _offset_ against the demand of the
plaintiff, or denies the demand altogether. These acts of the parties
are called _joining issue_.
§10. If the parties are ready for trial, the justice proceeds to try the
issue. If the witnesses have not been subpœned and are not in
attendance, the cause is adjourned to a future day; and the justice, at
the request of either party, issues a _subpœna_, which is a writ
commanding persons to attend in court as witnesses. The witnesses on
both sides are examined by the justice, who decides according to law and
equity, as the right of the case may appear, in which he is said to
_give judgment_. To the amount of the judgment, whether against the
plaintiff or the defendant, are added the costs; for it is considered to
be just that the party in default shall pay the expense of the suit.
The costs consist of the _fees_ or compensation to be paid the justice,
constable and witnesses for their services.
§11. If a defendant does not appear at the time of trial, the justice
may proceed to try the cause, and decide upon the testimony of the
plaintiff's witnesses. If a plaintiff does not answer or appear when his
name is called in court, the justice enters judgment of _nonsuit_. A
plaintiff may, at any time before judgment is rendered, discontinue or
withdraw his action, in which case also judgment of nonsuit is given. In
cases of nonsuit, and also when no cause of action is found, judgment is
rendered against the plantiff for the costs.
§12. A debtor may avoid the expense of a lawsuit by _confessing
judgment_. The parties go before a justice, and the debtor acknowledges
or confesses the claim of the creditor, and consents that the justice
enter judgment accordingly. In some states, the confession and consent
must be in writing, and signed by the debtor. The amount for which
judgment may be confessed is limited by law, but is, in some states at
least, and perhaps in most if not all of them, larger than the sum to
which the jurisdiction of a justice is limited in ordinary suits.
Chapter XVIII.
Trial by Jury; Execution; Attachment; Appeals; Arrest of Offenders.
§1. The administration of justice in courts of law is not left entirely
to the justices and judges. Parties may not always have sufficient
confidence in the ability, honesty, and impartiality of the justice by
whom a suit is to be tried, to intrust their interests to his judgment.
Therefore the constitutions of all the states guaranty to every person
the right of trial by a jury. This right has been enjoyed in England
many centuries. It was established here by our ancestors, who were
principally from that country.
§2. A _jury_ is a number of men qualified and selected as the law
prescribes, and sworn to try a matter of fact, and to declare the truth
on the evidence given in the case. This declaring of the truth is called
a _verdict_, which is from the Latin _verum dictum_, a true declaration
or saying. A jury in a justice's court consists in most or all of the
states, as is believed, of six men; in the higher courts, of twelve men,
who are generally required to be freeholders. The manner of selecting
the jurors is not the same in all the states.
§3. After issue has been joined, and before testimony has been heard,
either party may demand that the cause be tried by a jury. Whereupon the
justice issues a _venire_, which is a writ or precept directing a
constable to summon the required number of duly qualified men to appear
before the justice, to make a jury to try the cause.
§4. The testimony and arguments on both sides having been heard, the
jurors are put under the charge of the constable, who is sworn to keep
them in some convenient place, without meat or drink, except such as the
justice may order, until they shall have agreed on their verdict, or
have been discharged by the justice; and not to allow any person to
speak to them during such time, nor to speak to them himself, except by
order of the justice, unless to ask them whether they have agreed on
their verdict.
§5. All the jurors must agree in a verdict; and when so agreed, they
return in charge of the constable, and, in open court, deliver their
verdict to the justice, who enters judgment according to the finding of
the jury. If the jurors, after having been out a reasonable time, do not
all agree upon a verdict, the justice may discharge them, and issue a
new venire, unless the parties consent to submit the cause to the
justice.
§6. If a judgment is not paid within the time prescribed by law, the
justice issues an _execution_, which is a precept directing a constable
to collect the amount of the judgment; and authorizing him to take and
sell the goods and chattels of the debtor, and to make his returns to
the justice within the time required. _Goods_ and _chattels_ are
personal or movable property, or property other than freehold, or real
estate. If the money can not be collected, the execution is returned as
not satisfied. If a constable does not faithfully obey the directions
contained in the execution, he and his sureties become liable to pay the
judgment.
§7. Laws have been passed in all the states for the benefit of poor men,
who are allowed to retain, for the use and comfort of themselves and
their families, certain articles of personal property, which may not be
sold on execution; such as necessary household furniture, apparel, beds,
tools and implements of trade, &c. The practice which formerly
prevailed, of imprisoning debtors who were unable to satisfy executions,
has been abolished, except for fines and penalties.
§8. The foregoing description of the proceedings of a justice's court is
that of a prosecution in ordinary cases. But there are other modes of
prosecution in certain cases, one of which is by attachment. An
_attachment_ is a writ directing the property of a debtor to be taken,
and kept till a trial can be had, and judgment obtained. This mode of
proceeding is adopted when the plaintiff has reason to believe that a
debtor conceals himself to avoid being prosecuted by summons, or is
about to remove his property or himself from the county, or intends in
some other way to defraud his creditors.
§9. In case of an absent or concealed debtor, the constable, (as is
supposed to be the common practice,) leaves a copy of the attachment,
with an inventory or list of the articles of property attached, at the
defendant's last place of abode, or, if he had none in the county, the
copy and inventory are to be left with the person in whose possession
the property is found. If the defendant does not appear on the day of
trial, the plaintiff may proceed to prove his demand and take judgment.
An execution is then issued against the property attached.
§10. If either party is dissatisfied with a judgment rendered in a
justice's court, he may _appeal_ to a higher court for trial, or for a
review of the judgment. The party appealing is called _appellant_; the
adverse party is the _appellee_ or _respondent_.
§11. An important part of the duties of a justice of the peace relates
to the arrest and trial of persons charged with crimes and misdemeanors.
Although they have not power to try high offenses usually called crimes,
they may order the apprehension of persons charged with such offenses,
and cause them to be committed for trial.
§12. A person knowing or suspecting another to have committed an
offense, may make complaint to a judge or justice of the peace, who
examines the complainant on oath, and witnesses, if any appear; and if
he is satisfied that an offense has been committed, he issues a
_warrant_, directing the person accused to be brought before him. The
complainant and witnesses for the prosecution, and next the prisoner and
his witnesses, are examined. If the offense is one of which the
magistrate has jurisdiction, he may proceed to try the prisoner, who, it
will be recollected, is entitled to be tried by a jury.
§13. If the offense is one which the magistrate has not power to try, he
binds the prosecutor or complainant and all material witnesses to appear
and testify against the prisoner at the next court having power to
indict and try him. And if the offense is one for which the prisoner may
be bailed, the magistrate takes bail for his appearance at court. If the
offense is not bailable, or if no satisfactory bail is offered, the
magistrate orders him to be committed to jail to await his trial. But,
as will be seen hereafter, he must be indicted by a grand jury before he
can be tried. (Chap. XIX., §7-9.) And were there no danger of an
offender's escape before he could be brought to trial, his previous
arrest and examination might be unnecessary.
§14. The obligation or bond given by a prosecutor and witnesses for
their appearance at court, is sometimes called a _recognizance_. They
bind themselves, with sureties, to forfeit and pay a certain sum of
money in case of their non-appearance. A similar bond or recognizance is
given in case of bail. The person accused binds himself, with sureties,
in such sum as the justice requires, which is to be paid if he shall not
appear for trial. The word _bail_ is from a French word meaning _to
deliver_, or _to release_. Hence, the justice _bails_, sets free, or
delivers to his sureties, the party arrested. Also the sureties are said
to bail a person when they procure his liberation.
Chapter XIX.
Courts other than Justices' Courts; Grand and Petit Juries, &c.
§1. The court next higher than a justice's court, is a court held in
each county, generally called a _county court_, or _court of common
pleas_. This court is usually held by a county judge elected by the
electors of the county in most of the states; in some, appointed by the
legislature; and in others, by the governor, with the advice and consent
of the senate. In a few of the states this court consists of more than
one judge. In some states, county courts are held by judges of the
circuit courts.
§2. In this court are tried civil causes in which are claimed sums of
greater amount than a justice of the peace has jurisdiction of, and
criminal causes in which are charged the lower crimes committed in the
county. Also causes removed by appeal from a justice's court are tried
in this court; in which cases it is said to have _appellate_
jurisdiction. Courts are also said to have _original_ jurisdiction;
which means that suits may _originate_ or commence in such courts.
§3. There is in every state at least one court, and in most of the
states there are two or more courts of higher grade than a county court.
They are called in the different states by different names; as _circuit
court_, _superior court_, _supreme court_, and _court of appeals_. A
_circuit_ court probably obtains its name thus: A state is divided into
judicial districts, in each of which one or more judges are elected,
who go around holding a court once a year or oftener in each of the
counties composing a judicial district. This court usually has both
original and appellate jurisdiction; it being a part of its business to
try appeals from the county courts. It also tries such of the higher
crimes as a county court has not the power to try. Courts in which
crimes are tried are sometimes called courts of _oyer and terminer_.
§4. Every county court, and every circuit having like jurisdiction, has
a jury to try issues of fact, and a grand jury. An _issue of fact_ is
when the _fact_ as to the indebtedness or the guilt of the party charged
is to be determined from the testimony. An _issue of law_ is one in
which it is to be determined what is the _law_ in the case, which is
done by the judge instead of the jury. The jury by which issues of fact
are tried, as distinguished from a grand jury, is called a _petty_ or
_petit jury_. It consists of twelve men, all of whom must agree in a
verdict.
§5. The manner of selecting grand and petit jurors is prescribed by law.
A number of judicious men in each town are selected by some person or
persons lawfully authorized; and the names of the men so selected are
written on separate pieces of paper, and put into a box in each town,
and kept by the town clerk; or as is the practice in some states, the
names of the men designated as jurors in the several towns are sent to
the county clerk, and by him kept in a box. Previous to the sitting of
the court, the requisite number is drawn out the box; and the men whose
names are drawn, are summoned to attend as jurors.
§6. It is the business of a _grand jury_ to inquire concerning crimes
and misdemeanors committed in the county; and if there appear just
grounds of accusation against any person, they make to the court a
presentment or formal charge against him, upon which he is to be put
upon trial. The number of grand jurors is not always the same. In some
states there may not be more than twenty-three nor less than twelve. It
is not required that they shall all agree in order to put a person upon
trial.
§7. On the opening of the court, the grand jurors are sworn to make a
true presentment of all things given them in charge. The judge then
gives them a charge, and appoints one of them foreman; and the jurors
retire to a private apartment to attend to their duties. They hear all
complaints brought before them against persons for crimes and breaches
of the peace, and examine witnesses who appear to testify; and when it
is requested, they have the assistance and advice of the state's
attorney; or as he is called in some states, the _district attorney_, or
_prosecuting attorney_. If they think any person complained of ought to
be tried, they draw up a writing, in which they charge him with the
offense of which they think him guilty. This is called an _indictment_.
It is signed by the foreman, indorsed "a true bill," and carried by the
jury into court. If the person accused has not before been arrested, he
may now be arrested, and put upon trial. (See Chap. XVIII, §12-14.)
§8. As grand juries do not try crimes, but merely make inquiry into
them, some may not readily perceive the necessity of such juries.
Innocent persons might be subjected to great inconvenience and expense
in defending themselves in court against the slanderous reports or false
accusations of evil minded persons. It is to prevent this that grand
juries are instituted, who make careful examinations into the cases
brought before them, and do not often charge persons with crime unless
there is a strong probability of their being found guilty on trial.
§9. So important was the institution of grand juries considered, that
the constitution of the United States, to which the constitutions and
laws of the states must conform, was made to provide, that "no person
shall be held to answer for a capital or other infamous crime, unless on
a presentment or indictment of a grand jury," except in certain cases.
(Con. U.S., Amend. Art. V. For the definition of "infamous crime," see
Chap. VI., §7.)
§10. It is the opinion of many that this requirement of a previous
indictment by a grand jury has reference only to the courts of the
United States; and that the states may dispense with it. Hence, efforts
are now making in some states to abolish grand juries. It is supposed
that an examination at all times before a justice or a judge, when the
prisoner can be present with his witnesses, is more likely to protect
him against being unnecessarily subjected to the trouble and expense of
a trial, than before a grand jury, where complaints are often made by
malicious persons, and sustained by the testimony of partial or corrupt
witnesses.
§11. The _supreme court_ is generally the next higher, and in most of
the states, the highest state court. This court differs somewhat in the
different states, both in the manner of its formation and in its
jurisdiction. It is believed, however, to have, in the states generally,
both original and appellate jurisdiction, civil and criminal. In the
state of New York and a few other states, there is one higher court,
called _court of appeals_, which has appellate power only. Its business
is to review cases from the supreme court.
§12. Suits in the county, circuit, and supreme courts, are commenced by
a _writ_, (in some states a summons or a declaration,) which is served
by the sheriff of the county in which the suit is to be tried. He also
serves warrants and executions issued by these courts. A sheriff is to
these courts what a constable is to a justice's court. His powers and
duties have been elsewhere described. (Chap. XIV., §8.)
Chapter XX.
Chancery or Equity Courts; Probate Courts; Court of Impeachment.
§1. It might be supposed, that in instituting the courts which have been
described, all necessary provision had been made for securing justice to
the citizens. But many cases arise in which justice and equity can not
be obtained in these courts. To afford relief in such cases, a court
has been established called a _court of equity_, or _court of chancery_.
What often renders it impossible to get justice in ordinary courts of
law, is the want of witnesses; but in a court of equity the parties may
themselves be put on oath.
§2. A debtor, to avoid the payment of his debts, may conceal his
property or his money; but this court may compel him to disclose and
give up the same to satisfy an execution; and it may prevent persons
indebted to him from making payment to him. A person refusing to fulfill
a contract may, in courts of common law, only be sued for damage; but
this court may in certain cases compel him to fulfill the contract
itself. It may also restrain individuals and corporations from
committing fraudulent acts, and prevent persons from committing wastes
on land and certain other injuries, until the right at law can be tried.
§3. Courts of chancery were established, it is believed, in a majority
of the old states. But separate and distinct organizations called
chancery courts, now exist in but a few states; the power to try suits
in equity having been given to the judges of the common law courts.
§4. Suits _in equity_ are not commenced as suits _at law_. The plaintiff
prepares a bill of complaint, the facts stated in which are sworn to by
himself. The bill, which contains a petition or prayer that the
defendant may be summoned to make answer on oath, is filed with the
clerk of the court, who issues a subpœna commanding the defendant to
appear before the court on a day named. A trial may be had on the
complaint and answer alone; or witnesses may be introduced by the
parties. The case is argued by counsel, and a _decree_ is pronounced by
the court, which the court has power to carry into effect.
§5. There is another kind of courts which are in their nature different
from ordinary law courts, and are called _probate courts_. There is in
every county a probate court held by a _judge of probate_, whose duties
relate to the proving of wills and the settling of the estates of
persons deceased. A _will_ is a writing in which a person gives
directions concerning the disposal of his property after his death. The
Latin word _probatus_ means proof; from which _probate_ has come to be
applied to the proving of a will. (See Wills and Testaments.) In the
state of New York the judge of this court is called _surrogate_, and the
court is called _surrogate's court_.
§6. There is still another court in every state, which is not a common
law court. It is the _court of impeachment_. The name is applied to the
senate when sitting on a trial of impeachment. An _impeachment_ is a
charge or accusation against a public officer for corrupt conduct in his
office; as if a governor, for money offered him, should approve and sign
a law; or a judge should, for money or from some other selfish or
personal motive, give a wrong judgment. The constitution gives to the
house of representatives the power to impeach, and to the senate the
power to try the persons impeached. This practice has come from Great
Britain, where the impeachment is made by the house of commons, and the
house of lords is the high court of impeachment.
§7. The house of representatives, in a case of impeachment, acts in
nearly the same manner as a grand jury in a court of law. A complaint is
made to the house; and if, upon examination, there appear to a majority
of the members present sufficient grounds for the charge, an accusation
in writing is prepared, called _articles of impeachment_, and delivered
to the senate. In some states, a majority of the members elected is
necessary to impeach. The president of the senate orders the court to be
summoned. The accused is brought before the court to answer to the
charge, and has counsel assigned him. The senators are sworn truly to
try and determine the impeachment according to evidence; and a day is
fixed for trial.
§8. The house of representatives usually choose from their number a
committee of managers to conduct the trial, the proceedings in which are
the same as in law courts. The senators retire and deliberate as jurors
in such courts. Two-thirds of the senators--in some states two-thirds of
all the senators elected--must concur in order to convict the person
accused. If a person is convicted, the court may remove him from
office, or disqualify him to hold any office in the state, for a time,
or for life; or may both remove and disqualify him. This court can
pronounce no other sentence. But if the act committed is a crime, the
offender may also be indicted, tried, and punished in a court of
justice.
§9. Judicial officers may also be removed by the governor on address of
the legislature. If a judge is suspected of corrupt conduct in his
office, or of being incompetent to discharge its duties, complaint is
made to the legislature, and the party complained of is notified, and an
opportunity is given him of being heard in his defense. If both
branches, by the required majorities, concur in the opinion that he
ought to be removed, they address the governor, setting forth their
reasons for the removal. If the governor considers the reasons
sufficient, the officer is removed. This mode of removal does not exist
in all the states. In New York, and perhaps in a few other states, the
legislature makes the removal without the concurrence of the governor;
and in that state some of the lower judicial officers may be removed by
the senate on the recommendation of the governor. In a few states,
judges are not removable by impeachment.
Chapter XXI.
Assessment and Collection of Taxes.
§1. Every government must have the power of providing means for its
support. The money which is needed to pay the expenses of administering
the government, if the state has no permanent source of revenue, or
income, must be raised by taxation. A _tax_ is a rate or sum of money
assessed upon the person or property of a citizen for the use of the
state. When assessed upon the person, it is called a _poll-tax_, or
_capitation tax_, being a certain sum on every poll, or head. But as
persons ought generally to contribute to the public expenses according
to their ability, taxes are more just and equal when laid upon the
property of the citizens. Few poll-taxes are levied in this country.
§2. There are certain kinds of property which are exempt from taxation;
such as the corporate property of the state, of counties, and of towns,
including the buildings in which the public business is done, the
prisons, jails, asylums, &c., and the lands attached to them;
school-houses and meeting-houses, with the lands attached;
burying-grounds, and the property of literary and charitable
institutions. But the property of business corporations, as rail-road,
banking, insurance, manufacturing, and other stock companies, like that
of individuals, is liable to taxation. _Real estate_, or _real
property_, is land with the buildings and other articles erected or
growing thereon. _Personal estate_, or _personal property_, consists of
movables, as goods, chattels, money, and debts due from solvent debtors.
§3. As the property of every person is to be assessed in proportion to
its value, it is necessary, first, to make a correct valuation of all
the taxable property. For this purpose, the assessor or assessors pass
through the town, and make a list of the names of all the taxable
inhabitants, and the estimated value of the property, real and personal,
of each; and returns of the same are made to the proper county officers,
who cause the tax-list for each town to be made out, and order the taxes
to be collected.
§4. In some states, persons liable to taxation are themselves required
to furnish lists of all their taxable property, printed blank lists
having been previously distributed among them for this purpose. To
secure an accurate valuation, the assessors, (called also _listers_,)
may require persons to make oath that they have made a true statement of
their property and its value. In states where the polls of the
tax-payers are assessed, these also are set down in the lists at such
sums as the law directs to be affixed to each poll.
§5. Before a tax-list can be made out, it must be known what amount is
to be collected in each town. This amount is made up of three parts:
First, the sum wanted to pay the expenses of the town for the preceding
year; secondly, the town's share of the county expenses; and thirdly,
its proportional share of the expenses of the state government, or of
what is to be raised for state purposes.
§6. The apportionment of the amount of the state and county expenses
among the several towns, is made according to the amount of property in
each as valued by the assessors. The state auditor or controller, having
received from the several counties returns of the value of the property
in each county, is enabled to determine its quota of the amount to be
raised for state purposes. To each county's share of the state expenses
is added the sum to be raised in the county for county purposes; and the
amount is apportioned among the towns in proportion to the value of the
assessed property of each. Then adding to each town's share of the
amount of the state and county expenses, the amount to be raised for
town purposes, gives the sum to be collected in the town.
§7. Having thus ascertained the sum to be raised in each town, the
officers whose duty it is, cause a tax-list to be made out, in which the
amount of each person's tax is set opposite his name and the estimated
value of his property. The tax-list of each town, certified and signed
by the proper persons, is put into the hands of the collector, with a
warrant ordering the same to be collected.
§8. The money collected for county and state purposes is paid to the
county treasurer, who pays to the state treasurer the amount raised in
the county for state expenses, and retains the remainder to be expended
in the county. The money collected for town purposes is paid to such
persons in the town as are by law authorized to receive the same.
Chapter XXII.
Education. School Funds; Schools, &c.
§1. The proper object of government is to promote the welfare and
happiness of its citizens. For this purpose, it must provide for making
and properly administering laws to protect the people in the enjoyment
of life and the fruits of their labor. But it should go further, and
make express provision for improving the condition of the people,
especially the less fortunate portions of them.
§2. The prosperity of a state or nation depends essentially upon the
education of its citizens. This is seen by comparing the condition of
the people of this country with the condition of the people of those
countries where the benefits of education are not enjoyed. Ignorance
tends to make men idle, vicious, and miserable. On the other hand,
learning is not only a means of enjoyment in itself, but of improving
the social condition of a people.
§3. Again, a free government is better adapted than any other to promote
the welfare of a nation. But if the people are not properly educated,
they are incapable of self-government. And as many persons are unable to
pay for the tuition of their children, the safety of the government
itself requires the establishment of a system of education, by which the
great body of the people may be fitted to discharge their social and
political duties. The states have accordingly instituted school systems
for the instruction of children and youth of all classes at the public
expense.
§4. In most of the states, the schools are supported only in part, in a
few of them wholly, at the expense of the states. Some states have
provided funds, the income of which is annually applied to this object.
_Fund_ generally signifies the money or capital stock employed in
carrying on trade or any other business operation. _State funds_ are the
moneys and other property of the state which are set apart for paying
the expenses of the government, or for the construction of canals,
roads, and other public improvements. The interest of these funds, and
the income from other sources, are called the _revenue_.
§5. In some states, school funds are created by appropriating the public
lands, which are lands owned by the state as a body corporate. The
proceeds of these lands, from sales or rents, constitute a part or the
whole of the school fund, the interest of which is annually applied to
the support of schools. If the income from the school fund is
insufficient for this purpose, the deficiency may, as is done in some
states, be supplied, in whole or in part, by taxation, or from the state
treasury.
§6. Many of the new states have large school funds. At an early period,
while most of the territory from which these states have been formed was
yet the property of the United States, and uninhabited, Congress passed
an act by which a particular section of land (number sixteen) in every
township is reserved for the support of schools therein. By this act,
one thirty-sixth part of the lands within each of these states has been
thus appropriated, besides smaller portions granted for the benefit of a
university in each state. These lands are in the charge of proper
officers, who dispose of them, and apply the proceeds as the law
directs.
§7. The school funds of many of the states have been largely increased
by certain moneys received from the United States. In 1837, there had
accumulated in the national treasury about thirty millions of dollars
over and above what was needed for the support of the government. By an
act of congress, this surplus revenue was distributed among the states
then existing, to be kept by them until called for by congress. Although
congress reserved the right to recall the money, it was presumed that it
would never be demanded. That it never will be, is now almost certain.
Many of the states have appropriated large portions of their respective
shares for school purposes. From its having been said to be only
_deposited_ with the states, this fund is sometimes called the _United
States deposit fund_.
§8. School moneys coming from the state treasury, or state fund, are
usually apportioned among the several towns of the state; and each
town's share of such moneys, together with what may come to the town by
taxation or from its school lands, is divided among the several
districts according to the number of children between certain ages in
each district, or in such other manner as may be directed by law. If the
moneys thus received are insufficient to pay the wages of teachers, a
rate bill is made out in each district for the deficiency, and collected
from the persons whose children have been taught in the schools.
§9. The towns, or townships, are divided into districts of suitable size
for schools, which are called _district schools_. From their being
supported by a common fund, and designed for the common benefit, or from
the lower or more common branches being taught in them, they are also
called _common schools_. One or more _trustees_ or _directors_ are
chosen in each district to manage its affairs; a _clerk_ to notify
meetings and record the proceedings of the same; and a _collector_ to
collect taxes for building and repairing school-houses, and all rate
bills for the payment of teachers.
§10. The highest school officer is the _state superintendent of common
schools_, or, as he is sometimes called, _superintendent of public
instruction_. The superintendent collects information relating to the
schools; the number of children residing in each district, and the
number taught; the amount paid for tuition; the number of school-houses,
and the amount yearly expended in erecting school-houses; and other
matters concerning the operation and effects of the common school
system. If there is no other officer whose duty it is, the
superintendent also apportions the money arising from the state funds
among the several counties. He reports to the legislature at every
session the information he has collected, and suggests such improvements
in the school system as he thinks ought to be made.
§11. There is in every county an officer who receives from the state
superintendent the money apportioned to the county, and apportions the
same among the towns; reports to the state superintendent the number of
children in the county; and performs such other duties as the law
requires. In some states, there is no such county officer; but the money
is apportioned by the state superintendent among the towns; and the
reports from the towns are made directly to the state superintendent.
§12. In the towns are officers whose duties are to examine teachers,
visit schools, apportion the school moneys among the districts, and to
collect the lists of the number of children in the several districts,
with such other information as the law requires, and report the same to
the county officer, or, if there is none, to the state superintendent.
In some states, there is in each county an officer or a board of
officers, for examining teachers, and performing certain other duties
relating to the schools of the county.
§13. Academies and colleges also receive aid from the state, to a
limited extent. A distinct fund is created in some states for their
benefit; in others, they are aided by special appropriations from the
state treasury.
Chapter XXIII.
Canals and Rail-Roads.
§1. In carrying out the purposes of government, provision ought also to
be made to secure to the people the means of obtaining a suitable reward
for their industry, and to render the labor of all, as nearly as may be,
equally profitable.
§2. The people of some states do not possess the same advantage as those
of others; nor do all the people of the same state enjoy equal
advantages. Those who reside at a great distance from market, or from
navigable waters and good roads, are not so well rewarded for their
labor as those who reside near them, because of the greater cost of the
transportation, both of what they have to sell, and of the goods they
buy. Hence the necessity of good roads, canals, or other means of
facilitating trade between the different parts of the state.
§3. Among the works intended to effect this object, _canals_ are perhaps
the most useful, and are to be preferred wherever their construction is
practicable. Canals are sometimes constructed by incorporated companies;
but generally these works, especially those of great magnitude, are made
by the state, and are the property of the state. Although there are some
states in which are no canals of this kind, it may be interesting to
young persons generally to know how so important a state work is made.
§4. To raise the money necessary to make a canal, the legislature might
levy a general tax upon the property of the citizens. But this would not
be expedient or just; because, first, the payment of so large a sum by
the people within the time in which it would be desirable to complete
the work, would be inconvenient and burdensome; and secondly, the
expense must fall alike upon the people of all parts of the state:
whereas, those residing most remotely from the line of the work, would
derive from it little or no benefit.
§5. When, therefore, a great enterprise of this kind is undertaken by a
state, the law authorizing the work usually provides a _fund_, the
income of which is to be applied to this object. This fund consists of
such lands, property, and moneys as the legislature may grant for this
purpose. Funds were thus constituted in some of the western states, to
which funds congress made grants of the public lands of the United
States lying within those states.
§6. These funds, however, furnish but a part, some of them but a small
portion of the money necessary to complete the work; and some states
undertaking public improvements may not have the lands or other property
to constitute such a fund. The state therefore borrows the money for a
long term of years, and depends upon the income of the canal fund and
the tolls to be collected on the canals, for the repayment of the money
borrowed. Should the revenues of the canal and of the canal fund be
insufficient, the deficiency may be supplied by taxation.
§7. The business of borrowing the money is done on the part of the
state, by persons duly authorized, who give for the money borrowed the
bonds of the state, which are written promises to pay the money at the
times specified, with interest at the rate agreed on; the interest
generally to be paid semi-annually. These bonds are usually given in
sums of $1,000 each, or less. The debts of a state thus contracted by
issuing bonds, are called _state stocks_, as the capital, or stock
required to construct a state work is obtained by the sale of its bonds.
These bonds, like the certificates of stock in a rail-road or other
corporate business company, are transferable, and may be bought and sold
as promissory notes, and constitute an important article of trade.
§8. These stocks are taken by men who have large sums of money to lend,
and who consider the state a responsible debtor; because, if it has no
other sufficient means of paying its bonds, the legislature has power to
raise the money by taxation. Most of the states have contracted debts in
this manner for various purposes. State stocks are purchased and held
not only by capitalists in this country, but by many in Europe.
§9. Officers are appointed to manage the canal fund, and others to
superintend the canals. There are also officers, called _canal
collectors_, at suitable distances along the canals, to collect the
_tolls_, which are charges paid by the masters or owners of boats for
the use of the canal.
§10. The states of New York, Pennsylvania, Ohio, and some other western
states, have prosecuted the canal enterprise on a large scale. Although
large debts have been contracted for the construction of canals in these
states, the benefits derived from them more than compensate for the vast
expense of their construction.
§11. _Rail-roads_, although they are of public utility, are not
properly public works, being constructed by companies incorporated for
that purpose. The necessity for an act of incorporation is readily seen.
Rail-roads pass through the lands of private individuals; and without
the authority of law, the land of no person can be taken for such
purpose; nor can a law authorize it to be taken, unless the work is one
of general advantage; nor even in such case, without compensation to the
owner for his land; for it is declared by the state constitutions, that
"private property shall not be taken for public use without just
compensation."
§12. If, therefore, the legislature deem a proposed railroad to be of
public utility, they pass an act to incorporate a company with the
requisite powers to construct the road, on making compensation for the
land, the value of which is to be estimated in such manner as the law
prescribes. The law also prescribes the manner in which the affairs of
the road are to be conducted.
§13. The amount of capital to be employed by the company, is mentioned
in the act of incorporation, or charter, and is raised in this way: The
amount of the capital, or stock, is divided into shares of $100, or
less. Persons wishing to invest money in the road, subscribe the number
of shares they will respectively take. When all the shares are thus sold
and the money is paid in, the company is ready to proceed to the
construction of the road. The owners of these shares are called
_stockholders_, who choose from among themselves such number of
_directors_ as the charter authorizes. The directors elect from their
number a _president_.
§14. Persons buying shares receive certificates signed by the proper
officers, stating the number of shares for which each certificate is
given. The holders of these certificates, if they wish to make other use
of the money they have invested in the business, may sell their stock to
others, to whom they pass their certificates, which are evidence of the
amount of stock purchased. Thus these certificates are bought and sold
as promissory notes.
§15. Stockholders depend, for the reimbursement of their capital, upon
the money to be received for the transportation of passengers and
freight. Such portion of the income of the road as remains after paying
all expenses of running and repairs, is divided semi-annually among the
stockholders. Hence the sums thus divided are called _dividends_. The
earnings of some roads are so large as to make the investment a
profitable one; so that the holder of shares is enabled to sell them at
an advance. When shares in the stock of any institution are sold at
their nominal value, the price named in the certificates, the stock is
said to be at _par_. When they are sold for more or less than their
nominal value, they are said to be above or below _par_. In large
commercial cities, as New York, Boston, Philadelphia, and others, the
purchase and sale of state stocks, and stocks in rail-roads, banks, &c.,
is a regular and extensive business of capitalists.
Chapter XXIV.
Banks and Insurance Companies.
§1. Banks, we are told, were first instituted in Italy, where certain
Jews assembled, seated on benches, ready to lend money, and to exchange
money and bills; and _banco_ being the Italian name for bench, banks
took their title from this word. The first banks are said to have been
only places where money was laid up or deposited for safe-keeping. But
banks at the present day are not used for depositing alone.
§2. Banks in this country can be established only by authority of law.
They are incorporated by an act of the legislature. The capital stock is
raised by the sale of shares, and issue of certificates, as in the case
of rail-roads. (Chap. XXIII., §13.) The stockholders elect of their
number (usually) thirteen _directors_, who choose one of themselves as
_president_. The president and directors choose a cashier and clerks.
§3. Merchants and others in commercial places, deposit in banks, for
safe-keeping, the money they receive in the course of business, and then
draw it out on their written orders as they have occasion to use it. An
order of this kind is called a _check_.
§4. Persons depositing money only once, or very seldom, and intending to
draw for the same at once, usually receive from the cashier a
_certificate of deposit_, which states the name of the depositor, the
sum deposited, and to whose order it is to be paid. For the use of money
deposited for any considerable period, banks agree to pay interest,
usually less, however, than the rate established by law. Certificates of
deposit may, by indorsement, be made transferable as promissory notes
and other negotiable paper, (Chap. LX., §2,) and are often remitted,
instead of money, to distant places, where, by presenting them at a
bank, they may, for a trifling compensation, be converted into money.
§5. A material part of the business of banks is to assist merchants and
others in transmitting money to distant places. Thus: A, in New York,
wishing to send $1,000 to B, in Philadelphia, puts the money into a bank
in New York, takes for it an order, called _draft_, on a bank in
Philadelphia, for that amount, to be paid to B. The draft is sent by
mail to B, who presents his draft at the bank, and receives the money;
and the bank charges the amount to the New York bank.
§6. But persons unacquainted with commercial business, especially young
persons, may not know how the bank in Philadelphia is to be repaid. In
the course of trade between the two cities, business men are constantly
remitting money both ways through the banks, which thus receive the
money and draw upon each other. Thus millions of dollars may be annually
transmitted between the two cities, without any expense except the small
charge of the banks for doing the business, and without the risk of loss
by accident or robbery which attends the conveyance of money in person.
§7. Banks also lend money. The borrower gives a note for the sum
wanted, signed by himself, and indorsed by one or more others as
sureties. The cashier pays the money for the note, retaining out of it
the interest on the sum lent, instead of waiting for it until the note
becomes due. This is called _discounting_ a note.
§8. The bills of banks pass as money. A bank bill or note is a promise
of the bank to pay the bearer a certain sum on demand, signed by the
president and cashier. It passes as money, because the bank is bound to
pay it in specie if it is demanded. Paying notes thus is _redeeming_
them. When a bank is unable to redeem all its bills, it is said to have
failed, or to be broken; and the bill holders suffer loss, unless some
security has been provided. This has been done in some states by making
the stockholders individually liable for the redemption of the bills;
that is, the property owned by them as individuals may be taken and sold
on execution for that purpose. Such security, however, has never been
generally provided.
§9. But a system of banking, sometimes called _free banking_, has more
recently been adopted in some states. It is so called, because the
business of banking is thrown open to all by a _general law_. Any
person, or any number of persons, may, by complying with the provisions
of this general law, establish a bank without a special law for this
purpose. Hence it is also called the _general banking_ system.
§10. Persons, before commencing business under this law, must put into
the hands of the proper state officers ample securities for the
redemption of their bills; and they may not issue bills to a greater
amount than the amount of their securities. These securities must
consist of approved state stocks, or United States stocks, or partly of
public stocks, and partly of real estate. When a bank fails, the lands
and stocks held in pledge by the state are sold, and the avails are
applied to the redemption of the bills. This system of banking seems to
be growing into public favor.
§11. _Insurance companies_ also are authorized by law. Their business is
to insure persons against loss by fire. The corporators, on being paid a
small sum, consisting generally of a certain percentage on the amount
for which the property is insured, promise to pay such amount if the
property shall be destroyed by fire. There are companies also for
insuring vessels at sea; and _life_ insurance companies, that agree to
pay, in case of the death of the person insured, a certain sum for the
benefit of his family, or of some other person named in the policy. The
word _policy_ as here used, means the writing containing the terms or
conditions on which the company agrees to indemnify the person insured
in case of loss. The money paid to obtain insurance, is called
_premium_.
§12. The profits of the stockholders consist of the excess of money
received for premiums over the amount paid out for losses. Thus, if a
company has issued 2,000 policies, each covering property of an average
amount of $1,000, the amount of risk is $2,000,000; and if the rate of
insurance is one per cent., the amount received in premiums is $20,000.
Hence, if none of the 2,000 buildings is burned within the time the
insurance is to run, the $20,000 are gained. If ten of them should be
burned, there would still be a gain of $10,000. If twenty should be
destroyed, there would be no gain, but an actual loss to the amount of
the expenses of the concern.
§13. But from the average number and amount of losses annually for many
years, companies are enabled so to fix the rates of insurance as to give
the stockholders a fair profit on their capital. The rates are not the
same on all kinds of property; a higher per centage is charged on that
which is deemed hazardous, or more exposed to fire, than on that which
is less exposed. The profits on the business of the company, or the
_dividends_, as they are called, are annually or semi-annually divided
among the stockholders, in proportion to the amount of their respective
shares.
§14. There is another kind of insurance companies, which differ
materially from the _stock_ companies described in the preceding
sections. They are _mutual_ insurance companies. They are so called
because the members unite in insuring each other. Every person having
his property insured by such a company is a member of it. He has his
buildings and the property in them valued; and pays a certain rate per
cent. on such valuation. A fund is thus raised out of which any member
suffering loss by fire is paid the amount for which the property was
insured. When the fund is exhausted, it is again supplied by a tax
assessed upon the members in proportion to the amounts for which they
are respectively insured.
Chapter XXV.
The Militia.
§1. It is the practice of governments to keep their respective countries
prepared to defend themselves against foreign enemies. For this purpose
all men liable to do military duty are enrolled, and are required to
meet on certain days every year for instruction in the art of war, in
order to be ready for actual service whenever it shall be required. The
body of soldiers thus enrolled are called the _militia_. There are other
words which are sometimes applied to bodies of soldiers; as _infantry_,
which means the soldiers or troops who serve on foot; _cavalry_, the
troops on horses; _artillery_, those who manage the cannon and other
heavy weapons of war. But all troops are comprehended in the general
term, _militia_.
§2. The militia of a state, or a portion of them, may also be needed to
aid in executing the laws of the state, and in suppressing insurrection
or rebellion. An _insurrection_ is a rising against the public
authority, or the attempt of persons to prevent the execution of a law.
_Rebellion_ generally means nearly the same as _insurrection_; but more
properly it signifies a revolt, or an attempt to overthrow the
government to establish a different one. As it is the duty of an
executive to see the laws executed, power is given by the constitution
to the governor to call out a sufficient military force for this
purpose.
§3. All able-bodied white male citizens of the United States, between
the ages of eighteen and forty-five years, are liable to perform
military service in the states in which they reside, except such as are
exempt by the laws of the states and of the United States. Persons
exempt by the laws of the states are generally the following: Ministers
of the gospel; commissioned officers of the militia having served a
certain number of years; members of uniformed companies having served
for a specified time; members of fire companies; certain public officers
while in office; and in some states teachers and students of colleges,
academies, and common schools; and a few others.
§4. Persons exempt by the laws of the United States are the
vice-president, the subordinate executive and all the judicial officers
of the government of the United States; members of congress and its
officers; custom-house officers and their clerks; post-officers and
drivers of mail stages; ferrymen employed at ferries on post-roads;
pilots and mariners.
§5. By the constitutions of the several states, the governors are made
the commanders-in-chief of the militia of their respective states; and
by the constitution of the United States, the president is made
commander-in-chief of the army and navy of the United States, and also
of the militia of the states when called out into actual service. It has
already been remarked, (§2,) that the military force of the state is at
the command of the executive to protect the government and its citizens.
So the president was thought the proper person to have command of the
public forces, to execute the laws of the United States, to repel
invasion, and to carry on war. Hence the governors and the president are
not among the public officers who are exempt from military duty.
§6. Persons who, having been duly notified, refuse to appear at
military parades, or, appearing without being equipped as the law
directs, are tried by a military court, called _court martial_,
consisting usually of three military officers, or of such other persons
as may be appointed according to the law of the state. If the persons
tried do not show good cause for their delinquency, they are fined in
such sums as the law prescribes. In certain cases courts may consist of
more than three members.
§7. The highest militia officer, except the governor, is the
_adjutant-general_ of the state; who keeps a list of all the higher
commissioned officers, containing the dates of their commissions, their
rank, the corps (pronounced _core_) they belong to, the division,
brigade, and regiment, and their places of residence. He distributes all
orders from the commander-in-chief (the governor,) to the several
divisions; attends public reviews where the commander-in-chief reviews
the militia; and obeys all orders from him relative to carrying into
execution the system of military discipline established by law.
§8. There is also in some states a _commissary-general_, who has the
care of the arsenals and magazines, and the articles deposited in them.
An _arsenal_ is a building in which are kept cannon, muskets, powder,
balls, and other warlike stores; all of which are to be kept in repair
and ready for use.
§9. There are persons who, believing all wars to be wrong, can not
conscientiously do military service. As it is the object of our
government to secure to every person the liberty of conscience as well
as other rights, the constitutions of many of the states provide, that
those who are averse to bearing arms, may be excused by paying annually
a sum of money instead of rendering the service. But it may well be
doubted whether compelling a man to pay the money is not itself a
violation of the right of conscience. Many persons conceive it to be no
less morally wrong to commute for the service than to perform it. In
some states, all persons belonging to the society of Friends, usually
called Quakers, are exempt without the payment of an equivalent in
money.
§10. In the states of New York and Ohio, the rank and file of the
militia are not required to train in time of peace. Persons liable to
perform military service, except those connected with the uniformed
companies, are enrolled in the militia; but instead of doing duty, they
pay annually a small tax, which is in New York fifty cents, and in Ohio
fifty cents, or a day's highway labor.
§11. Laws abolishing trainings and musters of the great body of the
militia, are, it is believed, growing into favor, and for these among
other reasons: First, the militia system produces no material
improvement in discipline; secondly, the expenditure of time and money
in these useless exercises, and for arms and equipments, are burdensome
to many citizens; and thirdly, there is no probability of an occasion
requiring a large portion of the militia to be so suddenly called into
service as to allow no time for preparation. Volunteer companies like
those kept up and disciplined in the states above named, and the
standing army of the nation, are deemed sufficient for any supposable
emergency.
§12. Happily the practice of settling disputes between nations by war,
is becoming less popular in civilized and Christian communities. War is
a dreadful evil, and ought to be discouraged, and, if possible, avoided.
Were governments so disposed, they might in most cases settle their
differences as individuals do, by submitting them to the judgment of a
third party. If the love of military honor were less encouraged, and the
principles of peace duly inculcated, the time would be hastened when
"nations shall learn war no more."
Government of the United States.
Chapter XXVI.
Causes of the Revolution.
§1. The plan of government in this country is peculiar. To a person
previously unacquainted with our political institutions, it might seem
strange, after having read the foregoing description of the state
governments, to be told that there is still another and a different
government to which the people are subject. How the people of more than
thirty states, all having complete and distinct governments, can at the
same time be subject to another government, also complete in all its
parts, he would not immediately understand. He would not know what is
meant by the government of the United States. How the states, all having
governments of their own, can be _united_ in one government, he would
not readily perceive.
§2. We shall therefore proceed to a description of the government of the
United States, from which will appear the relation between that
government and the state governments. It will also appear that the state
governments, each of which has in itself a great deal of machinery, all
move in harmony with the great political machine--the government of the
United States. It is easy to see that a knowledge of these governments
is important to the people who live under them, as every freeman
exercises a part of the governing power, both in the government of his
own state, and in the general government.
§3. To assist the reader in understanding the constitution and
government of the United States, we shall first give a sketch of the
governments which preceded, and of the principal causes which led to the
revolution in the government of this country. Most of the youth who are
of sufficient age to study this work, probably know that our present
forms of government were not established by the early settlers in this
country. The first inhabitants were _colonists_. A _colony_ is a
settlement of persons in a distant place or country, who remain subject
to the government of the state or country from which they removed. The
American colonies which have become the "United States," were chiefly
settled from Great Britain, and were under her jurisdiction.
§4. The political rights and privileges enjoyed by the colonists as
British subjects, were very limited, and were conferred by the charters
of the king. The people had not then, as now, constitutions of their own
choice. There were colonial governments; but they were such as the king
was pleased to establish, and might be changed at his pleasure. These
governments were in _form_ somewhat similar to that of our state
governments. There was what might be called a legislature; also an
executive or governor; and there were judges.
§5. But of the officers of these departments of the government, only the
members of one branch of the law-making power were elected by the
people. The other branch was composed of a small number of men, called a
council; but they were appointed by the king and subject to his control,
as was also the governor, who had the power of an absolute negative or
veto to any proposed law. And laws after having received the assent of
the governor, must be sent to England and approved by the king, before
they could go into effect.
§6. Hence we see that the colonists had no security for the passage of
such laws as they wanted. And the consequence was, that they were often
denied good and wholesome laws, by the refusal of the king to sanction
them. Not only so; many laws enacted by parliament were very unjust and
oppressive. The object of these laws was to secure to Great Britain
alone the trade of the colonies. One law declared that no goods should
be imported by the colonists but in English vessels; if brought in
other vessels, both the goods and vessels were to be forfeited to the
British government.
§7. Another law required such articles as England wanted, to be
transported to that country and other countries belonging to Great
Britain. The colonists were permitted to ship to foreign markets such
products only as English merchants did not want. They were prohibited
from selling abroad any wool, yarn, or woolen manufactured goods. This
was done to keep the markets open for British wool and manufactures.
Another law declared that no iron wares of any kind should be
manufactured here. Thus was it attempted to suppress manufactures in the
colonies.
§8. Hence we see that it was the policy of the British government to
compel the colonists to buy of England all the goods they wanted which
they did not themselves produce, and to sell to England the surplus
productions of the colonies. For this purpose, heavy duties were laid
upon goods imported into the colonies from other countries than Great
Britain and her possessions. These duties were taxes levied upon goods
brought into the colonies from abroad, and were collected by officers
here from the persons importing the goods.
§9. The following facts will explain to the young reader more clearly
the nature and effects of these duties: The colonists traded with the
West India islands, some of which belonged to Great Britain, some to
France, and some to Spain. To secure the whole trade, the British
government imposed high duties upon the molasses, sugar and other
articles imported into the colonies from the French and Spanish islands.
The people of the colonies could therefore avoid the payment of these
duties only by importing the above mentioned goods from the British
islands.
§10. Not satisfied with these acts, parliament claimed the right to tax
the colonies, "in all cases whatsoever;" and an act was passed
accordingly, laying duties upon all tea, glass, paper, &c., imported
into the colonies; and the money thus collected was put into the British
treasury. The colonists petitioned the king and parliament to repeal
these obnoxious laws; but their petitions were denied. Having given up
all hope of relief, congress, which was a body of delegates from the
several colonies, declared the colonies to be free and independent
states, no longer subject to the government of Great Britain. This
declaration was maintained by a war which lasted about seven years, when
Great Britain gave up the contest, and acknowledged the independence of
the states; and the _revolution_ was accomplished.
Chapter XXVII.
Nature of the Union under the Confederation.
§1. As early as the year 1774, the colonies united in the plan of a
congress, to be composed of delegates chosen in all the colonies, for
the purpose of consulting on the common good and of adopting measures of
resistance to the claims of the British government. The first great
continental congress met on the 4th of September, 1774. Another congress
assembled in May, 1775. This congress adopted sundry measures having
reference to war, and finally made the declaration of independence, July
4th, 1776. The continental congress, the members of which were chosen by
the state legislatures, conducted the affairs of the nation until near
the close of the war.
§2. With a view to a permanent union of the colonies under a general
government, the congress, in November, 1777, agreed upon a frame of
government, contained in certain articles, called, "Articles of
Confederation and perpetual Union between the States." These articles
were to go into effect when they should have received the assent of all
the states. But as the consent of the last state (Maryland) was not
obtained until March, 1781, they went into operation only about two
years before the close of the war.
§3. As a plan of national government, the confederation was soon found
to be very defective. The union formed under it was a very imperfect
one. Having been framed in time of war, it had respect to the operations
of war rather than to a state of peace. Although it answered some good
purpose in carrying on the war, it was not well adapted oven to the
condition of the country then existing. Its defects appeared almost as
soon as it went into effect; and after the return of peace, it was found
that the union, instead of being strengthened and perpetuated by it,
could be preserved only by a radical change in the system of government.
§4. The leading defect of the confederation was its weakness. Congress
could do little more than to recommend measures. As it could not
legislate directly upon persons, its measures were to be carried into
effect by the states; but the states were not in all cases willing, and
some of them did at times refuse to do so, and congress could not compel
them. It belonged to congress to determine the number of troops and the
sums of money necessary to carry on the war, and to call on each state
to raise its share; but congress could not enforce its demands. It
borrowed money in its own name, but it had not the means of paying it.
It had no power to lay and collect taxes; this power was reserved to the
states.
§5. Hence we see that congress was dependent for every thing upon the
good will of thirteen independent states. It is a wonder that a
government of such inherent weakness should bring the war to a
successful issue. It was a sense of danger from abroad, rather than any
power in the government, that induced a sufficient compliance with the
ordinances of congress to achieve the independence of the states.
§6. On the restoration of peace, new difficulties arose. We have already
spoken of the want of power in congress to lay and collect taxes for
war purposes. Money was now wanted to discharge the public debt, and to
pay the current expenses of the government; yet congress had no power to
raise it, either by a _direct tax_ upon the persons or property of the
citizens, or _indirectly_ by duties on goods imported, as at present
under the constitution. The power to lay and collect duties was with the
states; but it was of little use so long as each state could impose such
duties as it chose. The states being unable to agree upon a uniform rate
of duties, the goods would be imported into states which levied the
lowest duties. It was expedient, if it had been possible, to borrow more
money on the credit of the union, as the heavy debt contracted during
the war remained unpaid, and congress had no means of paying it.
§7. But the inability to raise money was not the only difficulty that
attended the want of power by congress to lay duties. This power was
necessary also to regulate the foreign trade. We have already remarked,
that it was the policy of Great Britain before the revolution to secure
in the colonies a market for her manufactures. (Chap. XXVI.) Not only
so; she had by her navigation acts, for more than a hundred years,
imposed heavy duties upon foreign vessels coming into her ports, in
order to secure the carrying trade to her own shipping. In addition to
this, she also levied high duties upon the produce of the states sent to
pay for the goods we were obliged to buy of her, our own people not
having as yet the means, nor having had time, to establish
manufactories, and to manufacture for themselves.
§8. Another of the numerous troubles which arose from this imperfect
union was the want of peace and harmony between the states. Laws were
enacted in some states with a view to their own interests, which
operated injuriously upon other states. This induced the latter states
to retaliate, by passing laws partial to themselves and injurious to the
former. The states soon became disaffected toward each other; and their
mutual jealousies and rivalries and animosities at length became so
great as to cause fears that some of the states would become involved
in war among themselves, and that the union would be broken up.
§9. In the hope of remedying the difficulty last mentioned, an attempt
was made to procure the insertion, into the articles of confederation,
of a provision giving to congress the power to regulate trade; but the
attempt failed. In January, 1786, the legislature of Virginia proposed a
convention of commissioners from all the states, to take into
consideration the situation and trade of the United States, and the
necessity of a uniform system of commercial regulations.
§10. A meeting was accordingly held at Annapolis, in September, 1786;
but as commissioners from only five states attended, viz., New York, New
Jersey, Pennsylvania, Delaware, and Virginia, the commissioners deemed
it unadvisable to proceed to business relating to an object in which all
the states were concerned; but they united in a report to the several
states and to congress, in which they recommended the calling of a
general convention of delegates from all the states, to meet in
Philadelphia on the 2d Monday of May, 1787, with a view not only to the
regulation of commerce, but to such other amendments of the articles of
confederation as were necessary to render them "adequate to the
exigencies of the union."
§11. In pursuance of this recommendation, congress, in February, 1787,
passed a resolution for assembling a convention. All the states, except
Rhode Island, appointed delegates, who met pursuant to appointment; and
framed the present constitution of the United States. They also
recommended it to be laid by congress before the several states, to be
by them considered and ratified in conventions of representatives of the
people. Conventions were accordingly called for this purpose in all the
states, except Rhode Island, and the constitution was ratified by all of
them in which conventions had been called, except North Carolina.
§12. The constitution was to go into effect if ratified by nine states.
The ninth state, New Hampshire, sent its ratification to congress in
July, 1788; and measures were taken by congress to put the new
constitution into operation. Ratifications were received from North
Carolina and Rhode Island the year after the organization of the new
government.
Chapter XXVIII.
Nature of the Union under the Constitution.
§1. Having given, in the preceding chapter, a sketch of the union under
the confederation, we shall next show the nature of the union under the
present constitution, commencing with a brief comparison of the leading
features of the two systems of government.
§2. The former union was a mere confederacy. A _confederacy_ is a
league, a federal compact. The word _federal_ is from the Latin _fadus_,
a league, or alliance. Hence a confederacy is a combination or union of
two or more parties, whether persons or states, for their mutual benefit
and assistance. And let it be here particularly noted, that this union
was a union of states, _as states_. The articles of confederation were
framed by congress, whose members were appointed by the state
legislatures, and, when framed, were submitted to the state legislatures
for ratification.
§3. On the other hand, the union under the constitution is a union, not
of the states, as such, but of the _people of the states_. Thus it is
expressed in the preamble to the constitution: "We, the people of the
United States, in order to form a more perfect union, ... do ordain and
establish this constitution for the United States of America." And the
constitution was submitted for ratification, not to the state
legislatures, but to conventions whose members were elected by the
people for that purpose.
§4. The states under the confederation were independent, not only of
each other, but of the general government. True, they agreed, for their
common defense and mutual welfare, to do certain things; and certain
other things they agreed not to do, but delegated to congress the power
to do them; but, as we have seen, congress had not the power to compel
the states to obey its requisitions. By the constitution, the states
have given up a greater portion of their sovereignty to the general
government, which has power, in certain cases, to control the state
governments, and to enforce its laws upon them and upon individuals.
§5. Again, under the confederation, as in confederacies generally, the
states were equal. They were entitled to an equal number of delegates in
the congress, in which they voted by states, each state having one vote;
that is, if a majority of the delegates of a state voted in favor of or
against a proposed measure, the vote of the state was so counted; and a
proposition having in its favor a majority of the states, was carried.
Every state was entitled to seven delegates; but there must be at least
two delegates present and voting, in order to give a state vote; and if
an equal number of the delegates of a state voted for and against a
proposition, the state was said to be divided, and to have no vote.
§6. Under the constitution there are two branches of congress, in one of
which the number of representatives of each state is in proportion to
its population; in the other, (the senate,) the states are equally
represented, on the principle of the confederation, though by two
senators only. But the vote in both is taken, not by states as under the
confederation, but _per capita_, that is, by the head or poll, the vote
of each member counting one.
§7. The articles of confederation were framed by congress, the members
of which were appointed by the state legislatures; and the articles,
when framed, were submitted for ratification to the state legislatures.
The constitution was framed by a convention of delegates from the
states appointed for that purpose; and was ratified, not by the state
legislatures, but by state conventions whose members were elected by the
people of the several states.
§8. The former union, as has been remarked, was a mere Confederacy,
composed of independent states, and united simply for purposes of
defense and their mutual safety. In most respects they had no more
political connection than so many different nations. The people of a
state were not, properly speaking, citizens of the United States, but
only citizens of the state in which they lived. But by the constitution,
the people of the states were incorporated into a nation; and a citizen
of a state is also a citizen of the United States. The government of the
confederation, although sometimes called the national government, was
not really such, nor was it generally so regarded, as appears from the
proceedings of the convention that framed the constitution.
§9. Among the earliest proceedings of the convention was the offering of
a resolution, declaring that "a national government ought to be formed,
consisting of legislative, judiciary, and executive." This resolution
was strongly opposed by a large portion of the delegates, because it
proposed to establish a _national_ government. They were in favor of
continuing the confederation with a slight enlargement of the powers of
congress, so as to give that body the power to lay and collect taxes,
and to regulate commerce. But the friends of a national government
prevailed; and we have now a complete government, consisting of the
three departments, legislative, executive, and judicial.
§10. Under the confederation, there was no executive to execute the
ordinances of congress; nor a national judiciary, the state courts being
used for all judicial purposes. There was only a legislature; and that
consisted of a single body, called the congress, appointed by the state
legislatures, and having scarcely power enough to entitle it to the name
of legislature.
§11. But, although the present government, with these three departments
of power, and controlling, in matters of general concern, the action of
the state governments and of individuals, is properly a national
government; yet it is not wholly such, but partly national and partly
federal; some of the federal features of the confederation having been
retained in the constitution, as will appear on a further examination of
this instrument. Hence the union is still called, with propriety, the
_federal union_, and the government the _federal government_.
Chapter XXIX.
Legislative Department. House of Representatives.
§1. The first article of the constitution describes the manner in which
the legislature is formed, and prescribes its principal powers. It
declares, "All legislative powers herein granted shall be vested in a
congress of the United States, which shall consist of a senate and house
of representatives." Members of the old congress were appointed by the
state legislatures for one year, and might be recalled by them at any
time. Representatives are now chosen for two years. It was thought that
a single session was too short a term for men in general to acquire the
knowledge and experience necessary to a right performance of the
responsible duties of a representative. Besides, measures are often left
unfinished at the close of a session; and those who have once examined
their merits and demerits, can dispose of them more promptly than new
members.
§2. The same clause declares that "the electors in each state shall have
the qualifications requisite for electors of the most numerous branch of
the state legislature." The qualifications of electors were various in
the different states. (Chap. VI, §8.) In some of them, owners of
property, or tax-payers, in others, freeholders only, were voters. In
some, only the latter voted for the higher officers; in a few, suffrage
was almost universal. It was presumed that no state would object to its
own rule for electing the popular branch of its legislature. It is
proper that a representative should be chosen directly by those whose
wants he is to make known, and whose rights he is to guard.
§3. A representative must, at the time of his election, "have attained
the age of twenty-five years; and have been seven years a citizen of the
United States;" and he must "be an inhabitant of the state in which he
is chosen." Few young men, on attaining the age of majority, have the
knowledge, or experience, or wisdom, which is requisite to qualify them
for the responsible duties of a representative. Nor is it to be presumed
that an alien, at the earliest period at which he may become a
naturalized citizen, would be sufficiently familiar with our
institutions and the wants of our people to be a competent
representative.
§4. The next clause prescribes the rule of apportionment.
"Representatives and direct taxes shall be apportioned among the several
states, according to their respective 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." To the younger class of readers,
this part of the clause needs explanation.
§5. The convention found it very difficult to agree upon a rule of
apportionment. In the first place, the states, as will be recollected,
were entitled to an equal number of delegates in the old congress; and
each state had one vote. But as each member of the house of
representatives was to have a vote, the small states opposed a
representation according to numbers, while the large states as
strenuously insisted upon it.
§6. In the next place, the slaveholding states claimed a representation
according to numbers including slaves; the non-slaveholding states
insisted on a representation according to the number of free persons. It
may here be observed, that slavery then existed in all the states except
Massachusetts; but as the slaves were so few in the northern states, in
which slavery has been since abolished, the latter are generally spoken
of as if they were at that time non-slaveholding states. The controversy
on this point rose so high, and the parties were for a long time so
unyielding, that fears were entertained of a sudden dissolution of the
convention.
§7. It became evident that the question could be settled only by
compromise. The northern states consented that in ascertaining the
number of persons to be taken as the basis of apportionment,
three-fifths of the slaves should be added to the number of free
persons. And as these states had opposed the computation of any slaves
in fixing a rule of apportionment, on the ground that slaves are
property, and that no property in these states entitled its owners to
representation, the southern states consented, on their part, that
_direct taxes_ should be apportioned on the same basis as
representatives.
§8. To illustrate this rule by an example: Suppose a state to contain
600,000 free persons, and 500,000 slaves. Adding three-fifths of the
number of slaves, (300,000) to the number of free persons, gives 900,000
as the number of the representative population: and the state would be
entitled to _three_ representatives for every _two_ that a state would
have which contained 600,000 free inhabitants and no slaves. So in
apportioning taxes according to population, the state in the case we
have supposed, would have to raise _three_ dollars for every _two_ that
it would raise if no slaves were counted.
§9. But the advantages of this arrangement are more unequal than may at
first sight appear, or than was anticipated by the framers of the
constitution. The benefits are chiefly on the side of the slaveholding
states. In the first place, two-fifths of a large class of property in
these states is exempt from taxation, while _all_ the property in the
free states is liable to taxation. Of this the framers were aware. But
they did not foresee the fact, that the laying of direct taxes would be
unnecessary, and that the slave states would consequently escape
taxation for their slaves. Only three direct taxes have been laid; and
it is not probable that another will become necessary; the treasury
being supplied from other sources, chiefly by duties on imports.
§10. Now, although nothing is gained by the slave states, nor is
anything lost by the free states, by the exemption of the two-fifths of
the slaves from taxation, since direct taxes are unnecessary; there is a
great gain to the slave states, which have between thirty and forty
representatives for what their laws hold to be "property to all intents
and purposes whatsoever," for which the free states have nothing in
return.
§11. The constitution does not limit the house to any definite number of
representatives; it only declares that the number shall not exceed one
for every 30,000 inhabitants. It requires an enumeration of the
inhabitants every ten years; and the next congress thereafter determines
the ratio of representation and the number of representatives, and
apportions them among the states. The word _ratio_ signifies rate, or
proportion. It here means the number or portion of the inhabitants
entitled to a representative.
§12. But as a representative for every 30,000 inhabitants, after the
population became very numerous, would have made the house too large to
transact business with due dispatch, and would have unnecessarily
increased the public expense, the ratio of representation has from time
to time been increased. But to whatever number the ratio may be raised,
the constitution expressly declares, that "each state shall have at
least one representative." Neither Delaware nor Florida had, in 1850, a
population equal to the present ratio; and without the above
constitutional provision, these states would have been deprived of a
representation in the house, unless congress had adopted a smaller
ratio.
§13. It will be seen by reference to the constitution, that the number
of representatives was for the time fixed at sixty-five. After the first
census, taken in 1790, the ratio was fixed at 33,000, which gave the
house 106 members. After the census of 1800, the same ratio was
adopted, and the number of members was 142.
After 1810, the ratio was 35,000; number of members 182.
After 1820, the ratio was 40,000; number of members 213.
After 1830, the ratio was 47,700; number of members 240.
After 1840, the ratio was 70,680; number of members 233.
After 1850, the ratio was 93,000 and a fraction, making the number of
members 233, of which California had one; but in view of her rapid
increase in population, she was allowed an additional member, making, in
all, 234. Minnesota has since been admitted into the Union (1858) with
two members, and Oregon (1859) with one member.
§14. Representatives are chosen by districts. Each state is divided by
the legislature into as many districts as there are representatives to
be elected in the state; and one representative is chosen in each
district. In most of the states, representatives are chosen at the
general state election; in the others, there are special elections for
choosing representatives.
§15. By an act of congress, every territory belonging to the United
States in which a government has been established, is entitled to send a
delegate to congress, who has a right to take a part in the debates of
the house, but not the right of voting.
Chapter XXX.
The Senate.
§1. "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." (Art. I, sec. 3.) The convention
readily agreed upon dividing congress into two branches; but, as has
been observed, it was difficult to settle the mode of representation.
The delegates from the large states insisted upon a representation in
proportion to numbers, in the senate as well as in the house; and the
small states contended for equality in both branches. The debate was
long and animated; and it became apparent that, as in the case of slave
representation in the house, there must be a compromise. This was at
length effected; the small states consenting to a proportional
representation in the house, and the large states to an equal
representation in the senate.
§2. It has been remarked, that the federative principle of the old
system has been to some extent retained in the constitution. Both the
equality of representation in the senate, and the election of senators
by the state legislatures, are in strict conformity with the plan of the
confederation, and of simple confederacies generally. Different modes of
electing senators were proposed; but the one adopted by the convention
seems preferable to any other.
§3. There is, however, in one particular, a material difference between
the plan of the old congress and that of the senate. It is in the manner
of voting. In the former, the vote was taken by states, each state
having but one vote; (Chap. XXVIII, §5,) in the latter, the senators
vote separately, the vote of each senator counting one, as in the house;
and a question is decided by the united votes of a majority of the
members, and not by the vote of a majority of the states. Nor is the
vote of a state lost if but one of its senators is present, as formerly.
If, however, the two senators vote on different sides of a question, the
effect is the same as when, in the old congress, the members from a
state were equally divided.
§4. There were also various opinions as to the proper term of office of
senators. Terms were proposed differing in length from three to nine
years; and a proposition was even made by one distinguished member to
make the term continue during good behavior, which is practically for
life. There appear to be sound objections both to long and short terms.
It is urged by those in favor of the latter, that an officer elected for
a short term, especially if he desires a reëlection, will have a strong
inducement to please and faithfully serve those who are to elect or
appoint him.
§5. Others, however, while they admit that short terms tend to insure
responsibility on the part of a representative, consider this argument
more than counterbalanced by the objections to which a short term is
liable. Looking to a reëlection, he may act with a view to his
popularity rather than to the public good. Again, the oftener a
legislature is changed, the more changeable and uncertain will be the
laws. Men having invested their capital in a business enterprise, and
made a successful beginning under existing laws, may be ruined by a
sudden and unexpected change of governmental policy.
§6. In view of these objections to both long and short terms, a medium
term of six years was adopted. This was believed to be short enough to
keep up in a senator a feeling of responsibility, and yet long enough to
insure his acting independently and with a regard to the general
interests of the nation. Although a bad senator may occasionally be kept
too long in office by a six years' term, cases also occur in which the
act of a senator, especially in time of public excitement, is strongly
condemned, but upon calm and mature reflection meets the public
approbation.
§7. The next clause of the third section provides for the gradual change
of the senate. One-third of the senators go out of office every two
years. In favor of this arrangement are two important considerations.
First, it secures to the public at all times the benefit of the
experience of at least two-thirds of the body. Whereas, if the terms of
all the senators expired at once, their places might be supplied mainly
by new members without the requisite knowledge and experience. Secondly,
while a long term is intended to guard against the too frequent changes
in the laws, it may also prevent, for too long a time, the amendment or
the repeal of bad laws. Such amendment or repeal may be hastened by the
election of new members in the place of the one-third who retire every
two years.
§8. Vacancies which happen in the representation of any state in the
senate during the recess of its legislature, may be filled by the
governor until the next meeting of the legislature. Without this
provision, either the legislature must be assembled immediately to fill
the vacancy, or the state must remain in part, or perhaps wholly
unrepresented in the senate, until the next regular session of the
legislature.
§9. But an appointment may not be made by an executive before the
vacancy actually happens. In 1825, the term of a senator was about to
expire during the recess of the legislature of his state, which had
failed at its previous session to appoint a successor. As a special
session of the senate was to be held immediately after the expiration of
the senator's term, the governor, a few days before the term expired, in
anticipation of the vacancy, reappointed the senator. But the senate
decided that, as the appointment had been made _before the vacancy
happened_, the senator was not entitled to a seat.
§10. The next clause prescribes the qualifications of senators. A
senator must have attained the age of thirty years, and been nine years
a citizen of the United States; and he must, when elected, be an
inhabitant of the state for which he is chosen. As many of the duties of
a senator require more knowledge, experience, and stability of character
than those of a representative, greater age and longer citizenship are
required. The nature of these duties will be noticed in subsequent
chapters.
§11. The seventh section of the first article provides for the passage
of bills negatived, or vetoed, by the president. Bills returned by him
with his objections, become laws when passed by majorities of two-thirds
of both houses; that is, by two-thirds of the members present. They also
become laws if not returned by him within ten days (Sundays excepted)
after they have been presented to him, unless their return is prevented
by the adjournment of congress.
§12. We have passed over several sections and clauses of this article
without remark. Most of them are similar to some in the state
constitutions, which we have noticed; and the propriety of others is so
readily perceived, that any comment upon them is deemed unnecessary.
Chapter XXXI.
Power of Congress to lay Taxes, Duties, &c.; Power to Borrow Money.
§1. Having shown how the legislative department of the general
government is constituted, we proceed to consider its powers. It is
thought proper, however, first to notice one important characteristic of
the general government, in which it differs from the state governments,
and the knowledge of which is necessary to a right understanding of the
powers of the state and national governments respectively.
§2. The general government is a government of _delegated_ powers; that
is, powers which have been intrusted or _delegated_ to it by the states,
or the people of the states. Having derived its powers from the states,
or the people, it has such powers only as have been conferred by the
constitution. Hence it is called a government of _limited_ powers. The
states, on the other hand, existing before the general government, and
possessing entire sovereignty or supreme power, may exercise all powers
which they have not surrendered to the general government. In other
words, their powers are _unlimited_, except so far as they have parted
with any of their original powers.
§3. Most of the powers of congress are enumerated in the eighth section
of the first article of the constitution. The first in the list is in
these words: "Congress shall have power to lay and collect taxes,
duties, imposts, and excises, to pay the debts and provide for the
common defense and general welfare of the United States; but all duties,
imposts, and excises shall be uniform throughout the U. States."
§4. We have already noticed the want of such a power in the old
congress. The debt which had been contracted to carry on the war
remained unpaid; and congress, as we have seen, had no power to raise
money either to pay debts or to defray the current expenses of the
government. (Chap. XXVII: §4, 6.) It could neither raise money by
_direct_ taxation; that is, by taxing the persons and property of the
citizens, nor by _indirect_ taxation, which is by duties.
§5. _Duties_, or _customs_, are taxes on goods imported from, or
exported to, a foreign country. _Imposts_ are taxes on imported goods
only. Duties on exports, however, being deemed inexpedient, are not laid
by our government. An _excise_ is a tax neither on imports nor exports,
but on articles produced and consumed in the country, and on licenses to
deal in certain commodities. The money paid for license to sell
spirituous liquors is an _excise_ tax.
§6. Duties are _specific_ and _ad valorem_. A _specific_ duty is a
specified sum of money charged upon every yard, pound, or gallon of any
commodity. Thus, a duty of ten cents on a pound of tea, or of one dollar
on a yard of cloth, or of fifty cents on a gallon of wine, is a specific
duty. _Ad valorem_ is a Latin phrase, signifying _according to the
value_. An _ad valorem_ duty is a certain _per centage_ on the value or
price. Thus, thirty per cent, on a yard of cloth costing two dollars, is
sixty cents; on a yard costing three dollars, ninety cents; the sum
charged being varied by the difference in the price or value.
§7. The power to lay duties is very properly qualified by the provision
that "all duties shall be uniform throughout the United States." This
was intended to prevent the giving of unjust preference to any one or
more states over others. Without this restriction upon the exercise of
this power, the representatives of a part of the states might combine,
and by laying higher duties upon goods imported into other states, than
upon those imported into their own, might turn the trade chiefly into
the latter. Or they might in laying duties on exports, impose high
duties upon the productions of other states, and low duties, or none at
all, upon the products of their own.
§8. Although Congress has power to lay direct taxes, it has seldom been
exercised. The duties on foreign goods and on the vessels in which they
were imported, have been found sufficient for the payment of the public
debt, and for other government purposes. The national debt in 1791 was
about $75,000,000, and, in 1804, had risen to $86,000,000; yet chiefly
by duties was this debt reduced nearly one-half by the year 1812. By the
war which commenced that year, the debt was again increased, being in
1816, $127,000,000. In 1835, this large debt had been, in the manner
stated, entirely extinguished.
§9. The next power mentioned is the "power to borrow money on the credit
of the United States." Although Congress may, under the power to lay
taxes and duties, raise money to any extent, a large amount may
sometimes be wanted before it can be raised from the regular income or
revenue of the nation, or even before it could be raised by a direct
tax, which would be burdensome to the people. Hence the utility of the
power to borrow money until it can be reimbursed from the national
revenues.
Chapter XXXII.
Power of Congress to Regulate Commerce. Commerce with Foreign Nations.
§1. Next in the list of powers is "the power to regulate commerce with
foreign nations, and among the several states, and with the Indian
tribes." The need of no power under the confederation was more deeply
felt than the power to regulate foreign trade. It was the want of this
power, as we have seen, which was the more immediate cause of calling
the convention that framed the constitution. (Chap. XXVII: §7-11.) The
necessity of this power arose mainly from the policy of Great Britain,
by which she had secured to herself undue advantages in her foreign
commerce, especially in her trade with this country.
§2. During the war of the revolution, the direct trade with Great
Britain was interrupted. But when peace was restored, our markets were
again open to British goods and vessels, while upon American produce and
American vessels entering British ports, heavy duties were levied. To
enable some young readers more clearly to understand the objects and the
unequal operation of the policy of the British government, the subject
may need some further illustration.
§3. One object was, to secure a market at home for the products of
agricultural labor. How this is done by taxing foreign products, will
appear from the following example: Suppose the market value of a bushel
of wheat in Great Britain to be one dollar a bushel, and the cost of
raising the article here and carrying it to that market to be the same.
If now a duty of 40 cents a bushel is laid upon wheat from abroad, the
English consumer, instead of buying it with this duty added, will buy of
the English producer. But more wheat is produced here than there is a
market for; and the American farmer must find a market abroad. But in
order to sell it in the English market, he must pay 40 cents on every
bushel to the British government; or, which is the same thing in effect,
he must sell it for 40 cents a bushel less than its value to the British
purchaser, who pays the duty to that government.
§4. Now, as much less American wheat will be sent to Great Britain than
if it were free from duty, a better market is secured to the English
farmer. Besides this, of the value of every bushel which Great Britain
may please to admit, or which the people of other countries maybe
obliged to sell to her, 40 per cent, is paid into her treasury. Thus by
one operation, are two benefits secured, namely, the reward of
agricultural labor at home, and the raising of revenue. So by the duties
imposed upon foreign vessels entering her ports, the national revenue
was to some extent increased, and great advantages were secured to her
citizens engaged in the carrying trade.
§5. The people of this country being nearly all employed in agriculture,
and consequently dependent upon foreign markets for the sale of the
surplus products of their labor, they were obliged to submit to the
payment of these duties. And not possessing at that time the means of
manufacturing to any considerable extent for themselves, goods in large
quantities came in from Great Britain, for which they must pay in
produce heavily burdened with duties, or with money obtained for the
produce subject to these heavy duties.
§6. To remove the inequality in the trade between the two countries, it
was thought necessary to retaliate upon Great Britain by subjecting her
goods and vessels coming into our ports to the payment of duties similar
to those imposed on our produce and vessels in her ports. But the power
to lay duties was with the states; and, as we have seen, the states
could not agree upon any effectual system; for, in order to make any
system effectual, the duties must be uniform throughout the United
States.
§7. It was intended, in regulating trade, to render our own country less
dependent upon foreign nations for manufactured goods, by encouraging
domestic or home manufactures by duties on goods imported. Duties laid
for this purpose are called _protective_ duties, being designed to
_protect_ our manufacturers against loss from the competition of
foreigners. The nature and operation of a protective duty may be thus
illustrated:
§8. Suppose foreign broadcloth of a certain quality is sold in this
country for $2.50 a yard, and cloth of the same quality manufactured
here can not be afforded for less than $3 a yard. There would now be no
encouragement to any one to engage in the manufacture of such cloth;
because in order to sell it, he must reduce the price to that of the
foreign article, which would subject him to a loss of fifty cents a
yard. Let now a duty of $1 a yard be laid upon the foreign cloth, and
the price would be $3.50, and preference would be given to the domestic
article, unless the importer should reduce the price of his foreign
cloth to $3; in which case, it is to be presumed, about an equal
quantity of each would be consumed, and the duty of $1 a yard on the
foreign cloth would go into the United States' treasury.
§9. The same objects may, to some extent, be effected by the first
mentioned power, "to lay taxes, duties," &c. In laying duties for
revenue, that is, raising money to pay the debts and other expenses of
the government, congress may lay the duties upon those kinds of goods
which it wishes to protect; and thus _indirectly_ both encourage
domestic industry and regulate commerce. From this it appears that the
three objects mentioned may be accomplished under the grant of either
one of the two general powers, to lay duties, and to regulate commerce.
§10. Why, then, it may be asked, were both these powers inserted in the
constitution? The first _expressly_ authorizes the laying of duties only
to raise money for paying debts and government expenses; and protection
and the regulation of commerce can only be effected _indirectly_. Hence,
if our arrangements with foreign nations should be such as to render it
unnecessary to lay duties to regulate commerce, or encourage domestic
industry, money could not be raised without the _express_ power to lay
taxes, duties, &c. And such might be the state of things, that rates of
duties sufficient for revenue would be insufficient for the purposes of
protection and regulating trade. Therefore, both powers are properly
granted to congress.
§11. Again, it may be asked, if foreign goods without duty can be had at
lower prices than domestic, why is it not better for us to buy them than
to force the manufacture and sale of our own at higher prices? and, if
there is no other way of raising money, why not do it by direct
taxation? Suppose, for example, as in a preceding section, (§8,) the
price of foreign cloth to be $2.50 a yard, for which the farmer has to
pay in wheat, or in cash received for it. But as the wheat has to be
shipped to a foreign market, the merchant who takes it in exchange for
the cloth, or the cash purchaser, deducts from the foreign market price
the cost of transportation and the foreign duty, which, together, let us
suppose to be fifty cents a bushel, or one-half of the foreign market
price. A yard of cloth would then cost five bushels of wheat.
§12. Let us now suppose a domestic article at $3 a yard to take the
place of the foreign. A large portion of the laborers formerly employed
in agriculture, are now engaged in building factories and in
manufacturing. These, instead of being producers, have become only
consumers of the wheat of the farmers, who now have a market at home,
thus saving the duties and the cost of transportation. As there are now
fewer producers, the price of wheat would probably be not less than $1 a
bushel. Therefore a yard of domestic cloth would cost only _three_
bushels of wheat, instead of _five_ paid for the foreign cloth. And as
there would be a corresponding rise in the price of labor, more cloth at
$3 a yard could be bought for the avails of a day's labor than formerly.
§13. The protection of domestic industry received the early attention of
congress. The second law passed by the first congress under the
constitution, authorized "duties to be laid on goods, wares, and
merchandises imported;" and among the objects of the law expressed in a
preamble one was "the encouragement and protection of domestic
manufactures." For a long time, however, little was done in the way of
protection. The principal nations of Europe, England included, became
involved in war. A large portion of their laboring population having
been called from agricultural pursuits into the armies, a foreign demand
was created for American produce; and we were enabled to supply
ourselves at less disadvantage with foreign manufactures.
§14. But after peace had been restored in Europe, and people had
returned to their usual employments, the foreign demand for our
breadstuffs nearly ceased; and large quantities of foreign goods were
again imported, for which our people were unable to pay. Congress now
found it necessary to exercise, to a greater extent, its power to
regulate trade, by discouraging importations, and encouraging domestic
manufactures, and, in 1816, commenced an effective system of
protection. Laws have from time to time been passed to favor
manufactures from cotton, wool, iron, and other materials; and
manufacturing is now carried on extensively in this country. By thus
drawing a large portion of the people into manufacturing and mechanical
employments, a market has been created at home for more grain, meat, and
other agricultural products, than is required to supply all foreign
demand.
§15. The laws relating to foreign commerce prescribe the manner of
collecting the revenue. There is in every port of entry a _collector_ of
_customs_, who superintends the collection of duties. When a vessel
arrives it is submitted, with the cargo and all papers and invoices, to
the inspection of the proper officers; and the goods subject to duty are
weighed and measured, and the duties estimated according to law.
Chapter XXXIII.
Power to regulate Commerce, continued. Navigation; Commerce among the
States, and with the Indian Tribes.
§1. In regulating foreign commerce, congress has also passed navigation
laws. _Navigation_ is the art of conducting ships and other vessels. It
has reference also to the rules to be observed by owners and masters
engaged in the shipping trade. We have noticed the navigation acts of
Great Britain by which she built up her shipping interest; (Chap. XXVII,
§7,) and we have stated that one object of the power to regulate
commerce was to countervail the effects of those acts upon our shipping.
§2. To encourage and promote domestic navigation, an act was passed by
the first congress conferring special privileges upon vessels built and
owned by citizens of the United States. This was done by laying _duties
on tunnage_. _Tunnage_ means the content of a ship, or the burden that
it will carry, which is ascertained by measurement, 42 cubic feet being
allowed to a tun. This act imposed a duty of fifty cents a tun on
foreign vessels, and upon our own a duty of only six cents a tun. As
such a law discriminates, or makes a distinction or difference between
domestic and foreign vessels, these duties are also called
_discriminating_ duties.
§3. By the aid of these protective duties, slightly changed from time to
time, our shipping interest acquired great strength. But the necessity
of discriminating duties no longer exists. By the stipulations of
existing treaties between the principal commercial nations, each is to
admit into her ports the vessels of the others on equal terms with her
own. Our government having become a party to this agreement,
discriminating tunnage duties have been abolished.
§4. The registry, however, of vessels of the United States, and other
regulations concerning them, are for the most part continued. A vessel
is measured by a surveyor to ascertain her tunnage, and the collector
records or registers in a book her name, the port to which she belongs,
her burden or tunnage, and the name of the place in which she was built,
and gives to the owner or commander a certificate of such registry.
§5. The master of a vessel departing from the United States, bound to a
foreign port, must deliver to the collector of the district, a
_manifest_, which is an invoice, or account of the particulars of a
cargo of goods, and of their prices or value. This statement is
subscribed by the master, and sworn by him to be true. The collector
then grants a _clearance_, for the vessel, which is a certificate
stating that the commander has cleared his vessel according to law.
§6. Vessels of the United States going to foreign countries, are, at the
request of the masters, furnished with passports. A _passport_ is a
writing from the proper authority of a state or kingdom, granting
permission to pass from place to place, or to navigate some sea without
hinderance or molestation. It contains the name of the vessel and that
of her master, her tunnage, and the number of her crew, certifying that
she belongs to the subjects of a particular state, and requiring all
persons at peace with that state, to suffer her to proceed on her voyage
without interruption. In this country the form of a passport is prepared
by the secretary of state, and approved by the president.
§7. The navigation laws also provide for the safety of passengers and
the crews of vessels, limiting the number of passengers on passenger
vessels, and prescribing the quantity of water and certain kinds of
provisions which merchant vessels are required to have for each person
on board. They also declare what persons may be employed on board, and
how funds shall be provided for sick and disabled seamen.
§8. Under the power to regulate commerce, congress has also passed laws
relating to quarantines. The word _quarantine_, from the Latin
_quarantina_, signifies the space of forty days. Originally vessels
suspected of having contagious sickness on board, or of being infected
with malignant, contagious disease, were forbidden, for forty days, to
have intercourse with the place or port at which they arrived. The
period for which ships are now detained is not defined, but is fixed by
the proper officers at their discretion, according to circumstances.
Quarantines are required by the health laws of the states; and by the
laws of congress, vessels are to be subject to the health laws of the
state at whose ports they arrive.
§9. In connection with the power to regulate foreign commerce, power is
given to regulate "commerce among the several states," or _internal_
commerce. We have noticed the difficulties which attended the different
commercial regulations of the states, and the necessity of a uniform
system, which could be had only by giving congress alone the power to
regulate commerce. (Chap. XXXI., §7.) Without the power to regulate
_internal_ commerce, congress could not give effect to the power to
regulate foreign commerce. One state might impose unjust and oppressive
duties upon goods imported or exported through it by another state. But
in the hands of congress, the power to regulate internal as well as
foreign commerce, secures to all the states the benefits of a free and
uninterrupted trade.
§10. In granting to congress the power to regulate commerce "with the
Indian tribes," it was intended to lessen the dangers of war. Murders
and war had been provoked by the improper conduct of some of the states.
It was believed, that, by a uniform policy, difficulties would be more
likely to be prevented; and that if they should occur, they would be
more likely to be amicably settled by the general government than by a
state, which, being an interested party, would be more liable to
misjudge the matter in dispute, and more rigid in demanding satisfaction
for injuries, as well as more severe in redressing them.
Chapter XXXIV.
Powers of Congress in relation to Naturalization; Bankruptcy; Coining
Money; Weights and Measures; Punishment of Counterfeiting.
§1. The next clause grants to congress the power "to establish a uniform
rule of naturalization, and uniform laws on the subject of bankruptcies
throughout the United States." We have already noticed some of the
disqualifications of aliens. (Chap. VI, §5.) By the common law of
England and this country, aliens were not only politically disqualified,
but they could not in their own name lawfully hold and sell real estate.
To admit aliens to all the rights and privileges of citizens immediately
on their arrival in this country, and before they shall have acquired a
knowledge of our government and laws, and of the duties of citizens,
would be expedient. Educated under monarchical governments, many of
them, it is to be presumed, have little respect for our republican
institutions, or at most but an imperfect knowledge of them.
§2. But to deny foreigners the rights of citizens after they shall have
acquired a fixed residence here, and a knowledge of their civil and
political duties, would be illiberal and unjust. Provision has therefore
been made for removing their disqualifications, or for _naturalizing_
them; that is, for investing them with the rights and privileges of
_natural_ born citizens. But if different rules were established by the
different states, a person, having become naturalized in one state,
would, on removing into another state, be deprived of the rights of
citizenship, until he should have been naturalized by the laws of such
state. Besides, by the constitution, a person, on becoming a citizen of
any state, is a citizen of the United States, and entitled to the
privileges of a citizen in any other state. (Art. IV., §2.) As,
therefore, there should be one uniform rule, the power of naturalization
is properly given to congress.
§3. An alien, to become a citizen, must declare on oath before a state
court or a circuit court of the United States, or before a clerk of
either of said courts, after having resided three years in the United
States, that it is his intention to become a citizen, and to renounce
his allegiance to all foreign governments, and particularly that under
which he formerly lived, and that he will support the constitution of
the United States. Then after two years, the court, if satisfied that he
has resided five years in the United States, and one year in the state
in which the court is held, and that during that time he has behaved as
a man of good moral character, and is attached to the principles of the
constitution, may admit him as a citizen.
§4. An alien minor who has resided in the United States at least three
years before he was twenty-one years of age, may, at any time after that
age and five years' residence in the United States, be admitted as a
citizen, without having previously declared his intention to become a
citizen. Also the minor children of a naturalized citizen, if dwelling
in the United States at the time of his naturalization, become
citizens.
§5. A _bankrupt_ is an insolvent debtor; that is, a person who is unable
to pay all his just debts. A _bankrupt law_ is a law which, upon an
insolvent's giving up all his property to his creditors, discharges him
from the payment of his debts. Such laws are designed for the benefit of
honest and unfortunate debtors, who, by having the enjoyment of their
future earnings secured to them, are encouraged to engage anew in
industrial pursuits. But these laws, intended for the benefit of the
unfortunate poor, have enabled dishonest and fraudulent debtors to
procure a release from their debts.
§6. Experience had shown the propriety of intrusting to congress the
power to make these laws. The dissimilar and conflicting laws of the
different states, and the entire want of them in others, had caused
great inconvenience. A debtor, though discharged from debt by the laws
of one state, was liable to be prosecuted on removing into another
state. Important as such laws were deemed, there is no existing law on
the subject. A bankrupt law was passed in April, 1800, and repealed in
December, 1803. Another was passed in 1841, which was of still shorter
duration.
§7. The next power mentioned is the power "to coin money and regulate
the value thereof." As a consequence of giving this power to Congress,
we have a uniform currency throughout the union. We have also, instead
of the awkward system of reckoning by pounds, shillings, and pence, the
more convenient decimal mode of calculation by dollars and cents. The
old system was rendered the more inconvenient by the difference in the
value of a pound, shilling, and penny in the different states. A
merchant in a New England state, buying goods in New York or
Philadelphia, must, in order to put prices upon them, reduce the
currency of the state in which he bought them to New England currency.
Thus, the cost of an article being in New York two shillings and four
pence a pound, would be in Connecticut one shilling and nine pence. One
shilling and six pence in New York would be in any New England state
one shilling and a penny and a half.
§8. The place where money is coined is called _mint_. The principal mint
in the United States, and the first that was established in this
country, is at Philadelphia. The business of coining is under the
superintendence of a director. Under him are a treasurer, an assayer, a
chief coiner, an engraver, and a melter and refiner. The gold and
silver, before it is coined, is called _bullion_. There is a branch mint
in New Orleans, one at Charlotte, in North Carolina, one at Dahlonega,
in Georgia, one in California, and one in the city of New York. At the
place last mentioned, gold is assayed, but not coined.
§9. The clause containing the power last quoted, gives power also to
"fix the standard of weights and measures." For the convenience of trade
between the states, the standard of weights and measures should be the
same in all the states. Without such uniformity, commerce among the
states would meet with embarrassments scarcely less than those
experienced from the want of a uniform currency. To effect the desired
object, this power was given to congress.
§10. The next power in the list is the power "to provide for the
punishment of counterfeiting the securities and current coin of the
United States." By securities here are meant bonds and other evidences
of debt. As the general government has the power to borrow money and to
coin money, it is proper that it should also have the power to provide
for punishing those who forge its written obligations for the payment of
the money borrowed, and who counterfeit its coin. These offenses are
tried in the courts of the United States.
Chapter XXXV.
Powers of Congress in relation to Post-Offices, Copy-Rights, and
Patents, and Inferior Courts.
§1. Congress has power "to establish post-offices and post-roads." The
post-office department, from the facilities which it affords for the
circulation of intelligence and the transaction of business, is an
institution of incalculable value to the union. It is impossible to
conceive all the difficulties which would attend the exercise of this
power by the different states. A uniform system of regulations is
indispensable to the efficiency of this department, and could be secured
only by placing this power in the hands of congress.
§2. Congress has power "to promote 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."
Useful sciences and arts are promoted by new books and new inventions.
But if every man had the right to print and sell every book or writing,
without compensation to the author, there would be little to encourage
men of ability to spend, as is often done, years of labor in preparing
new and useful works. Nor would men of genius be likely to spend their
time and money in inventing and constructing expensive machinery, if
others had an equal right to make and sell the same. In pursuance of the
power here given, congress has enacted laws for the benefit of authors
and inventors.
§3. The exclusive right of an author to the benefits of the sale of his
books or writings, is called _copy-right_, and is obtained thus: The
author sends a printed copy of the title of his book to the clerk of the
district court of the United States of the district in which the author
resides. The clerk records the title in a book, for which he receives
fifty cents, and gives the author, under the seal of the court, a copy
of the record, for which also he receives fifty cents.
§4. The author must also, within three months after the first
publication of the work, deliver a copy of the same to the clerk of the
district court. And he must cause to be printed on the title page or
page immediately following, of every copy of the book, words showing
that the law has been complied with. This secures to the author the sole
right to print and sell his work for twenty-eight years, at the
expiration of which time, he may have his right continued for fourteen
years longer, by again complying with the requirements of the law as
before, provided it be done within six months before the expiration of
the first term, and a copy of the record published in a newspaper for
the space of four weeks.
§5. _Patents_ for new inventions are obtained at the patent office at
the seat of government. This office is connected with the department of
the interior. (Chap. XLI, §7.) The commissioner of patents superintends
the granting of patents under the direction of the secretary of the
interior. To secure an exclusive right to an invention, the inventor
must deliver to the commissioner of patents, a written description of
his invention, and specify the improvement which he claims as his own
discovery; and he must make oath that he believes he is the discoverer
thereof.
§6. Before the petition of an inventor is considered, he must pay the
sum of thirty dollars. If the commissioner, upon examination, does not
find that the invention had been before discovered, he issues a patent
therefor. Patents are granted for the term of fourteen years, and may be
renewed for a further term of seven years, if the inventor has not been
able to obtain a reasonable profit from his invention.
§7. Congress has power "to constitute tribunals inferior to the supreme
court." As the first section of the third article of the constitution,
in providing for a national judiciary, authorizes congress to ordain and
establish such inferior courts, the insertion of the power in this place
seems to have been unnecessary, (Chap. XLII, §1.)
Chapter XXXVI.
Powers of Congress in relation to Piracy and Offenses against the Law of
Nations; War; Marque and Reprisal, Public Defense, District of Columbia;
Implied Powers.
§1. The next clause grants to congress the power "to define and punish
piracies and felonies committed on the high seas, and offenses against
the law of nations." _Piracy_ is commonly defined to be forcible robbery
or depredation upon the high seas. But the term _felony_ was not exactly
defined by the laws of England, whence the common law of this country
was derived; consequently its meaning was not the same in all the
states. It was sometimes applied to capital offenses only; at other
times, to all crimes above misdemeanors. For the sake of uniformity, the
power to define these offenses is given to congress: and as the states
have no jurisdiction beyond their own limits, it is proper that congress
should have the power to punish as well as define crimes committed on
the high seas.
§2. Nor were offenses against the law of nations more clearly defined:
therefore the power to define these are with equal propriety given to
congress. As our citizens are regarded by foreign nations as citizens of
the United States and not as citizens of their respective states; and as
the general government alone is responsible to foreign nations for
injuries committed on the high seas by citizens of the United States,
this power is vested in congress.
§3. Congress is also properly intrusted with the power "to declare war;
grant letters of marque and reprisal; and make rules concerning captures
on land and water." It is very evident that a single state ought not to
be allowed to make war. As the people of all the states become involved
in the evils of war, the power to declare it is justly given to the
representatives of the whole nation. In monarchical governments this
power is exercised by the king, or supreme ruler. But so important a
power should not be intrusted to a single individual. The framers of
the constitution have wisely intrusted it to the representatives of
those who have to bear the burdens of the war.
§4. _Marque_ means passing the frontier or limits of a country;
_reprisal_, taking in return. _Letters of marque and reprisal_ authorize
persons injured by citizens or subjects of another nation to seize the
bodies or goods of any of the citizens of such nation, and detain them
until satisfaction shall be made. To permit an individual to act as
judge in his own case in redressing his private wrongs would increase
the dangers of war.
§5. Nor should a state be permitted to authorize its citizens to make
reprisals; for, although such authority is designed to enable the
citizens of one country to obtain redress for injuries committed by
those of another, without a resort to war, the tendency of reprisals is
to provoke rather than to prevent war; and as the whole nation becomes
involved in a war, the power to authorize reprisals properly belongs to
the general government. Indeed it is not clear that such license ought
ever to be given. It does not appear strictly just to capture the bodies
or goods of unoffending persons, especially before war has been declared
between the two countries. But if the power to grant such license is
ever to be exercised, it ought to be vested in congress.
§6. As congress has the power to declare war, it ought to have power to
make rules concerning the property captured in time of war. The general
practice is to distribute the proceeds of the property among the captors
as a reward for bravery and a stimulus to exertion. But proof must be
made in a court of the United States that the property was taken from
the enemy, before it is condemned by the court as a prize.
§7. The next five clauses provide for the security and defense of the
nation. The power to declare war would be of little use in the hands of
congress, without power over the army, navy and militia. This had been
proved by experience Congress had power under the confederation to
declare war; but, as we have seen, it could not raise troops, nor compel
the states to raise them. To guard against similar difficulties in
future, power to control the public forces was placed where it can be
promptly and effectively exercised.
§8. The next power of congress is, "to exercise exclusive legislation
over such district, not exceeding ten miles square, as may, by cession
of particular states, and the acceptance of congress, become the seat of
government of the United States." If the seat of the general government
were within the jurisdiction of a state, congress and other public
officers would be dependent on the state authority for protection in the
discharge of their duties. To guard the public business more effectually
against the danger of interruption, complete and exclusive power at the
seat of government is given to congress. The old congress had once, near
the close of the Revolution, been treated with insult and abuse while
sitting at Philadelphia; and the executive authority of Pennsylvania
having failed to afford protection, congress adjourned to Princeton in
the State of New Jersey.
§9. It appears that the cession of this territory to the general
government had not yet been made; but it was in contemplation by the
states of Virginia and Maryland to cede it. It is called the _District
of Columbia_. Its inhabitants are subject to the laws of congress. That
part of the district which was ceded by Virginia, was in 1846,
retroceded _by_ congress to that state. To congress is given, with equal
propriety, exclusive authority over all places purchased "for the
erection of forts, magazines, arsenals, dock-yards, and other needful
buildings."
§10. The last power granted in this section, is the power "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." As it was impossible to enumerate in the constitution every
particular act which congress might find it necessary to perform,
certain powers were expressly granted; and to these powers was added
this general grant of power to pass laws for carrying them into effect.
§11. It is the opinion of eminent statesmen that this clause confers no
additional power. They hold that the power therein granted is
necessarily _implied_ or included in the foregoing powers. For example:
The power "to regulate commerce" includes the power to cause the
construction of break-waters and light-houses, the removal of
obstructions from navigable rivers, and the improvement of harbors; for
in regulating and facilitating commerce, these works and improvements
are absolutely necessary. So the power "to establish post-offices"
implies the power to punish persons for robbing the mail. The doctrine
is, "that wherever a general power to do a thing is given, every
particular power for doing it is included." Hence it is inferred that
congress would have had the power to pass the laws here authorized,
though no express power for that purpose had been given.
§12. Besides the long list of powers contained in the eighth section of
the first article of the constitution, and considered in preceding
chapters, there are sundry other powers of congress in subsequent
articles, which will be noticed in their order.
Chapter XXXVII.
Prohibitions on Congress.
§1. While the constitution confers on congress all the powers deemed
necessary to be exercised for the general welfare, it imposes on
congress certain restrictions, the most of which are contained in the
next section. (Art. I, sec. 9.) The first prohibition is in these words:
"The migration or importation of such persons as any of the states, now
existing, shall think proper to admit, shall not be prohibited by the
congress prior to the year one thousand eight hundred and eight; but a
tax or duty may be imposed on such importation, not exceeding ten
dollars for each person."
§2. It is generally known that, from an early period, slaves had been
imported into the colonies from Africa. At the time when the
constitution was formed, laws prohibiting the foreign slave trade had
been passed in all the states except North Carolina, South Carolina, and
Georgia. The delegates from these states in the convention insisted on
having the privilege of importing slaves secured, by withholding from
congress the power to prohibit the importation. A majority of the
convention were in favor of leaving congress free to prohibit the trade
at any time. But as it was doubtful whether these states would in such
case accede to the constitution; and as it was desirable to bring as
many states as possible into the union; it was at length agreed that the
trade should be left open, and free to all the states choosing to
continue it, until 1808, (twenty years;) congress being allowed,
however, to lay a duty or tax of ten dollars on every slave imported.
§3. It has ever been a cause of wonder and regret to many, that the
traffic in human beings should have been permitted by the constitution,
even for the most limited period. It is, however, a gratifying fact,
that congress exercised its power for terminating the foreign slave
trade, at the earliest possible period. A law was passed in 1807, to go
into effect in January, 1808, making it unlawful, under severe
penalties, to import slaves into the United States; and in 1820, the
African slave trade was by law declared _piracy_, and made punishable by
death.
§4. 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." _Habeas corpus_, (Latin,) signifies,
_have the body_. A person deprived of his liberty, may, before the final
judgment of a court is pronounced against him, petition a court or
judge, who issues a writ commanding the party imprisoning or detaining
him, to produce his body and the cause of his detention before the judge
or court. If the imprisonment or detention is found to be illegal, or
without sufficient cause, the prisoner is set at liberty.
§5. The next clause declares, "No bill of attainder or _ex post facto_
law shall be passed." A _bill of attainder_ is an act of the legislature
by which the punishment of death is inflicted upon a person for some
crime, without any trial. If it inflicts a milder punishment, it is
usually called a bill of pains and penalties. Such laws are inconsistent
with the principles of republican government, and are therefore properly
prohibited.
§6. An _ex post facto_ law is literally a law made after an act is done,
or which has effect upon an act after it is done. But it here means a
law that makes punishable as a _crime_, an act which was not criminal
when done. A law is also an _ex post facto_ law that increases the
punishment of a crime after it has been committed. If, for example, a
law should be passed by which a person, having previously killed another
in lawfully defending his own life, should be made to suffer death, it
would be an _ex post facto_ law, because killing in self-defense, before
the passage of the law, was not punishable as a crime. Such also would
be a law that should require all persons now charged with stealing, to
be imprisoned for life, if found guilty; because the crime, when
committed, was punishable by a shorter imprisonment.
§7. The next prohibition is, "No capitation or other direct tax shall be
laid, unless in proportion to the census or enumeration herein before
directed to be taken." The words _capitation_ and _capital_ are from the
Latin _caput_, the head, or poll. Hence a _capitation-tax_ or a
_poll-tax_, is a tax upon each head or person. (Chap. VII. §4.) The
above clause means, that poll-taxes, if laid, must be laid in conformity
to article 1st, section 2d, clause 3d, of the constitution, which
requires three-fifths of the slaves to be counted in apportioning taxes
among the states according to population.
§8. The next prohibition is, "No tax or duty shall be laid on articles
exported from any state." Probably no law for taxing exports could be
devised which would operate equally upon the interests of the different
states. Or some states the principal product is cotton, rice, or
tobacco; of others, grain; and of others, manufactures; and some of
these products might not bear the same rates of duties as others. But
though it were possible to devise a plan which would be equal in its
operation, a majority of the representatives might be opposed to it. The
representatives of the grain producing, and those of the planting
states, might combine in imposing excessive taxes upon the productions
of the manufacturing states. Or the manufacturing and the grain
producing states might, with the same intent, combine against the
planting states.
§9. As it was the purpose of the framers of the constitution to make
taxation, as nearly as possible, equal in the different states, by
uniform duties; and as every necessary object of indirect taxation may
be attained by duties on imports; duties on exports are properly
prohibited. And to secure to all the states freedom and equality in
trade, it is expressly provided in the same clause, that "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."
§10. The next clause provides that "no money shall be drawn from the
treasury, but in consequence of appropriations made by law." This places
the public money beyond the reach or control of the executive or any
other officer, and secures it in the hands of the representatives of the
people. In pursuance of this provision, congress, at every session,
passes laws specifying the objects for which money is to be
appropriated. The latter part of the clause requires, that "a regular
statement and account of the receipts and expenditures of all public
money shall be published from time to time." And it is by law made the
duty of the secretary of the treasury to make to congress annually such
statement, which is published by order of congress; so that the people
may know for what purposes the public money is expended.
§11. It is next declared, that "no title of nobility shall be granted by
the United States." Although the bare titles of lord, duke, &c., which
are conferred upon citizens in monarchical governments, could not add to
the political power of any person under our constitution; yet, as it is
desirable that there should be equality of rank as well as of political
rights, it is proper that congress should be prohibited from creating
titles of nobility. And to guard public officers against being corrupted
by foreign influence, they are forbidden to "accept of any present,
emolument, office, or title of any kind whatever, from any king, prince,
or foreign state."
Chapter XXXVIII.
Prohibitions on the States.
§1. The next section contains restrictions on the powers of the states.
"No state shall enter into any treaty, alliance, or confederation." [For
the definition of _treaty_ and the manner in which a treaty is made, see
Chapter XL: §3-5.] An _alliance_ is a union between two or more nations,
by a treaty, or contract, for their mutual benefit. _Confederation_ and
_alliance_, have nearly the same meaning. If the states, separately,
were allowed to make treaties or form alliances with foreign powers, the
rights and interests of one state might be injured by the treaties made
by another state. As the states united constitute but one nation, it is
obvious that the power to treat with other nations properly belongs to
the general government. If the states also had the power, they might
counteract the policy of the national government.
§2. Nor may a state "grant letters of marque and reprisal." If, as has
been shown, this power is properly given to congress, it could not be
safely intrusted to the states. (Chap. XXXVI, §5.)
§3. The power to "coin money" is also prohibited to the states. It was
given to the general government to secure a uniform currency. (Chap.
XXXIV, §7.) But this object would not be likely to be attained, if the
power to coin money were exercised by the states.
§4. A state may not "emit bills of credit." _Bills of credit_, to a vast
amount, were issued by the states during the war, and for some time
thereafter. They were in the nature of promissory notes, issued by the
authority of the state, and on the credit of the state, and put in
circulation by the continental congress and the states as money. This
paper money, having no funds set apart to redeem it, became almost
worthless. Bank bills issued upon the credit of private individuals, do
not come under the prohibition. It is also held that the prohibition
does not apply to the notes or bills of a _state_ bank, drawn on the
credit of a particular fund set apart for that purpose.
§5. No state shall "make any thing but gold and silver coin a tender in
payment of debts." _Tender_ signifies an offer, or to offer. In law, it
is an offer of something in payment of a debt, or the thing itself which
is offered in payment. Some of the states had declared their
irredeemable paper money a lawful tender. But paper money and property
of all kinds are continually liable to fluctuation in value, and might
subject those who should be compelled to receive it to great
inconvenience and loss. But although no person is obliged to take in
payment any thing but coin, bank bills are by common consent taken in
the course of business and in payment of debts, because they may be
converted into specie by presenting them at the bank by which they are
issued.
§6. Nor may a state "pass any bill of attainder, ex post facto law, or
law impairing the obligation of contracts." Bills of attainder and ex
post laws have been defined and considered. (Chap. XXXVII, §5.) If these
laws are in their nature wrong, the states as well as congress should be
prohibited from passing them. Not less unjust are laws impairing the
obligation of contracts. Laws that should weaken the force of contracts,
or that would release men from their obligations, would be contrary to
the principles of justice, and destroy all security to the rights of
property.
§7. As bankrupt laws release debtors from the payment of their debts,
and consequently impair the obligation of contracts, the question has
arisen whether the states have power to pass insolvent or bankrupt laws.
From decisions of the supreme court of the United States, which is the
highest judicial authority, it appears, that a state may not pass a
bankrupt law discharging a debtor from the obligation of a contract made
before such law was passed. But it was not to be considered a law
impairing the obligation of a contract, if it existed before the
contract was made; because the parties, who are presumed to know that
such law exists, may guard themselves against loss.
§8. The last thing prohibited in this clause, is, "to grant any title of
nobility." This is forbidden to the states for the same reason as it is
prohibited to congress. (Chap. XXXVII, §11.)
§9. The first prohibition to the states in the next clause is to "lay
any imposts or duties on imports or exports, except what may be
absolutely necessary for executing their inspection laws." The
objections to the power of the states to lay duties have been
considered. They are founded upon the same reasons as have been given
for intrusting congress with this power; one of which is to secure
uniformity throughout the United States. (Chap. XXXII, §6.) And as
congress is properly prohibited from laying duties on exports, (Chap.
XXXVI, §8, 9,) there can be no good reason for allowing it to be done
by the states.
§10. The exception allowing a state to lay duties necessary to execute
its inspection laws was deemed proper. Laws are passed by the states for
the inspection or examination of flour and meat in barrels, leather, and
sundry other commodities in commercial cities, to ascertain their
quality and quantity, and to be marked accordingly. By this means the
states are enabled to improve the quality of articles produced by the
labor of the country, and the articles are better fitted for sale, as
the purchaser is thereby guarded against deception. A small tax is laid
upon the goods inspected, to pay for their inspection. But, lest the
states should carry this power so far as to injure other states, these
"laws are to be subject to the revision and control of congress."
§11. The last restrictions upon the power of the states contained in
this section, are: "No state shall, without the consent of congress, lay
any duty of tunnage; keep troops or ships of war in time of peace; enter
into any agreement or compact with any other state, or with a foreign
power; or engage in war, unless actually invaded, or in such imminent
danger as will not admit of delay." Some of the prohibitions here
enumerated have been noticed in this and preceding chapters; and the
reasons of the others are so obvious as to render any remarks upon them
unnecessary.
Chapter XXXIX.
Executive Department. President and Vice-President; their Election,
Qualifications, &c.
§1. The second article of the constitution relates to the executive
department. Of the necessity of a separate and distinct power to execute
the laws, we have already spoken. (Chap. VIII, §7.) Under the
confederation, as will be recollected, there was no national executive.
This defect has been supplied by the constitution. "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 follows." (Art.
2, §1.)
§2. In regard to the organization and powers of the executive
department, there was a great diversity of opinion. Ought the chief
executive power to be vested in one person, or a number of persons? Laws
should be executed with promptness and energy. This is more likely to be
done by one man than by a number. If several were associated in the
exercise of this power, disagreement and discord would be likely to
happen, and to cause frequent and injurious delays. Unity being deemed
favorable to energetic and prompt action, the chief executive power of
the nation was given to a single person.
§3. Secondly, as to the duration of the office. Much of what has been
said in relation to the term of office of senators, will apply to that
of president. (Chap. XXX, §4-6.) His term of office should not be so
short as to induce him to act more with a view to his re-election than
to the public good; yet it should be short enough to make him feel his
responsibility. And it should be long enough to insure a due degree of
independence, and to enable him to carry out his system of public
policy. The term of four years was accordingly adopted.
§4. Thirdly, the mode of election. Among the various modes proposed, the
one adopted was that of electing the president by electors chosen in the
several states for that purpose; the number of the electors chosen in
each state to be equal to the number of its senators and representatives
in congress. A material alteration in the mode of election has been made
since the adoption of the constitution, as will be seen by examining the
two modes. (Art. 2, §1; and Art. 12 of Amendments.) This amendment does
not change the manner of choosing the electors, but the manner of
choosing the president by the electors.
§5. The constitution does not prescribe the manner in which the
electors shall be appointed or chosen; it only declares that each state
shall appoint them "in such manner as the legislature thereof shall
direct." No uniform mode was adopted by the different states. In some
states the electors were appointed by the legislature; in others, by the
people. At present the latter mode prevails in all the states except
South Carolina, where presidential electors are still chosen by the
legislature.
§6. The electors are, by the laws of the several states, chosen by
_general ticket_. The names of two men, corresponding to the number of
senators to which a state is entitled in congress, together with the
names of as many others as there are representatives of the state in the
lower house of congress, one to reside in each congressional district,
are all placed on the same ballot; so that every voter votes for the
whole number of presidential electors to be chosen in the state. And, by
a law of congress, the electors are required to be chosen in all the
states on the same day, which is the Tuesday next after the first Monday
of November.
§7. The electors so chosen are required by a law of congress, to meet in
their respective states on the first Wednesday of December, and vote for
president and vice-president; and to make and sign three certificates of
all the votes given by them, and seal up the same. One of these is to be
sent by a person duly appointed by them, to the president of the senate
at the seat of government, before the first of January next ensuing;
another is to be forwarded by mail, also directed to the president of
the senate; and the third is to be delivered to the United States judge
of the district in which the electors are assembled.
§8. On the second Wednesday of February, the president of the senate, in
presence of all the senators and representatives, opens the certificates
from all the states, and the votes are counted. The person having a
majority of all the electoral votes for president is elected. If no
person has a majority of all the electoral votes, the house of
representatives must choose the president from those candidates, not
exceeding three, who had the highest numbers of the electoral votes. But
in so doing, the members do not all vote together; but those of each
state vote by themselves; and the candidate who receives the votes of a
majority of the representatives of a state, has but one presidential
vote for such majority; and the person who receives the votes of a
majority of the states, is elected. Thus in the election of president by
the house of representatives, voting is done _by states_, as was done in
passing laws by the old congress. (Chap. XXVIII, §5.)
§9. There have been two elections by the house of representatives. The
second was 1825. The votes of the electoral colleges (assemblies) had in
December, 1824, been divided upon four candidates. Andrew Jackson had
received 99 electoral votes; John Quincy Adams, 84; William H. Crawford,
41; and Henry Clay, 37. Neither having received a majority of all the
electoral votes, the election devolved upon the house of
representatives. Of the three candidates who had received the highest
numbers of the electoral votes, Mr. Adams received in the house of
representatives the votes of thirteen states; Gen. Jackson, the votes of
seven states; and Mr. Crawford, the votes of four states. Mr. Adams
having received the votes of a majority of all the states, he was
elected.
§10. By the 12th article of amendments, if there is no election of
vice-president by a majority of the electors, then, from the two highest
numbers on the list, the senate shall choose the vice-president.
Two-thirds of the whole number of senators shall constitute a quorum for
such election; and a majority of the whole number shall be necessary to
a choice.
§11. To be eligible to the office of president or vice-president, a
person must be a natural born citizen of the United States, thirty-five
years of age, and must have been fourteen years a resident within the
United States. The reasons for requiring long terms of citizenship and
residence, and mature age and experience, in the case of senators, apply
with equal force in the case of president.
§12. In case of a vacancy in the office of president, the vice-president
becomes the president. The power of making further provision for
supplying vacancies is, by the constitution, given to congress. (Art. 2,
§1.) Congress has accordingly enacted, that, when there is neither
president nor vice-president, the president _pro tempore_ shall act as
president; and if there should be none, the speaker of the house of
representatives would assume the duties of the office.
§13. The same section declares that the salary of the president shall
neither be increased nor diminished during the time for which he shall
have been elected. It would be improper to allow congress to reduce his
salary at pleasure. This would make the executive dependent upon the
legislature for his support. On the other hand, if his compensation
could be increased during his official term, he might be tempted to use
undue influence to procure a needless increase of his salary.
§14. The presidential term commences the 4th of March next after the
election, and ends the 3d day of March four years thereafter. Each
successive congress also commences and ends its term every two years, on
the same days of that month; and it is called a new congress, although
only one-third of the senators go out of office when a congress is said
to expire, and are succeeded by new ones when the next congress is said
to commence its official term.
Chapter XL.
Powers and Duties of the President; Treaties; Public Ministers;
Appointments and Removals.
§1. The powers and duties of the president are next given. "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." (Art. 2, §2.) Some of the reasons
for giving to the executive the command of the public forces, have been
given. (Chap. XXV, §2, 5.) It has also been observed, that a prompt and
effectual execution of the laws is best secured by intrusting this power
to a single individual. (Chap. XXXVIII, §2.) The constitution, (Art. I,
§8, clauses 12-16,) give congress power over the army, navy, and
militia, and "to provide for calling forth the militia to execute the
laws of the union, suppress insurrections, and repel invasions." As this
power is to be exercised upon sudden emergencies, congress has by law
authorized the president to call out the militia for these purposes. And
as the direction of the public forces is a power of an executive nature,
it is intrusted to the executive.
§2. The president has also "power to grant reprieves and pardons for
offenses against the United States, except in cases of impeachment." The
same power is exercised by the governors of the several states. (Chap.
XII, §4.) Through partial or false testimony, or the mistakes of judges
or juries, an innocent person may be convicted of crime; or facts may
subsequently come to light showing the offense to be one of less
aggravation than appeared on the trial. There should therefore be
somewhere a power to remit the punishment, or to mitigate the sentence,
or postpone its execution, as the case may seem to require; and by no
other person or persons, it is presumed, would this power be more
judiciously exercised than by the executive.
§3. The president has "power, by and with the advice and consent of the
senate, to make treaties, to appoint embassadors, other public ministers
and consuls, judges of the supreme court," and other officers, "provided
two-thirds of the senators concur." A _treaty_ is an agreement or
contract between two or more nations, for regulating trade, or for
restoring or preserving peace. This power ought therefore to be in the
national government. In monarchical governments it belongs to the king.
To confide so important a trust to the president alone, would be
imprudent. To associate the house of representatives with the president
and senate, as in making laws, would render it impossible to act with
the decision, secrecy, and dispatch, which are sometimes necessary in
making treaties.
§4. As the treaty-making power appears to be in its nature neither
wholly executive nor wholly legislative, but to partake of the nature of
both, a _part_ of the legislature is properly associated with the
president. As the senate, being less numerous than the house, is capable
of acting more promptly as well as more easily convened and at less
expense, that body is more properly united with the executive in the
exercise of this power. And it is equally proper that the power to
appoint embassadors and others by whom treaties are negotiated, should
be placed in the same hands.
§5. Treaties are negotiated; that is, the provisions or terms are
arranged and agreed upon, by the agents of the two governments; and a
copy of the articles of agreement is sent to each government to be
approved and confirmed, or, as it is usually expressed, to be
_ratified_. Both governments must ratify, or the treaty fails. Treaties
are ratified, on the part of our government, by the president and
senate. This is what is meant by their making treaties. The persons by
whom treaties are negotiated are sometimes appointed by their
governments for that special purpose; but the business is perhaps more
frequently done by the permanent representatives or ministers of the
respective governments.
§6. Each of the principal civilized nations has some officer at home
who acts as agent in negotiating treaties and transacting business with
foreign governments, and has also a representative at the seat of each
foreign government for this purpose, and for keeping his government,
apprised of what is done abroad. Our government has a minister in Great
Britain, one in Russia, one in France, one in Spain, and one in each of
the other principal commercial nations; and each of these nations has a
minister residing at the city of Washington, the seat of government of
the United States. The officer of our government who corresponds with
foreign ministers here, and with our ministers abroad, is the secretary
of state. The negotiation of treaties at home with the ministers of
foreign governments residing here, is done by him.
§7. Representatives at foreign courts have different names or titles:
embassadors, envoys, ministers, and chargès des affaires. An embassador
who is intrusted with the ordinary business of a minister at a foreign
court, is called an _embassador in ordinary_. An _embassador
extraordinary_ is a person sent on a particular occasion, who returns as
soon as the business on which he was sent is done. He is sometimes
called _envoy_; and when he has power to act as he may deem expedient,
he is called _envoy plenipotentiary_; the latter word signifying full
power. An ordinary embassador or minister resides abroad, and acts in
obedience to instructions sent him from time to time.
§8. Agents or representatives sent by our government to reside at
foreign courts, are called _ministers_. Formerly those sent to the less
important countries, were called _chargès des affaires_, who are
ministers of a lower grade. The name, usually written chargès
d'affaires, is French, and is pronounced _shar-zha-daf-fair_, accented
on the first and last syllables. It means a person having charge of the
affairs of his nation. It is not at present applied to any of our
representatives abroad, all being called by the common name of minister.
§9. _Consuls_ are agents of inferior grade. They reside in foreign
seaports. Their business is to aid their respective governments in their
commercial transactions with the countries in which they reside, and to
protect the rights, commerce, merchants, and seamen of their own nation.
Hence much of their business is with masters of vessels, and with
merchants. They also dispose of the personal estate of citizens of their
own nation who die within their consulates, leaving no representative or
partner in trade to take care of their effects.
§10. The appointment of judges of the supreme court by the president and
senate, seems to be proper. Their election by the people, most of whom
could have little or no knowledge of the persons who should be chosen,
would be injudicious. Besides, the mass of the voters are not so
competent to judge of the qualifications necessary for so important a
judicial office, as those to whom the constitution has given the power
of appointment.
§11. The power of appointing the head officers of the several executive
departments, is with equal propriety given to the president and senate.
As the president is in a measure responsible for the acts of his
subordinates who conduct the business of these departments, and as,
without their coöperation, he could scarcely carry out his own measures,
it is proper that he should have the right of selecting them; and by
being required to submit his choice to the body of senators for their
approval, a sufficient safeguard is provided against the appointment of
unworthy or incompetent men.
§12. "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 the next session." (Art. 2, sec. 2, clause
3.) Without such a power somewhere, the public interests would often
suffer serious injury before the senate should again be in session to
act upon a nomination by the president. As it is his duty to see that
the business of the executive offices is faithfully done, he seems to
be the proper person to make such temporary appointment.
§13. The powers and duties of the president enumerated in the next
section of the constitution, are all necessary to insure a successful
administration of the government; and they are so clearly of an
executive nature, that they could not with any degree of propriety have
been devolved upon any other officer or department of the government.
§14. The last section of this article of the constitution enumerates the
persons liable to be removed from office by impeachment, and the
offenses for which they are thus removable. As in the state governments,
so in the general government, impeachments are made by the house of
representatives, and tried by the senate. (Chap. XX, §6-8; Cons. U.S.,
art. I, §2, 3.)
Chapter XLI.
Auxiliary Executive Departments. Departments of State, of the Treasury,
of the Interior, of War, of the Navy, of the Post-Office;
Attorney-General.
§1. The great amount and variety of the executive business of the
nation, requires the division of this department into several
subordinate departments, and the distribution among them of the
different kinds of public business. At the head of each of these
departments is a chief officer. These chief officers, sometimes called
_heads of departments_, with the attorney general, being private
advisors or counselors of the president, are called the _cabinet_. They
are appointed by the president and senate.
§2. By the first congress under the constitution, were established the
state, treasury, and war departments, whose head officers, called
secretaries, and the attorney-general, constituted the first cabinet.
In 1798, the navy department was established. During president Jackson's
term of office, the postmaster-general was made a cabinet officer. And
the establishment, in 1849, of the department of the interior, added to
the cabinet the seventh member.
§3. The _secretary of state_ performs such duties as are committed to
him by the president relating to foreign intercourse. Some of these
duties have been mentioned. (Chap. XXXIX, §6.) He conducts all our
diplomatic correspondence, being the official organ of communication
with the ministers of foreign governments sent to this country, and with
our ministers abroad. _Diplomacy_ signifies the rules and customs which
govern the intercourse of nations through their ministers or agents;
also the management of the business of a nation by its minister at a
foreign court. And such minister, especially if he manages with ability
and skill, is called a _diplomatist_.
§4. The secretary of state keeps the seal of the United States; and he
makes out, records, and seals all civil commissions to officers
appointed by the president and senate, or by the president. His duties
in relation to the publishing and distributing the laws, and certain
other matters, are similar to the duties of a secretary of state of a
state government.
§5. The _secretary of the treasury_ has charge of the finances of the
nation. He superintends the collection of the revenue, and performs
certain other duties of the nature of the controller or auditor of a
state. (Chap. XIII, §3.) He lays before congress annually a report of
the finances, containing a statement of the public revenue and
expenditure during the past year, the value of the imports and exports,
and estimates of the revenue and expenditures for succeeding years, and
plans for improving the revenues. He also makes annually a statement of
appropriations of money, and of sums remaining, in the treasury.
§6. The vast amount of business in this department requires a great
number of assistants; among whom are several controllers and auditors of
accounts; a treasurer, a register, who keeps the accounts of goods
imported and exported, and of the shipping employed in our foreign
trade; a solicitor; a recorder; and numerous clerks.
§7. The _secretary of the interior_ superintends the business relating
to the public lands, public buildings, the lead mines and other mines of
the United States, Indian affairs, patents, and pensions. A _pension_ is
a yearly allowance to a person by the government for past services. In
this country pensions are granted for services in war. They were at
first allowed only to such as had been disabled in the war of the
revolution and in the war of 1812; and subsequently to all who had
served at least six months in the revolutionary war, and to their widows
during their lives. Those disabled in the late war with Mexico have also
been added to the pension list. And by recent acts of congress, bounties
of lands were to be allowed to all the surviving soldiers of the war of
1812, who had served one month therein.
§8. The _secretary of war_ performs duties relating to military
commissions, or to the land forces and warlike stores of the United
States. The standing army of the nation consists at present of about
15,000 men, who are distributed among the several military stations,
armed and ready for service. He reports annually a statement of the
expenditure and application of moneys drawn from the treasury for his
department, and makes such suggestions relative to its condition as he
thinks proper. He is assisted by subordinate officers and clerks.
§9. The _secretary of the navy_ executes the orders of the president for
procuring naval stores and materials, and for equipping and employing
vessels of war, and performs such other duties pertaining to the naval
establishment as are required of him. Three officers are appointed by
the president and senate, who constitute a board of _commissioners for
the navy_, and discharge the ministerial duties of the office of the
secretary, and furnish estimates of the expenditures of the department.
§10. The _postmaster-general_ establishes post-offices, appoints
postmasters and other persons employed in the general post-office, and
provides for carrying the mails. He is assisted by three assistant
post-masters-general, an auditor of the post-office treasury, to audit
and settle the accounts of the department, and to superintend the
collection of the debts due the department. The business of this
department requires a large number of clerks. He reports annually all
contracts made for the transportation of the mail, and a statement of
the receipts and expenditures of the department.
§11. Postmasters keep an account of all letters sent from and received
at their respective offices, stating the names of the offices from which
letters are received, and of those to which letters are sent, and
whether they are post paid or sent free. Postmasters, at stated periods,
(in most places quarterly,) advertise all letters remaining in their
offices; and they send quarterly to the general post-office accounts of
letters sent and received, and of moneys received for postage, and of
those paid out on orders of the department. Letters also which have lain
in their offices during the time for which they were required to be
advertised, are sent as _dead_ letters to the general post-office, where
they are opened; and such as contain money or other valuable matter are
returned by mail to the writers.
§12. Postmasters are allowed for their services a commission on the
amount of postage received by them quarterly. Those at whose offices the
sums received are small, are allowed a greater per centage than those
where the receipts are large. Thus, the commission at present (1859) is,
on the first $100 received, sixty per cent.; on the next $300, fifty per
cent.; on the next $2,000, forty per cent.; on all over 2,400, fifteen
per cent. Stamped letters are considered as paid in cash. On newspaper
postages, fifty per cent, on all sums, large or small. If a postmaster's
commission exceeds $2,000 a year, besides the expenses of the office,
the excess is paid to the general post office. Postmasters may also
receive for pigeon-holes or boxes, not exceeding $2,000, the excess, if
any, to be paid to the general post-office. Postmasters whose
compensation amounts to $1,000 or more in a year, are appointed by the
president and senate.
§13. Postmasters whose commission on postages has been less than $200
during the preceding year, may receive and send, free of postage,
letters on their own private business, weighing not more than half an
ounce. And members of congress, during their term of office, and until
the first of December after its expiration, may send and receive letters
and packages weighing not more than two ounces, and all public documents
free. A person to be entitled to send matter free, must write on the
outside his name and the title of his office. This is called _franking_.
Civil officers at the seat of government also may frank matter relating
to the business of their offices, by marking it outside, "official
business."
§14. The _attorney-general_ attends to all suits in the supreme court of
the United States in which the United States is a party or is concerned,
and gives his opinions on questions of law when requested by the
president or heads of departments.
Chapter XLII.
Judicial Department.
§1. We come now to the third article of the constitution. The first two
sections provide for the organization, and prescribe the powers, of the
courts of the United States. The want of a national judiciary was a
material defect of the confederation. Dependence upon the state courts
to enforce the laws of the union, subjected the government to great
inconvenience and embarrassment. A government that has a legislature
and an executive, should also have a judiciary to judge of and interpret
the laws. The constitution declares that "the judicial power of the
United States shall be vested in one supreme court, and in such inferior
courts as the congress may ordain and establish." Under the authority
here given, congress passed the judiciary act of 1789, by which the
several courts of the United States were established.
§2. The same section declares, "The judges of both the supreme and
inferior courts shall hold their offices during good behavior." In no
other department of the general government are offices held for so long
a term, which is virtually for life, unless removed on impeachment, or
for inability. To insure a correct and impartial administration of
justice, the judges should be independent. If they could be displaced at
the pleasure of the appointing power, or by frequent elections, they
might be tempted to conform their opinions and decisions to the wishes
of those on whom they were dependent for continuance in office. The
object of the framers was to remove them as far as possible from party
influence.
§3. It is further provided, with a view to the independence of the
judges, that their "compensation shall not be diminished during their
continuance in office." Salaries are fixed by congress. To give congress
power over the purse of an officer, is to give it power over his will.
Dependence upon the legislature would be as great an evil as dependence
upon the appointing power. Besides, men generally selected for high
judicial offices are eminent lawyers, pursuing a lucrative professional
business; and, without a liberal salary, men of the greatest ability
would not accept these offices; or if in office, an essential reduction
of their compensation might induce them to resign their offices.
§4. The next section enumerates the cases to be tried in these courts.
It is evident from their nature that state courts are not the proper
tribunals to try them. Also all violations of the laws of the United
States are tried in the national courts. Thus, the counterfeiting of
United States coin, murder and other crimes committed on the sea, beyond
the jurisdiction of a state, smuggling goods, that is, secretly
importing dutiable goods without paying the duties, infringements of
patent rights, &c., are prosecuted in courts of the United States.
§5. The third clause of this section declares, that "the trial of all
crimes, except in cases of impeachment, shall be by jury; and such trial
shall be held in the same state where the said crimes shall have been
committed." This is intended to secure the trial of the accused among
his friends and acquaintances, and near the residence of his witnesses,
whose attendance in a distant state could not be had without great
inconvenience and expense, which might deprive him of the benefit of an
important witness.
§6. There are three kinds of national courts: the supreme court, circuit
courts, and district courts. Every state constitutes at least one
district. The larger states are divided into two or more districts. In
each district is a _district judge_, who holds a court four times a
year. There are also in each district, a _district attorney_, to conduct
suits on the part of the United States, and a _marshal_, whose business
is similar to that of a sheriff. This court tries the more common civil
cases, arising under the laws of the United States, and the lower crimes
against the laws of the United States, committed on land and sea. This
court has in some cases a jury.
§7. There are nine _circuits_, each embracing several states. In each
circuit is a justice or a judge, who holds a court in his circuit twice
a year. The district judge of the district in which a circuit court is
held, sits with the circuit judge in holding a circuit court. This court
tries causes between citizens of different states, between aliens and
citizens, and those in which the United States are a party. It also
tries some cases in appeal from the district courts. It tries matters
relating to affairs on the high seas, and all felonies punishable with
death. It has a grand and a petit jury.
§8. The _supreme court_ is composed of the nine judges of the circuit
courts, one of whom is chief-justice, the others are called associate
justices. It holds one session annually at the seat of government,
commencing in January or February, and continuing about two months. It
will be seen from this section of the constitution, that this court has
_original_ jurisdiction in but few cases. Its principal business is to
rejudge cases brought up from the circuit courts.
§9. An important object of a supreme court of the United States, is to
secure a correct and uniform interpretation of the constitution and laws
of the United States. State laws and decisions of state courts, are
sometimes made which are supposed to be repugnant to the constitution
and laws of the United States. What may be pronounced constitutional in
one state, may be declared unconstitutional in another. Therefore it is
provided that when an act or judgment in a case tried in the highest or
last court in a state is deemed inconsistent with the constitution or
laws of the United States, such case may be removed to the supreme court
of the United States, whose decision governs the judgment of all
inferior courts throughout the union.
Chapter XLIII.
Treason, defined; its Punishment.
§1. The constitution defines treason, as follows: "Treason against the
United States shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort." Art. 3, sec. 3.
A proneness to construe less aggravated crimes into acts of treason,
made it proper that the constitution should define the crime. The term
_levying war_ has the sense here which it was understood to have in the
English statute, from which it was adopted. An assemblage of men for a
treasonable purpose, such as war against the government, or a revolution
of any of its territories, and in a condition to make such war,
constitutes a levying of war.
§2. War can be levied only by the employment of force; troops must be
embodied; men must be openly raised; but there may be treason without
arms, or without the application of force to the object. When war is
levied, all who perform a part, however remote from the scene of action,
being leagued in the conspiracy, commit treason. But a mere conspiracy
to levy war is not treason. A secret, unarmed meeting of conspirators,
not in force, nor in warlike form, though met for a treasonable purpose,
is not treason; but these offenses are high misdemeanors.
§3. The constitution also prescribes the proof necessary for the
conviction of treason. "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." No evidence less than this should be
considered sufficient to convict a person of a crime for which he is to
suffer death.
§4. "Congress shall have power to declare the punishment of treason."
Art. 3, sec. 3. By the common law, the punishment of treason was of a
savage and disgraceful nature. The offender was drawn to the gallows on
a hurdle; hanged by the neck and cut down alive; his entrails taken out
and burned while he was yet alive; his head cut off; and his body
quartered. Congress, in pursuance of the power here granted, has very
properly abolished this barbarous practice, and confined the punishment
to simple death by hanging.
§5. But the same clause provides, that "no attainder of treason shall
work corruption of blood, or forfeiture, except during the life of the
person attainted." _Attainder_ literally signifies a staining, or
rendering impure; but it here means a conviction and judgment in court
against the offender. By the common law, the sentence of death for
treason was made to affect the _blood_ of the traitor; so that he could
neither inherit property nor transmit it to heirs; but his estate was
forfeited. This practice, so unjust to the innocent relatives of an
offender, is properly abolished by the constitution; and congress has
declared that "no conviction or judgment shall work corruption of blood,
or any forfeiture of estate." So that while this law continues, there is
no forfeiture, even during the life of the person attainted.
Chapter XLIV.
State Records; Privilege of Citizens; Fugitives; Admission of New
States; Power over Territory; Guaranty of Republican Government.
§1. "Full faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. And the
congress may, by general laws, prescribe the manner in which such acts,
records, and proceedings shall be proved and the effect thereof." Art.
4, sec. 1. Without this provision, a person against whom a judgment has
been obtained, might remove with his property into another state, where
the property could not be taken on execution without a new trial and
judgment; which, at so great a distance from the residence of the
creditor and his witnesses, would be very difficult and expensive, and
perhaps impossible. Now, the proceedings of the court in which a
judgment is obtained, if sent to the place where the debtor resides,
have the same effect as in the state in which such proceedings were
taken.
§2. There are several other cases which this provision is intended to
meet. But, as is seen, the effect of these acts, records, and judicial
proceedings, and the manner of proving them are to be prescribed by
congress. In pursuance of the power here granted, congress has enacted,
that a certificate under seal of the clerk of a court of record,
transmitted to any state of the union, shall there be deemed evidence
of the facts therein stated. But if the thing certified is a judicial
proceeding, such sealed certificate must be accompanied by the
certificate of the presiding judge or justice, that the attestation of
the clerk is in due form. Acts of a state legislature, to be entitled to
credit in another state, must have the seal of the state affixed to
them.
§3. The next section of this article provides, that "the citizens of
each state shall be entitled to all the immunities and privileges of
citizens in the several states." This means that the citizens of any
state going into other states, shall not, by the laws of those states,
be deprived of any of the privileges of citizens; but shall be entitled
to the privileges which are enjoyed by persons of the same description
in the states to which they remove. Without such a provision, any state
might deny to citizens coming into it from other states, the right to
buy and hold real estate, or to become voters, or to enjoy equal
privileges in trade or business. A state may, however, prescribe a
certain term of residence therein as a qualification for voting at
elections.
§4. The next clause of this section provides for apprehending "a person
charged with crime, who shall flee from justice and be found in another
state." The governor of the state from which such person has fled, sends
a requisition to the governor of the state in which he is found,
demanding his delivery to the proper officers, to be conveyed back for
trial. Without such authority to apprehend criminals, they might escape
justice by taking shelter in another state.
§5. In the same section it is provided, that "no person held to service
or labor in one state, under the laws thereof, escaping into another,
shall, in consequence of any law or regulation therein, be discharged
from such service or labor, but shall be delivered up on claim of the
party to whom such service or labor may be due." This clause was
intended for the benefit of the slaveholding states. By the common law,
a slave escaping into a non-slaveholding state became free. As it was
presumed that other northern states would follow Massachusetts in
abolishing slavery, the southern states wanted some provision to enable
them to reclaim their fugitive slaves.
§6. The manner in which slaves are to be reclaimed, is prescribed by an
act of congress. The owner of a runaway slave, finding him in a free
state, arrests him and brings him before a magistrate; and if he proves
his title to the slave to the satisfaction of the magistrate, the slave
is delivered to the owner or claimant. Free colored persons have
sometimes been arrested, and, on false testimony, delivered to
claimants, taken to slave states and held as slaves. Hence the opinion
prevails extensively that a person claimed as a slave should be entitled
to trial by a jury; and that the fact of his being a slave should be
proved to the satisfaction of a jury before his delivery to a claimant.
Many persons, believing freedom to be the natural right of all men, hold
that all laws for returning fugitive slaves are wrong, and ought not to
be obeyed.
§7. The first clause of the next section provides, that "new states may
be admitted into this union," and requires the consent of congress and
of the states concerned, to the formation of new states from old ones. A
provision of this kind was deemed necessary in view of the large extent
of vacant lands within the United States, and of the inconvenient size
of some of the states then existing. The territory north-west of the
Ohio river had been ceded to the general government by the states
claiming the same; and a territorial government had already been
established therein by the celebrated ordinance of 1787. From this
territory have since been formed and admitted, the states of Ohio,
Indiana, Illinois, Michigan and Wisconsin.
§8. South of the Ohio river also was a large tract, principally
unsettled, within the chartered limits of Virginia, North Carolina and
Georgia, extending west to the Mississippi river, from which, it was
presumed, new states would be formed. Justice, however, to these states,
as well as to others in all future time, required the general provision
above mentioned, that "no state should be divided without the consent of
its legislature and of congress."
§9. The next clause authorizes congress "to dispose of and make all
needful rules and regulations respecting the territory and other
property of the United States." If the general government has power to
acquire territory, it must have the right to exercise authority over it.
This express grant establishes beyond doubt a power which had been
questioned under the confederation. In pursuance of the power here
granted, congress has made rules and regulations for governing the
people of different portions of such territory previously to their
admission as states into the union.
§10. The next section declares, that "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 the application of the
legislature, or of the executive (when the legislature cannot be
convened,) against domestic violence." Art. 4, sec. 4. The propriety of
a power to prevent a state from changing its government to any other
than a republican form, is evident. It is equally proper that a state,
when invaded by a foreign enemy, or in case of an insurrection within
its own borders, should have protection and aid from the general
government; especially as the states have surrendered to it the right to
keep troops or ships of war in time of peace. (Art. 1, sec. 10.)
Chapter XLV.
Provision for Amendments; Assumption of Public Debts; Supremacy of the
Constitution, &c.; Oaths and Tests; Ratification of the Constitution.
§1. The 5th article provides for amending the constitution. It
prescribes two different modes for proposing amendments, and two modes
of ratifying them. Amendments may be proposed by two-thirds of both
houses of congress; or, on the application or request of two-thirds of
the states, congress shall call a convention for proposing amendments.
Proposed in either of these modes, amendments, to become valid as parts
of the constitution, must be ratified by the legislatures of
three-fourths of the states, or by conventions in three-fourths of them;
the mode of ratification, whether by the legislatures or by conventions,
to be proposed by congress.
§2. As the best human government is imperfect, and as all the future
wants and necessities of a people can not be foreseen and provided for,
it is obvious that every constitution should contain some provision for
its amendment. But if amendments could be made whenever desired by a
bare majority of the states, the strength and efficiency of the
constitution might be greatly impaired by frequent alterations. It is
therefore wisely provided, that a mere proposition to amend cannot be
made but by a majority of at least two-thirds of congress, or of the
legislatures of at least of two-thirds of the states; and that such
proposition must be ratified by a still larger majority (three-fourths)
of the states. It was thought better to submit occasionally to some
temporary inconvenience, than to indulge in frequent amendments of the
constitution.
§3. The 6th article acknowledges the obligation of the general
government to pay "all debts contracted before the adoption of the
constitution." As has been observed, congress had borrowed money for the
payment of which it was unable to provide; and one object of a change
of government was to make provision for fulfilling the engagements of
the nation. This clause, it is said, was also intended to allay the
fears of public creditors, who apprehended that a change in the
government would release the nation from its obligations.
§4. The next clause declares, "This constitution, and the laws made in
pursuance thereof, and all treaties 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 contrary notwithstanding." If all state
authorities were not bound by the constitution and laws of the United
States, nothing would have been gained by the union. If the laws and
treaties made by the general government could be disregarded or
nullified by any power in a state, why was power to make them given to
the general government?
§5. The last clause of the 4th article requires certain officers, both
of the United States and of the several states to be "bound by oath or
affirmation to support this constitution." Binding the conscience of
public officers by oath or solemn affirmation, has ever been considered
necessary to secure a faithful performance of their duties. They are
generally required to swear not only to support the constitution, but
also to discharge the duties of their offices to the best of their
ability.
§6. The same clause declares that "no religious test shall ever be
required as a qualification to any office or public trust under the
United States." _Test_ here means an oath or a declaration in favor of
or against certain religious opinions, as a qualification for office. In
England, all officers, civil and military, were formerly obliged to make
a declaration against transubstantiation, and to assent to the doctrines
and conform to the rules of the established church. Desirous of securing
to every citizen the full enjoyment of religious liberty, the
introduction of tests was prohibited by the constitution.
§7. The 7th and last article declares: "The ratification of the
conventions of nine states shall be sufficient for the establishment of
this constitution between the states so ratifying the same." The
immediate ratification of the constitution by all the states was hardly
to be expected; a unanimous ratification, therefore, was not required.
But a union of less than nine states was deemed inexpedient. The framers
concluded their labors on the 17th of September, 1787; and in July,
1788, the ratification of New Hampshire, the ninth state, was received
by congress.
§8. The dates of the ratifications of the several states are as follows:
Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey,
December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9,
1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South
Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 26,
1788; New York, July 26, 1788; North Carolina, November 21, 1789; Rhode
Island, May 29, 1790. The two last named states did not accede to the
constitution until after proceedings under it had commenced. The
ratification of North Carolina was received by congress in January,
1790; that of Rhode Island in June following.
§9. The first Wednesday of January, 1789, was appointed by congress for
choosing electors of president in the several states, and the first
Wednesday of February for the electors to meet in their respective
states to elect the president. Gen. Washington was unanimously elected,
and on the 30th of April was inaugurated president. Proceedings under
the constitution, however, had commenced on the 4th of March preceding.
Chapter XLVI.
Amendments to the Constitution.
§1. It is remarkable that, during a period of seventy years, the
constitution has received so few alterations. Although twelve articles
of amendment, so called, have been adopted, only two, (the 11th and
12th,) have in any manner or degree changed any of its original
provisions. Most of them, it will be seen, are merely declaratory and
restrictive. As the principles which they declare were so generally
acknowledged, and as the general government was a government of limited
powers, having such only as were expressly authorized by the
constitution, the framers deemed these declarations and restrictions
unnecessary. But as several of the state conventions had, at the time of
adopting the constitution, expressed a desire that declarations and
guaranties of certain rights should be added, in order to prevent
misconstruction and abuse, the first congress, at its first session,
proposed twelve amendments, ten of which were ratified by the requisite
number of states. Virginia, the last state necessary to make up such
number, ratified December 15, 1791.
§2. Freedom in matters of religion, freedom of speech and of the press,
and the right to petition the government for the redress of grievances,
guarantied in the first article, are rights so essential to civil
liberty, and so evidently just, that it can hardly be presumed that
congress would ever have passed laws directly violating these rights,
even though such laws had not been prohibited.
§3. The second article guaranties "the right of people to bear arms."
Without this right, ambitious men might, by the aid of the regular army,
overthrow the liberties of the people, and usurp the powers of
government.
§4. The third article declares, that "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." It is a
principle of the common law, that "a man's house is his own castle."
Among the grievances enumerated in the Declaration of Independence, was
one "for quartering large bodies of armed troops" among the people of
the colonies. To secure the people against intrusions of this kind, is
the object of this prohibition.
§5. The fourth article guaranties "the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures." But there could be no such security, if every
man could, on mere pretense or suspicion of injury, obtain a warrant for
arresting his neighbor or searching his premises and seizing his
property. Innocent men would often be subjected to much trouble and
perplexity; and unjust suspicions would be thrown upon their characters.
It is proper, therefore, that a magistrate shall not issue a warrant,
unless it shall be made to appear, by the oath of the applicant or of
some other person that there is probable cause.
§6. The rights guarantied by the fifth article are common law rights,
and founded upon just principles. We have elsewhere stated the object of
grand juries, and noticed the opinion of some, that this object is
sufficiently secured by the examination before the magistrate; and,
consequently, that grand juries are unnecessary. (See Chap. XIX, §8-10.)
But while this article continues to be a part of the constitution, grand
juries in courts of the United States can not be dispensed with. It is
quite proper, as is provided in this article, that, after a fair and
impartial trial and an acquittal, a person should not be tried a second
time. The provisions of the next article (6th) are also necessary to
secure the same object--the rights of liberty and life to every citizen.
§7. The seventh article of amendment secures, in courts of the United
States, "in suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury." By suits at common
law are meant those tried in the ordinary courts, as distinguished from
those tried in courts of equity and courts of admiralty. This article
further declares, that "no fact tried by a jury shall be otherwise
reëxamined in any court of the United States, than according to the
rules of the common law." That is, if a fact tried by a jury in a lower
court, is carried up to a higher court for reëxamination, such
reëxamination or new trial shall also be by jury.
§8. "Excessive bail shall not be required, nor excessive fines imposed,
nor unusual punishments inflicted." Amend. art. 8. The object of bail
and the manner in which it is given, have been stated. (Chap. XVIII.)
Without the above restriction, the sum might be fixed so high as to
prevent persons accused of crime from procuring the necessary sureties;
whereby innocent persons might be subjected to long imprisonment before
the time of trial. It is therefore properly left to the court to fix the
sum, which should correspond to the aggravation of the offense. Courts
have the same discretion as to the measure of punishment to be inflicted
in each particular case of crime.
§9. The ninth amendment is, "The enumeration in the constitution of
certain rights, shall not be construed to deny or disparage others
retained by the people." There were persons who feared that, because the
constitution mentioned certain rights as belonging to the people, those
not mentioned might be considered as having been surrendered to the
general government. This article was therefore inserted to prevent such
a misconstruction of the constitution.
§10. The tenth amendment is similar to the preceding. "The powers not
delegated to the United States by the constitution, nor prohibited by it
to the states are reserved to the states respectively, or to the
people." In other words the powers which the constitution has not given
to the general government, nor prohibited the states from exercising,
the states or the people have reserved to themselves. So clear is it,
that they retain all power which they have not in words parted with,
that it seems strange to many that the insertion of such a provision
should ever have been thought necessary.
§11. The eleventh amendment was proposed at the first session of the
third congress, March 5, 1794, and its ratification by the
constitutional number of states was announced to congress by the
president in a message dated January 8, 1798. This article prohibits a
court of the United States from trying "any suit in law or equity
commenced or prosecuted against one of the states by citizens of another
state, or by citizens or subjects of any foreign state." This is
intended to prevent a state from being sued in an original suit, by a
private person, the citizen of another state.
§12. The twelfth and last amendment effects a change in the mode of
electing the president and vice-president, and has been considered.
(Chap. XXXIX, §4.) This amendment was proposed at the first session of
the eighth congress, December 12, 1803, and was adopted by the requisite
number of states in 1804, according to a public notice by the secretary
of state, dated the 25th of September of the same year.
Common and Statutory Law.
Chapter XLVII.
Rights of Persons. Personal Security; Personal Liberty; Religious
Liberty; Liberty of Speech, and of the Press; Right of Property.
§1. Having taken a general view of the state governments and the
government of the United States, and seen how wisely they are adapted to
promote the general welfare and secure the blessings of liberty; we
proceed to give a digest of the laws which more particularly define the
rights and prescribe the duties of citizens, or by which their social
and civil intercourse is to be regulated. These laws, it will be
recollected, we have elsewhere called the _municipal_ or _civil_ laws,
as distinguished from the _political_ or _fundamental_ law of the state.
(Chap. III, §6.)
§2. These laws are of two kinds, the written or statute law, and the
unwritten or common law. _Statute laws_ are those which are enacted by
the legislature, and recorded in writing, and are usually collected and
published in books. The word _statute_ is from the Latin _statuo_, to
set, fix, or establish.
§3. The _common law_ is not a code of written laws enacted by a
legislature, but consists of rules of action which have become binding
from long usage and established custom. It is said to be founded in
reason and the principles of justice. The common law of England was
brought over by our ancestors, and established here before the
revolution. Some of the states, in their constitutions, adopted after
the revolution, declared it to be the law of their respective states;
and it has continued to be law in all the states, and is still so
considered, except such parts as have been altered or repealed by
constitutional or legislative enactments, or by usage.
§4. The most valuable rights protected by law are the rights of personal
security and personal liberty. The right of _personal security_ is the
right to be secure from injury to our persons or good names. By
_personal liberty_ is meant the freedom of our bodies or persons from
restraint or confinement. Provisions guarantying these rights have been
incorporated into our national constitution, and the constitutions of
the several states.
§5. The right of personal security is also protected by the law, by
which a man, on showing reasonable cause of danger of personal injury,
may require his adversary to be bound with sureties to keep the peace.
And for violence committed, the offender may be prosecuted in behalf of
the state and punished, and is liable also to the party aggrieved in a
civil suit for damages.
§6. This right is further protected by the law which permits a man to
exercise the natural right of self-defense. In defending his person in
case of a felonious assault, he may lawfully take the life of his
assailant. This is by law pronounced justifiable homicide, and is
allowed also in defense of one's property against felonious and violent
injury. But homicide (man-killing) is not justifiable in case of a
private injury, nor upon the pretense of necessity when the party is not
free from fault in bringing that necessity upon himself.
§7. The right to be secure in our good names, which is included in the
right of personal security, is protected by the law against slander and
libel. A _slander_ is a false and malicious report or statement tending
to injure another in his reputation or business, and which, if true,
would render him unworthy of confidence or employment; or it is the
maliciously charging of another with anything by which he sustains
special injury. The slander of a person by words spoken, is a civil
injury, that is, an injury for which redress is to be obtained in a
civil suit for damages.
§8. A slander written or printed, is called _libel_. A libel is a
malicious publication in print or writing, signs or pictures, tending to
expose a person to public hatred, contempt, or ridicule. And it is
considered in law a publication of such defamatory writing, though
communicated to a single person. A slander written or printed is likely
to have a wider circulation, to make a deeper impression, and to become
more injurious. A person may therefore be liable in damages for words in
print or writing, for which he would not be liable if merely spoken. In
case of libel, a person is not only liable to a private suit for
damages, but may be indicted and tried as for other public offenses.
§9. It is a principle of English common law, that in a criminal action
for libel it is immaterial whether the matter of it is true or false;
and a person prosecuted for libel is not allowed, in justification, to
prove to the jury the truth of his statement, since the provocation, not
the falsity, is to be punished. And, whether true or false, the libelous
publication is equally dangerous to the public peace, and is presumed to
have been made with malicious intent.
§10. It is held--and perhaps it is the prevailing opinion--that in a
civil action for damages, a libel must be false as well as scandalous,
and, consequently, that the truth may be pleaded in justification. This
point, however, is not fully settled. The reason for this distinction
between cases of public and private prosecution, it is not easy to
perceive. If it is just to inquire into the good or bad intentions of
the publisher in one case, it would seem to be equally so in the other.
§11. But the common law has been materially modified and relaxed in this
country. In most of the states it is provided by their constitutions or
by law, that the truth may be given in evidence, and if it shall appear
to the jury "that the matter charged as libelous is true, and was
published with good motives and for justifiable ends, the party shall be
acquitted." As it may sometimes be proper to speak or publish an
unfavorable truth concerning others, the principle of the above
provision would seem to be founded in justice. In the state of Vermont,
and perhaps in a few other states, if the party prosecuted proves the
truth of his statement in any case, he is acquitted.
§12. The right of _personal liberty_ is secured by express provision of
the national constitution, which guaranties to every citizen "the
privilege of the writ of _habeas corpus_." (Cons. U.S. art. 1, sec. 9.)
The nature of this writ has been explained. (Chap. XXXVI, §4.) The same
provision has been inserted in the state constitutions. This was a
common law privilege, independently of any constitutional enactment. The
principal object of the provision seems to be to take from congress and
the state legislatures the power to abolish this privilege, or even to
suspend it for any time, or in any case, except the particular cases
mentioned.
§13. Freedom of religious opinion and worship, or liberty of
conscience, is a valuable personal right, included in the term, personal
liberty, and is effectually secured in this country. In England, the
country of our ancestors, there is a church established and supported by
the government. This is sometimes called "union of church and state."
The American people, from their love of religious freedom, have, in
their constitutions, expressly prohibited congress from making laws
"respecting the establishment of religion, or prohibiting the free
exercise thereof." (Amend. art. 1.) And the state constitutions have
adopted similar provisions.
§14. Another important personal right comprehended in the term personal
liberty, and guarantied in the same article of the national
constitution, and in the state constitutions, is the liberty of speech
and of the press. Some of the monarchical governments of Europe
prohibited the people from speaking against the sovereign or his
government. Books and papers could not be published until they had been
examined and approved. The persons authorized to examine the
manuscripts, were called _censors_. Hence the expression sometimes
heard, "censorship of the press." To secure the liberty of speaking and
publishing their sentiments freely up on all subjects, the people of
this country have made express provision in their constitutions; which,
however, while they properly guaranty this right, leave men "responsible
for its abuse," and liable to prosecution for slander or libel. (§7, 8.)
§15. The _right of property_ is the right to acquire property, and to be
free in the use and enjoyment of it. To protect men in the enjoyment of
this right, is one of the principal objects of constitutions and laws.
The rights of property will constitute the subject matter of several
subsequent chapters of this digest of "common and statutory law." (Chap.
L, and onward.)
Chapter XLVIII.
Domestic Relations. Husband and Wife.
§1. To render a marriage contract lawful, the parties must be of
sufficient age, called the age of consent; which, by the common law of
the land, is fourteen years in males, and twelve in females. In some
states the age of consent has been altered by statute. In Ohio, Indiana,
and Michigan, it has been raised to eighteen years in males, and
fourteen in females; in Illinois to seventeen and fourteen; in
Wisconsin, to eighteen and fifteen.
§2. The parties must also have sufficient understanding to transact the
ordinary business of life. Idiots and lunatics cannot legally contract
marriage. Persons must also act freely. If the consent of either party
has been obtained by force or fraud, the marriage may be declared void.
The parties must not be nearly related. The degrees of relationship at
which they are forbidden to marry are in some states fixed by law; but
the laws of these states on the subject are not uniform. Some states
have forbidden marriages which come within what is called the Levitical
degrees; but these degrees have received different interpretations.
According to the interpretation of some, the relation of uncle and niece
and aunt and nephew, come within this rule.
§3. No person can lawfully remarry who has a wife or husband living.
Such second marriage is, by the common law, null and void. In some of
the states, perhaps in most of them, it is declared _polygamy_, and a
state prison offense, except in certain cases; as when the husband or
wife of the party who remarries has been long absent, and the party
re-marrying does not know the other to have been living within the time;
or when the former husband or wife of the party remarrying has been
sentenced to imprisonment for life; or when the former marriage has been
lawfully annulled or dissolved. If, however, a marriage has been
annulled or dissolved for the cause of adultery, the criminal party is,
in some states at least, not allowed to remarry.
§4. In some of the cases excepted in the preceding section, the second
marriage is merely excusable. Although the party to such marriage is
exempt from the _penalty_, yet if the former wife or husband is living,
though the fact is unknown, and no divorce has been duly announced, or
the first marriage has not been duly annulled; the second marriage is
void. Where there is no statute regulation, the common law governs,
which is, that nothing but death, or a decree of a competent court, can
dissolve the marriage tie.
§5. The manner in which marriages are to be solemnized, and by whom, and
the manner in which marriage licenses are to be obtained, or notices of
marriage published, (which are required in some states,) are prescribed
by the laws of the states in which such regulations exist. Marriages may
usually be solemnized by ministers of the gospel, judges, justices of
the peace, and certain other officers. But by the common law, a marriage
is rendered valid by a simple consent of the parties declared before
witnesses, or subsequently acknowledged; or such consent may be inferred
from continual cohabitation and reputation as husband and wife.
§6. In law, the husband and wife are regarded as one person. By the
common law, the husband, by marriage, acquires a right to the property
of the wife which she had before marriage, and which she may acquire
after marriage. To her personal property, including debts due her by
bond, note, or otherwise, he has an absolute right, and may use and
dispose of the same as he pleases. Her chattels real, however, which are
leases of land for years, though personal property, he can not dispose
of by will; and if he makes no disposition of them during his life time,
and she outlives him, she takes them in her own right. If he survives
his wife, he acquires an absolute right to them.
§7. But to the real estate of the wife, the husband does not acquire an
absolute right. He has only a right to the use, rents, and profits
thereof during his life, if he shall die before his wife; and in that
event she takes the estate again in her own right. If the wife dies
first, and there are no children, her heirs immediately take the estate.
If there are children living, the husband holds the estate for life, and
on his death it goes to the wife or her heirs.
§8. But this rule of the common law which gives to the husband the
possession and disposal of the property of the wife, has been repealed
by special enactments in most of the states. By these state laws, the
real and personal property of the wife owned by her before marriage, or
conveyed to her by any other person than her husband after marriage,
with the rents and profits of such property, is declared to be her own,
and at her disposal, and not liable for the debts of her husband, except
in a few cases specified in the law of each state. In some of these
states, although the property of the wife is not liable for the
husband's debts, he has the control and management, and the rents and
profits of it.
§9. As the husband, by common law, acquires, by marriage, an interest in
the property of his wife, he becomes liable for her debts contracted
before marriage; but if they are not recovered of him during coverture,
he is discharged _Coverture_, in law, is the state of a married woman,
considered as under _cover_, or under the power of her husband. Some of
the states which have abolished the common law right of the husband to
the property of the wife acquired before marriage, have also abolished
the common law obligation of the husband to pay the debts of the wife
contracted before marriage; her property alone being liable for such
debts.
§10. The husband is bound to maintain his wife, and is liable for debts
which she may contract for necessaries, but for nothing more. If he
refuses to provide for her wants, or if, through other ill treatment or
fault on his part, they become separate, he is liable to fulfill her
contracts for necessaries, even though he has forbidden persons to trust
her. If they part by consent, and he secures to her a separate
maintenance, and pays it according to agreement, he is not liable, even
for necessaries.
§11. The husband and wife can not be witnesses for or against each
other; but any declarations made by a wife when acting as agent for her
husband, may be admitted in evidence against him. In a few states, laws
have been proposed, and, it is believed, in some they have been passed,
removing, to some extent, this restriction upon the right of a husband
or wife to the testimony of the other.
Chapter XLIX.
Domestic Relations, continued. Parent and Child; Guardian and Ward;
Minors; Masters, Apprentices, and Servants.
§1. Parents, as the natural guardians of their children, are obliged to
provide for their support and education during their minority, or while
they are under twenty-one years of age. At twenty-one they attain the
age of majority, when they are said to be _of age_. Under this age they
are, in law, _infants_, or _minors_. The father, if he is able, is bound
to support his minor children, even if they have property of their own;
but in such case the mother is not so bound. But a husband is not
obliged to maintain the child of his wife by a former husband. If,
however, he takes the child into his family, he is responsible for its
maintenance and education while it lives with him.
§2. A father may be liable for necessaries sold to a child. But to be so
liable, it must be proved that the contract for the articles was made by
his actual authority, or the circumstances must be sufficient to imply
authority; or that neglect to provide for the child, or some other fault
on the part of the father, rendered assistance to the child necessary.
Being bound to provide for his children, the father has a right to their
labor or service; and he may recover their wages from any person
employing them without his consent.
§3. In general, a minor cannot bind himself by contract. If he lives
with his father or guardian, by whom he is properly supplied, he can not
bind himself even for necessaries. But if, on contracting a debt, he
agrees to pay it after he shall have become of age, he will then become
liable. If a minor has no father or other guardian, his contracts for
necessaries are binding upon him.
§4. If a minor takes an estate and agrees to pay rent, he will be liable
for its payment after he shall have become of age. If he receives rents,
he can not demand them again when of age. If he pays money on a
contract, and enjoys the benefit of the contract and then avoids it when
he comes of age, he can not recover back the consideration paid. And if
he avoids an executed contract when he comes of age, on the grounds of
infancy, he must restore the consideration.
§5. Minors are answerable for crimes, and may be indicted and tried,
and, on conviction, be fined and imprisoned. They are responsible also
for acts of fraud. Their age and the peculiar circumstances in which
they were placed, might be such as to exempt them from liability; but in
cases of gross and palpable fraud committed by minors who have arrived
at the age of discretion, they would be bound by a contract.
§6. In general, male infants and unmarried females under eighteen years,
may, of their own free will, bind themselves, in writing, to serve as
_apprentices_ and servants, in any trade or employment; males until the
age of twenty-one, and females until the age of eighteen years, or for a
shorter time. But the minor must have the consent of the father; or if
the father is dead, or disqualified by law, or neglects to provide for
his family, consent must be had of the mother; or, if the mother is dead
or disqualified, then of the guardian.
§7. Pauper children may be bound out by the officers having charge of
the poor. And the laws of many of the states, perhaps of most or all of
them, very properly require, that a person, to whom a poor child is
bound, shall agree to cause such child to be taught to read and write,
and, if a male, to be also instructed in the general rules of
arithmetic.
§8. Masters have a right to correct their apprentices with moderation
for negligence and misbehavior; and they may recover damage at law of
their apprentices for willful absence. On the other hand, a master may
be prosecuted for ill usage to his apprentice, and for a breach of his
covenant. A master is liable to pay for necessaries for his apprentice,
and for medical attendance, but he is not so liable in the case of a
hired servant.
§9. When an apprentice becomes immoral and disobedient, an investigation
of the matter may be had by the proper authorities; and for good cause
the indenture may be annulled, and the parties discharged from their
obligations. Upon the death of a master, an apprenticeship is dissolved.
§10. There is, it is believed, no statute law in any state, particularly
defining the rights and obligations of _hired servants_ and the persons
employing them. Both are obliged to fulfill their agreement. If a hired
servant leaves the service of his employer, without good cause, before
he has worked out the time for which he was hired, he cannot recover his
wages. And for immoral conduct, willful disobedience, or habitual
neglect, he may be dismissed. On the other hand, ill usage, or any
failure on the part of the employer to fulfill his engagement, releases
the laborer from his service.
§11. How far a master is answerable for the acts of his hired servant,
is not clear. As a general rule, the master is bound for contracts
made, and liable for injuries done, by a servant actually engaged in the
business of his master, whether the injury proceeds from negligence or
from want of skill. But for an injury done by a willful act of the
servant, it is considered that the master is not liable. If the servant
employs another to do his business, the master is liable for the injury
done by the person so employed. But a servant is accountable to his
master for a breach of trust, or for negligence in business, or for
injuring another person in his master's business.
Chapter L.
Right of Property. How Title to property is acquired; Wills and
Testaments Title to Property by Descent.
§1. Every citizen of the United States is capable of holding lands, or
real estate, and of taking them by devise, descent, or purchase, and of
selling and conveying away such estate. Aliens, by common law, have not
this power. In many of the states, however, this disability has been
removed by statute. On declaring their intention to become citizens, and
complying with certain regulations, aliens acquire the right to take and
hold real estate to themselves and their heirs. But they may hold and
dispose of personal property without any special enactment.
§2. To _devise_ property is to give or bequeath it by will. A _will_ is
a written instrument in which a person declares his will concerning the
disposal of his property after his death. It is also called _testament_.
This word is from the Latin _testis_, meaning witness. Hence the word
has come to be applied to this instrument, which is the witness or proof
of a person's will. A person making a will is called _testator_; one who
dies without making a will or testament, is called _intestate_.
§3. All persons of full age and sound mind, except married women, may
give and bequeath real and personal estate by a last will and testament.
In many of the states, personal estate may be willed at an earlier age.
In a few states, females at eighteen may make a will of real and
personal estate. In a few states, personal estate may be willed
verbally, if the will is within a specified time reduced to writing, and
subscribed by disinterested witnesses. In Ohio such will must be written
within ten days after the speaking of the testamentary words. A will of
this kind is called a _nuncupative_ will.
§4. In most of the states, laws have been enacted, allowing married
women to hold, in their own exclusive right, all the property, real and
personal, which they owned at the time of marriage, and which they may
acquire after marriage. (Chap. XLVIII, §8.) With the right of possession
is also given, it is presumed, the power of disposing of the property by
will.
§5. A will devising real estate must be subscribed by at least two, in
some slates three, attending witnesses, in whose presence the testator
must subscribe the will, or acknowledge that he subscribed it, and
declare it to be his last will and testament. If the testator is unable
to sign his will, another person may write the testator's name by his
direction; but he should sign his own name as witness to the will.
§6. A testator may revoke or alter his will by a later will or writing,
executed in the same manner. But the second will, to revoke the former,
must contain words expressly revoking it, or directing a different
disposal of the property. A will may also be revoked by a sale of the
property. And any alteration of the estate or interest of the testator
in lands devised, is held to be an implied revocation of the will. Lands
purchased after a will has been made, are not conveyed by it. As a
general rule, a will is also revoked by the subsequent marriage of the
testator and birth of a child, unless the wife and child have been
otherwise provided for. The will of an unmarried woman is revoked by her
marriage.
§7. By the statutes of some states, a child born after the death of the
testator, or born in his lifetime and after the making of the will,
inherits a share of the estate, as if the father had died intestate. In
some other states, the statute goes further, and gives the same relief
to all the children who are not provided for in the will, and who have
not had their portion in the parent's lifetime.
§8. A _codicil_ is an addition or a supplement to a will, and must be
executed with the same solemnity. It is no revocation of a will, except
in the precise degree in which it is inconsistent with it.
§9. After the death of a testator, the will is brought before the court
of probate to be proved. (Chap. XX, §5.) When a will has been duly
proved and allowed, the court issues letters testamentary to the
executor. An _executor_ is a person named in the will of a testator to
carry the will into effect. _Letters testamentary_ give him the power to
act in settling the estate of the deceased. If he refuses to act, or is
not lawfully qualified, the court appoints a person, who, in that case,
is called _administrator_; and the court issues _letters of
administration_ with the will annexed. Letters of administration are
also issued in case of a person dying intestate. They give to the
administrator the requisite authority to settle the estate.
§10. Taking property by _descent_, is the receiving of it from an
ancestor or other relative dying intestate. If a person dies without
making a will, his property falls, or _descends_ to his lawful heirs.
The order or rule of descent is not uniform in this country, being
determined, to a great extent, by the laws of the states. In general,
however, the real estate of an intestate descends, first to his lineal
descendants, that is, persons descending in a direct line, as from
parents to children, and from children to grand-children. The lineal
descendants most nearly related to the intestate, however distant the
relation may be, takes the estate.
§11. If any children of an intestate are dead, and any are living, the
inheritance descends to the children living, and to the descendants of
the children dead, so that each child living shall receive such share as
he would receive if all were living, and the children of those who are
dead such share as the parents would receive if living. Thus, suppose an
intestate had three sons, one of whom is dead, but has left children. In
this case, each of the sons living would share one-third of the
property, and the children of the deceased son the remaining third.
§12. But if the children are all dead, and there are grand-children
living, the grand-children share equally, though not an equal number are
children of each parent. If, for example, an intestate dies leaving no
children, but having had two sons, one of whom had left three children,
and the other two, the five share equally in the estate. The laws of
Rhode Island, New Jersey, North Carolina, South Carolina, Tennessee,
Louisiana, and Alabama, unless recently altered, are exceptions to this
rule. In these states, and perhaps in a few others, though the children
of the intestate are all dead, the grand-children do not share equally,
but those of each stock, or family, take the portion which their parent
would have taken if living.
§13. The order of descent is so different in the states, especially when
there are no lineal descendants of an intestate, that it can be
ascertained only by reference to the laws of each state. As a general
rule, real estate passes, (1.) to the lineal descendants; (2.) to the
father; (3.) to the mother; (4.) to the collateral or _side_ relatives,
as brothers, sisters, nephews, nieces, &c. But even to this general rule
there are exceptions in the laws of some states.
§14. The rule of descent given in the preceding sections, it will be
seen, relates to _real_, and not to personal estate. The rule in regard
to real estate, and that relating to personal estate, are generally
somewhat different in the same state.
Chapter LI.
Deeds and Mortgages.
§1. In whatever manner a person acquires possession of real estate,
whether by devise, descent, purchase, or gift, evidence of possession
consists, usually, in a _deed_, which is a written instrument conveying
real estate to an heir, a purchaser, or a donee. A deed of land sold,
contains the names of the seller and the purchaser, the consideration,
or sum paid for it, and a description of it; and in express words grants
and conveys all the interest of the seller or grantor to the purchaser
and his heirs forever: and the seller affixes his name and seal to the
instrument, usually in the presence of one or more subscribing
witnesses.
§2. But a deed thus executed does not give to the purchaser sure
possession of the land, until it has been duly recorded in the office of
the proper recording officer of the county in which the land lies; or in
the office of the town clerk, in those states in which conveyances are
required to be there recorded. If the land should be conveyed by the
seller to a subsequent purchaser who should get his deed first on
record, such purchaser would hold the land, unless, before purchasing,
he had had notice of a sale and deed to a prior purchaser.
§3. In some states, a reasonable time is allowed a purchaser to get his
deed recorded before he loses his right of possession by the earlier
recording of another's deed. In some other states, the time is fixed by
law, and varies in these different states from fifteen days to two
years. But a deed, though not recorded in season to secure the title
against a second purchaser, or though not recorded at all, is good
against the sellor or grantor; and the dispossessed purchaser has a
lawful claim against him for the value of the land.
§4. A recorder or register may not record a conveyance of land without
proof that it was executed by the person named in it as the maker or
grantor. This proof consists, usually, in a certificate of a proper
officer, on the back or margin of the deed, stating that the person so
named appeared before him, and, being duly sworn, acknowledged that he
was the person who had executed the deed. In every state, judges of
courts and justices of the peace, mayors of cities and aldermen,
notaries public, or some of these officers, and commissioners of deeds
appointed for that special purpose may take acknowledgments. In New York
and a few other states, the acknowledgment may be dispensed with, and
the execution of the deed may be proved by the subscribing witnesses.
Deeds duly acknowledged, are, with the acknowledgments, copied by the
recorder, word for word, in books provided for that purpose.
§5. As a person can not give a good title unless he has one himself, the
seller or grantor covenants and agrees that he is seized of the premises
in _fee-simple_, (meaning that he is the absolute owner,) and that he
will _warrant and defend_ the premises in the quiet and peaceable
possession of the purchaser and his heirs forever. Hence such deed is
called a _warranty deed_, [For definition of _fee_ and _fee-simple_, see
Chap. LIII, §1.] A _quit-claim_ deed merely conveys the interest or
claim of the grantor. It contains no warranty of title against any other
claimant.
§6. A _mortgage_ is a grant of land as security for the payment of
money, on condition that, if the money shall be paid according to
contract, the grant shall be void. When only a part of the purchase
money is paid on receiving a deed, the purchaser usually executes a
mortgage to the seller, pledging the land as security for the remainder
of the purchase money. And if the money shall not be paid as agreed, the
land may be sold; but if sold for more than the amount due, the overplus
is to be paid to the mortgager.
§7 To effect a full conveyance of real estate, a wife must join with
her husband by signing the deed with him; or, in case of the husband's
death in her lifetime, she would be entitled, for life, to the use of
one-third of the estate. This interest of a widow in the estate of a
deceased husband, is called _dower_. It is necessary also for the wife
to acknowledge, before the officer taking the acknowledgment, and apart
from her husband, that she signed the deed freely, and without
compulsion of her husband. In some states, the acknowledgment of the
wife out of the presence of her husband is not required.
Chapter LII.
Incorporeal Hereditaments. Right of Way; Aquatic Rights, &c.
§1. The term _incorporeal hereditaments_ may, to some readers, need
explanation. A _hereditament_ is a thing capable of being inherited.
Land, and all things attached to it by the course of nature or the hands
of men, as trees, herbage, water, buildings, &c., which are comprehended
in the term real estate, are _corporeal_ hereditaments. _Incorporeal_
hereditaments are inheritable rights which grow out of corporeal
inheritances, or which consist in their enjoyment; as the right of
pasturing a common; a right of passage over the land of another; a right
to the use of waters, sometimes called _aquatic rights_, &c.
§2. A _right of way_ is a right of private passage over another man's
ground. This right is sometimes granted by the owner of the soil; and to
make it a freehold right, it must be created by deed, though it be only
an easement upon the land of another, and not an interest in the land
itself. An _easement_ is, in general, an accommodation. In law, it is
any privilege or convenience which one has of another, by grant or
otherwise, as a right of way, &c. By the grant of an easement, the
grantee acquires no other right than what is necessary to the fair
enjoyment of the privilege.
§3. If it is a mere personal right, it can be enjoyed only by the owner
of the right, and when he dies, the right dies with him. But a right of
way belonging to an estate may be conveyed when the land is sold. Thus,
if a man owns lot A and lot B, and he used a way from lot A, over lot B,
to a mill, or to a river; and if he sells lot A with all ways and
easements, the grantee will have the same privilege of passing over lot
B as the grantor had.
§4. A right of way may arise from necessity. If a man sells a part of
his land, and there is no other way to the remaining part, he is
entitled to a right of way to it over the land sold. And if a man sells
land wholly surrounded by his own land, the purchaser is entitled to a
right of way to it over the other's ground, even though no such right is
reserved. The right of way passes to the purchaser, as necessarily
incident to the grant, or included in it.
§5. A man having license to conduct lead pipes through the land of
another, may enter on the land, and dig therein, to mend the pipes. The
general rule is, that when the use of a thing is granted, every thing is
granted which is necessary to the enjoyment of its use.
§6. A person has a temporary right of way over land adjoining a public
highway, if the highway is out of repair, or is obstructed by snow, a
flood, or otherwise. But the right of going upon adjoining lands does
not apply to private ways. A person having a right to a private way over
another's land, has no right to go upon adjoining land, even though the
private way is impassable.
§7. A right of way sometimes arises by _prescription_; which is the
right or title to a thing derived from long use and enjoyment. Such is
the right which, by common law, a man acquires to land which has been
peaceably held by himself, or by himself and preceding owners, for
twenty years. Although the first occupancy was obtained without grant,
the long free use of the land is, in law, equivalent to a grant, and
implies a valid title. In some states, shorter periods have been fixed
by statute in which a right by prescription may be obtained. In
Pennsylvania, and Ohio, the period is fixed at twenty-one years.
§8. The owners of land adjoining highways, have a right to the soil to
the centre of the road: the public have only a right of passage while
the road is continued. The owners of the soil may maintain a suit
against any person who encroaches upon the road, or digs up the soil, or
cuts down trees growing on the side of the road. They may carry water in
pipes under it, and have every use of it that does not interfere with
the rights of the public.
§9. Every proprietor of lands adjoining a stream, has naturally an equal
right to the use of the water that flows in the stream adjacent to his
lands, "as it was wont to run." Each may use the water while it runs
upon his own land; but he can not unreasonably detain it, or give it
another direction; and he must return it to its ordinary channel when it
leaves his estate. He can not, by dams or any obstruction, cause the
water injuriously to overflow the grounds of the neighbor above him, nor
so use or apply it as materially to injure his neighbor below him.
§10. But this right to the use of waters, as an easement to the land,
may be acquired and lost, or enlarged and abridged, by prescription. A
man may diminish the quantity of the water, or corrupt its quality, by
the exercise of certain trades; and by such use of the water for a
sufficient length of time, he is in law _presumed_ to have acquired it
by grant: and this presumption is the foundation of his right by
prescription. The time of such use and enjoyment of water necessary to
establish such right is twenty years, except in states in which a
different period is fixed by statute. (§7.)
§11. It is a general and established doctrine, that an exclusive and
uninterrupted enjoyment of water, or of light, or of any other easement,
in any particular way, for twenty years, or for any other period which
in any particular state is the established period of limitation, is a
sufficient enjoyment to raise a presumption of title as against the
right of any other person. The enjoyment is deemed to have been
uninterrupted, whether it has been continued from ancestor to heir, and
from seller to buyer; or whether the use has been enjoyed during the
entire period by one person.
§12. As a right may be acquired by use, so it may be lost by disuse; and
as an enjoyment for twenty years, or such other period as is prescribed
by statute, is necessary to establish a right; an absolute
discontinuance of the use for such period will raise the presumption
that the right has been released or extinguished. Thus a title to land
may pass from its actual owner by non-occupancy for the period above
stated; and a title to it may be acquired by an undisturbed occupant who
shall hold it in peaceable and uninterrupted possession for the same
period.
Chapter LIII.
Leases:--Estates for Life; Estates for Years; Estates at Will; Estates
by Sufferance; Rent, &c.
§1. Real estate, the title to which is conveyed by deed, as
distinguished from other estates in land, is called an _estate of
inheritance_. An estate of inheritance, that is, an estate in lands that
may be transmitted by the owner to his heirs, is a _fee_. No estate is
deemed a fee unless it may continue forever. When it is a pure and
absolute inheritance, clear of any qualification or condition, it is
called a _fee-simple_.
§2. An interest in lands which is to continue for a limited period, is
usually conveyed by a written instrument called lease. _To lease_, means
to let; but generally to grant the temporary possession of real estate
to another for rent or reward. Sometimes the word _demise_ is used for
ease. The landlord, or person letting the estate, is called _lessor_;
and the tenant, or person to whom the land is leased, is called
_lessee_. Leases for a term longer than one year, are usually required
to be sealed, and in some states, proved and recorded also, as deeds and
mortgages.
§3. These limited interests in land are divided into estates for life,
estates for years, estates at will, and estates by sufferance. An
_estate for life_ is an estate conveyed to a person for the term of his
natural life. Life estates held by lease, however, are not common in
this country. Another kind of life estate is that which is acquired, not
by the acts of the parties, as by lease, but by the operation of law.
Such is the right of a husband to the real estate of his wife acquired
by her before or after marriage. Such also is the right of dower. (Chap.
XLVIII, §6, 7. Chap. LI, §7.)
§4. An _estate for years_ is a right to the possession and profits of
land for a determinate period, for compensation, called rent; and it is
deemed an estate for years, though the number of years should exceed the
ordinary limit of human life. And if a lease should be for a less time
than a year, the lessee would be ranked among tenants for years. Letting
land upon shares for a single crop is not considered a lease; and
possession remains in the owner.
§5. A lessee for years may assign over his whole interest to another,
unless restrained by agreement not to assign without leave of the
lessor. And he may underlet for any less number of years than he himself
holds; but he is himself liable to the landlord.
§6. A tenant for years, whose lease expires after the land is sown or
planted, and before harvest, is not entitled to the crop, if the lease
is for a certain period; for, knowing that his lease would expire before
harvest time, he might have avoided the loss of his labor. But if the
lease for years depends upon an uncertain event, the occurring of which
would terminate the lease before the expiration of the term, the tenant
would be entitled to the crop, if there were time to reap what has been
sown, in case he should live. It is believed that, in a few states, the
tenant has a right to the crop from grain sown in the autumn before the
expiration of the lease, and cut the next summer after its expiration.
§7. Where there is an express agreement to pay rent, the tenant can not
avoid payment even if the premises are destroyed by fire or flood, or if
he is in any other manner deprived of their enjoyment and use, even
without any default on his part. Hence, if land should be leased with a
flock of sheep, and the sheep should die, the full rent must be paid.
But if the land should be recovered from the tenant by a person having a
better title than that derived from his landlord, he is not liable for
rent after his use of the land has ceased.
§8. A tenant can not make repairs at the expense of the landlord, or
deduct the cost of them out of the rent, unless by special agreement.
But if the premises, from want of repair, have become unsafe or useless,
the tenant from year to year may quit without notice; and he would not
be liable for rent after the use had ceased to be beneficial.
§9. When rent is due, payment may be made or tendered upon the premises;
and if no place of payment has been agreed on, a personal tender off the
land is also good. As to the time of payment, where there is no special
agreement to the contrary, rent is due yearly, half-yearly, or
quarterly, according to the usage of the country. Where there is no
particular usage, the rent is due at the end of the year.
§10. An _estate at will_ is where land is let to another, to hold at the
will of the lessor. Tenancies at will, strictly such, are not common.
Such estates, when no certain term is agreed on, are construed to be
tenancies from year to year, and each party is bound to give reasonable
notice of an intention to terminate the lease. If the tenant holds over
after the expiration of a lease for years, either by express consent, or
under circumstances implying consent, it is held to be evidence of a new
contract without any definite period, and is construed to be a tenancy
from year to year: and in those states where the old English rule
prevails, six months' notice must be given the tenant to quit.
§11. What turns leases for uncertain terms into leases from year to
year, is the landlord's reserving annual rent. A tenant placed on land
without any terms prescribed or rent reserved, is strictly a tenant at
will; and it has been held that such tenant is not entitled to notice to
quit; but the general rule now seems to be, that even in such case the
six months' notice is necessary; or, as in some states, a reasonable
notice.
§12. An _estate at sufferance_ is that which is acquired by a tenant who
has come into lawful possession of land, but who holds over by wrong
after his interest has ceased. He is not entitled to notice to quit; and
where there is no special statute, he is not liable for rent; and the
landlord may enter, and remove the tenant and his goods with such gentle
force as may be necessary. If undue force is used, the landlord would be
liable to an action for forcible entry and detainer.
Chapter LIV.
Contracts in General.
§1. A _contract_ is an agreement between two or more persons, by which
the parties agree to do, or not to do, a particular thing. Contracts are
_executory_, when the stipulations remain to be executed, or when one
party agrees to sell and deliver, at a future time, for a stipulated
price, and the other agrees to accept and pay. Contracts are _express_,
when the parties contract in express words, or by writing; _implied_,
when an act has been done which shows that the parties must have
intended to contract; as, when a person employs another to do some
service, it is presumed that the party employing intended to pay for the
labor performed.
§2. Contracts are also distinguished as specialties and simple
contracts. A _specialty_ is a contract under seal; as a deed, or a bond.
But we shall here consider chiefly that common class of contracts called
_simple contracts_, or _contracts by parol_. _Parol_ signifies by word
of mouth. Applied to contracts, however, it not only means verbal
contracts, but includes written contracts not under seal. Both are
simple contracts; the distinction between them is in the mode of proof.
The mutual understanding of the parties to a verbal contract may be
proved by parol evidence. But as the real intention of parties is more
likely to be expressed in a written contract, the rule of law is, that
parol evidence may not be admitted to contradict or vary the terms of a
written instrument. It may however be admitted to explain what is
doubtful, or to supply some deficiency.
§3. To make a valid contract, _the parties must be capable of
contracting_. They must be of sound mind. Hence idiots and lunatics are
generally incompetent to make contracts. Contracts by lunatics and
idiots are not necessarily void, but only _voidable_; the validity or
invalidity depending upon facts to be proved. To avoid a contract on the
ground of mental imbecility, it must be proved that the party
contracting was at the time incompetent. But if a general derangement is
once established or conceded, the person is presumed to be incompetent;
and the party seeking to enforce the contract must prove the other to
have been sane. The general rule in the case of idiots is, that if the
party is incapable of acting in the ordinary affairs of life, or in the
particular contract, his idiocy will annul the contract.
§4. Drunkards also are incompetent to contract while in a state of
intoxication, provided the drunkenness is such as to deprive them of
reason for a time, and create impotence of mind. But for absolute
necessaries, if the drunkard consumes them during his drunkenness, or
keeps them after becoming sober, he is liable. Intoxication only renders
a contract voidable, not void, as the party intoxicated may adopt it on
recovering his understanding.
§5. Another requisition to a valid contract, is the _mutual assent of
the parties_. A mere offer by one party not assented to or accepted by
the other, constitutes no contract. Assent must also be given freely. A
contract entered into under duress, or compulsion, is not binding; as
where assent is extorted by threats of personal injury. Assent must also
be given with a knowledge of facts. A contract made under an injurious
mistake, or ignorance of a material fact, may be avoided, even though
the fact is not fraudulently concealed. But a mistake made through
ignorance of the law, will not render a contract void.
§6. A _valuable consideration_ also is necessary to a valid contract. A
_consideration_ is what is given or done, or to be given or done, as the
cause or reason for which a person enters into an agreement. Thus, the
money given or offered, for which a man agrees to perform certain labor,
is the consideration of the agreement. So the money or other thing for
which a promissory note is given, is the consideration. A valuable
consideration is any thing that is either a benefit to the party
promising, or some trouble or injury to the party to whom the promise is
made.
§7. Mutual promises are sufficient considerations to make a contract
binding; but they must be made at the same time. Such promises support
each other. The promise of one party constitutes a sufficient
consideration for a promise by the other party. In case the parties are
distant from each other, if the proposition is made in writing and sent
by mail, and a letter of acceptance is written and put in the mail, the
contract is complete, unless, before mailing the letter of acceptance,
a second letter has been received containing a retraction of the
proposal.
§8. Promises which are wholly gratuitous are void; because, being
neither a benefit to the promiser, nor an injury to the promisee, they
are not regarded in law as a valuable consideration. Hence,
subscriptions to public works and charitable, literary, and religious
institutions, if they are merely gratuitous, can not be collected,
unless they have operated to induce others to advance money, make
engagements, or do other acts to their own injury.
§9. As gratuitous promises are void for want of consideration, so merely
gratuitous services, as voluntarily assisting to save property from
fire, or securing beasts found straying, or paying another's debts
without request, afford no consideration upon which payment for their
value can be lawfully claimed; there being no promise of compensation.
But if a person knowingly permits another to do certain work, as plowing
his field, or hoeing his corn, although the work may have been commenced
without his order or request, his consent will be regarded in law as an
_implied promise_ to pay for the value of the labor, unless the
circumstances of the case are such as to forbid the presumption.
§10. A consideration must also be _possible_, and in accordance with
law, sound policy, and good morals. A contract founded upon an
impossible consideration is void. No man can be lawfully bound to do
what is not in the power of man to do. But it is otherwise, if the thing
to be done is only at the time impossible in fact, but not impossible in
its nature. Hence, inability from sickness to fulfill an agreement, or
the impossibility of procuring an article of a certain kind or quality
which a person has agreed to deliver, would not exempt him from
liability in damages for the non-performance of his contract.
§11. A contract, the consideration of which is _illegal_ or _immoral_,
may be avoided by either party. A man can not be held to an agreement to
do acts forbidden by the law of God or by the laws of the state. But if
an illegal contract has been executed; in other words, if the wrong has
been done, the party in the wrong can not renounce the contract; for the
general rule is, that no man can take advantage of his own wrong; and
the innocent party alone has the privilege of avoiding the contract. If
both parties are guilty, neither can, in ordinary cases, obtain relief
on a contract that has been executed.
§12. The rule that a consideration is necessary to a valid contract
applies to all contracts and engagements not under seal, except bills of
exchange and negotiable notes after they have passed into the hands of
an innocent indorsee. (See Promissory Notes.) In contracts under seal, a
consideration is necessarily _implied_ in the solemnity of the
instrument.
§13. It is declared by the English statute of frauds, which prevails
generally in the United States, that an agreement which is not to be
performed within one year from the time of making it, shall not be
valid, unless such agreement, or some memorandum or note thereof, is in
writing, and signed by the party to be charged. The statutes of some of
the states have adopted this provision of the English statute, and
require further, that a special promise to answer for the debt, default,
or misdoing of another person, and an agreement or promise upon
consideration of marriage, (except mutual promises to marry,) shall
likewise be void without such writing, in which the consideration shall
be expressed.
Chapter LV.
Contracts of Sale.
§1. A Sale is a transfer of the title to property to another person for
a certain price; or the exchange of a commodity for its equivalent value
in money. The exchange of one commodity for another, is _barter_.
Unless the absolute title is conveyed, the contract is merely a
mortgage. The same general principles of law which apply to contracts in
general, are applicable to contracts of sale, viz.: the competency of
the parties to contract; the sufficiency of the consideration; its
legality and morality; the assent of the parties; and the absence of
fraud.
§2. To make a sale valid, the thing to be sold must have an _actual or a
possible existence_, and be _capable of delivery_. Thus, if A sells a
horse or certain goods to B; and if, at the time of the sale, the horse
is dead, or the good? are destroyed; the sale is void. If the goods are
partially destroyed, the buyer may either take them at a proportionate
reduction of the price, or abandon the contract.
§3. But, although the thing to be sold has no actual and present
existence; yet if its future existence is possible, and if it is the
product or increase of something to which the seller has a present
right, it is the subject of sale. Thus, a man may sell the wool that may
grow on his sheep, the fruit that may grow on his trees, or the future
increase of his cattle. But he cannot sell the products of the sheep or
cattle which he may hereafter buy. A man may, however, agree to procure
goods which he has not, and to furnish at a future time, for a certain
price; and his contract will be good; though this is not strictly a
sale, but an agreement to sell.
§4. There can be no sale without a _price_; and the price must be fixed
and definite, or susceptible of being ascertained by reference to some
criterion prescribed in the contract, so as to render any further
negotiation of the parties unnecessary. Thus, a man may agree to pay
what shall be the market price at a particular time, or a price to be
fixed by a third person. The price must also be payable in money or its
negotiable representative, as notes or bills. One article given for
another is merely _barter_. The same principles of law, however, govern
in both cases.
§5. There must be a _mutual consent of the parties_, and the contract is
binding when a proposition made by one party is accepted by the other.
The negotiation may be carried on by letter, as before stated. (Chap.
LIV, §7.)
§6. In contracts of sale which are not perfected at once by payment and
delivery, certain formalities are to be observed. These forms generally
are prescribed by what is called the English statute of frauds, which
requires, (1.) that the buyer shall accept and receive part of the goods
sold; or (2.) give something in earnest to bind the bargain, or in part
payment; or (3.) that some note or memorandum in writing of the bargain
shall be made and signed by the party to be charged, or by his
authorized agent. These provisions, however, apply only to cases in
which the price of the goods sold is ten pounds sterling, or more. The
same rule prevails generally in this country, with slight variations in
some states. The price of the goods sold, in cases to which the
provisions of that statute apply, is fixed by law in many of the states,
and varies from $30 to $200.
§7. To complete a contract of sale, and pass the title to the property
to the buyer, there must be a _delivery of the goods sold_. When the
goods are such as cannot be manually or immediately delivered, or are
not in the actual custody of the seller, the law does not require an
actual delivery. But they must be placed in the power of the purchaser;
or there must be such acts and declarations of the parties as imply a
change of ownership. When the right of property has been transferred to
the buyer, whether by an actual or only a constructive delivery, he
immediately assumes the risk of the goods; so that if they shall be
afterward injured or destroyed, he must bear the loss.
§8. When nothing is said at the sale as to the time of delivery, or the
time of payment, the buyer is entitled to the goods on payment or tender
of the price, and not other wise; for, though he acquires the _right of
property_ by the contract of sale, he does not acquire the _right of
possession_, until he pays or tenders the price. But if the seller
delivers the goods absolutely, and without fraudulent contrivance on
the part of the buyer, the buyer will hold possession of them.
§9. But when goods are sold on credit, and nothing is said as to the
time of delivery, the buyer is immediately entitled to the possession.
If, however, it is ascertained, before the buyer obtains possession of
the goods, that he is insolvent, or so embarrassed as to disable him
from meeting the demands of his creditors, the seller may stop the goods
as a security for the price. But if they are stopped without good cause,
or through misinformation, the buyer is entitled to the goods, and to
damages which he may have sustained in consequence of their stoppage.
§10. In the sale of a chattel, if the seller has possession of the
article, and sells it as his own, he is understood to _warrant the
title_. A fair price implies a warranty of title; and the purchaser may
have satisfaction from the seller, if he sells goods as his own, and the
title proves deficient. But if the possession is at the time in another,
and there is no covenant or warranty of title, the party buys at his
peril. It is thought, however, if the seller affirms that the property
is his own, he warrants the title, though it is not in his possession.
§11. With regard to the _quality_ of the thing, the seller is not bound
to make good any deficiency, except under special circumstances, unless
be expressly warranted the goods to be sound and good, or unless he made
a fraudulent representation or concealment concerning them. The rule is,
if there is no express warranty by the seller, nor fraud on his part,
and if the article is equally open to the inspection of both parties,
the buyer who examines the article for himself, must abide by all losses
arising from latent defects equally unknown to both parties.
§12. But this rule does not reasonably apply to cases in which the
purchaser has ordered goods of a certain character, or in which goods of
a certain described quality are offered for sale, and, when delivered,
they do not answer the description. There being no opportunity of
examining them, there is an _implied_ warranty of the quality. An
intentional concealment or suppression of a material fact, when both
parties have not equal access to means of information, is unfair
dealing, and renders the contract void.
§13. As a general rule, each party is bound to communicate to the other
his knowledge of material facts, provided he knows the other to be
ignorant of them, and they are not open and naked, or equally within the
reach of his observation. Surely the _moral law_ and fair dealing
require, in all cases, a full disclosure of all defects within the
knowledge of the contracting parties.
Chapter LVI.
Fraudulent Sales; Assignments; Gifts, &c.
§1. The title to property is sometimes transferred with fraudulent
intent. A debtor, to place his property beyond the reach of his
creditors, sells or assigns it to others by way of mortgage, under the
false pretense of securing the payment of a debt; the property to remain
in the possession and use of the assignor.
§2. Any agreement which operates as a fraud upon third persons, is void.
It is a rule of common law, that all deeds of gift, and all transfers of
goods and chattels made by any person to secure them for his future use,
shall be void as against creditors; and that if property assigned or
sold remains with the seller or assignor, the transaction is to be
presumed fraudulent. But whether such conveyance of goods is only _prima
facie_ (at first view) evidence of fraud, which the vendee or assignee
may rebut by proving the sale or assignment to have been made honestly
and in good faith; or whether the transaction is fraudulent in point of
_law_, and void, is a question upon which the decisions of the courts
in England as well as those in this country differ, and which,
therefore, may be considered as not conclusively settled.
§3. Some have made a distinction between bills of sale and assignments
that are absolute and those that are conditional. The supreme court of
the United States has affirmed the doctrine that an absolute and
_unconditional_ bill of sale or conveyance, when the property is
retained in possession, is of itself conclusive evidence of fraud; in
other words, it is presumed to be fraud in point of law, whatever it may
be in fact. It has been held by the same court, that a conveyance with a
_condition_ that the property is to remain with the vendor until the
condition shall be performed, or a conveyance in the nature of a
mortgage or security, expressing an agreement between the parties, that
the mortgager shall retain possession, is valid.
§4. In some states, the doctrine established by the courts is, that a
continuance of possession is only _prima facie_ evidence of fraud; in
which case the mortgagee or assignee is allowed to show by proof, that
the conveyance was made in good faith and for a valuable consideration.
In other states, the strict rule prevails, that, without a change of
possession, the transaction is fraudulent _in law_; in which case the
assignee, or person claiming the property under the assignment, is not
permitted to show that, in point of _fact_, the transaction was _bona
fide_, (in good faith.)
§5. The rule that holds every conveyance to be fraudulent unless the
property immediately changes hands, often operates to inconvenience and
even injury of honest debtors. A debtor may be obliged to part with
property, however convenient or needful its present use may be to him,
when, but for this stringent rule of law, he might borrow the money to
pay a debt, or procure a postponement of payment, and retain the use of
the property pledged.
§6. In many of the states, this perplexing question has been settled by
statute. In the state of New-York, the law expressly declares, that a
sale or an assignment without immediate delivery and a change of
possession, shall be presumed to be fraudulent and void as against
creditors, unless the party claiming the property under the assignment
shall make it appear that the same was made in good faith, and without
any attempt to defraud. Laws more or less similar to this, and securing
to the assignor the use of the mortgaged property, are believed to exist
in a majority of the states. The instruments conveying the property are
usually called _chattel mortgages_, and are required to be recorded as
deeds; in New-York, and perhaps a few other states, only filed in the
town or county clerk's office.
§7. In the sale of personal property, though there should be a judgment
against the vendor, and the purchaser should have notice of it, that
fact would not of itself render the sale fraudulent. But if the
purchaser, knowing of the judgment, purchases with the view or purpose
to defeat the creditor's execution, the transaction is fraudulent. The
question of fraud depends upon the motive.
§8. Assignments are sometimes made by debtors for the benefit of their
creditors. A person deeply indebted, or in embarrassed circumstances,
assigns his property, in trust, to one or more persons, who are to
dispose of it, and to apply the avails to the payment of his creditors,
or a part of them; for the law does not forbid a debtor's giving a
preference to one or more creditors over others, provided the assignment
is for a sufficient consideration. A debtor may directly assign or
transfer all his property to a single creditor, and the assignment be
valid; but if the value of the property is manifestly excessive, and
disproportionate to the debt which it is intended to cover, the other
creditors have a right to the surplus.
§9. When an embarrassed debtor agrees to pay his creditors a certain
proportion of their claims in consideration of a discharge of their
demands, if he privately agrees to give a better or further security to
one than to others, the contract is void; because the condition upon
which they agree to discharge the debtor is, that they shall share
equally.
§10. A gift, or conveyance founded merely upon a consideration of
affection, or blood, or consanguinity, may be set aside by creditors, if
the grantor was in embarrassed circumstances when he made it; for a man
is bound, both legally and morally, to pay his debts before giving away
his property. But if he is indebted to only a small amount in proportion
to the value of his property, and wholly unembarrassed, the gift is not
rendered voidable by his indebtedness, even though he should afterwards
become insolvent.
Chapter LVII.
Bailment.
§1. The word _bailment_ is from _bail_, French, to deliver. (Chap.
XVIII, §14.) Bailment, in law, is a delivery of goods, in trust, upon
agreement that the trust shall be executed, and the goods restored by
the bailee, when the purpose of the bailment shall have been, answered.
§2. A person who receives goods to be kept and returned without reward,
must keep them with reasonable care, or, if they receive injury, he will
be liable for the damage: in other words, he is responsible only for
gross neglect. Gross neglect is a want of that care which every man of
common sense takes of his own property. A _depositary_, who is a person
with whom goods are deposited, has no right to use the goods intrusted
to him.
§3. A _mandatary_, or one who undertakes to do an act for another
without recompense, in respect to the thing bailed to him, is
responsible for gross neglect, if he undertakes and does the work amiss;
but it is thought that for agreeing to do, and not undertaking or doing
at all, he is not liable for damage.
§4. The borrower of an article, as a horse, carriage, or book, without
reward, is liable for damage in case of slight neglect. But if the
article is applied only to the use for which it is borrowed, is used
carefully by the borrower only, and returned within the time for which
it was borrowed, he is not liable.
§5. Property taken in pledge as security for a debt or an engagement,
must be kept with ordinary care; in other words, the pawnee is
answerable only for ordinary neglect; and if the goods should then be
lost or destroyed, the pawner is still liable for the debt. If the
pawnee derives any profit from the use of the property, he must apply
the profits, after deducting necessary expenses, toward the debt.
§6. Another kind of bailment is the hiring of property for a reward. If
an article is injured or destroyed without any fault on the part of the
hirer, the loss falls on the owner, for the risk is with him.
§7. If work or care is to be bestowed for a recompense on the thing
delivered, the workman is liable for ordinary neglect; and the work must
be performed with proper skill, or he is answerable for damage. If a
tailor receives cloth to be made into a coat, he is bound to do it in a
workmanlike manner.
§8. Innkeepers are in general responsible for all injuries to the goods
and baggage of their guests, even for thefts. But for loss caused by
unavoidable accident, or by superior force, as robbery, they are not
liable.
§9. A person who carries goods for hire in a particular case, and not as
a common carrier, is answerable only for ordinary neglect, unless he
expressly takes the risk of a common carrier.
§10. A common carrier is one who carries goods for hire as a common
business, whether by land or by water, and is responsible to the owner
of the goods, even if robbed of them. He is in the nature of an insurer,
and is answerable for all losses, except in cases of the act of God, as
by lightning, storms, floods, &c. and public enemies, as in time of war.
§11. A common carrier is bound to receive from any person paying or
tendering the freight charges, such goods as he is accustomed to carry,
and as are offered for the place to which he carries. But he may refuse
to receive them if he is full, or if they are dangerous to be carried,
or for other good reasons. He may refuse to take them unless the charges
are paid; but if he agrees to take payment at the end of the route, he
may retain them there until the freight is paid. A carrier must deliver
freight in a reasonable time; but he is not liable for loss by the
freezing of a river or canal during his voyage, if he has used due
diligence.
§12. Proprietors of a stage coach do not warrant the safety of
passengers as common carriers; and they are not responsible for mere
accidents to the persons of the passengers, but only for the want of due
care. Slight fault, unskillfulness, or negligence, either as to the
sufficiency of the carriage, or to the driving of it, may render the
owner responsible in damages for injury to passengers. But as public
carriers, they are answerable for the loss of a box or parcel of goods,
though ignorant of its contents, unless the owner fraudulently conceals
the value or nature of the article, or deludes the carrier by treating
it as of little or no value. Public carriers are responsible for the
baggage of their passengers, though they advertise it as being at the
risk of the owners.
Chapter LVIII.
Principal and Agent, or Factor; Broker; Lien, &c.
§1. An _agent_, or factor, is a person intrusted with the management of
the business of another, who is called _principal_. The words _agent_
and _factor_ both signify a deputy, a substitute, or a person acting
for another; but _agent_ seems to be the more comprehensive term, being
applied to one who is intrusted by another with any kind of business;
_factor_ more properly denotes an agent employed by merchants residing
in other places to buy and sell, and transact certain other business on
their account. A factor, from his being commissioned or authorized to
act for his principal, and especially if allowed a commission, or a
certain rate per cent, of the value of the goods bought or sold, is
called a _commission merchant_.
§2. If a factor advances money on property intrusted to him, he can hold
it until the money shall be refunded, and all charges paid. If the
actual owner of the property is unknown to the factor, the person in
whose name the goods were shipped, is to be deemed the owner.
§3. The right of a factor to hold property against the owner in
satisfaction of a demand, is called _lien_; and the factor may sell the
goods to satisfy his claim; but he must pay the surplus, if any, to the
principal or owner. A factor can not pledge goods intrusted to him for
sale, as security for his own debts. If he disposes of merchandise
intrusted or consigned to him, and applies the avails to his own use,
with intent to defraud the owner, he may be punished by fine and
imprisonment.
§4. How far, in ordinary business, a principal is bound by the acts of
an agent, it is not easy to determine. As a general rule the acts of a
general agent; that is, one who either transacts all kinds of business
for his employer, or who does all acts connected with a particular
business or transaction, or which relate to some particular department
of business, bind his principal, so long as he keeps within the general
scope of his authority, though he may in some special cases act contrary
to his private instructions. But an agent employed for a particular
purpose, if he goes beyond the limits of his power, does not bind his
principal.
§5. An agent is bound, in ordinary cases, to observe the instructions of
his principal, even though an act contrary to such instructions should
be intended for the benefit of the principal. The agent must bear,
personally, all losses growing out of a non-compliance with his orders;
and the profit accruing therefrom goes to the benefit of the principal.
An agent, however, is excused from a strict compliance with his orders,
if, after receiving them, some sudden and unforeseen emergency has
arisen, in consequence of which such compliance would operate as an
injury to the principal, and frustrate his intention.
§6. When an agent receives no instructions, he must conform to the usage
of trade, or to the custom applicable to the particular agency; and any
deviation therefrom, unless justified by the necessity of the case,
renders him solely liable for any loss or injury resulting from it.
§7. An agent is bound to exercise ordinary diligence and reasonable
skill; and he is responsible only for the want thereof. Ordinary
diligence is that which persons of common prudence use in conducting
their own affairs. Reasonable skill is that usually possessed by persons
of common capacity employed in the same business.
§8. If an agent exceed the limits of his authority, he becomes
personally responsible to the person with whom he deals, if the
limitations of his authority are unknown to such person. He is in like
mariner responsible, if he makes a contract in his own name; or if he
does not disclose the name of the principal, so as to enable the party
with whom he deals to have recourse to the principal in case the agent
had authority to bind him. And if the agent even buys in his own name,
but for the principal, and without disclosing his name, the principal
also is bound, provided the goods come to his use. Also if the principal
is under age, or a lunatic, or otherwise incompetent to contract, the
agent is liable.
§9. A _broker_ is an agent employed to negotiate sales between parties
for a compensation in the form of a commission, which is commonly called
_brokerage_. His business consists chiefly in negotiating exchanges; or
in buying and selling stocks, goods, ships, or cargoes; or in procuring
insurances and settling losses; and as he confines himself to one or the
other of these branches, he is called an exchange broker, stock broker,
insurance broker, &c. A broker differs from a factor. He has not the
custody of the goods of his principal. He is merely empowered to effect
the contract of sale; and when this is done, his agency ends. If a
broker executes his duties in such a manner that no benefit results from
them, or is guilty of gross misconduct in selling goods, he is not
entitled to a commission or compensation.
§10. A _lien_, as the claim of a factor upon goods intrusted to him for
sale, has been noticed. (§3.) The right of lien extends to others than
factors. It is intended also for the benefit of manufacturers,
mechanics, and other persons carrying on business for the accommodation
of the public. A tailor has a lien upon the garment made from another's
cloth until he is paid for the making; a shoemaker upon the shoes made
from another's leather; a blacksmith upon the horse he has shod; an
innkeeper upon the horse or goods of his guest; and common carriers upon
the goods they transport. But they cannot hold the property for any
other debt; nor can they sell it to satisfy their claim. Whenever a
person allows property to go out of his possession, he loses his lien.
Chapter LIX.
Partnership.
§1. A partnership is an association formed by contract between two or
more persons, for joining their money, labor, or skill, in lawful
business, the profits to be divided and the loss to be borne by the
partners in certain proportions. It is a partnership if one furnishes
the funds and the other performs the labor; or if, when no money is
necessary, each agrees to do his share of the labor. A partnership or
association of this kind is denominated a _firm_, or _house_.
§2. The act of any one of the firm is considered the act of all, and
binds all; and either of them is liable for all the debts. But if a bill
or note is drawn by one partner in his own name only, without appearing
to be on partnership account, he alone is bound, though it were made for
a partnership purpose. A partner buying goods on his own account for his
individual use, is alone liable; but if they afterward go to the use of
the partnership, all become responsible.
§3. Sometimes a person agrees to receive, by way of rent, a portion of
the profits of a farm, a tavern, or a manufactory; or an agent or a
clerk receives a share of the profits for his labor. But as there is in
these cases no partnership, the persons who buy the stock and hire the
labor are alone responsible.
§4. All the partners must unite in suing and being sued. One who should
conceal his name so as not to be known when the debt is contracted, may
be sued when discovered to be a partner, if he shares in the profits of
the trade.
§5. A partner cannot sell his interest to another person, who is to take
his place in the partnership, without the consent of all the partners:
nor can a partner, without such consent, withdraw when he pleases, and
dissolve the partnership, except in cases in which the partnership is
without any definite term. A partnership is dissolved by the death,
insanity, bankruptcy, or other inability of one of the parties.
§6. When a partnership is dissolved by the withdrawal of any of the
partners, notice of dissolution ought to be duly published, or a firm
may be bound by a contract made by one partner in the usual course of
business and in the name of the firm, with a person who contracted on
the faith of the partnership, and who had no notice of the dissolution.
The same notice is necessary to protect a retiring partner from
continued responsibility. And even if due notice is given, yet, if he
willingly suffers his name to continue in the firm, or in the title of
the firm over the door of the shop or store, he may in certain cases be
liable.
§7. In some of the states, a partnership may be formed by a number of
persons, some of whom are to be responsible only to a limited amount;
and their names are not to be used in the firm. Before a partnership of
this kind can do business, a writing and certificate signed by the
parties stating the terms of partnership, and the amount for which the
_special partners_ (as they are called) are to be responsible must be
recorded. The terms of partnership must also be published in a
newspaper.
§8. In these _limited_ partnerships, as they are termed, the special
partners are liable only to the amount stated in the terms of
partnership. The other partners, called _general partners_, whose names
only are used, and who transact the business, are liable for all the
debts contracted, as in ordinary partnerships. If such partnership is to
be dissolved by act of the parties before the expiration of the term for
which it is formed, notice of dissolution must be filed and recorded,
and published in a newspaper. Such is the law in the state of New York;
and it is presumed to agree, in its most essential provisions, with the
laws of the other states in which these partnerships are authorized.
Chapter LX.
Promissory Notes.
§1. A promissory _note_ is a written promise to pay a specified sum at a
certain time, to a person named, or to his order, or to the bearer. A
common form of a note is the following:
$100. Albany, June 9, 1859.
Three months after date, I promise to pay to James Smith, or
bearer, one hundred dollars, value received.
John Brown.
§2. A note thus payable to Smith or bearer, or to him or his order, is
called _negotiable_, because it may be sold or transferred to any other
person, who has the same power to sue for and collect the money, as
Smith, the original promisee. If it were made payable to Smith _or
order_, he must indorse it by writing his name on the back of it, before
it would pass as a negotiable note. The indorsement is considered as the
order of Smith to the maker to pay it to any other person. But, though
not negotiable, it might be transferred; but the holder must sue in the
name of Smith, and Brown might offset any demands which he has against
Smith.
§3. An indorsement, made by writing the name only on the back of a note,
is called a _blank_ indorsement. A full indorsement is one which points
out the person to whom the note is to be paid. A blank indorsement may
be filled up at any time by the holder. For example: A note is payable
to "John Jay or order," or to "the order of John Jay," who indorses it
in blank which makes it payable to any other holder. Now if any holder
or indorsee wishes it paid to any particular person, he fills up the
blank by writing a request to that effect above the name of the
indorser, thus: "Pay to George Bruce," or "Pay to George Bruce or
order;" who, again, may by indorsement order it paid to some particular
person. Or, if he should indorse it in blank, or order it paid "to the
_bearer_," it would again pass, as at first, by mere delivery.
§4. In common business transactions in the country, notes intended to be
negotiable are usually made payable to bearer, as in the form given.
(§1.) The young reader, or other person inexperienced in business, may
not know why they are not always so written. The making of a note
payable to order protects the holder or owner in case the note should be
lost. Take, for example, the note supposed in the preceding section,
indorsed in blank. Suppose the owner resides in Buffalo, and the maker
in Detroit. The owner writes over the name of John Jay, "Pay to George
Bruce," also residing in Detroit, to whom it is sent by mail, to be by
him presented to the maker for payment. And should the note by accident
or fraud fall into the hands of another, it being payable to Bruce only,
or to his order, the parties are protected from loss.
§5. As a contract is not binding without a valuable consideration,
(Chap. LIV, §6,) the words "value received" are inserted in notes, as
evidence of such consideration. But where there is no statute requiring
the insertion of these words, a note is good without them. Whether they
are inserted or not, the note is presumed to have been given for a
valuable consideration; and the maker, to avoid his obligation to pay
it, must make it appear that no value was received.
§6. A note made by two or more persons may be joint or joint or several.
When it is written, "We promise to pay," it is only a joint note, and
all must be sued together. If written, "We jointly and severally promise
to pay," they may be sued either jointly or separately. Also if written
"I promise to pay," it is treated as a joint and several note. A note
written, "We promise," and signed, A. B., principal, and C. D.,
security, is the joint note of both; and if written, "I promise," and
signed in the same manner, it is the joint and several note of both.
§7. Any person having in possession a negotiable note, though a mere
agent, is deemed the true owner, and may sue it in his own name, without
showing title. The _bona fide_ holder can recover upon the paper, though
it came to him from a person who had stolen or robbed it from the true
owner; provided he took it innocently in the course of trade for a
valuable consideration before it was due, and with due caution. But if
suspicion is cast upon the title of the holder, by showing that the
instrument has got into circulation by force or fraud, then the holder
must show the consideration he gave for it.
§8. Ordinarily, a person can not convey to another a valid title to
property which is not lawfully his own; and hence the purchaser of
stolen goods must give them up to the lawful owner. The exception to
this rule, in the case of promissory notes, seems to be founded in
reason and good policy. The use of negotiable paper in commercial
transactions is of great public convenience; and it is proper that, for
the sake of trade, protection should be given to the holder of such
paper who receives it fairly in the way of business, though it has been
paid, if he received it before it fell due.
§9. But it is equally material for the interests of trade, that the
owner should have due protection. Hence if a person takes a note from a
stranger without inquiring how he came by it; or does not take it in the
usual course of business, or for some responsibility incurred on the
credit of the note, he takes it at his peril. But the owner, in order to
place his right to relief beyond question, ought to use diligence in
apprising the public of the loss of the note.
§10. A person buying a note after it has become due, takes it at his
peril. Although the holder may sue it in his own name, the maker may
offset any demands which he had against the promisee before it was
transferred, as in the case of notes not negotiable. (§2.) But when
notes in which no day of payment is expressed comes under this rule, is
a question to be determined by circumstances. In New Jersey and
Pennsylvania, the words "without defalcation or discount," or words to
that effect, must be inserted in notes, or they may be met by offsets as
notes that are bought after due.
§11. A note made payable in some commodity is not negotiable. If it is
not paid according to the conditions therein expressed, the maker
becomes liable to pay in cash. But in either case, if it passes to a
third person, he can sue it only in the name of the promisee or payee;
and it may be met by offsets as other notes not negotiable, (§2,) and
notes bought after due. (§10.)
§12. Notes payable _on demand_, or in which no time of payment is
mentioned, are due immediately, and no demand of payment is necessary.
But a note payable _at sight_, or at a specified time after sight, must
be presented for payment before it can be sued. If the words "with
interest" are omitted, interest commences at the time the note becomes
due. If payable on demand, it will draw interest from the time when
payment is demanded.
§13. After the day on which a note is made payable, the maker has three
days in which to make payment, which are called _days of grace_. Hence,
a note payable on the first day of the month is not due and suable until
the fourth. If, however, the last day of grace falls on Sunday, or the
fourth of July, or any other day recognized by law as a holiday, or day
of public rest, the last day of grace would be a day earlier. If the
fourth of July or any other holiday should come on Saturday, the note
would be due on Friday. Or if such day should fall on Monday, the last
day of grace would be Saturday.
§14. To hold the indorser of a note responsible, payment must be
demanded of the maker on the last day of grace. As to the time of day
when the demand should be made, it is considered that the maker is
entitled to the latest convenient time within the customary business
hours of the place where the note is presented.
§15. If payment has been demanded and refused, notice thereof must be
given to the indorser; and one entire day is allowed the holder to give
the notice. If the demand is made on Saturday, it is sufficient to give
notice on Monday. If the indorser resides in the same town, he may be
notified personally by the holder, or by a messenger sent to his
dwelling-house, where notice may be given personally, or left in a way
likely to bring it to his knowledge. If the parties reside in different
towns, notice may be sent by mail; in which case, the notice must be
put into the post-office, as early as the next day after the last day of
grace, so as to be forwarded as soon as possible thereafter: or notice
may be sent by a private conveyance or a special messenger.
§16. If, in consequence of the removal of the maker before the note
becomes due, or from any other cause, his residence is unknown, the
holder must make endeavors to find it, and make the demand there;
though, if he has removed out of the state, it is sufficient to present
the note at his former place of residence. If the maker has absconded,
that will, as a general rule, excuse the demand.
§17. Notes, on being transferred, are guarantied by indorsement. If a
person simply writes his name on the back, he is liable as indorser
only. If he guarantees "the payment of the note," he is generally
considered liable as an original promisor. If he guaranties the note
"good," or "collectable," the maker, and the indorsers also, if any,
must be sued, before the guarantor is liable. Strict notice to a
guarantor is not required to bind him, as in the case of an indorser.
But to hold him liable in case immediate notice is not given, or the
note is not immediately sued, it must be shown that he has not suffered
injury from want of notice, or that the note was not collectable of the
maker or indorsers when due. But the kind of liability incurred, whether
that of indorser, original promisor, or surety, by indorsing a note or
guarantying payment, is not the same in all the states. There are sundry
other points in the law relating to promissory notes, on which the
statutes and judicial decisions are not uniform in all the states.
Chapter LXI.
Bills of Exchange; Interest; Usury.
§1. A bill _of exchange_ is a written order or request to a person in a
distant place, to pay a third person a certain sum of money. The
following is a common form:
$1,000. New-York, August 10, 1859.
Twenty days after date, (or at sight, or ten days after sight,) pay
to the order of John Stiles, one thousand dollars, value received,
and charge the same to account of
To George Scott, Thomas Jones.
New Orleans, La.
§2. Bills drawn on persons in foreign countries, are called _foreign_
bills of exchange; those drawn on persons in distant places in our own
country, are called _inland_ bills of exchange. To persons in mercantile
business they are of great convenience, as will be seen from the
following example of their nature and operation.
§3. A, in New-York, has $1,000 due him from B, in New Orleans. A draws
an order on B for that sum, and C, who is going to New Orleans, pays A
the money, takes the order, and receives his money again of B. Thus A is
accommodated by receiving his debt against B, and O has avoided the risk
of carrying the money from place to place. A, who draws the order, or
bill, is called the _drawer_. B, to whom it is addressed, is the
_drawee_; C, to whom it is made payable, is the _payee_. As the bill is
payable to C, or his order, he may, by indorsment, direct the bill to be
paid to D; in which case C becomes the _indorser_, and D, to whom the
bill is indorsed, is called the _indorsee_ or _holder_.
§4. If, when a bill is presented to the drawee, he agrees to pay it, he
is said to _accept_ the bill, and writes his acceptance upon it. An
acceptance may, however, be by parol. The acceptor of a bill is the
principal debtor; the drawer, the surety. The acceptor is bound, though
he accepted without consideration, and for the sole accommodation of
the drawer. But payment must be demanded on the last day of grace; and,
if refused, notice of non-payment must be given to the drawer, as in the
case of an indorsed promissory note. (Chap. LX, §15.)
§5. No precise time is fixed by law at which bills payable at sight or a
certain number of days after sight, must be presented to the drawee for
acceptance; though an unreasonable delay might discharge the drawer. A
bill payable on a certain day after date, need not be presented before
the day of payment, but if presented before due, and acceptance is
refused, it is dishonored; and notice must be given immediately to the
drawer. If a bill has been accepted, payment must be demanded of the
acceptor, when the bill falls due; and if no place is appointed for
payment, the demand must be made at his house or residence, or upon him
personally.
§6. A check upon a bank, (Chap. XXIV, §3,) is another kind of negotiable
paper. It partakes more of the nature of a bill of exchange than of a
promissory note. It is not a direct promise to pay; but it is an
undertaking, by the drawer, that the drawee shall accept and pay; and
the drawer is answerable only when the drawee fails to pay. A check
payable to bearer passes by delivery; and the bearer may sue on it as on
an inland bill of exchange.
§7. When a foreign bill of exchange is to be presented for acceptance or
payment, demand is usually made by a _notary public_; and in case of
refusal, his certificate of the presentment of the bill and of the
refusal, is legal proof of the fact in any court. This certificate is
called _protest_, which means, _for proof_. A protest may be noted on
the day of the demand; though it may be drawn up in form at a future
period. Notaries are appointed in all towns and cities of commercial
importance.
§8. A protest of an inland bill of exchange is not generally deemed
necessary in this country; though it is the practice to have bills,
drawn in one state on persons in another, protested by a notary. No
protest is legal evidence in court, except in the case of a foreign
bill. Yet it is expedient, in many cases of inland bills, to employ
notaries when evidence is to be preserved, because they are easily found
when wanted as witnesses. In some states, bills drawn in one state and
payable in another, are deemed foreign bills; and their protest as such
is required. Notes payable at banks are also protested for non-payment.
§9. _Interest_ is a premium paid for the use of money, or a profit per
cent, received for money lent, or on an unpaid demand. Thus a person
lends $1,000 to another person, who pays for the use of it six per cent,
a year, or $6 for every hundred, as interest. The rate of interest is
fixed by a law of the state.
§10. The established lawful rates of interest in the several states are
as follows: _Six_ per cent, in all but the following: In New-York,
Michigan, Wisconsin, Minnesota, _seven_ per cent.; in Alabama and Texas
_eight_ per cent.; in Louisiana, _five_ per cent.; bank interest _six_;
in California, _ten_ per cent. But there may be taken by special
agreement, in Florida and Louisiana, _eight_ per cent.; in Mississippi,
Arkansas, Ohio, Missouri, Iowa, _ten_; in Texas and Wisconsin, _twelve_;
in Minnesota and California, any rate. In Illinois and Michigan, for
money loaned, it may be _ten_. In Mississippi, for the _bona fide_ use
of money _eight_ per cent.
§11. A rate of interest beyond that which is established by law, is
_usury_. Not only can no more be collected on any contract or obligation
than the legal rate, but in most of the states there is some forfeiture
for taking usurious interest. In a few, the obligation is void, and the
payment of no part of the debt can be enforced by law; in others, twice
or thrice the excess above the lawful interest is forfeited; and in
some, only the excess paid can be recovered.
Chapter LXII.
Crimes and Misdemeanors.
§1. The statutes of each state define the crimes of which its laws take
cognizance. The definitions given in this chapter, agree substantially,
it is presumed, with those of similar crimes in every state in the
union. The statutes also prescribe the penalties, which are not
precisely the same in all the states. Nor is there in any state an equal
measure of punishment inflicted in all cases for the same offense. The
laws usually declare the longest and the shortest terms of imprisonment,
and the highest and lowest fines, leaving the exact measure of
punishment, except for crimes punishable by death, to the discretion of
the judges, to be fixed according to the aggravation of the offense.
§2. The laws of the several states differ in respect to the number of
crimes made punishable by death. In some states the penalty of death is
annexed to the crime of murder only. Treason is punishable by death; but
as this offense is defined and made punishable by the laws of the United
States, not all the states take cognizance of it. If committed in such
states, it is tried in the courts of the United States. In New York,
murder, treason, and arson in the first degree, are punishable by death.
Few states make more than these crimes thus punishable. In two or three
states, the penalty of death has been abolished, and imprisonment for
life substituted.
§3. Crimes punishable by death, are called _capital_ crimes, and their
punishment is called _capital_ punishment. The word capital is from the
Latin _caput_, which means head; and so has come to signify the highest
or principal. Hence, probably, the application of the word capital to
the principal crimes receiving the highest punishment, which was
formerly practiced extensively in other countries by beheading or
_decapitating_ the criminals.
§4. _Treason_ is defined by statute to be, levying war in any state
against the people of the state; or a combination of two or more
persons, attempting by force to usurp or overturn the government of the
state; or in adhering to enemies of the state while separately engaged
in war with a foreign enemy, and giving them aid and comfort.
§5. _Murder_ is the killing of a person deliberately and maliciously,
and with intent to effect death; or killing a person in committing some
other crime, though not with a design to effect death; or in killing a
person purposely and without previous deliberation. The less aggravated
cases of murder, are in some states distinguished as murder in the
second degree, and punished by imprisonment for a long term, or for
life.
§6. _Manslaughter_ is killing a person either upon a sudden quarrel, or
unintentionally while committing some unlawful act. The statutes of New
York define four different degrees of manslaughter.
§7. _Arson_ is maliciously burning any dwelling-house, shop, barn, or
any other building, the property of another. Arson in the first degree,
which is burning an inhabited dwelling _in the night time_, is in some
states punishable with death.
§8. _Homicide_ signifies mankilling. It is of three kinds: felonious,
justifiable, and excusable. When felonious, it is either murder or
manslaughter. _Justifiable_ homicide is that which is committed in the
necessary defense of one's person, house, or goods, or of the person of
another when in danger of injury; or that which is committed in lawfully
attempting to take a person for felony committed, or to suppress a riot,
or to keep the peace. _Excusable_ homicide is the killing of a person by
accident, or while lawfully employed, without any design to do wrong. In
the two last cases there is no punishment.
§9. Intentionally _maiming_ another by cutting out or disabling the
tongue or any other member or limb; inveigling or _kidnapping_;
_decoying_ and taking away children; _exposing children_ in the street
to abandon them; committing or attempting an assault with _intent to
kill_, or to commit any other felony, or in resisting the execution of a
legal process; _administering poison_ without producing death;
_poisoning any well_ or spring of water; are all felonies, and
punishable as such.
§10. _Burglary_ is maliciously and forcibly breaking into and entering
in the night time, any dwelling-house or other building, with intent to
commit a crime. Breaking into and entering a house by day, is considered
a minor degree of burglary.
§11. _Forgery_ consists in falsely making, counterfeiting, or altering
any instrument of writing, with intent to defraud. The word
_counterfeiting_ is generally applied to making false coin or bank
notes, or in passing them; or in having in possession any engraved
plate, or bills unsigned, which are intended to be used for these
purposes.
§12. _Robbery_ is the taking of personal property from another in his
presence and against his will, by violence, or by putting him in fear of
immediate injury to his person. Knowingly to send or deliver, or to make
for the purpose of being sent, a letter or writing, threatening to
accuse any one of crime, or to do him some injury, with intent to extort
or gain from him any money or property, is considered an _attempt to
rob_, for which the offender may be imprisoned.
§13. _Embezzlement_ is fraudulently putting to one's own use what is
intrusted to him by another. To buy or receive property knowing it to
have been embezzled, is to be guilty of the same offense. Embezzling is
usually punishable in the same manner as larceny of the same amount.
§14. _Larceny_ is theft or stealing. The stealing of property above a
certain amount in value is called _grand larceny_, and is a state prison
offense. If the value of the property stolen is of less amount, the
offense is called _petit larceny_, and is punished by fine or
imprisonment in jail or both.
§15. _Perjury_ is willfully swearing or affirming falsely to any
material matter, upon an oath legally administered. _Subornation of
perjury_ is procuring another to swear falsely; punishable as perjury.
§16. _Bribery_ is promising or giving a reward to a public officer, to
influence his opinion, vote or judgment. A person _accepting_ such
bribe, is punishable in the same manner, and forfeits his office, and,
in some states, may never hold another public trust. This offense is not
in all the states punishable by imprisonment in the state prison.
§17. _Dueling_ is a combat between two persons with deadly weapons.
Killing another in a duel is murder, and punishable with death. If death
does not ensue, imprisonment. Challenging, or accepting a challenge to
fight, or to be present as a second, imprisonment. Dueling is not a
punishable offense in every state.
§18. Aiding or attempting to aid a prisoner committed for felony, to
_escape from confinement_, or forcibly rescuing a prisoner charged with
crime, from the custody of a public officer, is a crime. If the offense
for which the prisoner is committed is less than felony, the punishment
is imprisonment in jail, or fine, or both.
§19. _Bigamy_ is the crime of having two or more wives, and is also
called _polygamy_. But bigamy literally signifies having _two_ wives,
and polygamy any number more than one. These words, in law, are applied
also to women having two or more husbands. A person having a lawful
husband or wife living, and marrying another person, is guilty of
bigamy. An unmarried person, also, who shall marry the husband or wife
of another, is punishable in like manner.
§20. _Incest_ is the marrying or cohabiting together as husband and
wife, of persons related to each other within certain degrees.
§21. _Opening a grave_ and removing a dead body for any unlawful
purpose, or purchasing such body knowing it to have been unlawfully
disinterred, is a crime. This offense is in some states punishable by
imprisonment in a county jail, or by fine, and not in a state prison.
§22. Persons sometimes advise or are knowing to the commission of
felonies, but are not actually engaged in committing them. Such are
_accessories_. He who advises or commands another to commit a felony, is
called an _accessory before the fact_, and is punished in the same
manner as the principal. If he conceals the offender after the offense
has been committed, or gives him any aid to prevent his being brought to
punishment, he is an _accessory after the fact_, and may be imprisoned
or fined.
§23. _Assault and Battery_ is unlawfully to assault or threaten, or to
strike or wound another. Besides being liable to fine and imprisonment,
the offender is liable also to the party injured for damages.
§24. A _riot_ is the assembling together of three or more persons, with
intent forcibly to injure the person or property of another, or to break
the peace; or agreeing with each other to do such unlawful act, and
making any movement or preparation therefor, though lawfully assembled.
When riotous persons are thus assembled, and are proceeding to commit
offenses, any judge, justice, sheriff, or other ministerial officer, may
in the name of the state, command them to disperse. If they refuse, the
peace officers are required to call upon all persons near to aid in
taking the rioters into custody. Persons refusing to assist may be
fined.
§25. A sheriff or other officer voluntarily suffering a prisoner charged
with or convicted of an offense, to _escape_, from his custody, is
guilty of a misdemeanor. To _rescue_ a prisoner thus charged or
convicted, is punishable in a similar manner. It is also a misdemeanor
to assist a criminal, with a view to effect his escape, though he does
not escape from jail.
§26. A person taking upon himself to act as a public officer, and taking
or keeping a person in custody unlawfully or without authority, is
_false imprisonment_; for which the offender may be fined or imprisoned.
§27. The offenses mentioned in the last four sections, being of a lower
grade than those defined in the preceding sections, and not being
punishable in a state prison, are usually called _misdemeanors_, and are
punishable by fine or imprisonment in a county jail. There are numerous
other misdemeanors and immoralities, as profane cursing and swearing,
betting and gaming, horse racing, disturbing religious meetings,
sabbath-breaking, trespasses and injury to property, and many disorderly
practices, all of which are punishable in a like manner.
Law of Nations.
Chapter LXIII.
Origin and Progress of the Law of Nations; the Natural, Customary, and
Conventional Laws of Nations.
§1. The _law of nations_ consists of those rules by which intercourse
between nations is regulated. In its present improved state, the law of
nations has not long existed. Ancient nations were little governed by
the principles of natural justice. Little respect was paid by one nation
to the persons and property of the citizens of another. Robbery on land
and sea was not only tolerated, but esteemed honorable; and prisoners of
war were either put to death, or reduced to slavery. By this rule of
national law, commerce was destroyed, and perpetual enmity kept up
between nations.
§2. Within the last three or four centuries, essential improvement in
the law of nations has been made. By the light of science and
Christianity, the rights and obligations of nations have come to be
better understood, and more generally regarded. Commerce also has done
much to improve the law, by showing that the true interests of a nation
are promoted by peace and friendly intercourse.
§3. Hence we find the nations of Europe and America recognizing the same
rules of international law. And as the light and power of Christianity
shall increase, the law of nations will undergo still further
improvements. And it is to be hoped, that, as one of these improvements,
the practice of settling national disputes by war will be abolished, and
the more rational and humane course be adopted, of referring
difficulties which the parties are incapable of adjusting, to some
disinterested power for adjudication.
§4. There are, in every nation or state, courts of justice to try and
punish offenders; but there is no tribunal before which one nation can
be brought to answer for the violation of the rights of another. Every
nation, however small and weak, is independent of every other.
Therefore, when injuries are committed by one upon another, the offended
party, unless it chooses quietly to endure the wrong must seek redress,
either by appealing to the sense of justice of the party offending, or
by a resort to force.
§5. Every nation has a right to establish such government as it thinks
proper; and no other nation has a right to interfere with its internal
policy. To this rule, however, some writers make an exception. They hold
that the natural right of a state to provide for its own safety, gives
it the right to interfere where its security is seriously endangered by
the internal transactions of another state. But it is admitted that such
cases are so very rare, that it would be dangerous to reduce them to a
rule.
§6. So cases seldom arise in which one nation has a right to assist the
subjects of another in overturning or changing their government. It is
generally agreed, that such assistance may be afforded consistently with
the law of nations, in extreme cases; as when the tyranny of a
government becomes so oppressive, as to compel the people to rise in
their defense, and call for assistance. When the subjects of any
government have carried their revolt so far as to have established a new
state, and to give reasonable evidence of their ability to maintain a
government, the right of assistance is unquestionable. But it is not
clear that, prior to this state of progress in a revolution, the right
to interpose would be justifiable.
§7. There is a sense, however, in which nations are not wholly
independent. Mankind in the social state, as we have seen, are dependent
upon each other for assistance. (Chap. I, §2.) Such is, in a measure,
the mutual dependence of nations. Although the people of every nation
have within themselves the means of maintaining their individual and
national existence, their prosperity and happiness are greatly promoted
by commerce with other nations. And as laws are necessary to govern the
conduct of the individual citizens of a state, so certain rules are
necessary to regulate the intercourse of nations.
§8. It has been observed, also, that the law of nature is a perfect rule
for all moral and social beings, and ought to be universally obeyed.
Equally binding is this law upon nations. It requires each nation to
respect the rights of all others, and to do for them what their
necessities demand, and what it is capable of doing, consistently with
the duties it owes to itself. And the general good of mankind is as
really promoted by the application of this law to the affairs of
nations, as by its application to the affairs of individuals.
§9. The law of nature applied to nations or states as moral persons, is
called the _natural law of nations_. It is also called the _necessary
law of nations_, because nations are morally bound to observe it; and
sometimes the _internal law of nations_, from its being binding on the
conscience.
§10. Although the law of nature, as expressed in the law of revelation,
is a correct rule of human conduct; yet, as much of this law consists of
general principles from which particular duties can not always be
deduced, positive human enactments are necessary to define the law of
nature and revelation. So an important part of the law of nations
necessarily consists of positive institutions. Hence some writers have
divided international law under these two principal heads: the _natural_
law of nations, and the _positive_.
§11. The _positive law of nations_ is founded on usage or custom and
agreement, and may be considered as properly divided into the
_customary_ law of nations, and the _conventional_. The _customary law
of nations_ consists of certain maxims, or is founded on customs and
usages which have been long observed and tacitly consented to by
nations, and have thereby become binding upon all who have adopted them,
so far as their observance does not require a violation of the law of
nature.
§12. A _conventional law of nations_ is one that has been established by
a treaty or league. The word _convention_ usually signifies an assembly
of persons met for some benevolent, political, or ecclesiastical
purpose. It also signifies a treaty, or agreement between nations; and
such agreement or contract, though made without a formal meeting, is
deemed conventional.
§13. As the law of nature is liable to misconstruction, and as the law
of usage or custom is vague and uncertain, _conventional_ law, because
more definite, has been found to afford greater security to the rights
of commerce. Hence the practice, now so common among nations, of
regulating their intercourse by negotiation. By treaties, the rights of
the contracting parties are placed beyond dispute.
§14. But it may be said, if each nation is independent of every other,
and if there is no constituted authority to enforce the fulfillment of
treaty stipulations, the rights guarantied by treaties are still
insecure. But few governments are so devoid of a sense of honor as, by a
palpable violation of treaty obligations, to incur the odium and
condemnation of all mankind. Self-respect and the fear of provoking a
war, have generally proved sufficient incentives to the observance of
treaties.
§15. The obligations of nations are sometimes called _imperfect_. A
_perfect obligation_ is one that can be enforced--one that exists where
there is a right to compel the party on whom the obligation rests to
fulfill it. An _imperfect obligation_ gives only the right to demand the
fulfillment, leaving the party pledged to judge what his duty requires,
and to do as he chooses, without being constrained by another to do
otherwise.
Chapter LXIV.
The Jurisdiction of Nations; their mutual Rights and Obligations; the
Rights of Embassadors, Ministers, &c.
§1. The seas are regarded as the common highway of nations. The main
ocean, for navigation and fishing, is open to all mankind. Every state,
however, has jurisdiction at sea over its own subjects in its own public
and private vessels. The persons on board such vessels are protected and
governed by the laws of the country to which they belong, and may be
punished by these laws for offenses committed on board of its public
vessels in foreign ports.
§2. The question how far a nation has jurisdiction over the seas
adjoining its lands, is not clearly settled. It appears to be generally
conceded, that a nation has a right of exclusive dominion over navigable
rivers flowing through its territory; the harbors, bays, gulfs, and arms
of the sea; and such extent of sea adjoining its territories as is
necessary to the safety of the nation, which is considered by some to be
as far as a cannon shot will reach, or about a marine league.
§3. It is the duty of a nation in time of peace, to allow the people of
other states a passage over its lands and waters, so far as it can be
permitted without inconvenience, and with safety to its own citizens. Of
this the nation is to be its own judge. The right of passage is only an
_imperfect right_, because the obligation to grant the right is an
_imperfect obligation_. (Chap. LXIII, §15.)
§4. In general, it is the duty of a nation to allow foreigners to enter
and settle in the country. On being admitted into a state, the state
becomes pledged for their protection, and they become subject to its
laws; and in consideration of the protection they receive, they are
obliged to aid in defending it, and in supporting its government, even
before they are admitted to all the rights of citizens.
§5. But no state is bound to shelter criminals fleeing into it from a
foreign state. They can be tried only in the state whose laws they have
violated. It is therefore the duty of the government to surrender a
fugitive on demand of the proper authorities of the state from which he
fled, if, after due examination by a civil magistrate, there shall
appear sufficient grounds for the charge. The surrender of criminals is
sometimes provided for in treaties.
§6. The rule which makes foreigners amenable to the laws of the state in
which they remove, does not apply to embassadors. They are not
responsible to the laws of the country to which they are sent, even when
guilty of crime. When their conduct is dangerous to the government and
its citizens, all that can be done is, either to deprive them of liberty
by confinement, or to send them home and demand their punishment. As
every nation has a right to treat and communicate with all others, it
ought not to be deprived of the services of its representative. Hence,
the persons and property of all public ministers are held sacred and
inviolable.
§7. Embassadors are entitled to the same protection in the countries
through which they pass in going to, and returning from the government
to which they are sent. And to insure them a safe passage, some
governments have given them passports to be shown if required. A
_passport_ is a written license from the authority of a state granting
permission or safe conduct for one to pass through its territory.
Passports, though named in our law, are not known in practice, being
deemed unnecessary.
§8. If a minister at a foreign court treats the sovereign with
disrespect, the fact is sometimes communicated to the government that
sent him, with a request for his recall. Or, if the offense is a more
serious one, the offended sovereign refuses intercourse with him while
his master's answer is awaited. Or, if the case is an aggravated one, he
expels him from the country.
§9. Ministers at foreign governments, in their negotiations or business
correspondence with those governments, sometimes consider themselves ill
treated, and their own nation dishonored, and take their leave and
return home; or the minister informs his sovereign, who either recalls
him, or takes such other measure as he thinks the honor and interest of
his nation demand.
§10. The peculiar condition of a country, the nature of the business
upon which an embassador is sent, or the personal character of the
embassador, may be such as to justify a government in refusing to
receive him. But to preserve the friendly relations of the two
countries, satisfactory explanations ought to be made, or good reasons
offered for the refusal.
§11. A minister can not bind his sovereign to any treaty or agreement,
conclusively, under the authority of an ordinary credential, or letter
of attorney. He can not do so without a special power, containing
express authority so to bind his principal. Ministers act under secret
instructions which they are not bound to disclose. Even the treaties
signed by plenipotentiaries, (a word signifying full power,) are,
according to present usage, of no force, until ratified by their
governments.
§12. Consuls are not entitled to the privilege enjoyed by ministers,
but are subject to the laws of the country in which they reside. Their
principal duties have been described. (Chap. XL, §9.) The office of
consul has been found to be one of great utility; hence, every trading
nation has a consul in every considerable commercial port in the world.
As in the case of ministers, consuls carry a certificate of their
appointment, and must be acknowledged as consuls by the government of
the country in which they reside, before they can perform any duties
pertaining to their office.
Chapter LXV.
Offensive and Defensive War; just Causes and Objects of War; Reprisals;
Alliances in War.
§1. Wars are offensive and defensive. The use of force to obtain justice
for injuries done, is _offensive war_. The making use of force against
any power that attacks a nation or its privileges, is _defensive war_. A
war may be defensive in its principles, though offensive in its
operation. For example: one nation is preparing to invade another; but
before the threatened invasion takes place, the latter attacks the
former as the best mode of repelling the invasion. In this case, the
party making the attack acts on the _defensive_. (§10.) The contending
parties are called _belligerents_. The word _belligerent_ is from the
Latin _bellum_, war, and _gero_, to wage or carry on. Nations that take
no part in the contest, are called _neutrals_.
§2. War ought never to be undertaken without the most cogent reasons. In
the first place, there must be a _right_ to make war, and _just grounds_
for making it. Nations have no right to employ force any further than is
necessary for their own defense, and for the maintenance of their
rights. Secondly, it should be made from _proper motives_, the good of
the state, and the safety and common advantage of the citizens. Hence,
there may be, according to the law of nations, just cause of war, when
it would be inexpedient to involve the nation in such a calamity.
§3. The numerous objects of a lawful war may be reduced to these three:
(1.) To recover what belongs to us, or to obtain satisfaction for
injuries. (2.) To provide for our future safety by punishing the
offender. (3.) To defend or protect ourselves from injury by repelling
unjust attacks. The first and second are objects of an _offensive_ war;
the third is that of a _defensive_ war.
§4. Injury to an individual citizen of a state, by the subjects of
another state, is deemed a just cause of war, if the persons offending,
or the government of the state to which they belong, do not make
reparation for the injury; for every nation is responsible for the good
behavior of its subjects. But, although this would, according to the law
of nations, afford justifiable cause of war, neither the honor nor the
true interest of a nation requires that war should always be made for so
slight a cause.
§5. Generally, the injury sought to be redressed should be serious, and
satisfaction be demanded and refused, before recourse should be had to
arms. Where there is a question of right between the parties, the
government making war should have no reasonable doubt of the justice of
its claim. And even when no such doubt exists, it would be the duty of
such government to prevent a war, if possible, by proposals of
compromise. It is believed that war ought in no case to be made, until
attempts have been made to effect an adjustment of difficulties by
compromise, or by offers to submit them for arbitration.
§6. One of the means by which satisfaction is sought without making war,
is that of _reprisals_. (Chap. XXXVI, §4, 5.) If a nation has taken what
belongs to another, or refuses to pay a debt, or to make satisfaction
for an injury, the offended nation seizes something belonging to the
former or to her citizens, and retains it, or applies it to her own
advantage, till she obtains satisfaction: and when there shall be no
longer any hope of satisfaction, the effects thus seized are
confiscated. To _confiscate_ is to adjudge property to be forfeited, and
to appropriate it to the use and benefit of the state. But as the loss
in this case would fall upon unoffending citizens, it is the duty of
their government to grant them indemnity.
§7. But to justify reprisals by the law of nations, the grounds upon
which they are authorized must be just and well ascertained. If the
right of the party demanding satisfaction is doubtful, he must first
demand an equitable examination of his claim, and next be able to show
that justice has been refused, before he can justly take the matter into
his own hands. He has no right to disturb the peace and safety of
nations on a doubtful pretension. But if the other party refuses to have
the matter brought to the proof, or to accede to any proposition to
terminate the dispute in a peaceable manner, reprisals become lawful.
§8. By treaties of alliance, nations sometimes agree to assist each
other in case of war with a third power. It is a question not clearly
settled, whether the government that is to afford the aid is bound to do
so when it deems the war to be unjust. The reasonable conclusion seems
to be, that, in cases simply doubtful, the justice of the war is to be
presumed; and the government pledging its aid is bound to fulfill its
engagement. The contrary doctrine would furnish a nation with too ready
a pretext for violating its pledge. In cases only of the clearest
injustice on the part of its ally, can a nation rightfully avoid a
positive engagement to afford assistance.
§9. But when the object of the war is hopeless, or when the state under
such engagement would, by furnishing the assistance, endanger its own
safety, it is not bound to render the aid. But the danger must not be
slight, remote, or uncertain. None but extreme cases would afford
sufficient cause for withholding the promised assistance.
§10. When the alliance is defensive, the treaty binds each party to
assist the other only when engaged in a defensive war, and unjustly
attacked. By the conventional law of nations, the government that first
declares, or actually begins the war, is considered as making
_offensive_ war; and though it should not be the first actually to apply
force, yet if it first renders the application of force necessary, it is
the aggressor; and the other party, though the first to apply force, is
engaged in a _defensive_ war. (§1.)
Chapter LXVI.
Declaration of War; its Effect upon the Person and Property of the
Enemy's subjects; Stratagems in War; Privateering.
§1. When a nation has resolved on making war, it is usual to announce
the fact by a public declaration. In monarchical governments, the power
to declare war, which of course includes the right of determining the
question whether it shall be made, is vested in the king. In the United
States, this power is, by the constitution, given to the representatives
of the people, for reasons elsewhere stated. (Chap. XXXVI, §3.)
§2. It was usual, formerly, to communicate a declaration of war to the
enemy. According to modern practice, a formal declaration to the enemy
is not required. Any manifesto or paper from an official source,
announcing that the country is in a state of war, is considered
sufficient. The recalling of a minister has alone been regarded as a
hostile act, and followed by war, without any other declaration. But
such cases have not been frequent. Under ordinary circumstances, the
recall of a minister is not an offensive act.
§3. The government of a state acts for and in behalf of all its
citizens; and its acts are binding upon all. Hence, when war is
declared, it is not merely a war between the two governments; all the
subjects of the government declaring it become enemies to all the
subjects of that against which it is declared.
§4. Whether, on the occurrence of a war in any state, the subjects of
the enemy found within the state may be detained as prisoners of war,
and their movable property confiscated; or whether they are entitled to
a reasonable time to retire with their effects, is a question upon which
writers of public law are not agreed. Few civilized nations, at the
present day, would deny such persons a reasonable time to retire with
their property. Of houses and lands, all admit that only the income is
subject to confiscation. The privilege spoken of, instead of being left
to uncertainty, is now, with great propriety, generally secured by
treaty.
§5. When war is declared, all intercourse between the two countries at
once ceases. All trade between the citizens, directly or indirectly, is
strictly forbidden; and all contracts with the enemy made during the war
are void.
§6. Although a state of war makes all the subjects of one nation enemies
of all those of the other, they cannot lawfully engage in offensive
hostilities without permission of their government. If they have no
written commission as evidence of such permission, and if they should be
taken by the enemy, they would not be entitled to the usual mild
treatment which other prisoners of war receive, but might be treated
without mercy as lawless robbers and banditti.
§7. As the object of a just war is to obtain justice, a nation, when it
has declared war, has a right to use all necessary means, and no other,
for attaining that end. A just war gives the right to take the life of
the enemy; but there are limits to this right. If an enemy submits, and
lays down his arms, we can not justly take his life. And justice and
humanity forbid that women, children, feeble old men, and sick persons,
who make no resistance, should be maltreated.
§8. Prisoners of war are not to be treated with cruelty. They may be
confined, and even fettered, if there is reason to apprehend that they
will rise against their captors, or make their escape. Prisoners of war
are detained to prevent their returning to join the enemy, or to obtain
from their government a just satisfaction as the price of their liberty.
Prisoners may be kept till the end of the war. Then, or at any time
during the war, the government may exchange them for its own soldiers
taken prisoner by the enemy; or a ransom may be required for their
release. It is the duty of the government to procure, at its own
expense, the release of its citizens.
§9. Ravaging a country, burning private dwellings, or otherwise wantonly
destroying property, is not justifiable, except in cases of absolute
necessity. But all fortresses, ramparts, and the like, being
appropriated to the purposes of war, may be destroyed.
§10. Stratagems and deceit to obtain advantage of an enemy, are, to some
extent, justified by the law of nations; but in general they are
dishonorable and wrong.
§11. Spies are sometimes sent among an enemy, to discover the state of
his affairs, to pry into his designs, and carry back information. This
is a dishonorable office; spies, if detected, are condemned to death.
§12. The rights of a nation in war at sea are essentially different from
those in war upon land. The object of a maritime war is to destroy the
commerce and navigation of the enemy, with a view of weakening his naval
power. To this end, the capture or destruction of private property is
necessary, and is justified by the law of nations. Hence, for the
purpose of attack as well as defense, every nation of considerable power
or commercial importance, keeps a _navy_, consisting of a number of war
vessels, ready for service.
§13. Besides these national ships of war, there are armed vessels owned
by private citizens, and called _privateers_. Their owners receive from
the government a commission to go on the seas, and to capture any vessel
of the enemy, whether it is owned by the government or by private
citizens, or whether it is armed or not. And to encourage privateering,
the government allows the owner and crew of a privateer to keep the
property captured as their own.
§14. To prevent the abuse of this right, the owners are required to give
security, that the cruise shall be conducted according to instructions
and the usages of war; that the rights of neutral nations shall not be
violated; and that the captured property shall be brought in for
adjudication.
§15. When a prize is brought into a port, the captors make a writing,
called _libel_, stating the facts of the capture, and praying that the
property may be condemned; and this paper is filed in the proper court.
If it shall be made to appear that the property was taken from the
enemy, the court condemns the property as _prize_, which is then sold,
and the proceeds are distributed among the captors.
§16. All prizes, whether taken by a public or private armed vessel,
primarily belong to the sovereign; and no person has any interest in a
prize, except what he receives from the state: and due proof must in all
cases be made before the proper court, that the seizure was lawfully
made. In this country, prizes are proved and condemned in a district
court of the United States, which, when sitting that purpose, is called
a _prize court_.
Chapter LXVII.
Rights and Duties of Neutral Nations; Contraband Goods; Blockade; Right
of Search; Safe Conducts and Passports; Truces; Treaties of Peace.
§1. A neutral nation is bound to observe a strict impartiality toward
the parties at war. If she should aid one party to the injury of the
other, she would be liable to be herself treated as an enemy. A loan of
money to one of the belligerents, or supplying him with other means of
carrying on a war, if done with the view of aiding him in the war, would
be a violation of neutrality. But an engagement made in time of peace to
furnish a nation a certain number of ships, or troops, or other articles
of war, may afterward, in time of war, be fulfilled.
§2. A nation is not bound, however, on the occurrence of a war, to
change its customary trade, and to cease supplying a belligerent with
articles of trade which such belligerent was wont to receive from her,
although the goods may afford him the means of carrying on the war. So
if a nation has been accustomed to lend money to another for interest,
and the latter should become engaged in war with a third power, the
neutral would not break her neutrality if she should continue to lend
her money. The wrong in any case lies in the _intention_ to aid one to
the detriment of the other.
§3. This rule, it is believed, is universally admitted in cases of
belligerents going themselves to a neutral country to make their
purchases. But whether a neutral nation is at full liberty to _carry the
goods_ in the cases mentioned, is not so certain. A nation in a just war
has a right to deprive her enemy of the means of resisting or injuring
her, and therefore may lawfully intercept every thing of a warlike
nature which a neutral is carrying to such enemy.
§4. Articles which a neutral nation is not allowed to carry to an enemy,
are called contraband goods. What these are, it is impossible to say
with precision, as some articles may in certain cases be lawfully
carried, which would be justly prohibited under other circumstances.
Among the articles usually contraband, are arms, ammunition, materials
for ship-building, naval stores, horses, and sometimes even provisions.
§5. Contraband goods, when ascertained to be such, are confiscated to
the captors as lawful prize. Formerly the vessel also was liable to be
condemned and confiscated; but the modern practice, it is said, exempts
the ship, unless it belongs to the owner of the contraband articles, or
the carrying of them is connected with aggravating circumstances.
§6. One of the rights of a belligerent nation which a neutral is bound
to regard, is the right of blockade. _Blockade_ is a blocking up. A war
blockade is the stationing of ships of war at the entrance of an enemy's
ports, to prevent all vessels from coming out or going in. The object of
a blockade is to hinder supplies of arms, ammunition, and provisions
from entering, with a view to compel a surrender by hunger and want,
without an attack. A neutral vessel attempting to enter or depart,
becomes liable to be seized and condemned. Towns and fortresses also may
be shut up by posting troops at the avenues.
§7. A simple decree or order declaring a certain coast or country in a
state of blockade, does not constitute a blockade. A force must be
stationed there, competent to maintain the blockade, and to make it
dangerous to enter. And it is necessary that the neutral should have due
notice of the blockade, in order to subject his property to condemnation
and forfeiture. According to modern usage, if a place is blockaded by
sea only, trade with it by a neutral nation may be carried on by inland
communication. And a neutral vessel, loaded before the blockade was
established, has a right to leave the port with her cargo.
§8. To prevent the conveyance of contraband goods, the law of nations
gives a belligerent nation the _right of search_; that is, the right, in
time of war, to search neutral vessels, to ascertain their character,
and what articles are on board. A neutral vessel refusing to be searched
by a lawful cruiser, would thereby render herself liable to condemnation
as a prize. Private merchant vessels only are subject to search; the
right does not extend to public ships of war.
§9. The property of an enemy found on board of a neutral vessel, may be
seized, if the vessel is beyond the limits of the jurisdiction of the
nation to which she belongs; but the vessel is not confiscated; and the
master is entitled to freight for the carriage of the goods. The
_property of neutrals_ found in an enemy's vessels, is to be restored to
the owners.
§10. A neutral is forbidden by the law and practice of nations, to
permit a belligerent to arm and equip vessels of war within her forts.
Nor may the citizens of a nation fit out any vessel, or enlist, to go
beyond the limits of their own country to assist any people in war
against another with whom they are at peace.
§11. It is sometimes agreed to suspend hostilities for a time. If the
agreement is only for a short period, for the purpose of burying the
dead after battle, or for a parley between the hostile generals; or if
it regards only some particular place, it is called a cessation or
_suspension of arms_; if for a considerable time, and especially if
general, it is called a _truce_. By a partial truce, hostilities are
suspended in certain places, as between a town and the general besieging
it; and generals have power to make such truces. By a general truce,
hostilities are to cease generally, and in all places, and are made by
the governments or sovereigns. Such truces afford opportunities for
nations to settle their disputes by negotiation.
§12. A truce binds the contracting parties from the time it is made; but
individuals of the nation are not responsible for its violation before
they have had due notice of it. And for all prizes taken after the time
of its commencement, the government is bound to make restitution. During
the cessation of hostilities, each party may, within his own
territories, continue his preparations for war, without being charged
with a breach of good faith.
§13. War is generally terminated, and peace secured, by _treaties of
peace_. The manner of making treaties has been described. (Chap. XL,
§5.) A treaty of peace puts an end to the war, and leaves the
contracting parties no right to take up arms for the same cause.
§14. The parties to a treaty of peace are bound by it from the time of
its conclusion, which is the day on which it is signed; but, as in the
case of a truce, persons are not held responsible for any hostile acts
committed before the treaty was known; and their government is bound to
order and enforce the restitution of property captured subsequently to
the conclusion of the treaty.
§15. War is sometimes terminated by _mediation_. A friend to both
parties, desirous of stopping the destruction of human life, kindly
endeavors to reconcile the parties. The friendly sovereign who thus
interposes, is called _mediator_. Many desolating wars might have been
early arrested in this way, or wholly prevented, had there always been
among friendly powers a disposition to reconcile contending nations.
Synopsis of the State Constitutions.
Maine.
The District of Maine, formerly belonging to the state of Massachusetts,
adopted in convention, October 29, 1819, the present constitution, and
was admitted into the Union as a state, March 15, 1820. The constitution
has received several alterations.
_Electors._ All male citizens, having had a residence in the state three
months, except paupers, persons under guardianship, and Indians not
taxed.
_Legislature._ The house of representatives consists of one hundred and
fifty-one members, apportioned among the counties according to
population; and the number apportioned to each county are apportioned
among the towns according to the population. A representative must have
been a citizen of the United States five years, resided in the state one
year, and in the town or district he is chosen to represent, three
months. Senate, not less than twenty, nor more than thirty-one members,
elected in districts by majority. If a senator is not elected by the
electors, the house and the senators elected choose one from the two
candidates having the highest numbers of votes. Age, twenty-five years,
otherwise qualified as representatives.
A majority constitutes a _quorum_. Bills vetoed by the governor become
laws when re-passed by two-thirds majorities. Also bills become laws if
not returned by the governor within five days, unless their return is
prevented by adjournment, in which case they will become laws unless
returned within three days after the next meeting.
_Executive._ The governor is elected annually, by majority. If no person
has a majority, the house, from those voted for (not exceeding four)
having the highest numbers of votes, elects two, of whom the senate
elects a governor. Age, thirty years, a native citizen, resident of the
state five years. An executive council of seven, chosen annually by the
legislature on joint ballot. Power of appointment is exercised by the
governor and council. No lieutenant-governor.
Secretary of state, treasurer, and attorney-general, are chosen annually
by joint ballot of both houses.
_Judiciary._ A supreme judicial court, and such other courts as the
legislature may establish. Judges of the judicial court are appointed by
the governor and council for seven years; judges and registers of
probate are elected in the counties for four years.
Officers may be removed by impeachment, and by the governor and council
on address of both houses of the legislature.
Amendments to the constitution may be proposed by two-thirds of both
branches, and ratified by the electors at the next annual election.
New Hampshire.
The first constitution of this state was adopted in 1784; the present
one in 1792, and has been amended.
_Electors._ All male citizens, except paupers and persons excused from
paying taxes at their own request, resident in the state six months, and
in the town three months.
_Legislature_--called _general court_. Senate, twelve members, elected
annually in single districts; thirty years of age; inhabitants of the
state seven years, and inhabitants of their respective districts.
Representatives are apportioned among the towns according to ratable
male polls, (male tax-payers;) state residence, two years. Senators and
representatives must be of the Protestant religion. _Quorum_, a
majority.
Bills passed against the veto by two-thirds majorities--also become laws
if not returned within five days, unless the return is prevented by
adjournment.
_Executive._ The governor is elected annually by majority. If no person
has a majority, the two houses elect one of the two highest. Age, thirty
years; inhabitant of the state, seven years, and a Protestant. Council
of five, one in each district, elected annually by majority. Power of
appointment and of pardon exercised by the governor and council. No
lieutenant-governor.
Secretary of state, treasurer, and commissary-general appointed by joint
ballot of both houses.
_Judiciary._ Judicial officers are appointed by the governor and
council; justices of the peace for five years, judges of the higher
courts during good behavior. Judges disqualified at seventy years of
age.
Attorney-general, solicitors, sheriffs, coroners, registers of probate,
and naval and the higher militia officers, are appointed by the governor
and council. County treasurers and registers of deeds are elected in the
counties.
_Amendments._ The sense of the people is taken every seven years; and if
a majority favor a revision, the legislature calls a convention; and any
alterations proposed by the convention must be approved by two-thirds of
the qualified electors who vote thereon.
Vermont.
This state was admitted into the Union in 1791, with a constitution
formed in 1777; the present one was adopted in 1793, and has been
several times amended.
_Electors._ Citizens having resided in the state one year, of quiet and
peaceable behavior, are entitled to all the privileges of freemen, by
taking an oath that, in giving their votes, they will so do it as they
believe will conduce to the best good of the state.
_Legislature._ Senate, thirty members, elected annually; apportioned
among the counties according to population, each county to have at least
one senator; age, thirty years; freemen of the county. Representatives
are elected in towns, each town being entitled to at least one
representative; resident of the state two years, of the town one year.
_Quorum_, a majority. For raising a tax, two-thirds of the members
elected must be present.
Bills vetoed by the governor may be again passed by simple majorities.
Bills not returned by the governor within five days become laws, unless
their return is prevented by adjournment.
_Executive._ The governor is elected annually by majority. If no person
has a majority, the legislature chooses one of the three highest.
Resident of the state four years. A lieutenant-governor.
A secretary of state, chosen by the two houses; a treasurer, elected as
governor and lieutenant-governor.
_Judiciary._ A supreme court and county courts; the judges chosen
annually by the senate and house; justices of the peace are elected in
the towns; judges of probate in districts; assistant judges of county
courts, sheriffs, high bailiffs, and state's attorneys, in their
respective counties.
_Amendments._ A council of thirteen censors, chosen every seven years,
examines into the different departments, and have power to call a
convention to amend the constitution.
Massachusetts.
The constitution of this state was formed in 1780. It has been several
times amended.
_Electors._ Every male citizen, except paupers and persons under
guardianship, having resided in the state one year, in the town or
district six months; and having paid a tax within two years, or is
legally exempt from taxation.
_Legislature_--styled _general court_. Senate, forty members, chosen in
districts, and apportioned according to population; residents of the
state five years, and inhabitants of the districts they represent.
Representatives are apportioned among the towns and cities. Every town
or city containing 1,200 inhabitants, is entitled to one, and an
additional one for every 2,400 additional inhabitants. Residence one
year in the towns they represent.
Bills passed against the veto by two-thirds majorities--or become laws
if not returned within five days, unless the legislature by adjournment,
prevent their return.
_Executive._ The governor is chosen annually, by majority. If no
candidate has a majority, the house elects two of those voted for, (not
exceeding four,) having the highest numbers of votes, of which two the
senate elects a governor. He must have resided in the state seven years,
and declare himself to be of the Christian religion. A council of nine,
elected annually by joint ballot of the two houses, act with the
governor in pardons and appointments, and in directing the affairs of
state generally. Counselors must have resided in the state five years.
The secretary, treasurer, receiver-general, commissary-general, notaries
public, and naval officers, are chosen annually by the legislature.
_Judiciary._ A supreme judicial court and a court of common pleas, held
in every county of the state, and courts held by justices of the peace.
All judicial officers are appointed by the governor and council;
justices of the higher courts during good behavior, justices of the
peace for seven years. The former are removable by the governor and
council, or address of the legislature.
The attorney-general, the solicitor-general, sheriffs, coroners, and
registers of probate, are appointed as justices.
_Amendments_ agreed to by a majority of the senators and two-thirds of
the representatives at two successive sessions, are submitted to the
qualified voters of the state for ratification.
Rhode Island.
A charter granted in 1663, by Charles II, to the Rhode Island and
Providence Plantations, continued, with some modifications, the basis of
government of this state, until 1842, when the present constitution was
adopted.
_Electors._ Every male _native_ citizen, resident in the state two
years, in the town or city six months, and having within a year paid a
tax of $1, or has done military duty. Also every naturalized citizen,
resident in the state one year, in the town or city six months, owning
real estate worth $134 above all incumbrances, or which rents for $7 a
year. Voters in this state must be registered in the town clerk's
office, at least seven days before they offer their votes.
_Legislature_ styled _general assembly_. Representatives, not to exceed
seventy-two, are apportioned among the towns, no town to have more than
one-sixth of the whole house. The senate consists of the
lieutenant-governor and one senator from each town or city. The
governor, and in his absence, the lieutenant-governor, presides in the
senate, and in grand committee, (the two houses united.) _Quorum_, a
majority.
Bills when passed by both houses are laws.
_Executive._ The governor and lieutenant-governor are elected annually
by majority. If no candidate has a majority, the two houses in joint
assembly (grand committee) elect from the two having the highest numbers
of votes.
A secretary, an attorney-general, and a general treasurer, are elected
in the same manner as the governor.
_Judiciary._ A supreme court and such inferior courts as the legislature
shall establish. Judges of the supreme court are elected by the two
houses in grand committee. The judges hold their offices until their
places shall be declared vacant by the general assembly.
_Amendments_ must be agreed to by two successive legislatures, (a
majority of all the members elected to each house voting in their
favor,) and approved by three-fifths of the electors of the state voting
thereon.
Connecticut.
This state was governed under a charter granted by Charles II, in 1662,
until 1818, when the present constitution was adopted. This constitution
has received numerous amendments.
_Electors._ Every white male citizen, who has resided in the state a
year, and in the town six months, who sustains a good moral character,
and is able to read any section of the constitution of the state and of
the constitution of the United States.
_Legislature_--styled _general assembly_. Representatives are
apportioned among the towns according to population. Any elector is
eligible to either house. Senators, not less than eighteen, nor more
than twenty-four, are chosen in districts, the number of which is not to
be less than eight, nor more than twenty-four. _Quorum_, a majority.
Bills rejected by the governor may be again passed by a majority of each
house. Bills become laws also if not returned by the governor within
three days, unless the legislature sooner adjourn.
_Executive._ A governor and lieutenant-governor are elected annually.
Any qualified elector thirty years of age is eligible. Election by
majority. In case of a failure to elect, the general assembly chooses a
governor from the two having the highest numbers of votes.
A treasurer, a secretary, and a controller of public accounts, are
elected as the governor and lieutenant-governor. A sheriff is elected in
each county for three years.
_Judiciary._ A supreme court, a superior court, and such inferior courts
as the legislature shall establish. The judges are appointed by the
general assembly; the judges of the supreme and superior courts for
eight years; removable by the governor on address of two-thirds of each
house. Judges of probate are chosen annually by the electors in
districts; justices of the peace in the towns.
_Amendments_ are proposed by a majority of the house of representatives,
approved by two-thirds of both houses of the next legislature and a
majority of the electors at an election.
New York.
The first constitution of this state was formed in 1777; the second in
1821, and adopted in 1822; the present was formed and adopted in 1846.
_Electors._ Every white male citizen, resident in the state a year, and
in the county four months, and thirty days in the district which the
person voted for is to represent. Naturalized persons must have been
admitted as citizens ten days before voting. Colored men must have
resided in the state three years, own a freehold of $250 in value over
incumbrances, and have paid a tax thereon.
_Legislature._ Senate, thirty-two members elected in single districts
for two years. Assembly, one hundred and twenty-eight members,
apportioned among the counties. Counties entitled to more than one
member are divided into districts and a member is elected in each
district. A census is taken, and a new apportionment made every ten
years. A majority is a quorum to do business. The final passage of bills
requires a majority of all the members. Bills may be passed against the
veto by two-thirds majorities. They become laws if not returned within
ten days, unless their return is prevented by adjournment.
_Executive._ A governor is elected for two years; a citizen, thirty
years of age; a resident of the state five years. A lieutenant-governor.
_Judiciary._ A court of appeals, a supreme court, county courts, and
courts held by justices of the peace. There are eight judicial
districts, in each of which four justices of the supreme court are
elected for eight years, two of them every two years. The court of
appeals is composed of eight judges, four of whom are elected by the
electors of the state for eight years, one every two years, and the
other four are of the class of justices of the supreme court whose term
has most nearly expired. In each county are held circuit courts and
special terms of the supreme court, by one or more justices of the
supreme court. General terms of the supreme court are held in the
several districts by three or more of the justices. A county court is
held by a county judge elected for four years, who is also _surrogate_,
called in other states, _judge of probate_. In counties having more than
40,000 inhabitants, a separate officer may be chosen as surrogate.
Justices of the peace are elected in the several towns for four years.
Judges of the court of appeals and justices of the supreme court may be
removed by the legislature; county judges by the senate on
recommendation of the governor.
A secretary of state, a controller, a treasurer, an attorney-general,
and a state engineer and surveyor, are chosen for two years; three canal
commissioners and three inspectors of state prisons, for three years,
one of each every year.
Sheriffs, clerks of counties, coroners, and district attorneys, are
elected for three years in the several counties. Sheriffs are ineligible
for the next three years.
_Amendments_ must receive the sanction of two successive legislatures,
and of a majority of the electors voting thereon at an election.
New Jersey.
New Jersey, as a colony, adopted a constitution in 1776, under which the
state was governed until the present constitution, framed in 1844, was
adopted.
_Electors._ White male citizens, who have resided in the state a year,
and in the county five months.
_Legislature._ A senate and general assembly. The senate consists of one
senator from each county, elected for three years; one-third of the
senators elected every year. Age, thirty years; residence in the state
four years, and in the county one year. Members of the general assembly,
not to exceed sixty, are apportioned among the counties according to
population. Residence in the state two years, in the county one year. A
majority is a _quorum_.
The final passage of bills requires a majority of the members elected.
The same majorities may pass bills disapproved by the governor. Bills
become laws if not returned by the governor within five days, unless
their return is prevented by adjournment.
_Executive._ The governor is elected for three years, and is ineligible
for the next three years. He must be thirty years of age; have been
twenty years a citizen, seven years a resident of the state. The
pardoning power is exercised by the governor in conjunction with the
chancellor and the judges of the court of errors and appeals. No
lieutenant-governor.
The state treasurer, and the keeper and inspectors of the state prison
are appointed annually by joint assembly of the two houses. The
secretary of state, attorney-general, and prosecutors of the pleas, are
appointed by the governor and senate, for five years.
_Judiciary._ A court of errors and appeals; a court of chancery; a
prerogative court; a supreme court; circuit courts; and inferior courts.
The court of errors and appeals consists of the chancellor, the justice
of the supreme court, and six judges, or a majority of them. The court
of chancery consists of the chancellor, who is also the ordinary, or
surrogate-general, and judge of the prerogative court, to which appeals
are made from the orphans' court. The supreme court consists of a chief
justice and four associates. The circuit courts are held in every county
by one or more justices of the supreme court, or a judge appointed for
that purpose. Chancellor and justices of the supreme court hold for
seven years; judges of the court of errors and appeals for six years;
and all are appointed by the governor and senate. The inferior court of
common pleas shall not have more than five judges, one to be appointed
every year by the senate and assembly.
Justices of the peace, from two to five, are elected in each township
and city ward, for five years.
Sheriffs and coroners are elected annually in their respective counties,
and may be re-elected until they shall have served three years; after
which they are ineligible for three years.
_Amendments_ must be agreed to by two successive legislatures, a
majority of all the members elected to each house concurring, and be
ratified by the electors at an election held for that purpose.
Amendments, (if more than one,) must be submitted separately; and not
oftener than once in five years.
Pennsylvania.
A Constitution was adopted in 1776; another in 1790; the present one in
1838.
_Electors._ White freemen, having resided in the state one year, in the
election district ten days, and paid a tax within two years; if between
twenty-one and twenty-two years, they need not have paid the tax. An
elector having removed from the state and returned, may vote after six
months residence in the state, and ten days in the district, and the
payment of taxes.
_Legislature_--called _general assembly_. Representatives are chosen
annually, and apportioned every seven years among the counties according
to the number of taxable inhabitants; number not less than sixty, nor
more than one hundred. Age, twenty-one; residence in the state three
years, one in the district. Senators are chosen for three years,
(one-third every year,) in districts, not more than two in any district,
unless the taxable inhabitants in any city or county entitle it to elect
more; but no city or county may elect more than four. The whole number
may not be less than one-fourth nor greater than one-third of the number
of representatives. Twenty-five years; state residence, four years;
district, one year.
_Quorum_, a majority of each house. Bills passed against the veto by
two-thirds majorities. Bills not returned by the governor within ten
days, become laws, unless their return is prevented by adjournment.
_Executive._ The governor is elected for three years, and may not hold
the office more than six years in nine Age, thirty years; a citizen and
inhabitant of the state, seven years. No lieutenant-governor.
A secretary is appointed by the governor during pleasure. A treasurer is
chosen annually by joint assembly.
_Judiciary._ Supreme court, the judges elected for fifteen years; courts
of oyer and terminer and general jail delivery in the counties, held by
judges of the supreme court and court of common pleas; a court of common
pleas in each judicial district, which may not include more than five
counties, the presiding judge to hold his office for ten years, the
associates for five years; a court of quarter sessions and orphans'
court for each county, held by judges of the common pleas; a register's
court for each county, composed of the register of wills and judges of
the common pleas; and courts held in the several townships, wards, and
boroughs, by justices of the peace or aldermen elected by the voters
therein, for five years. Judges of the supreme court are elected by the
people of the state at large; others are chosen in the districts or
counties over which they preside.
Sheriffs and coroners are elected in their counties for three years.
Sheriffs may not be twice chosen in any term of six years.
_Amendments_ must be agreed to by majorities of all the members of two
successive legislatures, and ratified by a majority of the electors
voting thereon. Amendments must be voted on separately; and none may be
submitted to the electors oftener than once in five years.
Delaware.
The first constitution of this state was adopted in 1776; the present,
in 1831, and has been amended.
_Electors._ White males twenty-two years of age, having resided in the
state one year, in the county one month, and within two years paid a
county tax assessed at least six months before the election. If
twenty-one, and under twenty-two years of age, they may vote without
having paid any tax.
_Legislature_--called _general assembly_. Representatives are chosen in
counties for two years; must be twenty-four years of age; have been
citizens and inhabitants of the state three years, of the county one
year. Senators are elected in the counties for four years; the number
not to be greater than one-half, nor less than one-third of the number
of representatives. A senator must be twenty-seven years of age; have
been a citizen and an inhabitant of the state three years, of the
county, one year; and possess a freehold estate in the county of two
hundred acres of land, or real and personal property, or either, worth
£1,000, at least.
A majority of each house is a quorum. Bills are not submitted to the
governor.
_Executive._ The governor is elected for four years, and is not
eligible a second time. Thirty years of age; a citizen and inhabitant of
the United States twelve years, of the state, six years. No
lieutenant-governor.
A secretary of state, appointed by the governor during his continuance
in office; a state treasurer, biennially, by a concurrent vote of the
two houses. [By this mode of election, the two houses do not meet and
vote jointly, but they vote separately, as in passing laws.]
_Judiciary._ Five judges appointed by the governor, of whom one is
chancellor, and holds the court of chancery. Of the other four, one is
chief-justice, and the other three are associate justices, of whom one
resides in each county.
The superior court, and the court of general sessions of the peace and
jail delivery, consist of the chief-justice and two associates. The
court of oyer and terminer consists of all the judges except the
chancellor. The court of errors and appeals issues writs of error to the
superior court, receives appeals from the court of chancery, and
determines finally all matters in error in the judgments and proceedings
of the superior court; and when thus acting, it consists of the
chancellor and two of the other judges. In other cases, it is
differently constituted. The orphans' court in each county is held by
the chancellor and the associate judge residing in the county. The
register's court in each county is held by the register of the county.
Judges of the courts are appointed by the governor during good behavior;
and they may be removed by him on the address of two-thirds of all the
members of each branch of the general assembly.
In pursuance of the power vested in the legislature to establish
inferior courts, a court of common pleas is established in each county.
Justices of the peace in each county are appointed by the governor for
seven years, and may be removed as the judges.
The attorney-general, registers, and prothonotaries are appointed for
five years, removable in like manner.
The sheriff and the coroner of each county are elected by the citizens
thereof; but the legislature may vest their appointment in the governor.
The sheriff may not be chosen twice in any term of six years.
_Amendments_ are proposed by two-thirds of each house, with the
approbation of the governor, and ratified by three-fourths of each
branch of the next general assembly. Or, a convention to amend may be
called by the legislature, in pursuance of the sense of the people
expressed at a previous election.
Maryland.
The constitution of this state adopted in 1776, continued until 1851,
when the present one was adopted.
_Electors._ White male citizens, having resided a year in the state, and
six months in the county.
_Executive._ The governor is elected for four years; must be thirty
years of age; have been a citizen five years, a resident of the state
five years, and for three years a resident of the district from which he
is elected. In case of vacancy, the general assembly elects a resident
of the same district for the residue of the term. If the vacancy happens
during the recess of the legislature, the president of the senate serves
until the next session. No lieutenant-governor.
A secretary of state is appointed by the governor and senate during the
official term of the governor. A controller of the treasury is elected
by the electors of the state for two years; and a treasurer and a state
librarian are chosen by the legislature on joint ballot at each session.
_Legislature._ A senate and a house of delegates, styled _general
assembly_. Senators, one from each county and the city of Baltimore, are
elected for four years, one-half every two years. Age, twenty-five
years; residence, three years in the state, one in the county. Delegates
are eligible at twenty-one; otherwise qualified as senators; elected for
two years, apportioned among the counties according to population; the
city of Baltimore to have four more delegates than the most populous
county, and no county to have less than two delegates; the whole number
not to be more than eighty, nor less than sixty-five.
A majority constitutes a quorum. Bills must pass by majorities of all
the members elected; and when so passed and sealed with the great seal,
the governor is required to sign them in the presence of the presiding
officers and chief clerks of both houses.
_Judiciary._ A court of appeals, consisting of four judges, one of whom
is elected in each judicial district for ten years. One is designated by
the governor and senate as chief-justice. They must be thirty years of
age, and have been citizens of the state five years. They are
disqualified at seventy. There are eight judicial circuits, in each of
which, except the fifth, is elected a judge, for ten years, who holds
circuit courts in the counties within his circuit.
There are, in the city of Baltimore, courts peculiar to that city.
Justices of the peace and constables, are elected for two years in each
ward of the city of Baltimore, and in each election district in the
several counties.
A sheriff and a state's attorney are elected in each county and the city
of Baltimore, the former for two, and the latter for four years.
Sheriffs are ineligible for the next two years.
_Amendments_ may be made only by a convention, called by the legislature
in pursuance of a vote of the people to be taken after each United
States census.
Virginia.
A constitution was adopted in 1716; another in 1830; the present in
1851.
_Electors._ White male citizens, having resided in the state two years,
and in the county, city or town where they offer to vote, one year.
Votes are given openly, or _viva voce_. Dumb persons only vote by
ballot.
_Legislature._ Senate and house of delegates. Delegates, one hundred and
fifty-two in number, are elected biennially, and apportioned among the
several counties and election districts according to population. The
senate consists of fifty members, elected in single districts for four
years, one-half every two years. Apportionments are made every ten
years. Delegates are eligible at the age of twenty-one years; senators
at the age of twenty-five.
_Quorum_, a majority. Bills to become laws, do not require the
governor's approval.
_Executive._ The governor is elected for four years, and is ineligible
for the next term. He must be thirty years of age, a native citizen of
the United States, and have been a citizen of the state five years. A
lieutenant-governor.
A secretary of state, a treasurer, and an auditor of public accounts,
are elected for two years in joint assembly; an attorney general is
elected for four years by the people at every election for governor.
_Judiciary._ The state is divided into twenty-one judicial circuits, ten
districts, and five sections, in each of which division, one judge is
elected by the people; the circuit judges for eight years, the judges of
the supreme court of appeals for twelve years. A circuit judge holds
circuit courts in the several counties composing his district. The
judges of the circuits constituting a section, and the judge of the
supreme court of appeals for that section, hold district courts in such
section. The supreme court of appeals consists of the five judges
elected in the sections, and three of whom may hold a court. Judges may
be removed by the legislature.
A county court is held monthly in each county, by not less than three,
nor more than five justices of the peace, except when the law requires a
greater number. Each county is divided into districts, in each of which
four justices are elected for four years. The justices so elected choose
one of their own body as presiding justice of the county court.
In each county are elected, a clerk of the county court and a surveyor,
for six years; an attorney for four years; a sheriff for two years: and
constables and overseers of the poor as may be prescribed by law.
_Amendments._ The constitution does not provide for its amendment. The
last two constitutions were framed by conventions authorized by acts of
the legislature, and ratified by the electors.
North Carolina.
This state adopted a constitution in 1776, which was amended in 1835.
_Legislature._ A senate and a house of commons, called the _general
assembly_. The senate consists of fifty members, chosen biennially, in
single districts, which are laid off in proportion to the average amount
of taxes paid by the citizens during the five years preceding. Senators
must have resided within their respective districts a year, and possess
not less than three hundred acres of land. The house of commons is
composed of one hundred and twenty members, chosen biennially, and
apportioned among the counties, according to population, three-fifths of
the slaves being added to the number of free persons. They must have
resided a year in the counties they represent, and possess one hundred
and twenty acres of land.
Bills passed by both houses become laws without being presented to the
governor.
_Executive._ A governor is elected every two years, and is eligible only
four years in any term of six years. He must be thirty years of age;
must have been a resident of the state five years, and must have in the
state a freehold of the value of £1,000. No lieutenant-governor.
There is a council of seven persons to advise the governor; a secretary
of state, and a treasurer, all chosen by joint vote of the two houses at
each session, for two years; and an attorney-general for four years,
unless for certain reasons the term shall be altered.
_Judiciary._ A supreme court, superior courts, courts of admiralty, and
justices' courts. The judges are appointed by the general assembly, and
hold during good behavior. Justices of the peace, within their
respective counties, are recommended to the governor by the
representatives of the general assembly. They are commissioned by the
governor, and hold during good behavior.
_Electors._ White freemen, inhabitants of the state one year, who have
paid taxes. Voters for senators are required also to own a freehold of
fifty acres.
_Amendments._ A convention may be called by a majority of two-thirds of
all the members of each house of the general assembly. Or, amendments
may be proposed by majorities of three-fifths of all the members of both
houses; and they take effect when agreed to by two-thirds majorities of
the whole representation in the next assembly, and ratified by the
qualified voters of the state.
South Carolina.
The first constitution of this state was formed in 1775; the present in
1790. Its principal amendments were made in 1808.
_Legislature._ A senate and a house of representatives, styled _general
assembly_. The house consists of one hundred and twenty-four members,
elected for two years in districts, and apportioned according to the
number of white inhabitants and the amount of taxes paid therein.
Residence in the state three years: and if a resident of the election
district, a freehold of five hundred acres of land and ten negroes, or a
real estate worth £150 sterling, clear of debt; if a non-resident of the
district, a clear freehold of £500 sterling. Senators, forty-five,
elected by districts, for four years, one-half every two years; each
district, except one, having one senator. Age, thirty years, state
residence, five years. If a resident in the district, a clear freehold
of £300 sterling; if a non-resident, a freehold in the district of
£1,000.
Bills passed by both houses are laws without being presented to the
governor.
_Executive._ The governor and lieutenant-governor are chosen by the
legislature for two years. Age, thirty years: state residence, ten
years; a clear freehold in the state of £1,500 sterling. A governor is
ineligible for the next four years.
Commissioners of the treasury, secretary of state, and surveyor-general,
are elected by joint ballot of both houses for four years, and
ineligible for the next four years.
_Judiciary._ Such superior and inferior courts of law and equity as the
legislature may establish. The judges are appointed by the legislature
during good behavior.
_Electors._ White male citizens, resident in the state two years, and
owning a freehold of 50 acres of land, or a town lot, which he has owned
six months; or, not having such freehold, or town lot, resident in the
election district six months, and having paid a tax the preceding year
of three shillings sterling.
_Amendments_ may be made by a convention called by two-thirds of all the
members of both branches. Alterations may also be made by like
majorities of two successive legislatures.
Georgia.
The first constitution was formed in 1777; the second in 1785; the
present in 1798, and amended in 1839, and 1844.
_Legislature._ Senate and house, together styled _general assembly_. The
members of both houses are elected biennially. Representatives are
apportioned among the counties according to population, including
three-fifths of the slaves. Age, twenty-one years; citizenship, seven
years; state residence, three years; county, one year. Senators are
elected in districts. Age, twenty-five years; citizenship, nine years;
state residence, three years; district, one year.
Bills are passed against the veto by two-thirds majorities. Bills not
returned by the governor within five days are laws, unless their return
is prevented by adjournment.
_Executive._ The governor is elected for two years; must be thirty years
of age; have been a citizen of the United States twelve years, of the
state, six years. No lieutenant-governor.
Secretary of state, treasurer, and surveyor-general, are elected for two
years.
_Judiciary._ A supreme court for the correction of errors, to consist of
three judges chosen by the legislature for six years, one every two
years; a superior court, whose judges are elected in their several
circuits for four years; inferior courts, one in each county, consisting
of five judges, elected by the people; courts held by justices of the
peace elected for four years.
Sheriffs are elected for two years, but may not be twice elected in four
years.
_Electors_, white male citizens and inhabitants of the state, having
resided in the county six months, and paid all the taxes required of
them, and which they had an opportunity of paying the preceding year.
_Amendments_ may be made by two successive legislatures, two-thirds of
both houses concurring.
Florida.
This state was admitted into the union with its present constitution, by
act of congress, March 3, 1845.
_Executive._ The governor is elected for four years, and is ineligible
for the next term. Age, thirty years; citizenship; state residence five
years. No lieutenant-governor.
A secretary of state, elected by the people for four years; a treasurer
and a controller of public accounts for two years.
_Legislature._ A senate and a house of representatives, styled, the
_general assembly_. Representatives are apportioned among the counties
according to the number of free whites and three-fifths of the slaves;
the number not to exceed sixty. They are elected biennially. Age,
twenty-one; citizenship; state residence, two years; county, one year.
Senators are elected in districts, at least one in each district, for
four years, one-half every two years; the number to be not less than
one-fourth, nor more than one-half of the number of representatives.
Age, twenty-five years; other qualifications the same as those of
representatives.
Bills become laws against the veto by majorities of all the members
elected.
_Judiciary._ A supreme court, courts of chancery, circuit courts, and
justices of the peace. The supreme court consists of three judges
elected by the people for six years. The state is divided into four
circuits, and a judge elected in each judicial circuit for six years,
who presides in the courts held in his circuit. Justices of the peace
for each county are appointed or elected, as the general assembly may
direct.
An attorney-general is chosen by joint vote of the two houses, for four
years.
_Electors._ White male citizens, residents of the state two years, of
the county, six months; enrolled in the militia, unless by law exempted
from serving. The general assembly is required to provide for
registering the qualified electors of each county.
_Amendments._ A convention may be called by the general assembly,
two-thirds of each house concurring. Alterations may be made by like
majorities of two successive legislatures.
Alabama.
This state was admitted into the union in 1819, with its present
constitution.
_Legislature_--called the _general assembly_. Representatives are
apportioned among the counties according to the free white population;
chosen biennially; must be twenty-one years of age, residents of the
state two years, and of the county, city or town they represent, one
year. Senators are chosen in single districts for four years, one-half
of them every two years; must be twenty-seven years of age; residence
the same as representatives. The number of representatives may not
exceed one hundred; the number of senators may not exceed thirty-three.
Bills negotiated by the governor, may be passed by majorities of all the
members elected. If not returned within five days, vetoed bills become
laws unless their return is prevented by adjournment.
_Electors._ White male citizens, having resided in the state one year,
in the county, city, or town, three months.
_Executive._ The governor is elected for two years, and eligible four
years in any term of six years. He must be thirty years of age, a native
citizen of the United States, and have been a resident of the state four
years. No lieutenant-governor.
A secretary of state is chosen biennially, and a treasurer and a
controller of public accounts are chosen annually, by joint vote of both
houses.
_Judiciary._ A supreme court; circuit courts to be held in each county;
and inferior courts of law and equity, to be established by the general
assembly. Judges of the supreme court, and chancellors are chosen by the
legislature for six years; judges of the circuit and inferior courts by
the people for the same term. A competent number of justices of the
peace, and a sheriff, are elected in each county.
An attorney-general for the state, and the requisite number of
solicitors are elected by joint vote of the general assembly, for four
years.
_Amendments_ are proposed by one legislature, approved by the electors
at the next election for representatives, and ratified by the next
legislature; two-thirds majorities being required in both cases.
Mississippi.
In 1817, this state was admitted into the union with a constitution
adopted the same year. The present constitution was formed in 1832.
_Electors._ White male citizens, residents of the state one year, of the
county, four months. An elector who happens to be in any county, city,
or town, other than that of his residence, or who may have removed to
any such place within four months preceding an election, may vote for
such officers as he could have voted for in the county of his residence,
or from which he removed.
_Legislature._ Representatives, not less than thirty-six, nor more than
one hundred, are elected for two years in the several counties, among
which they are apportioned according to the number of white inhabitants.
They must have been residents of the state two years, one of the county.
Senators, not less than one-fourth, nor more than one-third of the
number of representatives, are elected by districts for four years. Age,
thirty years; state residence, four years; district one year.
Bills are passed against the veto by two-thirds majorities. Bills must
be returned within six days, or they become laws, unless their return is
prevented by adjournment.
_Judiciary._ A high court of errors and appeals, consisting of three
judges, one in each district, elected for six years; a circuit court to
be held in each county at least twice a year, the judges to be elected
in their respective judicial districts for four years; a superior court
of chancery, the chancellor to be elected by the electors of the whole
state for six years; a court of probate in each county, the judge to be
elected for two years; a competent number of justices of the peace and
constables, chosen in each county for two years. Other inferior courts
may be established by the legislature.
An attorney-general is chosen by the electors of the state, and a
competent number of district-attorneys in their respective districts. A
sheriff and one or more coroners are elected in each county for two
years.
_Executive._ The governor is elected for two years; must be thirty years
of age; have been a citizen twenty years, a resident of the state five
years; and may not hold the office more than four years in six. No
lieutenant-governor.
A secretary of state, a treasurer, and an auditor of public accounts,
are elected for two years.
_Amendments_ are proposed by two-thirds of both branches of the
legislature, and ratified by the people at the next election.
Louisiana.
This state was admitted into the union in 1812, with a constitution
formed the same year. In 1845, a second, and in 1852 the present
constitution was adopted.
_Legislature_--styled _general assembly_. Representatives are
apportioned among the several parishes, (corresponding to counties in
other states,) and are elected for two years; the number not to exceed
one hundred, nor to be less than seventy. Senators, in number
thirty-two, are apportioned among the districts according to population,
and are elected for four years, one-half every two years. Every
qualified elector is eligible to a seat in either house.
Vetoed bills are passed by majorities of two-thirds of all the members.
They become laws if not returned within ten days, unless their return is
prevented by adjournment; in which case they will become laws if not
sent back within three days after the commencement of the next session.
_Executive._ The governor is elected for four years, and is ineligible
the next four. Age, twenty-eight years; citizenship, and residence in
the state four years. A lieutenant-governor.
A secretary of state and a treasurer are elected by the electors, the
former for four years, the latter for two years.
_Judiciary._ A supreme court and such inferior courts as the legislature
may establish, and justices of the peace. The supreme court is composed
of a chief-justice and four associate justices; the former elected by
the electors of the state at large, the latter in their respective
districts. They are elected for ten years, one of the five every two
years. Judges of the inferior courts are elected in their respective
parishes or districts. Justices of the peace are elected for two years
by the electors in each parish, district, or ward.
An attorney-general and a requisite number of district-attorneys, are
elected for four years; the former by the electors of the whole state,
the latter in their respective districts.
A sheriff and a coroner are elected in each parish for two years.
_Electors._ White males, having been citizens two years, residents of
the state one year, and of the parish six months. An elector removing
from one parish to another, may vote in the former until he shall have
become a voter in the latter.
_Amendments_ are proposed by two-thirds of all the members of each
house, and ratified by a majority of the electors voting thereon at the
next general election.
Texas.
Texas, formerly a part of Mexico, declared itself independent in 1835.
By a joint resolution of congress, approved December 29, 1845, this
independent republic was admitted as a state into the union.
_Electors._ White male citizens who have resided in the state one year,
and the last six months in the district, city, or town in which they
offer to vote. If an elector happens to be in any other county within
his district, he may there vote for any district officer; and he may
vote any where in the state for state officers.
_Legislature._ Representatives, not less than forty-five, nor more than
ninety, are apportioned among the counties according to the free
population, and are elected for two years. They must have been residents
of the state two years, of the county, city, or town they represent, one
year. Senators, no less than nineteen, nor more than thirty-three, are
elected in districts for four years, one-half every two years; must be
thirty years of age; inhabitants of the state three years, of the
district one year.
Bills negatived by the governor become laws when passed by two-thirds of
both houses; bills not returned within five days become laws. Two-thirds
of each house constitutes a quorum.
_Judiciary._ A supreme court, district courts, and such inferior courts
as the legislature may establish. The supreme court consists of a
chief-justice and two associates, and has appellate jurisdiction
chiefly. It holds sessions once a year in not more than three places in
the state. District courts are held by the judge of each judicial
district at one place in each county at least twice a year. The judges
of both the supreme and district courts are elected by the people for
six years.
A convenient number of justices of the peace, one sheriff, one coroner,
and a sufficient number of constables, are elected in each county for
two years. The sheriff is eligible only four years in six.
_Executive._ The governor is elected for two years; is eligible four
years in every six. Age, thirty years; state residence, three years; a
citizen of the United States, or a citizen of the state of Texas at the
time of the adoption of the constitution. A lieutenant-governor.
A treasurer, a controller of public accounts, and an attorney-general
are elected by the people for two years. A secretary of state is
appointed by the governor and senate, to hold during the official term
of the governor.
_Amendments_ are proposed by two-thirds majorities of the legislature,
approved by the electors, and ratified by majorities of two-thirds of
the next legislature.
Arkansas.
In 1836, this state was admitted into the union with its present
constitution, which was slightly amended in 1845.
_Electors._ White male citizens, residents of the state six months, and
actual residents of the county.
_Legislature_--styled _general assembly_. Representatives, not more than
one hundred, nor less than fifty-four, are apportioned among the
counties according to the number of free white male inhabitants, and are
elected for two years. Age, twenty-five years; residents of the counties
they represent. Senators are chosen in single districts for four years,
one-half every two years; the number to be not less than seventeen, nor
more than thirty-three. Age, thirty years, inhabitants of the state one
year, and actual residents of the district they represent.
General elections are _viva voce_, until otherwise directed by law.
Bills are passed against the veto by majorities of all the members.
Bills not returned within three days become laws, unless their return is
prevented by adjournment.
_Executive._ The governor is elected for four years, and is ineligble
more than eight in twelve years. Age, thirty years; residence in the
state four years. No lieutenant-governor.
A secretary of state for four years, and an auditor and a treasurer for
two years, are elected by a joint vote of both houses.
_Judiciary._ A supreme court, circuit courts, county courts, and
justices of the peace. The supreme court is composed of three judges,
elected by the legislature for eight years; one every four years, one
every six, and one every eight years. In each circuit a judge is elected
by the legislature for four years. There is in each county a county
court held by justices of the peace. Justices are elected in the
townships for two years.
An attorney of state is elected in each judicial district for two years.
A sheriff, a coroner, a treasurer and a county-surveyor, are elected in
each county for two years.
_Amendments_ may be made by two successive legislatures, by two-thirds
majorities.
Missouri.
This state was admitted into the union in 1821. The present constitution
was adopted in 1820, and has been several times amended.
_Legislature_--styled the _general assembly_. Representatives are
apportioned among the counties on the basis of the white population, and
are elected for two years. Age, twenty-four years; state residence, two
years; county or district one year; payment of state or county tax.
Senators, not to be less than twenty-five, nor more than thirty-three,
are chosen in single districts for four years, one-half every two
years. Age, thirty years; residence in the state, four years; in the
district, one year; payment of a state or county tax.
Sessions of the legislature are limited to sixty days. Bills vetoed by
the governor must be passed by majorities of all the members to become
laws. Bills not returned by the governor within four days become laws,
unless their return is prevented by adjournment.
_Electors._ White male citizens, having resided in the state one year,
in the county or district three months.
_Executive._ The governor is elected for four years, and is ineligible
the next four; must be thirty years of age; have been a citizen of the
United States ten years, and of the state five years. A
lieutenant-governor.
A secretary of state, an auditor of public accounts, a treasurer, an
attorney-general, and a register of lands, are elected by the people for
four years.
_Judiciary._ A supreme court, circuit courts, justices of the peace, and
such other tribunals as the general assembly shall establish. The three
judges of the supreme court are elected by the electors of the state for
six years. A judge in each of the circuits is elected by the electors
thereof for six years. Justices of the peace are elected in the
townships.
_Amendments_ may be proposed every fourth year by a majority of the
whole of each house; and they take effect when ratified by the electors
of the state.
Tennessee.
This state was admitted into the union with its first constitution in
1796. The present one was formed in 1835.
_Legislature_--styled _general assembly_. Representatives are
apportioned among the counties or districts according to the number of
qualified voters in each, and are not to exceed seventy-five until the
population of the state shall be 1,500,000, and may never exceed
ninety-nine. They must be citizens of the state three years, and
residents of the county they represent one year. Senators are
apportioned as representatives; the number not to exceed one-third of
the number of representatives; must be thirty years of age; in other
respects qualified as representatives. Both are elected biennially.
Bills passed by both houses are laws without having been presented to
the governor. _Quorum_, two-thirds of each house.
_Executive._ The governor is elected for two years; and may not hold the
office more than six in any term of eight years. He must be thirty years
of age, and have been a citizen of the state seven years. No
lieutenant-governor.
A secretary of state for four years, and a treasurer for two years, are
chosen by joint vote of the general assembly.
_Electors._ White males having been citizens of the county six months;
also male persons of color, twenty-one years of age, who are competent
witnesses in a court of justice against a white man.
_Judiciary._ A supreme court, such inferior courts as the legislature
may establish, and justices' courts. The supreme court consists of three
judges, one in each of the grand divisions of the state, elected for
twelve years. Judges of inferior courts are elected for eight years. For
the election of justices of the peace, each county is divided into
districts of convenient size, in each of which are elected two justices
and one constable. A district containing a county town, may elect three
justices and two constables.
Attorneys for the state are elected by joint assembly for six years.
In each county are elected one sheriff, and one trustee for two years;
and one register for four years. The justices of the peace of each
county elect one coroner and one ranger for two years.
_Amendments_ are proposed by majorities of all the members elected,
approved by two-thirds of all the members of the next legislature, and
ratified by the people.
Kentucky.
The first constitution of this state was adopted in 1790; and the state
was admitted with the same in 1792. Another was adopted in 1799; and the
present in 1850.
_Legislature_--styled _general assembly_. The house of representatives
consists of one hundred members, elected for two years; apportioned
among the counties in proportion to the qualified voters. Age,
twenty-four years; state residence, two years; county, one year. When a
city or town has a sufficient number of voters, it may elect one or more
representatives. Senate, thirty-eight members, one elected in each
district for four years; one-half every two years. Age, thirty years;
residence in the state six years, in the district, one year.
Bills vetoed by the governor, if again passed by majorities of all the
members elected, are laws; also if not returned by him within ten days,
unless the return is prevented by adjournment; in which case they become
laws, unless sent back within three days after the commencement of the
next session.
_Executive._ The governor is elected for four years, and is ineligible
the next four. Age, thirty-five years; residence in the state six years.
A lieutenant-governor.
A treasurer for two years; and an auditor of public accounts, a register
of the land-office, and an attorney-general for four years, are chosen
by the electors.
_Judiciary._ A supreme court, styled court of appeals, consisting of
four judges, one to be elected in each district for eight years, in such
rotation that one may be elected every two years. Should the number be
changed, the principle of electing one every two years is to be
preserved. A circuit court to be held in each county by a district
judge, one to be elected in each of the twelve judicial districts, for
six years. The number of districts may be increased, but may not exceed
sixteen until the population shall exceed 1,500,000. A county court in
each county, consisting of a presiding judge and two associates, elected
for four years. Other inferior courts may be established by law.
Justices of the peace in each county are elected in districts, two in
each district for four years, and a constable for four years. A state's
attorney for each judicial district; a sheriff in each county, for two
years, and several other county officers.
_Electors._ White male citizens who have resided in the state two years;
in the county, town, or city, one year; and in the precinct in which
they offer to vote, sixty days.
_Amendments_ by conventions only are provided for. No convention may be
called by the legislature, until a majority of all the voters of the
state shall have voted at two successive elections in favor of calling a
convention.
Ohio.
The first constitution of this state was adopted in 1802, preparatory to
her admission into the union; the present one, in 1851.
_Legislature_--styled _general assembly_. Senators and representatives
are elected biennially in their respective counties or districts, in
which they must have resided a year. The ratio of representation in the
house is ascertained by dividing the whole population of the state by
the number one hundred; the quotient being the ratio for the next ten
years. The ratio for a senator is ascertained by dividing the whole
population by thirty-five. Senators are elected in districts. The
representation of fractions of population is provided for.
Bills are not submitted to the governor. Quorum, not less than a
majority.
_Executive._ A governor, a lieutenant-governor, a secretary of state, a
treasurer, and an attorney-general, are elected for two years; and an
auditor for four years.
_Judiciary._ A supreme court consisting of five judges chosen by the
electors of the state at large for five years, one, every year. The
number may be altered by law. A district court in each of the nine
common pleas districts, composed of a supreme court judge and the judges
of the court of common pleas of the respective districts, and held in
each county within a district, or in at least three places in each
district. One or more of these judges hold a court of common pleas in
every county in the district. A county probate judge is elected for
three years.
Justices of the peace, a competent number, are elected in each township
for three years.
A sheriff is elected in each county for two years, but may hold only
four years in any period of six years.
_Electors._ White male citizens who have resided in the state one year,
and in the county, township, or ward, such time as the law shall
prescribe.
_Amendments_ are proposed by three-fifths of all the members elected to
each house, and ratified by a majority of the voters who vote thereon at
an election. Or a majority of two-thirds of all the members of each
house may submit to the electors the question of calling a convention;
and if a majority of the electors vote for a convention, the legislature
shall provide for calling the same. Every twentieth year, the question
of calling a convention is to be submitted to the electors.
Indiana.
This state formed a constitution and was admitted into the union, in
1816. The present constitution was adopted in 1851.
_Electors._ White male citizens, having resided in the state six months.
Also foreigners who have resided in the United States one year, in the
state six months, and have declared their intention to become citizens.
_Legislature_--styled _general assembly_. The number of senators may not
exceed fifty; the number of representatives may not exceed one hundred;
both to be chosen in their respective counties or districts, senators
for four years, one-half every two years; representatives for two years.
Both are apportioned according to the number of white male inhabitants
twenty-one years of age, every six years. They must have been citizens
of the state two years; of the county or district, one year. Senators
must be twenty-five years of age.
Quorum, two-thirds. Bills must be finally passed by majorities of all
the members elected. The same majorities enact a bill disapproved by the
governor. If he does not return a bill within three days, it is a law,
unless its return is prevented by adjournment; in which case it will be
a law, unless he shall, within five days after the adjournment, file the
bill, with his objections, in the office of the secretary of state, who
shall lay the same before the general assembly at the next session, as
if it had been returned by the governor. Bids may not be presented to
the governor within two days previous to the adjournment.
_Executive._ The governor is elected for four years; and is eligible
only four years in eight. Age, thirty years; citizenship, five years;
state residence, five years. A lieutenant-governor.
A secretary of state, an auditor, and a treasurer, are elected for two
years, and are eligible four years in six.
_Judiciary._ A supreme court, circuit courts, and such inferior courts
as the general assembly may establish. Judges of the supreme court, not
less than three nor more than five, one in each district, are elected by
the electors of the state at large, for six years. Circuit courts
consist of a judge for each judicial circuit, chosen by the electors
thereof, for six years; and a prosecuting attorney for the circuit, for
two years. Justices of the peace are elected for four years in the
townships.
There are elected in each county, a clerk of the circuit court, an
auditor, a recorder, a treasurer, a sheriff, a coroner, and a surveyor;
the first three for four years; the others for two years. The sheriff
and treasurer are eligible only four years in eight; the first three
eight years in twelve.
_Amendments_ must be agreed to by two successive legislatures, a
majority of all the members of each house concurring, and ratified by
the electors of the state.
Illinois.
Illinois was admitted into the union in 1818. The present constitution
is dated August 31, 1847.
_Legislature_--styled _general assembly_. Representatives are elected
for two years; must be twenty-five years of age; inhabitants of the
state three years, and of the county or district, one year; and have
paid a state or county tax. The number is never to exceed one hundred.
The districts are not limited to a single representative. The senate
consists of twenty-five members, elected in single districts, for four
years, one-half every two years; must be thirty years of age; citizens
of the United States; inhabitants of the state five years, of the county
or district, one year; and have paid a county or state tax.
Apportionments of senators and representatives are made after each
census, taken in 1855, and every ten years thereafter.
Quorum, two-thirds. Bills passed against the veto by a majority of all
the members elected to each house. If not returned within ten days, they
are laws, unless their return is prevented by adjournment; in which case
they must be returned on the first day of the next legislative session,
or they will be laws.
_Executive._ The governor is elected for four years, and is eligible
four years in eight. Age, thirty-five years; citizenship, fourteen
years; state residence, ten years. A lieutenant-governor.
A secretary of state and an auditor of public accounts are elected for
four years, and a treasurer for two years.
_Judiciary._ A supreme court of three judges, one to be chosen in each
of the three grand divisions, for nine years, one every three years; the
one oldest in commission to be chief-justice. The legislature may
provide for their election by the whole state. Circuit judges are
elected for six years, one in each of the nine judicial districts, the
number of which may be increased, if necessary. A circuit court is to be
held two or more terms annually in each county. A judge of the county
court is elected in each county for four years, and has also probate
jurisdiction.
Justices of the peace are elected in each county by districts for four
years. Inferior local courts may be established in the cities by the
legislature.
A state's attorney is elected in each judicial circuit, for four years;
or in each county, if the legislature shall so direct. In each county a
clerk of the circuit court is elected for four years and a sheriff for
two years, who is eligible only once in four years; a supreme court
clerk by the electors of each grand division.
_Electors._ White male citizens having resided in the state one year. A
poll or capitation-tax of not less than fifty cents, nor more than a
dollar, may, in case of necessity, be laid upon every voter under sixty
years of age.
_Amendments_ must be proposed by two-thirds majorities of all the
members of one legislature, approved by majorities of all the members of
the next legislature, and ratified by the electors at the next general
election. Or, the legislature, by two-thirds majorities of all the
members, may submit to the people the question of calling a convention;
and if a majority of the electors voting for representatives shall vote
for a convention, an act for calling one shall be passed.
Michigan.
This state was admitted into the union in 1836. The present constitution
was adopted in 1850.
_Legislature._ The senate has thirty-two members, elected in single
districts, for two years. Representatives, not less than sixty-four, nor
more than one hundred, are elected also in single districts, for two
years. An apportionment of members is made every ten years. Any
qualified elector holding no other office, is eligible to either house.
The final passage of bills requires a majority of all the members
elected to each house. Majorities of two-thirds of all the members pass
bills against the veto. Bills not returned within ten days, are laws
unless their return is prevented by adjournment. Bills passed within
the last five days of a session, may be signed by the governor and filed
by him in the office of the secretary of state within five days after
the adjournment; and the same become laws.
_Executive._ The governor is elected for two years; must be thirty years
of age; have been a citizen of the United States five years, and a
resident of the state two years. A lieutenant-governor.
_Judiciary._ A supreme court, circuit courts, a probate court, and
justices of the peace. For six years, and until the legislature shall
otherwise provide, the circuit judges are to be judges of the supreme
court. After six years, a supreme court may be organized, consisting of
a chief-justice and three associate justices, chosen by the electors for
eight years, and so classed that only one of them shall go out of office
at a time. A circuit judge is elected in each of the eight judicial
circuits for six years. The number of circuits may be increased. The
probate judge of each county is elected for four years.
Justices of the peace, not exceeding four, are elected in each township,
for four years.
_Electors._ White male citizens who have resided in the state three
months, and in the township or ward ten days; also foreigners after a
residence of two and a half years in the state, and a declaration of
their intention to become citizens; and civilized males of Indian
descent.
A secretary of state, a superintendent of public instruction, a
treasurer, a commissioner of the land-office, an auditor-general, and
attorney-general, are elected for two years.
In each county are elected a sheriff, a county clerk, a county
treasurer, a register of deeds, and a prosecuting attorney, all for two
years. The sheriff can hold only four years in six. The board of
supervisors may unite the offices of clerk and register in one office.
_Amendments_ are proposed by two-thirds of all the members of each
branch, and ratified by a majority of the electors voting thereon at the
next general election. Every sixteenth year the question of a general
revision of the constitution by a convention shall be submitted to the
electors of the state.
Wisconsin.
This state was admitted into the union by an act of congress, May 29,
1848.
_Electors._ White male citizens, or foreigners who have declared their
intention to become citizens, having resided in the state one year; also
civilized persons of Indian descent, not members of any tribe.
_Legislature._ A senate and an assembly. Members of the assembly are
elected annually; the number not to be less than fifty-four, nor greater
than one hundred. The number of senators may not be less than
one-fourth, nor greater than one-third of the number of members of
assembly. Senators are chosen for two years, half every year. Members of
both houses are elected in single districts, apportioned every five
years; and must have resided in the state a year, and be qualified
electors of the districts.
Bills are passed over the veto by majorities of two-thirds. Quorum, a
majority.
_Executive._ The governor is elected for two years. Any citizen of the
United States and qualified elector of the state, is eligible to the
office of governor or lieutenant-governor.
A secretary of state, a treasurer, and an attorney-general, are elected
for two years.
Sheriffs, coroners, registers of deeds, and district-attorneys, are
elected in counties, for two years. Sheriffs are ineligible for the next
two years.
_Judiciary._ A supreme court, circuit courts, courts of probate, and
justices of the peace. Inferior courts, with limited civil jurisdiction,
may be established by law in the several counties. By the constitution,
the judges of the circuit courts were to be judges of the supreme court
for five years, and until the legislature should otherwise provide. A
separate supreme court may be organized, to consist of a chief-justice
and two associate justices elected by the electors of the state for six
years; one only to be elected at a time. The circuit judges also, one in
each judicial circuit, are elected for six years. The supreme court
shall hold at least one term annually at the seat of government, and at
such other places as the legislature may provide. A circuit court is to
be held at least twice a year in each county.
A judge of probate is chosen in each county for two years; but the
office may be abolished, and probate powers conferred on inferior county
courts. Justices of the peace are elected in the several towns, cities,
and villages, for two years.
_Amendments_ are to be approved by a majority of the whole of each house
of two successive legislatures, and ratified by the people. Also the
legislature may submit to the people the question of calling a
convention to revise or change the constitution.
Iowa.
The state of Iowa was admitted into the union by an act of congress
approved December 28, 1846.
_Electors._ White male citizens, resident in the state six months, and
in the county twenty days.
_Legislature._ The two houses are called the _general assembly_.
Representatives are elected in their respective districts for two years;
their number to be not less than thirty-nine, nor exceed seventy-two.
They must be inhabitants of the state one year, and residents of the
county or district thirty days. Senators, in number not less than
one-third, nor more than one-half of the number of representatives, are
elected for four years, one-half every two years. Age, twenty-four
years; otherwise qualified as representatives.
Two-thirds majorities of the members present, pass bills vetoed by the
governor. Bills not returned within three days also become laws, unless
their return is prevented by adjournment.
_Executive._ The governor is elected for four years; must have been a
citizen of the United States and a resident of the state, two years; and
must be thirty years of age. No lieutenant-governor. In case of vacancy
in the office of governor, the office devolves upon the secretary of
state until the vacancy is filled.
A secretary of state, an auditor of public accounts, and a treasurer,
are elected for two years.
_Judiciary._ A supreme court, district courts, and such inferior courts
as the legislature may establish. The supreme court consists of a
chief-justice and two associates, elected by joint vote of the two
branches, for six years. It has appellate jurisdiction only in all cases
of chancery, and constitutes a court for the correction of errors at
law. Each district court consists of a judge elected by the voters of
the district, for five years, at the township elections. A prosecuting
attorney and a clerk of the district court, are elected in each county
at the general election, for two years.
_Amendments_ are provided for only by a convention. The legislature may
provide for a vote of the people, and if a majority of the votes are in
favor of a convention, an election of delegates is to be held within six
months.
California.
The constitution of this state was adopted November 13, 1849; and the
state was admitted by act of congress, September 9, 1850.
_Electors._ White male citizens of the United States, and white male
citizens of Mexico having elected to become citizens of the United
States under the treaty of peace, who have resided in the state six
months, and in the county or district thirty days.
_Legislature._ Senate and assembly. Members of assembly, the number to
be not less than thirty, nor greater than eighty, are chosen annually by
districts. Senators, not to be less than one-third nor more than
one-half of the number of members of assembly, are elected by districts
for two years, one-half every year. Members of both houses must have
resided in the state two years, and in their respective districts one
year, and be qualified voters. They are apportioned every five years.
Bills, rejected by the governor, must be passed by a majority of
two-thirds of each house, to become a law. Bills become laws if not
returned by the governor within ten days, unless the legislature shall
sooner adjourn.
_Executive._ A governor and a lieutenant-governor are elected for two
years. Age, twenty-five years, and two years' residence in the state.
A secretary of state, a controller, a treasurer, an attorney-general,
and a surveyor-general, are elected for two years, by joint vote of the
two houses.
_Judiciary._ A supreme court, district courts, county courts, justices
of the peace, and such municipal and other inferior courts as the
legislature may establish. The supreme court consists of three judges
elected by the electors of the state for six years, one every two years;
the senior justice in commission to be chief-justice. District judges
are elected in their respective districts for six years. A judge of the
county court is elected in each county for four years, and performs also
the duties of judge of probate. The number of justices of the peace
elected in each county, city, town, or village, is fixed by law.
The election of sheriffs, coroners, county clerks and certain other
officers, is provided for by law.
_Amendments_ must be agreed to by majorities of all the members of the
two houses of two successive legislatures, and ratified by the people.
The legislature may, by two-thirds majorities, submit to the people the
question of calling a convention for a general revision of the
constitution.
Minnesota.
This state was admitted into the union in 1858.
_Electors._ White male citizens having resided in the United States one
year, and in the state four months. Also foreigners who have so resided,
and declared their intention to become citizens; and persons of mixed
white and Indian blood, and of Indian blood, under certain regulations.
_Legislature._ A senate and a house of representatives. The first
legislature consisted of thirty-seven senators and eighty
representatives.
_Executive._ A governor and a lieutenant-governor are elected for two
years.
A secretary of state, a treasurer, and an attorney-general, are elected
for two years, and a state auditor for three years.
_Judiciary._ The judicial power is vested in a supreme court, district
courts, courts of probate, justices of the peace, and such other courts
inferior to the supreme court, as the legislature may establish by a
two-thirds vote.
Constitution of the United States.
We, the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquillity, provide for the
common defense, promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.
Article I.
Section. All legislative powers herein granted shall be vested
in a congress of the United States, which shall consist of a senate and
house of representatives.
Sec. 2. The house of representatives shall be composed of
members chosen every second year, by the people of the several states;
and the electors in each state shall have the qualifications requiste
for electors of the most numerous branch of the state legislature.
No person shall be a representative who shall not have attained to the
age of twenty-five years, and been seven years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that state
in which he shall be chosen.
Representatives and direct taxes shall be apportioned among the several
states which may be included within this union, according to their
respective numbers, which shall be determined by adding to the whole
number of free persons, including those bound to service for a term of
years, and excluding Indians not taxed, three-fifths of all other
persons. The actual enumeration shall be made within three years after
the first meeting of the congress of the United States, and within every
subsequent term of ten years, in such manner as they shall by law
direct. The number of representatives shall not exceed one for every
thirty thousand, but each state shall have at least one representative;
and until such enumeration shall be made, the state of New Hampshire
shall be entitled to choose _three_; Massachusetts, _eight_; Rhode
Island and Providence Plantations, _one_; Connecticut, _five_; New York,
_six_; New Jersey, _four_; Pennsylvania, _eight_; Delaware, _one_;
Maryland, _six_; Virginia, _ten_; North Carolina, _five_; South
Carolina, _five_; and Georgia, _three_.
When vacancies happen in the representation from any state, the
executive authority thereof shall issue writs of election to fill such
vacancies.
The house of representatives shall choose their speaker and other
officers, and shall have the sole power of impeachment.
Sec. 3. The senate of the United States shall be composed of
two senators from each state, chosen by the legislature thereof, for six
years; and each senator shall have one vote.
Immediately after they shall be assembled in consequence of the first
election, they shall be divided as equally as may be, into three
classes. The seats of the senators of the first class shall be vacated
at the expiration of the second year; of the second class at the
expiration of the fourth year; and of the third class at the expiration
of the sixth year; so that one-third may be chosen every second year;
and if vacancies happen, by resignation or otherwise, during the recess
of the legislature of any state, the executive thereof may make
temporary appointments, until the next meeting of the legislature, which
shall then fill such vacancies.
No person shall be a senator who shall not have attained to the age of
thirty years, and been nine years a citizen of the United States, and
who shall not, when elected, be an inhabitant of that state for which he
shall be chosen.
The vice-president of the United States shall be president of the
senate, but shall have no vote, unless they be equally divided.
The senate shall choose their other officers, and also a president pro
tempore, in the absence of the vice-president, or when he shall exercise
the office of president of the United States.
The senate shall have the sole power to try all 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.
Judgment, in cases of impeachment, shall not extend further than to
removal from office, and disqualification to hold and enjoy any office
of honor, trust, or profit, under the United States; but the party
convicted shall, nevertheless, be liable and subject to indictment,
trial, judgment and punishment, according to law.
Sec. 4. The times, places and manner of holding elections for
senators and representatives, shall be prescribed in each state by the
legislature thereof; but the congress may at any time, by law, make or
alter such regulations, except as to the places of choosing senators.
The congress shall assemble at least once in every year; and such
meeting shall be on the first Monday in December, unless they shall, by
law, appoint a different day.
Sec. 5. Each house shall be the judge of the elections, returns
and qualifications of its own members; and a majority of each shall
constitute a quorum to do business; but a smaller number may adjourn
from day to day, and may be authorized to compel the attendance of
absent members, in such manner, and under such penalties, as each house
may provide.
Each house may determine the rules of its proceedings, punish its
members for disorderly behavior, and, with the concurrence of
two-thirds, expel a member.
Each house shall keep a journal of its proceedings, and from time to
time publish the same, excepting such parts as may, in their judgment,
require secrecy; and the yeas and nays of the members of either house,
on any question, shall at the desire of one-fifth of those present, be
entered on the journal.
Neither house, during the session of congress, shall, without the
consent of the other, adjourn for more than three days, nor to any other
place than that in which the two houses shall be sitting.
Sec. 6. 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 attendance at the session of their respective houses, and
in going to and returning from the same; and for any speech or debate in
either house, they shall not be questioned in any other place.
No senator or representative shall, during the time for which he was
elected, be appointed to any civil office 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.
Sec. 7. All bills for raising revenue shall originate in the
house of representatives; but the senate may propose, or concur with,
amendments, as on other bills.
Every bill which shall have passed the house of 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 likewise be
reconsidered, and, if approved by two-thirds of that house, it shall
become a law. But, in all such cases, the votes of both houses shall be
determined by yeas and nays, and the names of the persons voting for and
against the bill shall be entered on the journal of each house
respectively. If any bill shall not be returned by the president within
ten days (Sundays excepted) after it shall have been presented to him,
the same shall be a law, in like manner as if he had signed it, unless
the congress, by their adjournment, prevent its return, in which case it
shall not be a law.
Every order, resolution, or vote, to which the concurrence of the senate
and house of representatives may be necessary, (except on a question of
adjournment,) shall be presented to the president of the United States,
and before the same shall take effect, shall be approved by him, or,
being disapproved by him, shall be repassed by two-thirds of the senate
and house of representatives, according to the rules and limitations
prescribed in the case of a bill.
Sec. 8. The congress shall have power:
To lay and collect taxes, duties, imposts, and excises to pay the debts
and provide for the common defense, and general welfare of the United
States; but all duties, imposts, and excises shall be uniform throughout
the United States:
To borrow money on the credit of the United States:
To regulate commerce with foreign nations, and among the several states,
and with the Indian tribes:
To establish a uniform rule of naturalization, and uniform laws on the
subject of bankruptcies throughout the United States:
To coin money; to regulate the value thereof, and of foreign coin; and
fix the standard of weights and measures:
To provide for the punishment of counterfeiting the securities and
current coin of the United States:
To establish post offices and post roads:
To promote the progress of science and useful arts, by securing for
limited times, to authors and inventors, the exclusive right to their
respective writings and discoveries:
To constitute tribunals inferior to the supreme court:
To define and punish piracies and felonies committed on the high seas,
and offenses against the law of nations:
To declare war; grant letters of marque and reprisal; and make rules
concerning captures on land and water:
To raise and support armies; but no appropriation of money to that use
shall be for a longer term than two years:
To provide and maintain a navy:
To make rules for the government and regulation of the land and naval
forces:
To provide for calling forth the militia to execute the laws of the
union, suppress insurrections, and repel invasions:
To provide for organizing, arming and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States; reserving to the states respectively, the appointment of
the officers, and the authority of training the militia, according to
the discipline prescribed by congress:
To exercise exclusive legislation in all cases whatsoever, over such
district (not exceeding ten miles square) as may, by cession of
particular states, and the acceptance of congress, become the seat of
the government of the United States, and to exercise like authority over
all places purchased by the consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals,
dock-yards, and other needful buildings: And,
To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
constitution in the government of the United States, or in any
department or officer thereof.
Sec. 9. The migration or importation of such persons as any of
the states now existing shall think proper to admit, shall not be
prohibited by the congress prior to the year one thousand eight hundred
and eight; but a tax or duty may be imposed on such importation, not
exceeding ten dollars for such person:
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.
No bill of attainder or ex post facto law shall be passed.
No capitation or other direct tax shall be laid, unless in proportion to
the census or enumeration hereinbefore directed to be taken.
No tax or duty shall be laid on articles exported from any state. No
preference shall be given, by any regulation of commerce or revenue, to
the ports of one state, over those of another; nor shall vessels bound
to or from one state be obliged to enter, clear, or pay duties in
another.
No money shall be drawn from the treasury, but in consequence of
appropriations made by law; and a regular statement and account of the
receipts and expenditures of all public money shall be published from
time to time.
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 present, emolument, office,
or title of any kind whatever, from any king, prince, or foreign state.
Sec. 10. No state shall enter into any treaty, alliance, or
confederation; grant letters of marque and reprisal; coin money; emit
bills of credit; make anything but gold and silver coin a tender in
payment of debts; pass any bill of attainder, ex post facto law, or law
impairing the obligation of contracts; or grant any title of nobility.
No state shall, without the consent of the congress, lay any imposts or
duties on imports or exports, except what may be absolutely necessary
for executing its inspection laws; and the net produce of all duties and
imposts laid by any state on imports or exports, shall be for the use of
the treasury of the United States; and all such laws shall be subject to
the revision and control of the congress. No state shall, without the
consent of congress, lay any duty of tonnage, keep troops or ships of
war in time of peace, enter into any agreement or compact with another
state, or with a foreign power, or engage in war unless actually
invaded, or in such imminent danger as will not admit of delay.
Article II.
Section 1. 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 follows:
Each state shall appoint, in such manner as the legislature thereof may
direct, a number of electors equal to the whole number of senators and
representatives to which the state may be entitled in the congress; but
no senator or representative, or person holding an office of trust or
profit under the United States, shall be appointed an elector.
The electors shall meet in their respective states, and vote by ballot
for two persons, of whom one at least shall not be an inhabitant of the
same state with themselves. And they shall make a list of all the
persons voted for, and of the number of votes for each, which list they
shall sign and certify, and transmit, sealed, to the seat of the
government of the United States, directed to the president of the
senate. The president of the senate shall, in the presence of the senate
and house of representatives, open all the certificates, and the votes
shall then be counted. The person having the greatest number of votes
shall be the president, if such number be a majority of the whole number
of electors appointed; and if there be more than one who have such
majority, and have an equal number of votes, then the house of
representatives shall immediately choose by ballot one of them for
president; and if no person have a majority, then, from the five highest
on the list, the said house shall, in like manner, choose the president.
But in choosing the president, the votes shall be taken by states, the
representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the
states, and a majority of 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.
[By the 12th article of amendment, the above clause has been repealed.]
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 United States.
No person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, shall be
eligible to the office of president; neither shall any person be
eligible to that office who shall not have attained to the age of
thirty-five years, and been fourteen years a resident within the United
States.
In case of the removal of the president from office, or of his death,
resignation, or inability to discharge the powers and duties of the said
office, the same shall devolve on the vice-president, and the congress
may, by law, provide for the case of removal, death, resignation, or
inability, both of the 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.
The president shall, at stated times, receive for his services a
compensation, which shall neither be increased nor diminished during the
period for which he shall have been elected; and he shall not receive,
within that period, any other emolument from the United States, or any
of them.
Before he enter on the execution of his office, he shall take the
following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the
office of President of the United States; and will, to the best of my
ability, preserve, protect, and defend the constitution of the United
States.
Sec. 2. The president shall be commander-in-chief of the army
and navy of the United States, and of the militia of the several states,
when called into the actual service of the United States; he may require
the opinion, in writing, of the principal officer in each of the
executive departments, upon any subject relating to the duties of their
respective offices; and he shall have power to grant reprieves and
pardons for offenses against the United States, except in cases of
impeachment.
He shall have power by and with the advice and consent of the senate, to
make 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 officers of the United States whose
appointments are not herein otherwise provided for, and which shall be
established by law: but the congress may, by law, vest the appointment
of such inferior officers as they think proper, in the president alone,
in the courts of law, or in the heads of departments.
The president shall have power to fill up all vacancies that may happen
during the recess of the senate, by granting commissions which shall
expire at the end of their next session.
Sec. 3. He shall from time to time give to the congress
information of the state of the union; and recommend to their
consideration such measures as he shall judge necessary and expedient.
He may, on 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.
Sec. 4. The president, vice-president, and all civil officers
of the United States, shall be removed from office on impeachment for,
and conviction of, treason, bribery, or other high crimes and
misdemeanors.
Article III.
Section 1. The judicial power of the United States shall be
vested in one supreme court, and in such inferior courts as the congress
may, from time to time, ordain and establish. The judges both of the
supreme and inferior courts, shall hold their offices during good
behavior; and shall, at stated times, receive for their services a
compensation which shall not be diminished during their continuance in
office.
Sec. 2. The judicial power shall extend to all cases in law and
equity, arising under this constitution, the laws of the United States
and treaties made, or which shall be made, under their authority; to all
cases affecting ambassadors, other public ministers, and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to which
the United States shall be a party, to controversies between two or more
states; between a state and citizens of another state; between citizens
of different states; between citizens of the same state claiming lands
under grants of different states; and between a state, or the citizens
thereof; and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a party, the supreme court shall
have original jurisdiction. In all the other cases before mentioned, the
supreme court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations, as the congress
shall make.
The trial of all crimes, except in cases of impeachment, shall be by
jury; and such trial shall be held in the state where the said crimes
shall have been committed; but when not committed within any state, the
trial shall be at such place or places as the congress may by law have
directed.
Sec. 3. 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.
Article IV.
Section 1. Full faith and credit shall be given, in each state,
to the public acts, records, and judicial proceedings of every other
state. And the congress may, by general laws, prescribe the manner in
which such acts, records and proceedings shall be proved, and the effect
thereof.
Sec. 2. The citizens of each state shall be entitled to all the
privileges and immunities of citizens in the several states.
A person charged in any state with treason, felony, or other crime, who
shall flee from justice, and be found in another state, shall, on demand
of the executive authority of the state from which he fled, be delivered
up, to be removed to the state having jurisdiction of the crime.
No person held to service or labor in one state, under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor; but shall be
delivered up on claim of the party to whom such service or labor may be
due.
Sec. 3. New states may be admitted by the congress into this
union; but no new state shall be formed or erected within the
jurisdiction of any other state, nor any state be formed by the junction
of two or more states, or parts of states, without the consent of the
legislatures of the states concerned, as well as of the congress.
The congress shall have power to dispose of, and make all needful rules
and regulations respecting the territory or other property belonging to
the United States; and nothing in this constitution shall be so
construed as to prejudice any claims of the United States, or of any
particular state.
Sec. 4. The United States shall guaranty to every state in this
union, a republican form of government; and shall protect each of them
against invasion, and on application of the legislature, or of the
executive (when the legislature cannot be convened) against domestic
violence.
Article V.
The congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to this constitution, or on the
application of the legislatures of two-thirds of the several states,
shall call a convention for proposing amendments; which, in either case,
shall be valid to all intents and purposes, as 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.
Article VI.
All debts contracted, and engagements entered into, before the adoption
of this constitution, shall be as valid against the United States under
this constitution, as under the confederation.
This constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made or which shall be made under
the authority of the United States, shall be the supreme law of the
land, and the judges in every state shall be bound thereby, any thing in
the constitution or laws of any state to the contrary notwithstanding.
The senators and representatives before mentioned, and the members of
the several legislatures, and all executive and judicial officers, both
of the United States, and of the several states, shall be bound, by oath
or affirmation, to support this constitution; but no religious test
shall ever be required as a qualification to any office or public trust
under the United States.
Article VII.
The ratification of the conventions of nine states shall be sufficient
for the establishment of this constitution between the states so
ratifying the same.
Done in convention, by the unanimous consent of the states present, the
seventeenth day of September, in the year of our Lord one thousand seven
hundred and eighty-seven, and of the Independence of the United States
of America, the twelfth. In witness whereof we have hereunto subscribed
our names.
George Washington,
_President, and Deputy from Virginia._
_New Hampshire._--John Langdon, Nicholas Gilman.
_Massachusetts._--Nathaniel Gorham, Rufus King.
_Connecticut._--Wm. Samuel Johnson, Roger Sherman.
_New-York._--Alexander Hamilton.
_New Jersey._--William Livingston, David Brearly, William Paterson,
Jonathan Dayton.
_Pennsylvania._--Benjamin Franklin, Robert Morris, Thomas Fitzsimmons,
James Wilson, Thomas Mifflin, George Clymer, Jared Ingersoll, Gouverneur
Morris.
_Delaware._--George Read, Gunning Bedford, Jr., John Dickinson, Richard
Bassett, Jacob Broom.
_Maryland._--James M'Henry, Daniel of St. Thomas Jenifer, Daniel
Carroll.
_Virginia._--John Blair, James Madison, Jr.
_North Carolina._--William Blount, Richard Dobbs Spaight, Hugh
Williamson.
_South Carolina._--John Rutledge, Charles Pinckney, Pierce Butler,
Charles Cotesworth Pinckney.
_Georgia._--William Few, Abraham Baldwin.
_Attest:_ William Jackson, _Secretary_.
Amendments.
Article 1. Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech or of the press; or the right of the
people peaceably to assemble, and to petition the government for a
redress of grievances.
Art. 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.
Art. III. No soldier shall, in time of peace, be quartered in
any house without the consent of the owner, nor in a time of war, but in
a manner to be prescribed by law.
Art. IV. 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 warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the person or things to be seized.
Art. V. No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces, or in
the militia when in actual service, in time of war or public danger; nor
shall any person be subject, for the same offense, to be twice put in
jeopardy of life or limb, nor shall be compelled, in any criminal case,
to be a witness against himself; nor be deprived of life, liberty or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
Art. VI. In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
defense.
Art. VII. In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury shall be otherwise
reëxamined in any court of the United States, than according to the
rules of the common law.
Art. VIII. Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
Art. IX. The enumeration in the constitution of certain rights,
shall not be construed to deny or disparage others retained by the
people.
Art. X. The powers not delegated to the United States, by the
constitution, nor prohibited by it to the states, are reserved to the
states respectively, or to the people.
Art. XI. The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of another
state, or by citizens or subjects of any foreign state.
Art. XII. The electors shall meet in their respective states
and vote by ballot for president and vice-president, one of whom, at
least, shall not be an inhabitant of the same state with themselves;
they shall name in their ballots the person voted for as president, and
in distinct ballots the person voted for as vice-president, and they
shall make distinct lists of all persons voted for as president, and of
all persons voted for as vice-president, and of the number of votes for
each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the
president of the senate;--the president of the senate shall, in the
presence of the senate and house of representatives, open all the
certificates, and the votes shall then be counted;--the person having
the greatest number of votes for president, shall be the president, if
such number be a majority of the whole number of electors appointed; and
if no person have such 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 representatives from each state having one vote; a
quorum for this purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the states shall be
necessary to a choice. And if the house of representatives shall not
choose a president whenever the right of choice shall devolve upon them,
before the fourth day of March next following, then the vice-president
shall act as president, as in the case of the death or other
constitutional disability of the president. The person having the
greatest number of votes as vice-president, shall be the vice-president,
if such number be a majority of the whole number of electors appointed,
and if no person have a majority, then, from the two highest numbers on
the list, the senate shall choose the vice-president; a quorum for the
purpose shall consist of two-thirds of the whole number of senators, and
a majority of the whole number shall be necessary to a choice. But no
person constitutionally ineligible to the office of president shall be
eligible to that of vice-president of the United States.
Index
Academies and colleges, 82
Accessories to crime, 220
Actions at law, defined, 64
how commenced, 64
Adjutant-general, 92
Administrators, duties of, 179
Admission of states, 158
Agent, responsibilities of, 202-204
Alabama, constitution of, 259
Aldermen, duties of, 60
Aliens, power to pass laws for the naturalization of, 121, 122
disabilities of, 121
Alliance, defined, 135
Alliances, when binding, 230, 231
by states, prohibited, 135
Amendments of the constitution, provision for, 160
Appeals of suits, 68, 69
Appellant, appellee, defined, 69
Apellate jurisdiction, defined, 70
Appointment, power of, (see Governor and President.)
Apprentices and servants, 175, 176
Aquatic rights, 183, 185
Aristocracy, defined, 25
Arkansas, constitution of, 264
Army, standing, 149
Arrest and examination of offenders, 69
Arsenals, use of, 92
Arson, defined, 217
Assault and battery, 220
Assessment and collection of taxes, 76-78
Assessors, duties of, 77
Assignments, 197-199
Assumption of public debt, 160
Attachment, suit by, 68
Attainder of treason, 155
Attorney, defined, 65
Attorney, county or state's, 51, 56
Attorney-general, state, 51
of United States, 151
Auditor of state, 51
county, 65
Auxiliary executive departments, 147-151
Bail, defined, how taken, 69, 70
excessive, forbidden, 165
Bailment, 200-202
Ballot, defined, 33
Bankruptcy, power to pass laws of, 124
Banks, and their operation, 86-88
Belligerent, defined 228
Betting and gaming, 221
Bigamy, defined, 219
Bill, defined, 45
Bills, passage of, 45-43
Bills of attainder, by congress, prohibited, 133
by states, prohibited, 137
of credit, defined, 136
passage of, prohibited, 136
of exchange, 213-215
Blockade, defined, 236
Body politic, defined, 19, 54
Bribery, defined, 219
Broker and brokerage, 204, 205
Bullion, defined, 125
Burglary, defined, 218
Cabinet, defined, 147
officers of, and their powers and duties, 147
California, constitution of 277
Canals, construction of, 82-84
tolls on, 84
Canvassing of votes, 34
Capital, defined, 41, 216
Capitation or poll-tax, 76, 77, 133
Carriers of goods, liability of, 201, 202
Causes, criminal and civil, defined, 64
Casting vote, when given, 46
Challenging voters, 33
Charges d'affaires, 145
Charter, defined, 59
Chattel mortgages, 199
Cities, villages, &c., 59-62
Citizens, privileges of, in the several states, 157
Civil government, defined, 17
mankind fitted for, 17
Civil society, 17
Clearance of vessels, 120
Codicil, defined, 179
Coining money, power of, 124
by states, prohibited, 136
Collection of taxes, 76-78
Colony, defined, 95
Colonies, government of, 95
Commerce, foreign, regulation of, 114-119
Commerce, domestic, power of congress to regulate, 121, 122
with Indians, 122
Commissary-general, 92
Commissioners, county, duties of, 54
Committees, legislative, 44, 45
Common carriers, responsibilities of, 201, 202
Common council, 60
Common law, defined, 167
Commons, house of, 29
Common schools, school funds, &c., 79-82
Commonwealth, defined, 26
Confederacy, defined, 101
Confederation, when formed, 97
nature of, 98, 99, 101, 102
Confiscate, defined, 230
Congress, under confederation, how constituted, 97, 102
Congress under constitution, how constituted, 104-109
Congress, powers of, (see Powers of Congress,)
Counterfeiting, defined, 218
United States coin, power to punish, 125
Connecticut, constitution of, 244
Constables, duties of, 58
Constitution, defined, 27
objects of, 27
how formed, 27, 28
of United States, 281
history of, 100
nature of, 101-104
how amended, 160
supremacy of, 161
ratification of, by the states, 162
amendments to, 163-166
Consuls, appointment of, 144
duties of, 145, 227, 228
Contraband goods, 235, 236
Contracts in general, 189-193
Contracts of sale, 193-197
Contracts, obligation of, not to be impaired, 137
Controller, or auditor, 51
Convention, defined, 28
Conventional law of nations, 224
Copy-rights and patents, power of congress concerning, 126, 127
Coroners, duties of, 55
Corporation, defined, 54
Corporations, how formed, 59
nature and powers of, 59-62
Corruption of blood, 155
Council, legislative, 38
Counties, origin of, 53, 54
powers of, 54
County officers duties of, 54-66
County commissioners, 54
Courts, justices, 63-70
county, 70
common pleas, 70
circuit, 70, 71
oyer and terminer, 71
supreme, 73
of appeals, 73
of chancery or equity, 73, 74
of probate, 74
of impeachment, 75, 76
of United States, 151, 154
martial, 92
Crime, infamous, defined, 31
Crimes and misdemeanors, 216-221
Criminal suits, defined, 64
Customs, duties, &c., defined, 113
collection of, 119
Debt, national, at different periods, 114
Declaration of war, 231
Deeds and mortgages, 181-183
Delaware, constitution of, 250
Delegate, defined, 27
Democracy, defined, 25, 26
Deposit fund, U.S., 80
Deposits in banks, 87
Depositary, responsibility of, 200
Descent of property, of intestates, 179, 180
Despotism, defined, 25
Devise of property, 177
Diplomacy, defined, 148
District of Columbia, power of congress over, 130
Dividends, defined, 86
Domestic relations, laws regulating, 171-177
Dower, defined, and right of, 183
Drunkards, contracts made by, when binding, 191
Dueling, defined, 219
Duties, imposts and excises, defined, 113
power of congress to lay, 113
of tunnage, states may not lay, 120
protective, by what authority laid, 116, 117
Easement, defined, (see Right of Way,) 183
Education, provision for, &c., 79
Elections, time of, how conducted, &c., 32-35
by plurality, 34-35
by majority, 34-35
Electors, qualifications of, 29-31
(See also Synopsis of the State Constitutions.)
Electors of president and vice-president, how chosen, 140
Embassadors, ministers, &c, 144, 145
their appointment and duties, 144, 145
Embassadors, rights and powers of, 226, 227
Embezzlement, defined, 218
Envoys, (see Embassadors.)
Escapes, persons aiding or permitting, punishable, 220
Excise, defined, and power to lay, 112, 113
Execution, issuing and collection of, in justices' courts, 67, 68
exemption from, 68
Executive department, state, 36, 48-50
of the United States, 138-142
officers of, their appointment and duties, 147-150
Executors, powers and duties of, 179
Ex post facto laws, passage of, prohibited, 133,137
Factor or agent, powers and responsibilities of, 202, 203
False imprisonment, defined, 220
Federal, defined, 101
Fence-viewers, duties of, 58
Fee and fee-simple, defined, 182, 186
Felony, power of congress to define and punish, 128
Florida, constitution of, 258
Forgery, defined, 218
Franchise, defined, 31
Franking privilege, to whom granted, 151
Fraudulent sales, assignments, &c., 197, 200
Freedom of speech and of the press, guarantied, 163
Freehold, freeholder, defined, 31
Fugitives from justice, provision for the apprehension of, 157
from service, apprehension and return of, 157, 158
Fund, defined, 79
Funds, various kinds of, 79-81
Georgia, constitution of, 257
Government, civil, defined, 17
different forms of, 23-26
division of powers of, 35-37
Governor and lieutenant-governor, election and duties of, 48-50
Graves, opening of, punishable, 219
Great Britain, government of, 28, 29
Habeas corpus, privilege of writ of, guarantied, 132
Hereditaments, corporeal and incorporeal, defined, 183
Highways, supervision and oversight of, 68
Homicide, various kinds of, defined, 217
Husband and wife, laws regulating the relation of, 171-174
Idiots and lunatics, contracts by, when binding, 190
Illinois, constitution of, 272
Impeachment, trial of, 75
Imposts, duties, and excises, defined, 113
Incest, defined, 219
Incorporated companies, 61
Independence of the states declared, 97
Indiana, constitution of, 270
Indians, power to regulate commerce with, 122
Indictments, how made, 77
Innkeepers, liability of, 201
Insurance companies, 89, 90
Insurrection and rebellion, defined, 90
Interest, and rates of, in the different states, 215
Intestates, descent of property of, 179, 180
Iowa, constitution of, 276
Issue, joining of, in justices' courts, 65
Issues of fact and of law, defined, 71
Joining issue in justices' courts, 65
Judges, appointment of, in the states, 70
how removable, 76
(See also Synopsis of the State Constitutions.)
of the United States courts, appointment of, 144, 146
Judgment, rendering of, 65
concession and collection of, in justices' courts, 67, 68
Judicial department, state, 63-76
of the United States, 151-154
Jurisdiction, defined, 64
original and appellate, defined, 70
Juries in justices' courts, 66, 67
grand and petit, 71
Jury, right of trial by, secured, 66, 164, 165
Justices' courts, proceedings of, 64-70
Justices of the peace, jurisdiction of, 64
Kentucky, constitution of, 268
Larceny, grand and petit, defined, 218
Law, defined, 16
common and statute, defined, 167
Laws necessity of, 22
man fitted for, 17
political, civil, municipal, defined, 21, 22
manner of enacting, 43-48
Laws of nations, defined, 221, 223, 224
Leases, or estates for life, for years, at will, and by sufferance, rent, &c., 186-189
Legislatures, state, how formed, 37-40
meetings of, 40-43
organization and officers of, 41-43
Letters testamentary, and by whom issued, 179
of administration, and by whom issued, 179
Libel and slander, law concerning, 168, 169
Liberty, defined, 20, 167
of speech and of the press, secured, 163
of conscience, 19, 170
Lien, law concerning, 203, 205
Lieutenant-governor, duties of, 49
Lords, house of, 29
Louisiana, constitution of, 262
Maiming, defined, 217
Maine, constitution of, 239
Man, fitted for government and laws, 16, 17
Mandatary, responsibility of, 200
Manifest, defined, 121
Mankind, fitted for society, 15, 17
Manslaughter, defined, 217
Marque and reprisal, defined, 129
power to issue letters of, 129
states may not issue, 136
Marriage, law concerning, 171
Maryland, constitution of, 252
Massachusetts, constitution of, 242
Masters, apprentices, and servants, 175-177
Mayor, election and duties of, 60
Michigan, constitution of, 273
Militia, regulation of, 90-92
Ministers, public, their appointment and duties, 144, 145
privilege and powers of, 145, 227
Minors, rights and liabilities of, 175
Minnesota, constitution of, 278
Mints of the United States, 125
Misdemeanors, defined, 64, 221
Mississippi, constitution of, 260
Missouri, constitution of, 265
Monarchy, defined, 24, 25
Money, power of congress to borrow, 114
power of congress to coin, 124
coining of, by states, prohibited, 136
how borrowed, 84
Moral, defined, 16
law, defined, 21
Mortgages, land, nature of, 182
chattel, 199
Murder, defined, 217
Nation and state, defined, 17
Nations, jurisdiction of, 225
rights and obligations of, 226-228
Naturalization, power to pass laws concerning, 122, 123
Navigation, regulation of, 119-121
acts of Great Britain, 99
Navy department, when established, 148
Negative, or veto, defined, 47
Neutral nations, rights and duties of, 228, 234-237
New Hampshire, constitution of, 240
New Jersey, constitution of, 247
New York, constitution of, 245
New states, power of congress to admit, 158
Nonsuit, judgment of, 66
North Carolina, constitution of, 255
Notaries public, duties of, 214
Notes, promissory, 207-212
Oaths of office, 161
test, forbidden, 161
Obligation of contracts, may not be impaired, 137
Obligations of nations, 225
Offenders, arrest of and examination, 69
Offenses against the law of nations, power to define, 128
Ohio, constitution of, 269
Overseers of highways, duties of, 58
of poor, duties of, 58
Pardon and reprieve, power of, 49, 143
Parent and child, law concerning, 174, 175
Parliament, how formed, 29
Parol contracts, defined, 190
Partnership, law concerning, 205, 207
Passports, defined, 120, 121
Patents and copy-rights, how secured, 126, 127
Patriarch, defined, 23
Pawnee, liability of, 201
Peace, treaties of, 237, 238
Pennsylvania, constitution of, 248
Pensions, military, 149
Perjury, defined, 219
Personal estate, defined, 77
Piracies and felonies, power of congress concerning, 128
Pleadings, in justices' courts, 65
Police courts and justices, 60
Policy, insurance, defined, 89
Political law, defined, 21, 27
power, by whom exercised, 29-31
Poll, defined, 32, 33
Poll-list, how and by whom kept, 32
Poll or capitation tax, 76, 77, 133
Polygamy, defined, 219
Poor, overseers of, their duties, 58
Postmaster-general, power and duties of, 149, 150
Postmasters, appointment and duties of, 149, 150
compensation of, 149, 150
Post-offices and post roads, power to establish, 126
Power of congress to lay and collect taxes, &c., 112-114
to borrow money, 114
to regulate commerce, 114-119
in relation to naturalization and bankruptcy, 122-124
to coin money, and regulate weights and measures, 124-125
to punish counterfeiting, 125
to establish post-offices, &c., 126
to secure patents and copy-rights, 126, 127
to define and punish piracies, felonies, &c., 128
to declare war, 128
to issue letters of marque and reprisal, 129
to provide for the national defense, generally, 129,130
to legislate over the District of Columbia, 130
to make all necessary and proper laws, 130, 131
Power of congress to declare punishment of treason, 155
to admit new states, 158
to dispose of and regulate territory and other public property, 159
Powers prohibited to congress, (see prohibitions on congress.)
Premium, defined, 89
Prescription, right by, 183, 184
President and vice-president, how chosen, 139-141
President, powers and duties of, 143-147
vacancy in office, how filled, 142
power of, to fill vacancies, 146
Principal and agent, responsibility of, 202, 205
Printing, public, by whom and how done, 52
Privateering, in what cases authorized, 233, 234
Prizes in war, how disposed of, 234
Prohibition on congress--
to abolish the slave trade, 131, 132
to suspend habeas corpus, 132, 133
to pass bills of attainder, 133
to pass ex post facto laws, 133
in relation to taxation and commerce, 133, 134
to grant titles of nobility, 135
Prohibition on the states--
to form treaties, alliances, &c., 135
to grant letters of marque and reprisal, 136
to coin money, 136
to emit bills of credit, 136
to make anything but coin a tender, 136
to impair the obligation of contracts, 137
to pass bills of attainder or ex post facto laws, 137
to grant titles of nobility, 137
to lay duties, 137, 138
Promissory notes, rules concerning, 207-212
Protective duties, nature of described, 116, 117
Quarantine regulations, 121
Quorum, defined, 42
Rail-roads, by what authority and how made, 84, 85
Ratification of constitution by states, 162
of treaties, 144
Ratio of representation in congress, how ascertained, &c., 105, 106
Real estate, defined, 77
of intestates, descent of, 179, 180
Rebellion, defined, 90, 91
Recognizance, defined, 69
Recorder or register, county, duties of, 55
Records, public, proving and effect of, 156, 157
Registry of vessels, 120
Religion, freedom in matters of, secured, 163
Representative, defined, 27, 28
Representatives, state, how apportioned and elected, 37-39
qualifications of, 40
Representatives in congress, how apportioned, 105
qualifications of, 104, 105
Reprieve and pardon, defined, and power to grant, 49, 143
Reprisals, power to make, forbidden to states, 136
Reprisals in war, 229, 230
Republic, defined, 26
Republican government, guarantied to the states, 159
Respondent, defined, 69
Revenue, defined, 80
national, how raised, 112-114
Revolution, causes of, 94-97
Rhode Island, constitution of, 243
Rights and liberty, defined, 18-20
Rights of person and property, defined, 18, 19, 167
Right of property, how acquired, 16, 177
Right by prescription, 184-186
Right of way, law concerning, 183, 184
Right of waters, 183, 185
Right of search, 236
Riot, defined, and how suppressed, 220
Roads, (see Highways.)
Robbery, defined, 218
School funds, schools, &c., 79-82
Sealer of weights and measures, duty of, 59
Secretary of state, of state government, 50
Secretary of state of the United States, duties of, 148
of the treasury, 148
of the interior, 149
of war, 149
of the navy, 149
Selectmen, duties of, 57
Senate, state, how constituted, 38-40
Senators and representatives, qualifications of, 40
(See State Constitutions.)
Senate of the United States, how formed, 108, 109
qualifications of members of, 111
vacancies in, how filled, 110, 111
Sergeant-at-arms, appointment and duties of, 42
Servants, rights and liabilities of, 176, 177
Sheriff and shire, origin of, 53, 54
powers and duties of, 55
Slander and libel, law concerning, 168, 169
Slave trade, not to be prohibited before 1808, 131, 132
declared piracy, 132
Society, civil, defined, 17
mankind fitted for, 15-17
South Carolina, constitution of, 256
Sovereignty, defined, 24
Speaker of house and senate, 41
Specialty, defined, 283
Spies in war, 233
State and nation, defined, 17
State constitutions, synopsis of, 239-280
State officers, executive, 50-52
State records, effect and proof of, 156, 157
State printer, appointment and business of, 52
Statute law, defined, 167
Stocks, public, defined, 84
Stratagems in war, 233
Subpœna, nature and service of, 65
Summons, suits commenced by, 64-66
Superintendent of schools, duties of, 52, 81
Supervisors, board of, of whom composed, 54
of towns, duties of, 54, 57
of highways, duties of, 58
Surveyor of county, 56
Surveyor-general, duties of, 52
Swearing, profane, unlawful, 221
Synopsis of the state constitutions, 239-280
Taxation, power of congress in relation to, 112-114
Taxes, assessment and collection of, 76-78
how apportioned among the states, 106-107
Tender, what lawful, 136
Tennessee, constitution of, 266
Testament, (see Wills and Testaments.)
Texas, constitution of, 263
Theocracy, defined, and government of, 24
Town clerk, duties of, 57
Town officers, election and duties of, 56-59
Towns and townships, organization and powers of, 53, 56
Treason against states, defined, 217
power of congress concerning, 155, 156
attainder of, 155
Treasurer, of state, duties of, 51
of county, 54, 55
of towns, 58
Treaties, how and by whom made, 244
by states prohibited, 135
of peace, 237, 238
Treaty, defined, 144
Truces in war, 237
Trustees of townships, power and duties of, 57
Tunnage, duties, states prohibited to lay, 119, 120
Union, nature of the, 101-104
Usury, defined, and forfeiture in case of, 215
Vacancy, in legislature, how filled, 40
in United States senate, how filled, 110, 111
Venire issuing of, 67
Verdict, defined, and how rendered, 67
Vermont, constitution of, 241
Vessels, registry, and measurement of, 120
Veto, defined, 47
Veto, in different states, (see State Constitutions.)
Villages, incorporation and government of, 61
Virginia, constitution of, 253
Viva voce, voting by, 34
Voters, qualifications of, in different states, (see State Constitutions.)
War, power of congress to declare, 128
offensive and defensive, 228, 231
causes and objects of, 228, 229
reprisals in, 229, 230
alliances in, 230, 231
how declared, 231
effect of, on the enemy's subjects, 232
stratagems in, 233
privateering and prizes, 233, 234
truces in, 237
Warrant, prosecution by, 69
Weights and measures, 59, 125
Wills and testaments, 177, 179
Wisconsin, constitution of, 275
Questions
Chapter I.
§1. What is the natural state of mankind?
§2. What renders them mutually dependent? By what means are they enabled
to supply their wants?
§3. Why should every man labor for himself?
§4. What comes from this arrangement?
§5. How are the rights of men secured to them?
§6. What is _law_?
§7. For what else than society are mankind fitted by nature? Define
_moral_.
§8. What is implied in man's having a moral nature?
§9. What qualities or faculties in mankind fit them for government and
law?
§10. What is a state or nation?
§11. What is the object of forming state associations? What is meant by
_civil government_?