OUTLINES
OF THE
CONSTITUTIONAL JURISPRUDENCE
OF THE
UNITED STATES;
DESIGNED AS A TEXT BOOK FOR LECTURES,
AS A CLASS BOOK FOR
ACADEMIES AND COMMON SCHOOLS,
AND AS A
MANUAL FOR POPULAR USE.
BY WILLIAM ALEXANDER DUER, L.L.D.
PRESIDENT OF COLUMBIA COLLEGE IN THE CITY
OF NEW-YORK.
Est omnibus necessarium, nosse rempublicam.--Cic.
NEW- YORK :
PUBLISHED BY COLLINS AND HANNAY.
W. E. DEAJV, PRINTER.
1833.
Entered according to the Act of Congress, in the year One Thousand Eight
Hundred and Thirty-three, by WILLIAM ALEXANDER DUER, in the
Clerk's Office of the Southern District of New- York.
TO
JAMES MADISON.
To you, Sir, as the surviving member of the august assembly that framed the Constitution, and of that illustrious triumvirate who, in vindicating it from the objections of its first assailants, succeeded in recommending it to the adoption of their country; to you, who, in discharging the highest duties of its administration, proved the stability and excellence of the Constitution, in war as well as in peace, and determined the experiment in favour of republican institutions and the right of self-government ; to you, who in your retirement, raised a warning voice against those heresies in the construction of that Constitution which for a moment threatened to impair it ; to you, Sir, as alone amongst the earliest and the latest of its defenders, this brief exposition of the organization and principles of the National Government, intended especially for the instruction of our American youth, is most respectfully, and, in reference to your public services, most properly inscribed.
Columbia College, JV. F. I
August 1st, 1833. f
(Ed. note: Many of the headings and index were omitted due to being illegible or unusable).
PREFACE.
THE following sheets are submitted to the Public in consequence of a resolution of “The American Lyceum," requesting the Author "to prepare and publish; Outlines of the Constitutional Jurisprudence of the United States,' in a form suitable for a text book for Lectures, and a class book to be used in Academies and Common Schools."
This resolution avowedly originated from a conviction, on the part of the respectable body who adopted it, of the advantage and propriety of including the study of our political institutions in the system of general education ; and the proposal seems to have been prompted by the opinion or experience of the individuals by whom it was brought forward, and who are practically engaged in the instruction of youth, that none of the existing Treatises upon Constitutional Law, were of a sufficiently popular character for the design contemplated; whilst the selection of the Author to compile such a work, is doubtless to be ascribed to his official connection with the "Lyceum," and to the circumstance of his having, to the knowledge of several of its members, been for some time previously engaged in lecturing upon Constitutional Jurisprudence in the College over which he has the honour to preside.
It was indeed at his suggestion that this branch of study had been added to the sub- graduate course of instruction in that Institution, and the duty of conducting it confided to his charge; and it was with peculiar satisfaction, though not without a due sense of its responsibility, that he had engaged in a task which, grateful as it was to him from its congeniality with his former studies and pursuits, he nevertheless apprehended would prove arduous in its execution, both from the nature of the subject, and his own views of its importance.
A knowledge of the history, organization, and principles of the political institutions under which he lives, is essential to the scholar, and must necessarily be advantageous to every man, wheresoever he may have been born, and under whatsoever form of government he may dwell. But it is obviously of more immediate necessity and benefit in free States, where every citizen may exercise a voice, more or less potential, in the administration of public affairs; and it may even be deemed indispensable in our own favoured land, where the political rights of all are equal, and where the obscurest individual is eligible to the highest and most responsible stations in the government. It may therefore well be regarded as a defect in the prevailing systems of education, that this study should so generally have been either altogether omitted, or deferred to that period of life when our youth are called on to participate in the active duties of society ; or that it should be considered appropriate to those only who are designed for a particular profession, or aspire to public employments.
Necessary, however, as is a profound knowledge of the Constitution, to the lawyer and the statesman, a general acquaintance with its principles and details is requisite to all who entertain just views of liberal education, or correctly estimate their privileges as citizens of a free Republic ; and the increasing interest which has of late been manifested by the more intelligent portion of the community, in discussions relative to the origin, structure, and principles of our political system, certainly evince that this class of citizens appreciate their political rights, and that so far, they are understood. But the information requisite cannot be implanted too soon after the mind has been prepared to receive it; and it should remain no longer a reproach to any of our higher seminaries of learning, that its graduates are sent forth into the world more familiar with the Constitution of the Roman Republic, and the principles of the Grecian confederacies, than with the fundamental institutions of their own country.
Recent events, moreover, demonstrate that a correct knowledge of the powers and duties of the National and State Governments cannot be too widely diffused nor too early inculcated; whilst, from the nature and value of that knowledge, the public interest and safety, if not the stability of our political institutions, no less than the happiness and security of individuals, require that it should be extended, in common with all the essential branches of general education, to every portion, and, if possible, to every member, of the community.
With this special end in view, the application of "The American Lyceum" was made to the Author, and was acceded to by him with similar feelings of mingled satisfaction and diffidence to those with which he had assumed the duty assigned to him in relation to the subject in Columbia College. In order in any measure to effect the object in contemplation, he conceived it proper to recast the materials he had already used in a different form, and to compose from them a new work divested, as far as practicable, of the professional character and aspect common to all previous publications on Constitutional Law. He has accordingly revised and remodelled his manuscript notes ; and in thus attempting to furnish a new outline of this branch of Jurisprudence, he has avoided, as far as possible, the use of all purely technical terms, and has never introduced them unaccompanied by the explanation requisite for those to whom they are not familiar; whilst in all other respects he has endeavoured to render his production useful as a popular manual, rather than that it should be distinguished as a scientific treatise.
In a work of this description, of which the essential value must depend on the fidelity with which the provisions of the Constitution, the legislative enactments for giving it effect, and the judicial construction which both have received, are stated and explained, it must be evident that, except as to method and arrangement, there can be little scope for originality. To that merit, therefore, the Author makes no pretensions. Upon such points of Constitutional Law as have been definitively settled, he has implicitly followed those guides whose decisions are obligatory and conclusive : upon questions which have arisen in public discussion, but have neither been presented for judicial determination, nor received an approved practical interpretation from the other branches of the Government, he has had recourse to those elementary writers whose opinions are acknowledged to possess the greatest weight, either from their intrinsic value, or their conformity with the general doctrines of the authoritative expounders of the Constitution : and in the absence both of authority and disquisition, the Author has ventured to rely upon his own reasonings, and has advanced his own opinions, so far only as he conceives them to be confirmed by undeniable principles, or established by analogous cases.
Besides the reported adjudications of the Supreme Court of the United States, the sources which have been resorted to are, the contemporaneous exposition of the Constitution by the authors of "The Federalist;" that portion of the "Lectures" of the late Chancellor of this State, Mr. Kent, which relate to the subject; Mr. Rawle's "View of the Constitution;'' and the more elaborate "Commentaries" of Mr. Justice Story. To all these works the Author acknowledges his obligations, although he must lament that the last mentioned invaluable repository of Constitutional learning did not reach him in time to consult it more at large; and in regard to the abridgment of it lately published by the learned commentator, " for the use of Colleges andHigh Schools," it may be observed, that both from its size and mode of execution it seems to aim at more select and limited objects than those proposed by the present treatise.
With respect to the two preceding elementary treatises to which the Author has referred, it will be found that he has not coincided with the restricted views taken, in the former, of the supremacy, and in the latter, of the perpetual obligation, of the Federal Constitution; but has maintained, upon both these important points, principles more favourable, as he conceives, to the power and stability of the National Government than those which seem to be entertained respectively by the learned authors of the Lectures on "American Law," and of the "View of the Constitution." He has not, however, differed from such distinguished jurists without being supported by the opinions of some of the most eminent statesmen of the present day, and of different parties; by the doctrines officially proclaimed by the President of the United States, and sustained in the speeches of Mr. Webster; nor without being sanctioned, as he conceives, by the judicial authority of Chief Justice Marshall, expressly, upon one of the points in question, and virtually, upon the other, by his affirmance of principles which are involved in its consideration, and must eventually govern its decision.
In referring to the venerable name of the present Chief Justice of the United States, the Author must be understood, on this and on all other occasions, as adopting his individual opinions, not less from deference to their official authority, than from the conviction wrought by the luminous and profound reasonings by which they are elucidated and supported. As that eminent and revered Judge has himself declared it auspicious to the Constitution and to the country, that the new Government found such able advocates and interpreters as the illustrious authors of “The Federalist," so it may be regarded as one of the most signal advantages attending its career, that its principles should have been developed and reduced to practice under a judicial administration so admirably qualified in every respect to expound them truly, and firmly to sustain them.
The nature and design of the present publication dispense with the, necessity, if they do not exclude the propriety, of marginal references to authorities in support of the positions advanced in the text. But it is believed that none are assumed without either a direct adjudication upon the point, or that collateral support which is derived from analogical reasoning and precedents, to sustain it, or without being warranted by the practice of the Government and the acquiescence of the People. From the phraseology adopted, it may perhaps in every instance be perceived whether any point of regulation or construction be authoritatively laid down or argumentatively stated. In the former case, the nature of the authority may be gathered from the language of the proposition; and in the latter, the premises from which a corollary or an analogy is deduced, are distinctly designated.
In arranging the materials thus collected and derived, the form of consecutive and dependent propositions has been preferred, as recommended by Professor Dugald Stewart in reference to Moral Science. This method had in substance been adopted by Sir W. Blackstone in the outlines of his original Lectures on the English Law, and has since been pursued by Mr. Justice Story in his “Commentaries on the Constitution of the United States”. It is, indeed, peculiarly appropriate to a work intended both as a text to be enlarged on, explained and illustrated by a Lecturer, and as a class book to be used by Teachers who must necessarily exercise a discretion in selecting such parts for recitation as may be best adapted to the age and capacities of their pupils; whilst with the aid of a proper index, it will be found equally convenient for the purposes of immediate and general reference. As to the order and distribution of the matter the Author has again to acknowledge his obligations to "The Federalist;" whose plan in this respect he has followed with very little other alteration than that of transposing the two branches into which the subject is naturally divided.
One word more remains to be added in regard to the relation which the work may be supposed to bear to the politics of the day. That it may derive an additional interest, and, it is to be hoped, an additional value from its reference to topics which have of late so much occupied the public mind, and so much excited the passions of at least a portion of the community, will not be denied. But this arises unavoidably from the nature of the subject. It will be recollected that the adoption of the Constitution of the United States gave birth to the two great parties into which the country was divided for many years after it went into operation; and, that to this day, the different opinions prevailing in regard to its construction, as well as to the principles of interpretation applicable to it, are influenced, if not governed, by the different views originally taken of the nature of the compact. By those whose intention it had been to establish a Supreme National Government, operating upon the citizens of the several States as individuals receiving protection and owing allegiance to the Union, it was liberally and beneficially expounded in order to effect their end. By those who, in opposition to that design, had been anxious to maintain the full sovereignty of the States, and to render the new Constitution a mere league or treaty between them, similar in its character to the former Confederation, a strict interpretation was contended for. It is therefore impossible to adopt a particular construction of the Constitution upon any point involving these original principles of opposition, without conflicting with the opinions, awakening the jealousies, or offending the prejudices, of one or the other of these parties; or, what is more to be deprecated, without appearing to enter the lists in defence of party doctrines, or being considered as enrolled under the banners of party leaders, and hazarding the hostility of those zealots upon whom the mantles of the old parties are now claimed to have descended.
To which of these parties the Author was attached; what principles he originally professed, and has ever adhered to, he is far, very far from wishing, were it even possible, to conceal. But it must be remembered that the original distinctions between those parties had for a long time disappeared, and although the collisions and hostility between them were occasionally continued and revived, yet these contests were maintained on new and independent grounds; and the ancient tests were so far omitted or forgotten with respect to individuals, that their original creed as to the Constitution, was either lost sight of, or deemed obsolete and unimportant.
It is true, indeed, that in some parts of the Union these original distinctions were to a certain degree preserved, and that of late years they have been more extensively revived; but 'in the contentions which have thence arisen the Author has had no personal concern or sympathy as a partizan. It is long since he withdrew from political life; and in the Judicial office which he held for some years previous to being called to his present station, he endeavoured to cultivate those qualities which the faithful performance of judicial duties imperiously demands. He trusts, therefore, that as he approached the present subject with no views or feeling of party interest, he has been actuated, in treating it, neither by the spirit of a mere politician, the partiality of an advocate, nor the zeal of a polemic ; but that he has proceeded under the influence of sentiments and habits more recently and sedulously cherished, and been enabled, as if bound by the solemn sanction of an inquest of life? "to present aft things truly, to the best of his ability, without fear, favour, affection, or hope of reward."
Columbia College, JV. F.
August 1st, 1833.
ANALYSIS.
Introduction.
I. Definition and origin of political Constitutions, as derived;
1. From tradition, or the act of the Government itself.
2. From written fundamental compacts.
Either of which may be formed
1. On a simple principle of
1. Monarchy.
2. Aristocracy.
3. Democracy.
2. Or combine these three forms in due proportions, by means of the principle of representation applied
1. To the poivors of Government; which are,
1. The Legislative.
2. The Executive.
3. The Judicial.
2. To the persons represented in the Government.
II. Foundations of representative Governments were laid
1. Partially in the British Colonies, in which were established
1. Royal Governments.
2. Proprietary Governments.
2. Universally, in the American States, open the establishment of independent Governments, which secured the enjoyment of
1. The inalienable natural rights of individuals.
2. The political and civil privileges of the citizens, designed for maintaining, or substituted as equivalents for, natural rights.
III. The same fundamental principles were recognized and adopted upon the establishment of a Federal Government by the people of the several States.
1. In regard to the principle of representation, as applied
XX ANALYSIS.
1. To the three great deportments of Government.
2. To the individual citizens of the United States, and to the several States of the Union.
2. In regard to the distribution of the powers of Government, as the Constitution of the United States contains.
1. A general delegation of the Legislative, Executive and Judicial Powers, to distinct departments;
and
2. Defines the powers and duties of each department respectively.
OUTLINES of that branch of Jurisprudence which treats of the principles, powers, and construction of the Constitution, are therefore to be traced,
FIRST. With regard to the particular structure and organization of the Government.
SECOND. In relation to the powers vested in it, and the restraints imposed on the States.
PART I. Of the structure and organization of the Government, and tho distribution of its powers amongst its several departments.
Ch. 1. Of the Legislative power, or Congress of the United States.
1. Of the constituent parts of the Legislature, and the modes of their appointment.
1. Of the House of Representatives.
2. Of the Senate.
2. Their joint and several powers and privileges.
3. Their method of enacting laws, with the times and modes of their assembling and adjourning.
Ch 2. Of the Executive power, as vested in the President.
1. His qualifications ; the mode and duration of his appointment, and the provision for his support.
2. His powers and duties.
Ch. 3. Of the Judicial power.
1. The mode in which it is constituted.
2. The objects and extent of its jurisdiction.
3. The manner in which its jurisdiction is distributed.
1 . Of the Court for the trial of Impeachments.
2. Of the Supreme Court.
3. Of the Circuit Courts.
4. Of the District Courts.
5. Of the Territorial Courts.
6. Of powers vested in State Courts and Magistrates by laws of the United States.
ANALYSIS. XXI
PART II. Of the nature, extent, and limitation of the powers vested in the National Government, and the restraints imposed on the States, reduced to diiferent classes, as they relate
Ch. 1. To security from foreign danger; which class comprehends the powers
1. Of declaring war, and granting letters of marque and reprisal.
2. Of making rules concerning captures by land and water.
3. Of providing armies and fleets, and regulating and calling forth the militia.
4. Of levying taxes and borrowing money.
Ch. 2. To intercourse with foreign nations; comprising the powers
1. To make treaties, and to send and receive ambassadors and other public ministers and consuls.
2. To regulate foreign commerce, including the power to prohibit the importation of slaves.
3. To define and punish piracies and felonies committed on the High Seas, and offences against the laws of nations.
Ch. 3. To the maintenance of harmony and proper intercourse amongst the States t including the powers
1. To regulate commerce amongst the several States, and with the Indian tribes.
2. To establish Post-offices and Post-roads.
3. To coin money, regulate its value, and to fix the standard of weights and measures.
4. To provide for the punishment of counterfeiting the securities andpubliccoinof theUnited States.
5. To establish an uniform rule of naturalization.
6. To establish uniform laws on the subject of bankruptcies.
7. To prescribe, by penal laws, the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other Slates.
Ch. 4. To certain miscellaneous objects of general utility; comprehending the powers
1. To promote the progress of science and the useful arts.
2. To exercise exclusive legislation over the district within which the seat of government should be permanently established; and over all places purchased by consent of the State legislatures for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.
3. To declare the punishment of treason against the United States.
4. To admit ne\v States into the Union.
5. To dispose of, and make all needful rules and regulations respecting the territory, and other property of the United States.
6. To guarantee to every State in the Union a republican form of government; and to protect each of them from invasion and domestic violence.
7. To propose amendments to the Constitution, and to call conventions for amending it, upon the application of two thirds of the States.
Ch. 5. To the Constitutional restrictions on the powers of the several States ; which are
1. Absolute restrictions, prohibiting the States from
1. Entering into any treaty of alliance or confederation.
2. Granting letters of marque and reprisal.
3. Coining money; emitting bills of credit; or making any thing but gold or silver coin a lawful tender in payment of debts.
4. Passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts.
5. Granting any title of nobility.
2. Qualified limitations ; prohibiting the States, without the consent of Congress, from
1. Laying imposts on imports or exports, or duties on tonnage.
2. Keeping troops or ships of war in time of peace.
3. Entering into any agreement or compact with another State, or with a foreign power.
4. Engaging in war, unless actually invaded, or in such imminent danger as will not admit delay.
Ch. 6. To the provisions for giving efficacy to the powers vested in the Government of the United States; consisting of
1. The power of making all laws necessary and proper for carrying into execution the other enumerated powers.
2. The declaration that the Constitution and laws of the United States and all treaties under their authority, shall be the Supreme Law of the land.
3. The powers specially vested in the Executive and Judicial departments, and particularly the provision extending the jurisdiction of the latter to all cases arising- under the Constitution.
4. The requisition upon the Senators and Representatives in Congress ; the members of the State Legislatures ; and all Executive and Judicial officers of the United States and of the several States, to be bound by oath or affirmation to support the Constitution of the United States.
5. The provision that the ratifications of the Conventions of nine Slates should be sufficient for the establishment of the Constitution between the States ratifying the same.
Conclusion.
OUTLINES
OP
CONSTITUTIONAL LAW,
INTRODUCTION.
1. A Constitution, in its legal and political sense, signifies the fundamental principles on which a Government is formed.
2. Constitutional Law, is that branch of jurisprudence which treats of those principles of the practical exercise of the powers of Government in conformity with them ; and of the construction to be given to them in such their application.
3. The origin of political Constitutions is as various as their different forms ; and Governments in their form are either simple or mixed.
4. The simple forms of Government are
1. Monarchy, where all power is vested in a sigle individual.
2. An Aristocracy, where the powers of Government are exercised by a select number, or a single body of men. And,
3. A Democracy, in which all power is retained in the hands of the People, or of the society at large.
5. A mixed Government, is where all three, or any two of the simple forms are united.
C
26 INTRODUCTION.
6. A Constitution may exist under any of these forms, if the Government be administered according to established rules and principles, and be the result of general consent, either actually expressed or fairly to be implied.
7. Hence a Constitution may be derived from traditionary information, or from the acts and proceedings of the Government itself, as well as from a written compact.
8. The formation of a Constitution, on a single principle, whether of Monarchy, Aristocracy, or Democracy, is the most practicable and easy mode; but the union of the three simple forms in due proportions, so that each shall be sufficient to support itself in the exercise of its appropriate functions, and all be made to harmonize and co-operate, is the most perfect system, and the only true basis for a Democratical Republic.
9. This is effected by the proper relative distribution of the powers of Government amongst the several branches, according to the principle of representation; whereby each is constituted, in its respective department, the immediate and co-equal representative of the People, as the direct source of its authority, and the sole ultimate depositary of the sovereign power.
10. The powers of Government, are distinguished from each other, as appertaining to the Legislative, Executive, and Judicial departments. In the first of which is vested the power of making Laws, or prescribing rules for the Government of the community; in the second, that of executing or carrying into effect those Laws ; and in the third, the power of expounding and applying them, in their operation upon individuals.
11. In the proper organization of these departments, and the just distribution of authority amongst them, with the application of proper aids and checks to secure the necessary independence and efficiency of each, " THE BEST CONSTITUTED REPUBLIC" is alone to be attained.
12. These three powers of Government cannot be wholly united, or injudiciously blended in the same department, consistently with the liberties and security of the People; and the danger to public freedom would be equal, whether the same powers were delegated to a single magistrate, or to a numerous body.
13. If the principle of representation be extended only to a part of the Government, and other parts exist in it independent of that principle, the security afforded by the one is partial and uncertain; whilst the danger to be apprehended from the other, will be in proportion to its predominance in the system.
14. As representation may be partial in regard to the powers of Government, so it may be confined to a portion of the community ; and in this respect the system would be objectionable in proportion to the numbers unnecessarily excluded from representation, or from the exercise of a free and intelligent voice in the appointment of their representatives.
15. According to the theory of a Republican Constitution, the right ojf representation is universal in reference both to the powers of the Government, and the delegation of their exercise ; but in practice there are exceptions in the application of the rule, which do not, however, impair it as a general principle.
16. The great advantage of a written Constitution consists in its accurately defining the limits of the three great departments of Government, and by proper checks and securities preserving unimpaired the principle of representation in regard to the exercise both of the powers of Government, and the right of delegating them to the representative.
17. Where the Constitution depends on tradition, or is to be collected from the proceedings of the Government itself, there can be no stability in the system, and of course no certainty of security under it; as every new act of the Government may introduce a new principle, and the Legislative power may, from its omnipotence, alter the Constitution at its pleasure.
18. A written Constitution, therefore, is most conducive to the freedom, security, and happiness of individuals, as it may be appealed to by the People and enforced by the Judicial power as a fundamental and paramount law, binding en the Legislature itself.
19. The foundations of a Government formed on the principle of popular representation, were laid in the United States by the institutions which, as Colonies, they received from England.
20. Two sorts of provincial Governments were established by Great Britain in her American Colonies ; first, Royal Governments, in which limited territorial grants were made to settlers, reserving the general domain to the Crown, and providing for the exercise of the whole political and civil jurisdiction under its authority ; and secondly, Proprietary Governments, in which the whole territory and jurisdiction were granted by the king to one or more individuals.
21. In the one, the Chief 'Executive Magistrate was appointed by the Crown ; in the other, by the Proprietaries. In both, the Legislative power was vested wholly or partially in the People, subject in the one case to the control of the king in council, and in the other to that of the proprietaries.
22. In some few of the Colonies the Supreme Executive Magistrate, and one branch of the legislature, were at first elected by the 'People, and in two of them so continued to be chosen until the Revolution; and in all these cases the power of legislation was uncontrolled by the parent State.
23. The powers of the Crown being abrogated by the declaration of independence, the People remained the only source of legitimate authority in all the Colonies; and, Governments, representative in all their branches, were established by them as free and Sovereign States.
24. In general, the Legislative, Executive, and Judicial departments were kept so far distinct as to render them, in a great degree, independent of each other.
25. The State Legislatures were for the most part divided into two branches, both chosen by the People; and all persons holding offices of trust or profit were excluded from them.
26. The Supreme Executive Magistrate was universally rendered elective for a limited time; and the superior officers in the Judicial department received their appointments from the Legislature or the Executive, and in most cases held their offices during good behaviour.
27. The civil and municipal institutions derived from Great Britain were in general preserved by the several States, so far as they were compatible with the abolition of regal authority and Colonial dependence.
28. Amongst these institutions was the Common Law of England, which, before the American Revolution, had been generally established as the municipal code of the British Provinces, so far as it was applicable to their situation and circumstances; and the benefit of it was claimed by the first general Congress as a branch of those " indubitable rights and liberties" to which the respective Colonies were entitled.
29. By this system of Law, the absolute and inalienable rights of the Colonists as individuals, were recognized and secured to them ; their relative rights, or political and civil privileges as members of society, regulated and maintained ; and offences against public justice investigated and punished.
30. The most essential of these privileges were those natural rights which are common to all mankind, and which, in virtue of certain fundamental laws of England, were held to be the peculiar birthright and inheritance of every British subject.
31. They consist either of that portion of natural liberty which is not required by the Laws of society to be surrendered for the public benefit; or, of those civil privileges which society engages to provide in lieu of them.
32. The former comprehend
1. The right of personal security; which consists in the uninterrupted legal enjoyment of life, health, and reputation.
2. The right of personal liberty ; which includes the power of removing the person to whatsoever place inclination may direct without restraint, unless by due course of law. And,
3. The right of private property ; or the free use and enjoyment of a man's own acquisitions, without control or diminution, except by the Laws of the land.
33. The subordinate privileges of a similar character, to which the Colonists were entitled in lieu of those natural rights surrendered for the general benefit, were,
1. The constititution, powers, and privileges of their provincial assemblies, which were intended to preserve the Legislative power exercised over them in due health and vigour, and to prevent the enactment of Laws destructive to general liberty.
2. The limitation of the King's prerogative by certain arid notorious bounds; which was designed as a guard upon the Executive power by retaining it within the rules established by fundamental Laws.
3. The right of applying to the Courts of justice for the redress of injuries, and of having justice administered impartially and speedily; the most valuable incidents to which were the right of trial by jury; and the benefit of the writ of Habeas Corpus, as the most effectual security of the right of personal liberty.
4. The right of petitioning the King, or either branch of the Legislature, for the redress of grievances; and,
5. The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions, of the natural right of resistance and self-preservation.*
[* - Quoting William Blackstone: "...The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." - William Blackstone, Commentaries on the Laws of England, 1765–1769. Which was how the Right existed prior to the U.S. Constitution.
Mr. Tucker provides the very clear intended difference in the Natural Right of the new American Citizen after the adoption of the Constitution: "The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government...."
"....This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
"...In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty..." - St. George Tucker, Blackstone's Commentaries, (1803).]
34. Upon the establishment of independent Governments, the several States provided for the secure and permanent enjoyment by their respective citizens of their natural rights, and of the civil privileges designed for their maintenance, or substituted as their equivalents.
35. As additional safeguards, they secured to every individual freedom of speech, and the liberty of the press, uncontrolled by any but proper moral restraints.
36. Some of the States expressly recognized, and others tacitly adopted, the English Common Law as further modified by the change of Government; but they universally abolished that feature of the system, which is essentially political, the right of primogejiture.
37. The same natural, political, and civil rights and privileges which had been declared to be the inalienable inheritance of the People as citizens of the respective States, were, on their becoming parties to the federal compact, expressly asserted to belong to them as citizens of the Union,
38. The Common Law, in its modified form, constitutes, therefore, the basis of the laws of all the original members of the Union ; and the Constitution of the United States, as well as the Constitutions and Laws of the several States, were made in reference to the pre-existing validity of that system, both under the Colonial and State Governments.
39. Although the existence of the Common Law is presupposed by the Constitution of the United States, and referred to for the construction of its powers, yet it seems, that under the Federal Government, the Common Law, considered as a source of jurisdiction, never was in force; but, considered as the means or instrument of exercising jurisdiction, that system of municipal jurisprudence does exist in full validity.
40. The Constitution, founded on this basis and on these principles, and formed from these materials, was " ordained and established" by " the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to them and their posterity."
41. By the terms of the compact, the States, as members of the Union, are no longer regarded in their sovereign and corporate capacities, as they surrendered such portions of their sovereignties as were requisite for the purposes of National Government; retaining, however, their previous organization and the exclusive control of their local concerns.
42. The former compact between the States, was annulled; and the People of the several States, by their ratification and adoption, in their respective conventions, of the new Constitution proposed to them by the General Convention who framed that instrument, united with each other in establishing a permanent system of National Government, operating directly upon individuals, for the attainment of specific objects, for which neither the States separately, nor the former confederation between them, had proved competent.
43. The principle of representation is nevertheless applied in this Constitution, not only to the individual citizens of the United States, but also to the individual States of the Union ; and it pervades the three great departments amongst which the powers of Government are distributed and apportioned.
44. The Constitution of the United States contains a general delegation of the Legislative, Executive, and Judicial powers to distinct departments, and defines the powers and duties of each branch respectively.
45. It may therefore be most conveniently examined ; first, with regard to the particular structure and organization of the Government, and the distriution of its powers amongst its several departments; and, secondly, in relation to the nature, extent, and limitation of the powers vested in the National Government, and the restraints imposed on the States.
PART FIRST.
ON THE STRUCTURE AND ORGANIZATION OF THE GOVERNMENT, AND THE DISTRIBUTION OF ITS POWERS AMONGST ITS SEVERAL BRANCHES.
46. The Legislative power, granted by the Federal Constitution, Ts vested in a Congress of the United States, consisting of a Senate and a House of Representatives ; both chosen periodically, the former by the States, the latter by the People.
47. The Executive power is vested in a President of the United States, elected, with a Vice President, for a term of years, in a mode and upon a principle which in effect combine the suffrages of the People with those of the States.
48. The Judicial power is vested in one Supreme Court, and in such inferior Courts as Congress may from time to time establish, the Judges of which hold their offices for life, unless sooner removed on conviction for misbehaviour.
49. The rule inculcating the separation of the Legislative, Executive, and Judicial departments, is not understood to require, in its application, that those branches should be wholly unconnected with each other.
50. For unless they be so far connected and blended as to give to each one a constitutional check upon both the others, the degree of separation which the rule requires cannot in practice be maintained.
51. The powers proper to one department should not be directly and completely administered by another, nor should either branch possess, directly or indirectly, an overruling influence or control in the administration of the powers of both or either of the others.
52. In order to maintain the requisite partition of power amongst the respective departments, the interior structure of the Government should be so contrived as to render its several constituent parts, by their mutual relations, the means of keeping each other within their proper spheres.
53. The Constitution of the United States renders the mutual participation, to a limited extent, of the several branches of the Government in each other's power, subservient to their mutual independence; and thus the apparent violation of a fundamental principle affords the best security for its preservation.
CHAPTER I.
OF THE LEGISLATIVE POWER.
54. Under this head may be considered: First, The constituent parts of the Legislature, and the modes of their appointment: Secondly, Their joint and several powers and privileges : and Thirdly, Their method of enacting Laws, with the times and modes of their assembling and adjourning.
I. Of the constituent parts of the Legislature, and the modes of their appointment.
55. All Legislative powers granted by the Constitution, are vested in a Congress of the United States consisting of a Senate, and a House of Representatives.
56. This division of the Legislature into two coordinate branches, was meant to guard against the evil consequences of sudden and strong excitement and precipitate measures, which had been found to prevail in single legislative bodies.
57. A hasty decision is by no means so likely to be made, when a measure is liable to be arrested in its progress; and after its adoption by one branch of the Legislature, to be again subjected to the same forms and solemnities of deliberation, and to the jealous and critical revision of another body sitting in a different place, and from the delay thus induced, if from no other cause, enabled to avoid the prepossessions and correct the errors of the first.
58. Single Legislative assemblies without check or counterpoise, or a Government with all authority collected in one body or department, have been found, in all ages in which they have existed, corrupt and tyrannical dominations of majorities over minorities, uniformly and rapidly terminating in despotism.
59. The instibility and passion which had marked the proceedings of two of the State Legislatures, consisting originally of a single House, were the subject of much public animadversion at the time of the contemplated establishment of the new Federal Government; and in subsequent reforms of their Constitutions, the People of the particular States referred to, were so sensible of this defect, that in each a Senate was introduced.
60. These examples, as well as the experience afforded by some of the proceedings of a Congress court single branch, and uniting in itself all the Executive and Judicial authority of the Union, with all the Legislative powers granted by the articles of confederation, must have had due influence in determining the Federal Convention to divide the national Legislature into two branches.
61. A further reason for this division of the Legislative power in the Government of the United States, arose from the combination of the national and federative principles in the new Constitution.
62. Upon just principle of public polity, it is essential, when a People are thoroughly incorporated into one nation, that every district or territorial subdivision of the commiunity should have its proportional share in the Government; and that amongst independent sovereigns, bound together by a simpl league, the parties, however unequal in respect to territory and proportion, should each have an equal voice in the public councils.
63. It was therefore proper, that in a Republic, partaking both of the national and federal characters, the Government should be founded on a combination of the principles of proper,. onal, and equal, representation.
64. The application of this rule of combined representation afforded a convenient and effectual mode of dividing the Legislature of the Union into two co-ordinate branches, by constructing one of them upon the principle of proportional, and th other upon that of equal, representation.
65. The House of Representatives is accordingly constituted with as much conformity as practicable, to the principle of 'proportional representation; but not entirely so. as it is composed of representatives of the People of the several States, and thus far partakes of the federative quality.
66. It consists "of members chosen every second year by the People of the several States," and "the times, places, and manner of holding elections for representatives are prescribed in each State by the Legislature ;" but to guard against the neglect or refusal of the States to exercise this power, " Congress may at any time by law make or alter such regula- ...]
67. The electors of representatives in each State must possess " the qualifications requisite for electors of the most numerous branch of the State Legislature;" and these qualifications are not uniform, as the Constitutions and practice of the several States in relation to them are different and various.
68. In general, the qualifications of electors of the most numerous branch of the State Legislatures, are, that they be of the age of twenty-one years and upwards, free resident citizens of the State, and have paid taxes thereto.
69. In some of the States they are, morever, required to possess property of a certain description and amount ; in some to be white, as well as free, citizens ; and in others to possess all these qualifications, either together, or in different combinations.
70. A representative in Congress must have attained the age of twenty-five years, and been seven years a citizen of the United States ; and must, when elected, be an inhabitant of the State in which he is chosen.
71. Representatives are apportioned amongst the several States according to their respective numbers, which are determined in each State by adding to the whole number of free persons, (including those bound to service for a term of year; and excluding Indians not taxed), three fifths of all other persons,
72. The Constitution provides for an actual enumeration of the people within three years after the first meeting of Congress ; and directs one to be taken within every subsequent term of ten years in such manner as Congress shall by law direct.
73. The number of Representatives cannot exceed one for every thirty-thousand of the persons to be computed ; but each State is entitled to at least one Representative.
74. The ratio of representation is applied to the representative numbers of the respective States, and not to the aggregate numbers in all the States; nor can an additional representative be assigned to any State on account of any fractional number, which may remain after the- application of the ratio to its representative numbers, even though the fraction exceed 30,000.
75. The Senate of the United States is constituted upon the principle of equal representation; which, whjle it gave effect to the main design of a separation of the two branches of the national Legislature, was evidently the result of a compromise between the larger and the smaller States.
76. The Senate accordingly consists of two Senators from each State ; and each Senator has one vote: each State, therefore, has its equal voice and weight in the Senate of the Union, without regard to disparity of population, wealth, or territory; yet as the Senators vote individually, without regard to States, the Senate, in that respect, partakes of the proportional or national quality.
77. The Senators are chosen by the respective State Legislatures ; and if vacancies happen during the recess of the Legislature, the Executive power of the State may make temporary appointments until its next meeting, when the vacancy must be filled in the ordinary manner.
78. This mode of electing Senators favours a select appointment, and gives to the States such an agency in the formation of the general Government as preserves their separate existence, and readers them, in their political capacities, active members of the federal body.
79. The State Legislatures respectively prescribe the times, places, and manner of holding the elections for Senators, as well as of Representatives in Congress ; and Congress cannot alter such regulations with respect to the place, of choosing Senators.
80. The Constitution does not direct whether the appointment of Senators shall be made by the [?????], or by the concurrent vote of the two branches of the State Legislatures; hence difficulties have arisen as to its true construction.
81. The difference between the two modes is, that on a joint vote, the members of both branches assemble together and vote numerically; whilst a concurrent vote is taken by each House voting separately when the decision of the one is subject to the approval of the other ; and the difficulties in question have arisen in cases of their disagreement.
82. It has been considered in some of the States, that, consistently with the Constitution, the Law may direct Senators to be chosen by the joint vote or ballot of the two branches of the Legislature, in case they cannot separately concur in a choice, or even in the first instance, without making such attempt.
83. This construction has been found too convenient in practice, and has been loo long settled by the repeated recognitions of Senators so elected, to be now disturbed. But if the question were a new one, it might be maintained, that when the Constitution directed the Senators "to be chosen in each State by the Legislature thereof," it meant the Legislature in its true technical sense, consisting of two coordinate branches acting in their separate capacities, [with a?] constitutional negative on each other's proceedings, and not the members of the two Houses assembled in one body and voting indiscriminately.
84. Senators are elected for a term of six years, and are arranged in three classes in such a manner that the seats of one class become vacant, and one third of the Senate must be regularly chosen, every two years ; corresponding with the expiration of the term for which the House of Representatives is chosen.
85. From the superior weight and delicacy of the trusts confided to the Senate, the Constitution declares that " no person shall be a Senator that shall not have attained the age of thirty years, and have been nine years a citizen of the United States; and who shall not, when elected, be an inhabitant of the State for which he shall be chosen."
86. No Senator or Representative can, during the time for which he is elected, be appointed to any civil office under the authority of the United States, which shall have been created, or of which the emoluments shall have been increased, during that time; and no person holding any office under the United States, can be a member of either House during his continuance in office. But it is sufficient if he resign the same previously to taking his seat in Congress.
87. The next subject of consideration, in regard to the Legislative power, is,
II. The privileges and powers of the two Houses of Congress, both aggregately and separately.
88. In order to preserve a pure and genuine representation, and to control the evils of irregular and tumultuous elections, each House is made the sole judge of the elections, returns, and qualifications of its own members.
89. As each House acts in cases where this power is exercised, in a judicial capacity, its decisions are regulated by known principles of Law; and they should be strictly adhered to as precedents, for the sake of uniformity and certainty.
90. A majority of each House constitutes a quorum for the transaction of 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.
91. Each House is bound to keep a journal of its proceedings, and from time to time publish such parts of them as do not require secrecy ; and to enter the yeas and nays on its journal on any question, if demanded by one fifth of the members present.
92. The members of both Houses are entitled to receive a compensation for their services, to be ascertained by Law, and paid out of the Treasury of the United States. And they are in all cases, except treason, felony, and breach of the peace, privileged from arrest during their attendance at the sessions of their respective Houses, and in going to and returning from the same.
93. In order to preserve inviolate the freedom of deliberation, no member of either House can be questioned in any other place, for any speech or debate therein.
94. Although no express power is given to either House to punish for contempts, unless when committed by its own members ; yet a power, extending beyond their own precincts, and affecting other persons, is exercised by both Houses, as incident to the nature of every Legislative body.
95. As the People are entitled to the utmost purity and independence in the conduct of their representatives, and as each House is, in this respect, the guardian of the interests of the People, as well as of its own character, it is its duty to make immediate inquiry into any attempt on the freedom or integrity of any of its members.
96. From the duty to inquire, arises the right to punish in such cases, as well as in cases of immediate insult or disturbance, preventing the exercise of Is ordinary functions; the existence and the exercise of the right in both cases, being equally founded in the necessity of self-preservation.
97. But the power to punish in either case, extends only to imprisonment, which can continue no longer than the duration of the authority that awards it; and which necessarily terminates (if no shorter period be limited) with the adjournment or dissolution of the Congress.
98. Attempts to bribe or intimidate members of the Legislature, are, moreover, offences against the Public, and subject the offender to the usual course of prosecution in a court of law. But this liability does not exclude the jurisdiction of the Legislative body, nor does the interference of the latter, in vindication of its character and safety, preclude the Judicial power from taking cognizance of the same act, as a violation of the general Law.
99. The Legislative powers of the two Houses of Congress extend to all subjects of a national character, and will be particularly enumerated and considered in examining the powers vested in the general Government at large. There are, however, some constitutional powers which are peculiar to each branch of the national Legislature.
100. The House of Representatives possesses the sole power of impeachment, or of presenting accusations to the Senate against the public officers of the United States, for misconduct in their offices: and it has also the exclusive right of originating all bills for raising revenue ; but the Senate may propose amendments as to other bills.
101. Every bill which may indirectly or consequentially raise or increase revenue, or every money-bill, in the sense of the English law, is not considered a revenue-bill, within the meaning of the Federal Constitution ; end in the practical construction of this power, it Ims accordingly been confined to bills for levying taxes, in the strict sense of the term, and has not been extended to bills for other purposes which may incidentally create revenues.
102. The Senate has the sole power of trying impeachments; and in its exclusive connexion with the Executive power, it possesses a negative voice in the appointment of all officers, whose appointments are not otherwise provided for in the Constitution.
103. The advice and consent of two-thirds of the Senators present are requisite to the ratification of treaties, which must be submitted to the exclusive consideration of the Senate.
104. Treaties with foreign powers, if made abroad, negotiated on the part of the United States, by ministers accredited to those powers, under the instructions of the President ; and if made in the United States, they are negotiated between the Secretary of State, under the like instructions, and ministers accredited from foreign Governments.
105. The Senate is not consulted in the first instance, but when the terms of the treaty are agreed upon by the agents or plenipotentiaries employed for that purpose, the President (unless he altogether disapprove it), submits it to the Senate, in whose deliberations he does not participate, but renders them from time to time such information relative to it as they may require.
106. The Senate may wholly reject a treaty, or they may ratify it in part, or recommend additional or explanatory articles ; which, if the President approve, become the subject of further negotiation with the foreign power ; and when the whole is agreed to, on the other part, and receives the sanction of the Senate, the ratifications are exchanged between the respective Governments, and the treaty becomes obligatory upon both nations.
107. From the reason and exigency of the case, the proceedings of the Senate, on these occasions, are always conducted with closed doors ; and the contents of the treaty, and all information connected with it, are, from motives of delicacy and policy, kept secret until the termination of the business renders such reserve no longer necessary.
108. The subjects remaining for consideration under the present general head, are,
III. The method of enacting Laws by the two Houses of Congress ; and the times and modes of their assembling and adjourning.
109. The rules of proceeding in each House are substantially the same ; and are such as are essential to the transaction of business with order and safety.
110. The House of Representatives chooses its Speaker, or presiding officer, from amongst its own members ; and it also chooses its other officers.
111. The Vice President of the United States is ex officio President of the Senate ; but has no vote therein, unless the Senators be equally divided.
112. The Senate chooses its other officers; and also a President pro tempore, from its own body, in the absence of the Vice President, or when he executes the office of President of the United States.
113. The proceedings and debates in both Houses are conducted in public, except upon very special occasions, and in the transaction of Executive business by the Senate.
114. Bills, or the original drafts or projects of laws, are introduced into both Houses respectively, either upon the order of the House on the reports of standing, or select Committees, or upon leave granted to an individual member on motion, after due notice of his intention to move the House to grant it.
115. Standing Committees are appointed for the session upon all the usual subjects of ordinary legislation, and upon the general matters incident to the proceedings of each House respectively.
116. Select Committees are appointed from time to time upon special subjects as they arise, and their powers cease upon the performance of the temporary duties assigned to them.
117. Both standing and select Committees are appointed in the House of Representatives on the nomination of the Speaker, and in the Senate most generally by ballot, but sometimes, and in some cases, on the nomination of the President of the Senate.
118. Bills are introduced by standing Committees upon the order of the House upon subjects embraced within the general objects of their appointment, either accompanied by a report upon those general objects, or upon a particular subject, relative thereto, or specially referred to them ; or upon the mere motion of the Chairman, or any other member of the Committee under its direction, without previous notice.
119. Bills are in like manner introduced by [S]elect Committees, upon the order of the House on a report relative to the special matter referred to them, or upon motion, without previous notice, for leave to report by bill.
120. Every bill must receive three readings before it can be passed by either House ; and these several readings must be on different days, unless upon a special order made by the unanimous consent of the House, to the contrary.
121. No bill can be committed or amended in either House, until it has been read twice; and upon the second reading of the bill, it is declared to be ready for commitment or engrossment ; if committed, it is committed either to a standing, or a select Committee, or to a Committee of the whole House; or if the bill, instead of being committed, be ordered to be engrossed, the House then appoints the day on which it shall be read the third time.
122. If a bill be committed to a Committee of the whole, the House determines on what day the Committee shall consider it ; and when the House resolves itself into such Committee, the Speaker leaves the chair, after appointing another member to preside as chairman of the Committee ; and the Speaker may take part in the debates of the Committee as an ordinary member.
123. In the Senate, the Committee of the whole is called a quasi Committee, because the President of the Senate acts as chairman of the Committee.
124. Important bills are generally referred to a Committee of the whole House; and every motion or proposition for a tax or charge upon the People, or for a variation in the sum or quantum of a tax or duty, and for an appropriation of money, is required first to be discussed in a Committee of the whole.
125. The object of referring any matter to a Committee of the whole, is to allow greater latitude and freedom in discussing its merits, and settling the details, than is generally allowed by the rules of either House when the proceeding is in the House itself.
126. After commitment and report to the House, and at any time before its passage, a bill may be recommitted at the pleasure of the House: and when a bill, either upon a report of a Committee, or after full discussion and amendment in the House, stands for the next stage of its progress, the question is, whether it shall be engrossed and read a third time ; and this is the proper time for those who are opposed to the principle of the bill, to take their stand against it as it is now supposed to be as perfect, or as little exceptionable, as it can be made.
127. When a bill has been engrossed for a third reading, and, upon being read the third time, has passed one House, it is transmitted for concurrence to the other, in which it is subjected to similar forms of examination and discussion.
128. If it be altered or amended, or agreed to without amendment, or totally rejected, in the House to which it has been transmitted for concurrence, it is, in either case, returned, to the House in which it originated, with a message communicating the result.
129. If amendments are made in one House which are not agreed to in the other, a message to that effect is sent to the former, which may either recede from, or insist on, its amendments ; and if the two Houses cannot agree, they appoint Committees of conference, and upon receiving their report, either House may recede from its amendment, or from its vote of concurrence therein, or accept a compromise suggested by the Committee ; or it may adhere to its former vote of disagreement ; in which last ease the bill falls to the ground.
130. These checks and formalities, which are intended to guard against surprise or imposition, were originally borrowed, although much contracted and simplified, from the proceedings of the British Parliament ; and they prevailed substantially in the Colonial Assemblies, from which they were immediately adopted by the State Legislatures, and from them, by each house of Congress.
131. When a bill, or any other vote or resolution, to which the concurrence of both Houses is necessary, (except the question on the adjournment of the Congress), is passed by both branches of the Legislature, it is rccmired by the Constitution to be presented to the President of the United States for his approval.
132. If he approve of the bill or resolution, he signs it ; but if not, he must return it, with his objections, to the House in which it originated, which must enter the objections at large on its journal, and proceed to reconsider it.
133. If, after such reconsideration, two thirds of that House agree to pass the bill or resolution, it must be sent, together with the objections, to the other House, by which it must likewise be reconsidered ; and if approved by two thirds of that House also, it becomes a Law, notwithstanding the objections of the President.
134. In all such cases, the votes of both Houses must be determined by yeas and nays, or openly ascertained ; and the names of the persons voting for. or against the bill or resolution, must be entered on the journal of each House respectively.
135. If a bill is not returned "by the President within ten days (Sundays excepted) after it is presented to him, it becomes a Law, in like manner as if he had signed it, unless Congress, by their adjournment, prevent its return.
136. Congress must assemble at least once in every year for the despatch of the public business, and such meeting is fixed by the Constitution for the first Monday in December, unless Congress shall by Law appoint a different day.
137. Until the day fixed by the Constitution or appointed by Law, the action of Congress cannot commence, unless the President, in the exercise of his Constitutional power, sooner convene it, on some extraordinary occasion.
138. Congress, by a concurrent resolution, to which the assent of the President is not required, fixes the times of its own adjournments within the period of its dissolution; but during a session, neither House can adjourn for more than three days without the assent of the other ; nor can they agree to adjourn to any other place than that in which they shall be sitting. And in cases of disagreement between the two Houses, as to the time of their adjournment, the President may adjourn them to such time as he may think proper.
139. But as the term for which the House of Representatives and one third of the Senate are elected, expires at the end of every second year, Congress must of necessity adjourn at the expiration of that period ; as the Congress, for the time being, is in fact dissolved by the operation of the Constitution and Laws, on the third day of March in every alternate year.
140. The object of this department is the execution of the Laws ; and good policy requires that it should be organized in the mode best calculated to effect that end with fidelity and precision.
141. No discretion is vested in the Executive Magistrate in regard to the wisdom and expediency of he Laws after they are duly made and promulgated. It is his duty then to execute them, whatever may be his opinion as to their justice or policy.
142. What has once been declared under the forms prescribed by the Constitution to be the meaning and intention of the Legislature, must be carried into prompt execution, and due effect continued to be given to it by the Executive department, until repealed by; the Legislature, or pronounced by the Judicial department to be repugnant to the Constitution.
143. Every individual is bound to obey a Constitutional Law, however objectional in other respects it may appear to him; and whosoever refuses obedience to a Law on the ground of its unconstitutionally, does so at his peril, and is liable to the legal consequence of disobedience, if the Law be judicially declared to be warranted by the Constitution.
144. The legal presumption is always in favour of an act passed by the Legislature according to the forms of the Constitution ; and where the Chief Executive Magistrate possesses a negative upon those acts, the presumption is stronger against him than against an inferior officer, or a private person.
145. As the Executive power is not only bound to obey, but to execute, the Law, the essential qualities required in this department are prompiness, vigour, and responsibility.
146. A prompt submission to the Law, and a prompt preparation to enforce it, are requisite both in respect to the authority from which it emanates, and in order to give it due operation and effect, which should be immediate and decisive.
147. The Executive power must also be endowed with energy in other respects ; for feebleness in this department implies feebleness in the Government - and the vigour of action imparted to the Executive power, must be duly proportioned to the exigencies which may arise under the system.
148. The power vested in this department should, however, be proportioned as exactly as possible to the occasions which may be expected to require its exercise; for if it fall short of them, the public sense of the protection and control of the Government will be weakened, and violations of the Law escape with impunity; and if the quantum of power exceed the exigency of the case, the liberties of the People will be in jeopardy.
149. In a written Constitution, it is difficult to adopt general expressions precisely descriptive of the proper extent and limitation of this power ; but to guard against its abuse, as well as to insure the faithful execution of the general trusts confided to this department, the Chief Executive Magistrate should be held responsible to the People for official misconduct.
150. These three qualities of promptness, vigour, and responsibility, are most likely to exist in union with each other where the chief Executive authority is limited to a single person.
151. Unity is conducive to energy, which includes both promptness and vigour, as well as decision, activity, secrecy, and despatch ; all of which will generally characterise the proceedings of one man in a much more eminent degree than. the proceedings of a greater number ; and in proportion as the number is increased, those qualities will be diminished.
152. This unity in the Executive department may be destroyed, either by vesting the power in two or more Magistrates of equal dignity ; or by vesting it ostensibly in one, subject, in whole or in part, to the control and advice of a council ; both of which methods are liable to similar, if not to equal, objections.
153. History and experience confirm the theoretical reasoning which renders it obvious that a division of the Executive power in any form, between two or more persons, must always tend to produce dissentions and fluctuating measures, and diminish the respectability, as well as the authority and efficiency of the Government.
154. The division of the Executive power has also a direct tendency to destroy responsibility; for there will always be much less temptation to depart from duty, and much greater solicitude for character, where there are no partners to share the odium of bad measures, or to communicate by their example, confidence in the perpetration of abuses, from the greater probability of escaping punishment.
155. Phirnlily in the Executive department, besides depriving the People of these great securities for the faithful exercise of delegated power, tends to depress the character of the nation abroad; whilst unity in that branch of the Government not only affords greater security at home, but increases that efficacy which is requisite to command the respect of foreign nations.
156. In accordance with these principles, the Executive power is vested by the Constitution in a single Chief Magistrate, under the name of "THE PRESIDENT OF THE UNITED STATES ;" and, in the examination of the functions of this" high officer,
I. The qualifications required by the Constitution for the office of President, the mode and duration of his appointment, and the provision for his support, are first to be considered.
157. No person is eligible to the office of President, except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, and who shall not have attained the age of thirty-five years, and been fourteen years resident within the United States.
158. To avoid the dangers and difficulties to be apprehended, under the most favourable circumstances, from the popular election of a Supreme Executive Magistrate for a whole. nation, the Constitution does not refer the election of the President directly to the People ; but confides the power to a small body of electors, representing for that purpose the People at large, and appointed jn each State under the direction of the Legislature.
159. Each State appoints, in such manner as its Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives, which it may be entitled to send to Congress.
160. To prevent the person in office at the time of the election from having an improper influence in procuring his re-election, it is provided that no Senator or Representative in Congress, nor any person holding an office of trust or profit under the United States, shall be an elector. But in no other respect does the Constitution define the qualifications of the electors.
161. In some few of the States the electors are appointed by the Legislature itself, in a mode prescribed by Law ; but in a great majority of States, the choice of electors is, in accordance with the clear sense and expression of public opinion, as well as with the spirit of the Constitution, referred to the People at large.
162. Congress may determine the time of choosing the electors ; and has prescribed by Law that they shall be chosen within thirty-four days previous to the election of the President.
163. Congress has also a discretionary power to appoint the day on which the electors shall give their votes, which must be the same day throughout the Union ; and is, in like manner, fixed for the first Wednesday in December in every fourth year succeeding the last election. But the pl;ice for the meeting of the electors is left to the discretion of the State Legislatures, and is usually the seat of the State Government.
164. The electors, when assembled on the day appointed, within their respective States, and duly organized by the appointment of a Chairman and Secretary from amongst themselves, and by the votes of those present, filling up vacancies occurring from death or absence, proceed to vote by ballot for two persons, one of whom, at least, must not be an inhabitant of the same State with themselves.
165. According to the original Constitution, the electors were not to designate, by their ballots, which of the two persons voted for, was intended as President, and which as Vice President; which last officer was nevertheless to be elected at the same time, in the same manner, and for the same term, as the President ; but it merely provided that the person having the greatest number of aggregate votes should be President, if such number were a majority of the whole number of electors ; and that the person having the next greatest number, if constituting such majority, should be Vice President.
166. But a subsequent amendment of the Constitution requires the electors to name, in distinct ballots, the persons voted for as President and Vice President; and declares that the person having the greatest number of votes for President shall be President, if such number be a majority of the whole number of electors appointed ; and that the person having the greatest number of votes for Vice President, if constituting such majority, shall be Vice President.
167. The electors in the several States are then to make distinct lists of all persons voted for as President, and of all voted for as Vice President; and of the number of votes given for each respectively; which lists they are required by Law to sign and certify, and transmit sealed to the seat of Government of the United States.
168. The Act of Congress also directs the certificates of the votes to be delivered before the first Wednesday in January next ensuing the election, to the President of the Senate, who, before the second Wednesday in February thereafter, in the presence of both Houses of Congress, opens all the certificates; when the votes are counted, and the result declared.
169. The Constitution does not declare by whom the votes are to be counted and the result declared; but the practice has been for the President of the Senate to perform those duties; the two Houses of Congress being present to witness the proceedings, and to be prepared to act in case no choice be made by the electors,
170. The person having the requisite number of votes for President, is declared to be elected to that office. But if no person have such number, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives are immediately by ballot to choose the President.
171. In thus choosing the President, the votes are taken by States ; the representation from each State having one vote. A quorum for this purpose consists of a member or members from two-thirds of the States, and a majority of all the States is necessary to a choice.
172. Although the Constitution directs the choice in this case to be made immtdiattly by the House of Representatives, yet the amendment expressly declares their choice to be valid if made before the fourth day of March following the day on which the electoral votes are counted and the result declared,
173. In case no choice of President be made by the House of Representives, within the period limited for that purpose, the Vice President acts as President, as in the case of the death, or constitutional disability of the President.
174. The person found to have the requisite number of votes, upon the counting of the same in the presence of both Houses of Congress, is declared to be Vice President; but if no person have such number, then from the two highest numbers on the list, the Senate choose the Vice President : a quorum for that purpose consists of two-thirds of the whole number of Senators, and a majority of the whole is necessary to a choice. JRut no person constitutionally ineligible to the office of President, is eligible to that of Vice President.
60 EXECUTIVE DEPARTMENT. PART I,
175. The Constitution, as amended, does not prescribe the time and place, when and where the Senate is to choose the Vice President in case no choice be made by the electors ; but from analogy to the provision and practice in regard to the President, it is presumed that the Senate may elect by themselves at their ordinary place of meeting, and at any time previous to the ensuing fourth of March.
176. Congress has by Law provided that the term of four years, for which the President and Vice President are elected, shnll commence on the fourth day of March next succeeding the day on which the votes of the electors are given ; and the amendment of the Constitution adopts the same day as the limitation of the period within which the House of Representatives, in case of no choice by the electors, are to elect the President.
177. The effect, therefore, of this amendment, is to render the provisions of the Act of Congress relative to the times appointed for the several duties enjoined by the Constitution, and the amendment in regard to the election of President and Vice President, as fundamental and permanent as the Constitution itself.
178. The appointment of an extraordinary person as Vice President of the United States, and ex officio President of the Senate, is recommended principally by two considerations: the first is, that to secure at all times a definite resolution of the Senate, it is necessary that the President of that body should have a casting vote ; and to take a Senator from his seat as such, and place him in that of the presiding officer, would, in regard to the State he represents, be to exchange a constant, for a contingent, vote.
179. The other consideration is, that as the Vice President may occasionally become a substitute for the President in the supreme executive office, all the reasons which recommend the mode of election prescribed in the first instance for the one, apply with great, if not with equal force, to the other.
180. The powers and duties of the President devolve on the Vice President, not only when no choice is made of a President either by the electors or the House of Representatives, but also in case of the removal of the President from office, or of his death; resignation, or inability to discharge his duties; and Congress are authorized to provide by Law for the case of a vacancy in both offices.
181. In pursuance of this power, Congress has declared, that in the event of such vacancies, the President of the Senate pro tempore, and, in case there should be no President of the Senate, the Speaker of the House of Representatives, should act as President of the United States until the vacancy should be supplied.
182. The evidence of a refusal to accept, or of a resignation of the office of President or Vice President, is declared by the same law to be a declaration in writing filed in the office of the Secretary of State.
183. As it may become a question who would be the person to succeed if the office of President should devolve on the Speaker, after the Congress for which he was chosen has expired, it is usual for the Vice President to withdraw from the Senate previously to the adjournment of the session, in order to afford an opportunity to that body to choose a President pro tempore.
184. But if the President pro temper e of the Senate should die, during a casual vacancy in the offices of President and Vice President, the Speaker of the House of Representatives then extinct, would probably be deemed the person upon whom the office was intended to devolve.
185. If the Vice President succeed to the office of President, he continues in it until the expiration of the term for which the President was elected, unless a temporary disability of the President be sooner removed ; and if both offices be vacant, it is by law made the duty of the Secretary of State to take measures for the election of a President. But, from a defect in the amendment, a Vice President, as the Constitution now stands, cannot be elected until the regular period.
186. The term of four years, for which the President and Vice President are elected, was intended to be long enough to render the Executive Magistrate firm and independent in the discharge of his trust, and to give stability to his system of administration ; and short enough to retain him under a due sense of his dependence on public approbation.
187. A practice which has prevailed from the commencement of the Government, for the President to decline a second re-election, seems now to be permanently established, and to have acquired the force of a legal precedent ; and it has, in effect, limited the period of service to eight years, subject to an intermediate re-election.
188. The support of the President is secured by a provision of the Constitution, which declares that he 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.
189. This provision was obviously intended to strengthen and preserve the proper independence and energy of the Executive department; but the President cannot receive any other emolument from the United States, or from any of the States.
190. In pursuing the examination of the Executive department,
II. The powers and duties of the President, are next to be considered.
191. The first power vested in the President, connects him with the Legislature in the exercise, to a certain extent, of Legislative powers, as a security for his own independence, and a check upon that most powerful branch of the Government ; and it consists in the qualified negative he possesses upon the acts of Congress.
192. Every act, order, resolution, or vote, to which the concurrence of the two houses of Congress is necessary, (except on the question of their adjournment,) must be presented to the President, and must be approved by him before it can take effect, unless, after being disapproved by him, it be again passed by two thirds of both Houses.
193. Without this power the Executive department would be unable to sustain itself against the propensity of the Legislature to encroach upon the rights, and absorb the powers, of the weaker branches of the Government.
194. The President might gradually be stripped of his authority by successive concurrent resolutions of the Senate and House of Representatives, or so weakened as to be ultimately annihilated by a single vote of the more popular branch of the Legislature, unless he possessed this check, as a means of preventing the Legislative and Executive powers, from being united in the same hands.
195. This power, not only serves as a defence to the Executive authority, but furnishes an additional safeguard against the enactment of improper Laws, and secures the community against the effects of precipitancy, or of any impulse or excitement hostile to the public welfare, that may happen temporarily to influence a majority of the Congress.
196. The President is constituted 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 Union.
197. The command and disposal of the public force to execute the Laws, maintain domestic tranquillity, and resist foreign oppression, are powers obviously of an Executive nature ; and particularly require the exercise of the qualities characteristic of this department ; and' they have uniformly been appropriated to it, in every well organized Government.
198. The President has the sole power of granting reprieves and pardons for offences against the United States, except in cases of impeachment; the necessity of which authority in every Government, arises from the infirmities incident to the administration of human justice.
199. But were that administration perfect, policy would sometimes require the remission of a punishment strictly due, for a crime clearly ascertained and both humanity and policy dictate that this power should be as unrestricted as possible; and hence the expediency of vesting it in the President alone.
200. The President has power, by and with the advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
201. As Treaties are declared by the Constitution to be a part of the supreme Law of the land, as by their means new relations are formed, and obligations contracted with foreign powers, it would seem most consonant with the principles of a Republican Government, that the right of making Treaties should be vested in the Legislative department.
202. But the preliminary negotiations which are required, and the secrecy and despatch proper to take due advantage of a sudden and favourable turn in public affairs, render it more expedient that this power should be confided to the Executive.
203. Although the power of making treaties partakes more of the Legislative than of the Executive character, yet it does not fall strictly within the definition of either. It relates neither to the enacting of new Laws, nor to the execution of those which exist. Its objects are contracts, which have, indeed, the force of Law, but derive that force from the obligations of good faith amongst nations.
204. Treaties are not rules of action prescribed by the Supreme Legislative power, to the citizens of the State ; but agreements between sovereign and independent States.
205. The power in question accordingly constitutes a distinct department in the Government of the United States ; formed from the association of one branch of the Legislature with the Executive power, and for this purpose, the Constitution invests the Senate with the attributes of an Executive Council.
206. The qualities requisite in the management of national intercourse, indicate the President as the most fit organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; whilst the importance of the trust, and the operation of Treaties as Laws, strongly recommend that they should be made under the advice and control of a portion of the Legislative power.
207. The Senate was selected for this purpose, not only because the deposit of the power in that body, imparts additional weight and security to it as the weaker branch of the Legislature, but because, from its smaller number, it may be more easily assembled, and from its greater permanence, it is presumed to be governed by steadier and more systematic views of public policy, than the House of Representatives ; whilst these causes combined, would enable it to act with promptitude and vigour.
208. The President is further invested with the power to nominate, and by and with the advice and consent of the Senate to appoint, Ambassadors, other public Ministers and Consuls, the Judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for, and which may be established by Law. But Congress may vest the appointment of such inferior officers as they may think proper, in the President alone, in the Courts of Law, or in the heads of departments.
209. The exercise of such a power by the People at large would be impracticable ; and a concurrent right of nomination in the two Houses of Congress, or between the President or any other select body of men, would afford greater temptation and opportunity to intrigue, favouritism, and corruption, and release the appointing power from all real responsibility.
210. The power of selecting the heads of the departments established to aid the President in the discharge of his Executive duties, of nominating agents to whom the immediate conduct and management of international affairs and the negotiation of treaties are confided ; and of those officers to whom the administration of justice is committed, is, with peculiar propriety, vested in the Chief Magistrate, who is held responsible for those acts of his immediate assistants and confidential advisers, which receive his sanction; who is charged with the superintendence of foreign relations, and who is bound to see both Treaties and the Laws faithfully executed.
211. The association of the Senate with the President, in the exercise of this power, is an exception to the general delegation of Executive authority, which can never be attended with a mischievous effect, but must at all times operate as a salutary check upon the misinformation or errors of the President; whilst it serves further to increase the weight of the Senate, as a counterpoise to the other more numerous and popular branch of the Legislature,
212. To prevent the inconvenience which would arise from occasional vacancies in office, when the Senate is not in session, the President has power to fill up all vacancies which may happen during its recess ; by granting commissions which expire at the end of the next session of Congress.
213. The "vacancies" in question are understood to be such as occur from death, resignation, promotion, or removal ; and the Constitutional authority of the President, has been held by the Senate not to extend to appointing and commissioning during the recess of the Senate, Ambassadors or Ministers to foreign nations, where no such appointments had before been made.
214. The word " happen" has also been held by the Senate, to be