Can a member be punished for an offense committed before he was elected?
How is voting usually done in a deliberative assembly? How in Congress?How are territories represented in congress?
Distinguish between the "capital" and the "capitol" of the United States.Who has power to locate the capital of the United States?
Has the salary of congressmen ever been more than $5000 a year? How were congressmen paid under the confederation?
What is meant by the House resolving itself into acommittee of the whole?
When does the freedom from arrest of a member of congress begin? When does it end? Could a summons be served upon him during that time?
What is slander? Libel? Is a member of congress liable for the publication of his speech in the Congressional Record? Would he be responsible if he should have it published in any other than the official way?
Can a member of congress resign to accept an office already in existence, and whose emoluments have not been increased during his term? Give examples. If a United States officer be elected to congress, how long can he retain his office? Could a member of congress be appointed to amilitaryoffice created during his term? Can a member be appointedafter his term is outto an office created during his term?
Is a member of congress an officer of the United States?
Clause 1.—Revenue Bills.
All bills for raising revenue[1] shall originate in the House of Representatives;[2] but the Senate may propose or concur with amendments, as on other bills.[3]
[1] That is, bills in relation to the levying of taxes or for bringing money into the treasury in any other way.
[2] Because the representatives are nearer to the people, who must pay the taxes, and can therefore be more readily held to account.
[3] Such bills in England originate in the House of Commons, and the House of Lords has no power of amendment.
The purpose of giving the Senate power to amend is to preserve the due influence of the small states in this important matter.
Clause 2.—Mode of Making Laws.
_Every bill which shall have passed the House of Representatives and the Senate,[1] shall, before it becomes a law, be presented to the president of the United States;[2] if he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be considered, and, if approved by two-thirds of that house, it shall become a law.[3] But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house, respectively.[4] If any bill shall not he returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall he a law, in like manner as if he had signed it,[5] unless the congress, by their adjournment, prevent its return, in which case it shall not be a law.[6] [1] Or the Senate and House of Representatives, since any bills except those for raising revenue may originate in either house.
[2] The two great purposes of giving the president a negative upon legislative acts, are to protect the proper authority of the executive from the encroachments of the congress, and to interpose a stay on hasty legislation.
[3] The veto of the Roman Tribune was final, as is that of almost every European sovereign today.But no British king or queen has vetoed an act of Parliament in the last hundred and eighty years.In Norway, if a bill, vetoed by the king, passes three successive Storthings, it becomes a law.
[4] To secure a permanent record for future reference. This helps to render members careful how they vote.
[5] This gives due time for consideration, but prevents the president's killing a bill by ignoring or neglecting it.
[6] Thus congress (which has the very human failing of "putting off" or postponing) cannot break down the veto power of the president, by pouring an avalanche of bills upon him within the last few days of the session.
But the president can easily kill any bill which he does not like, if it is presented within ten days of the adjournment of congress, simply by keeping it. This is called "pocketing" a bill, or "the pocket veto."
Clause 3.—Joint Resolutions.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
The purpose of this provision is to prevent congress from passing a law under some other name.
The resolution to adjourn is excepted, because, as we have seen, the time for adjournment is generally a matter of agreement between the houses.
A resolution passed by the two houses, but not intended to have the force of law, such as an agreement to do something, is called a concurrent resolution, and does not require the president's signature.
Pertinent Questions.
What is a "bill?" What is meant by entering the objections "at large?" Why is there no committee of ways and means in the Senate?
How many members in each house does it take for the first passage of a bill? How many after the president's veto? Does the expression two-thirds refer to the entire number in a house, or to the number voting?
State three ways in which a bill may become a law. Five ways in which it may fail.
During what time has the president the equivalent of an absolute veto?
Does a resolution merely expressing anopinionof either or both houses need the president's signature? Does a resolution proposing an amendment to the constitution?
Is the president bound to enforce a law passed over his veto?
A Summary.
"We have now completed the review of the structure and organization of the legislative department; and it has been shown that it is admirably adapted for a wholesome and upright exercise of the powers confided to it. All the checks which human ingenuity has been able to devise, or at least all which, with reference to our habits, our institutions, and our diversities of local interests, to give perfect operation to the machinery, to adjust its movements, to prevent its eccentricities, and to balance its forces: all these have been introduced, with singular skill, ingenuity and wisdom, into the arrangements. Yet, after all, the fabric may fall; for the work of man is perishable. Nay, it must fall, if there be not that vital spirit in the people, which alone can nourish, sustain and direct all its movements. If ever the day shall arrive, in which the best talents and the best virtues, shall be driven from office by intrigue or corruption, by the denunciations of the press or by the persecution of party factions, legislation will cease to be national. It will be wise by accident, and bad by system." [Footnote: Story's Exposition of the Constitution of the United States.]
Review.
Compare the organization of congress under the constitution with that of congress under the confederation. Show the superiority of our present organization. Specify some of the "checks" referred to by Judge Story.
Read Woodrow Wilson's Congressional Government, pp. 40, 41, 52, 219, 228, 283-5, 311. Also, Among the Lawmakers, Chapter 33.
Clause 1.—Taxation.
Congress shall have power:
To lay and collect taxes[1], duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;[2] but all duties, imposts and excises shall be uniform throughout the United States.[3]
For discussion of methods of taxation, see page 316.
[1] The want of power in congress to impose taxes was, perhaps, the greatest defect of the articles of confederation; therefore in the constitution this was the first power granted to congress.
[2] As usually interpreted, the phrase beginning, "to pay the debts," is intended to state the purposes for which taxes may be levied. But this limitation is merely theoretical, for taxes are levied before being expended.
[3] This is to prevent legislation in favor of any state or section, as against other states or sections.
Clause 2.—Borrowing.
To borrow money on the credit of the United States.
It should not be necessary, ordinarily, for congress to exercise this power. But in times of war the regular sources of income may not be sufficient, hence the necessity of this power to provide for extraordinary expenses. It is one of the prerogatives of sovereignty; it is indispensable to the existence of a nation.
For more about national borrowing, see page 317.
Clause 3.—Regulation of Commerce.
To regulate commerce[1] with foreign nations, and among the several states,[2] and with the Indian tribes.[3]
[1] The power to regulate commerce implies the power to prescribe rules for traffic and navigation, and to do such things as are necessary to render them safe. It has been interpreted to cover, among other things, the imposition of duties, the designation of ports of entry, the removal of obstructions in bays and rivers, the establishment and maintenance of buoys and lighthouses, and legislation governing pilotage, salvage from wrecks, maritime insurance, and the privileges of American and foreign ships.
[2] The power to regulate commerce with foreign nations should go hand in hand with that of regulating commerce among the states. This power had, under the confederation, been in the hands of the several states. Their jealousies and rivalries had led to retaliatory measures upon each other. This condition of affairs was encouraged by other nations, because they profited by it. At the time of the adoption of the constitution, business was terribly depressed, and the bitterness of feeling among the states would probably soon have disrupted the Union. Therefore, "to insure domestic tranquility," and "to promote the general welfare," the power to regulate commerce was delegated to the general government.
[3] This control is exercised even when the Indians live within the boundaries of a state.
By placing the power to regulate commerce with Indians in the hands of the general government it was hoped that uniformity of regulations and the strength of the government would secure peace and safety to the frontier states.
Clause 4.—Naturalization and Bankruptcy.
To establish a uniform rule of naturalization[1] and uniform laws on the subject of bankruptcies[2] throughout the United States.
[1] Naturalization is the process by which an alien becomes a citizen. The mode is given on page 319.
[2] A bankrupt is one who has been declared by a court to be owing more than he can pay.
The purposes of a bankrupt law are:
1. To secure an equitable distribution of all the debtor's property among the creditors.
2. To secure to the debtor a complete discharge from the indebtedness.
Clause 5.—Coinage and Measures.
To coin money,[1] regulate the value thereof[2] and of foreign coin,[3] and fix the standard of weights and measures.[4]
[1] This is another "sovereign power," and cannot be exercised by states, counties or cities. Coinage by the United States secures uniformity in value, and thereby facilitates business.
To "coin money" is simply to stamp upon a precious metal the value of the given piece. [Footnote: When metals were first used as money, they were weighed and their purity was determined by testing. This invited fraud.] For convenience in business transactions, these are coined of certain sizes. To discourage the mutilation of coins for sinister purposes, they are "milled" on the edges, and the stamp covers each face so that the metal could hardly be cut off without the coin showing defacement.
[2] The value is shown by the stamp.
[3] Otherwise, foreign coin would become an article of commerce, and it would be more difficult to regulate the value of domestic coin.
[4] This power congress has never exercised. But see Johnson's Cyclopedia, article Gallon.
Clause 6.—Punishment of Counterfeiting.
To provide for the punishment of counterfeiting the securities and current coin of the United States.
This is "an indispensable appendage" of the power granted in the preceding clause, that of coining money.
To discourage counterfeiting, the "securities" are engraved with rare skill and upon peculiar paper. The penalties for counterfeiting are printed on the back of some of the "greenbacks."
Under "securities" are included bonds, coupons, national currency, "greenbacks," revenue and postage stamps, and all other representatives of value issued under any act of congress.
Clause 7.—Postoffices.
To establish postoffices[1] and post roads.[2]
[1] The beneficence and usefulness of the postoffice every one can appreciate; it ministers to the comfort of all, rich and poor.
Placing the management of the postoffices with the general government secures greater efficiency and economy than would be possible if it were vested in the states.
[2] Congress generally uses roads already in existence. These are regularly selected, however, and declared to be post roads before they are used as such. The "road" may be a waterway.
But under authority of this clause congress has established some post roads. The principal highway thus established was the Cumberland road from the Potomac to the Ohio. The Union Pacific and Central Pacific railways were built under the authority and with the assistance of the United States as post and military roads.
Clause 8.—Copyrights and Patents.
To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.
No one denies that an author or inventor is entitled to a fair reward for what he has done. But if every one were at liberty to print the book or to make the article invented, the due reward might not be received.
The wisdom of granting this power to the general government becomes apparent when we consider how poorly the end might be secured if the matter were left to the states. A person might secure a patent in one state and be entirely unprotected in the rest.
For further information upon this subject, see pages 318-19.
Clause 9.—United States Courts.
To constitute tribunals inferior to the Supreme Court.
Under this provision, congress has thus far constituted the following:
1. United States Circuit Courts of Appeal, one in each of the nine judicial circuits of the United States.
2. United States Circuit Courts, holding at least one session annually in each state.
3. United States District Courts, from one to three in each state. See pages 307-9.
4. A United States Court of Claims, to hear claims against the government. Such claims were formerly examined by congress.
Although not strictly United States Courts, the following may also be mentioned here, because they were established under authority of this clause:
1. The Supreme Court of the District of Columbia.
2. A Supreme Court and District Courts in each territory.
"Constituting" these courts involves establishing them, designating the number, appointment, and salaries of the judges, and the powers of each court. The term of United States judges is "during good behavior." This is fixed by the constitution (Art. III., section 1). The term of a territorial judge is four years.
Clause 10.—Crimes at Sea.
To define and punish piracies[1] and felonies[2] committed on the high seas[3] and offenses against the law of nations.[4]
[1] Piracy is robbery at sea, performed not by an individual but by a ship's crew. Pirates are outlaws, and may be put to death by any nation capturing them.
[2] A felony is any crime punishable by death or state prison. Felony covers murder, arson, larceny, burglary, etc. But congress may define piracy and felony to cover more or fewer crimes.
[3] The "high seas" are the waters of the ocean beyond low water mark. Low water mark is the limit of jurisdiction of a state, but the jurisdiction of the United States extends three miles further into the ocean, and includes all bays and gulfs.
Beyond the three-mile limit, the ocean is "common ground," belonging not to one nation but to all. Each nation has jurisdiction, however, over its merchant ships on the high seas, but not in a foreign port, and over its war ships everywhere.
[4] For an outline of the Law of Nations, see page 346.
Cases arising under this clause have been placed in the jurisdiction of the United States District Courts.
Clause 11.—Declaration of War.
To declare war,[1] grant letters of marque and reprisal[2] and make rules concerning captures on land and water.[3]
[1]: A declaration of war is a solemn notice to the world that hostilities actually exist or are about to commence.
The power to declare war is one of the attributes of sovereignty. If this power were in the hands of the several states, any one of them could at any time involve the whole country in the calamities of war, against the wishes of all the other states. With all their fear of the general government, shown in the character of the articles of confederation, the people in framing that instrument saw the necessity of vesting this power in the general government.
In monarchies, the power to declare war is generally vested in the executive. But in a republic, it would be dangerous to the interests and even the liberties of the people, to entrust this power to the president.
To put the thought in other words, the power to declare war belongs to the sovereign: in this country, the people are sovereign, therefore the power to declare war belongs to the people, and they act through their representative body, congress. (See pages 351-4.)
[2] These are commissions granted to private persons usually in time of war, authorizing the bearer to pass beyond the boundaries of his own country for the purpose of seizing the property of an enemy.
Sometimes such a letter is granted in times of peace, "to redress a grievance to a private citizen, which the offending nation refuses to redress." By authority of such a commission, the injured individual may seize property to the value of his injury from the subjects of the nation so refusing. But this practice is properly becoming rare.
[3] Vessels acting under letters of marque and reprisal are calledprivateers, and the captured vessels are calledprizes.
Prizes are usually sold under authority of the United States District Court, and the proceeds divided among the crew of the ship making the capture.
The proceeds of captures on land belong to the government.
Clause 12.—Maintenance of Armies.
To raise and support armies;[1] but no appropriation of money to that use shall be for a longer term than two years.[2]_
[1] This is another sovereign power, and would seem the necessary accompaniment of the power to declare war. Under the confederation, however, congress could only designate the quota of men which each state ought to raise, and the actual enlistment of men was done by the several states. Their experience in carrying on the Revolutionary War on that basis satisfied them that efficiency and economy would both be secured by vesting this power in the general government.
[2] But to prevent misuse of the power, this proviso was inserted. As representatives are elected every two years, the people can promptly check any attempt to maintain an unnecessarily large army in times of peace.
A standing army is dangerous to liberty, because it is commanded by the executive, to whom it yields unquestioning obedience. Armies obeycommands, while citizens comply withlaws. And thus a large standing army creates acaste, out of sympathy with the lives of citizens. More than one republic has been overthrown by a successful military leader, supported by a devoted army.
As a matter of fact, congress makes the appropriation annually.
Clause 13.—The Navy.
To provide and maintain a navy.
The navy is necessary to protect fisheries and commerce. And in times of war the navy is needed to protect our sea coast, to transport soldiers, to cripple the enemy's resources, and to render blockades effectual.
It will be noticed that there is no limitation upon appropriations for the navy. This is for two general reasons: First, there is nothing to fear from a navy. "No nation was ever deprived of its liberty by its navy." Second, it takes time to provide a navy, and it should therefore be kept at all times in a state of efficiency.
For further information about the army and navy, see page 309.
Clause 14.—Army and Navy Regulations.
To make rules for the government and regulation of the land and naval forces.
This is an incident to the preceding powers.
The army and navy regulations prescribe duties of officers, soldiers and seamen, and provide for the organization and management of courts martial. Disobedience to orders and insubordination are crimes in a soldier or sailor; and refusal to pay just debts or any other conduct "unbecoming to a gentleman," are punishable offenses in an officer. Thus it is seen that military law takes cognizance of offenses not usually noticed by civil law.
Clause 15.—The Militia.
To provide for calling forth the militia[1] to execute the laws of the Union, suppress insurrections and repel invasions.[2]
[1] Congress has declared the militia to be "all citizens and those who have declared their intention to become such, between the ages of eighteen and forty-five." These constitute what is called the unorganized militia. The military companies and regiments formed by authority of United States and state laws constitute the organized militia.
One of two policies we must pursue, either to maintain a large standing army or to depend upon the citizen-soldiers to meet emergencies. For several reasons, we prefer the latter. That our citizen-soldier may be depended upon has been demonstrated on many a battlefield.
[2] The clause specifies the purposes for which the militia may be called out. These are three in number. Each state may for similar purposes call forth its own militia.
Under the laws of congress, the president is authorized in certain emergencies to issue the call. This he directs to the governors of states, and those called on are bound to furnish the troops required.
On three occasions only have the militia been called out under this clause: In the Whisky Rebellion of 1794, to enforce the laws; in the war of 1812, to repel invasion; and in the Civil War, to suppress insurrection.
Clause 16.—Organization of the Militia.
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States,[1] reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.[2]
[1] Thus only can the uniformity so essential to efficiency be secured.
[2] This is designed as a proper recognition of the right of each state to have militia companies and to control them, subject only to the necessary limitation mentioned.
The militia of a state consists of one or more regiments, with the proper regimental and company officers appointed by state authority. When these are mustered into the service of the United States and are formed into brigades and divisions, the appointment of the general officers is vested in the president.
Clause 17.—Exclusive Legislation.
To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by the cession of particular states, and the acceptance of congress, become the seat of government of the United States,[1] and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.[2]
[1] This refers to the territory afterwards selected, and now known as the District of Columbia.
The purpose of this provision is to free the general government from having to depend upon the protection of any state, and to enable it to secure the public buildings and archives from injury and itself from insult. [Footnote: The Continental Congress, while the capital was at Philadelphia, had to adjourn to Princeton to escape the violence of some dissatisfied soldiers. See Fiske's Critical Period of American History, page 112.]
Congress governed the District of Columbia directly until 1871, when for three years the experiment was tried of governing it as a territory. The territorial government in that time ran in debt over $20,000,000 for "public improvements," and congress abolished it.
The supervision of the district is now in the hands of three commissioners, appointed by the president, but controlled by congressional legislation.
[2] The propriety of the general government having exclusive authority over such places is too obvious to need comment. Crimes committed there are tried in the United States District Courts, but according to the laws of the state or territory.
The state in making the cession usually reserves the right to serve civil and criminal writs upon persons found within the ceded territory, in order that such places may not become asylums for fugitives from justice.
Clause 18.—Implied Powers.
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.
This clause does not grant any new power. "It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution." [Footnote: Story.]
It will be noticed that the powers of congress are enumerated, not defined, in the constitution; and the above clause has given rise to the doctrine of "implied powers," the basis of many political controversies.
Following are samples of "implied powers:"
By clause 2, congress has power "to borrow money on the credit of the United States." Implied in this, is the power to issue securities or evidences of debt, such as treasury notes. "To increase the credit of the United States, congress may make such evidences of debt a legal tender for debts, public and private." [Footnote: Lalor's Cylopedia of Political Science.]
Congress has power (clause 11) "to declare war." By implication it has power to prosecute the war "by all the legitimate methods known to international law." To that end, it may confiscate the property of public enemies, foreign or domestic; it may confiscate, therefore, their slaves. (See Emancipation Proclamation, page 362. For a hint of what congressmightdo, see Among the Lawmakers, p. 296.)
Pertinent Questions.
1. In what two ways may the first part of the first clause be interpreted? In what ways does the government levy taxes? How much of the money paid to the local treasurer goes to the United States? Have you ever paid a U.S. tax? Did you ever buy a pound of nails? Do you remember the "stamps" that used to be on match boxes? How came they there? Was that a direct or an indirect tax? A man who pays for a glass of beer or whisky pays a U.S. tax. How? Every time a person buys a cigar he pays a U.S. tax. If there be a cigar factory within reach, talk with the proprietor about this matter. Look at a cigar box and a beer keg to find some evidence of the tax paid. Name some things which were taxed a few years ago but are not now. What is a custom house? A port of entry? What are they for? Name the port of entry nearest to you. What is the present income of the United States from all kinds of taxation? What is done with the money? Look up the derivation of the wordtariff.
2.Howdoes the government "borrow?" Does the government owe you any money? If you have a "greenback," read its face. If the government is unable or unwilling to pay a creditor, what can he do? What is the "credit" of the United States? How much does the United States government owe, and in what form is the debt? How came it to be so large? Is the government paying it up? How much has been paid this fiscal year? What rate of interest has the government to pay? What is the current rate for private borrowers? How is it that the government can borrow at so low a rate? What is a "bond-call," and how is it made?
3. Has congress power toprohibitcommerce with one or more foreign nations? Has it power to regulate commerce carried on wholly within a state? Can you buy lands from the Indians? Can the state? Has congress imposed a tariff to be paid in going from one state to another? What has requiring the engineer of a steamboat to secure a government license to do with "regulating commerce?" When did congress under this clause prohibit American merchant ships from leaving port? Under what provision of the constitution does congress impose restrictions upon the railroads? Does congress exercise any control over railroads lying wholly within one state? Why?
4. How can an alien become naturalized? Who are citizens of the United States? (See Amend. XIV.) Is a child of American parents, born during a temporary absence from this country, a citizen or an alien? An alien living in this country has children born here; are they citizens or aliens? A child is born on the ocean, while its parents are on the way here to found a new home and intending to become citizens; what is the status of the child? Are you a citizen? How may female aliens become citizens? Why should they desire to do so? How did citizens of Texas at the time of its admission become citizens of the United States?
What is an insolvent law? Has this state such a law? Can this state pass a bankrupt law? Can any state? Why? Is there any United States bankrupt law? Has congress ever passed such a law?
5. What is money? Is a bank bill money? Read one and see whether it pretends to be. What gold coins have you ever seen? What others have you heard of? What silver coins have you ever seen? What others have you heard of? What other coins have you seen or heard of? How are coins made? Where is the United States mint located? Where are the branch mints? How much value does the stamp of the government add to a piece of gold? Is there a dollar's worth of silver in a silver dollar? Why? (See Jevons' Money and the Mechanism of Exchange.)
How are national banks organized? (See appendix.) Under what constitutional provision does congress exercise this power? Are any banks organized under state authority? What is meant by "legal tender?"
Are foreign coins "legal tender" at the rate fixed by congress? For the value of the principal foreign coins, see appendix. Can congress punish counterfeiting of these coins?
Is there a standard pound in this state? A standard bushel?
6. Look on the back of a greenback for the law about counterfeiting. Is there any law againstpassingcounterfeits?
7. When was our postoffice department established? Who was placed at the head of it? Who is the postmaster general? What is meant by "presidential offices" in speaking of postoffices? What are the present rates of postage in the United States? How much does it cost to send a letter to England? To Prussia? To Australia? When were postage stamps introduced? Stamped envelopes? Postal cards? In what four ways may money be sent by mail? Explain the workings and advantages of each method. What is the dead letter office?
What is meant by the franking privilege? Find the rates of postage in theUnited States, in 1795, 1815, 1845, 1850, 1860. Does the power toestablish post roads, authorize congress to make internal improvements?What is meant by "star route?"
8. Is this book copyrighted? Name some book that is not copyrighted. What things besides books are copyrighted? Can a copyright be sold? How is a copyright secured? How long do copyrights continue in force? How may they be renewed? Must new editions be copyrighted?
What is a patent? How are "letters patent" secured? How may an inventor secure time to perfect his invention? How can a patent be sold? May a person, not the patentee, make a patented article for his own use? Name ten important patented inventions. What is the purpose of the government in granting patents? Is this always secured? How does the expiration of a patent affect the price of an invention? If a person invents an article which proves helpful to millions of people, is it unfair that he should make a fortune out of it?
9. By what authority does congress organize courts in the territories? Could congress establish more thanoneSupreme Court? Name the United States District Judge for this state. The United States Attorney. The United States Marshal. If you had a claim against the United States how would you get your money?
10. Who may punish a pirate? Can a pirate claim the protection of the American flag?
11. Has the United States ever formally declared war? May war begin without a formal declaration? Does the president act with congress in declaring war, as in case of a law?
What protection is afforded by letters of marque and reprisal? Name some well known privateers. Tell about the "Alabama Claims," and their settlement. Upon what principle of international law did the decision hinge? See page 353.
12. With what other power is that ofraising an armyintimately connected? That of maintaining an army? How large is the United States army at the present time? Give arguments in favor of themilitiasystem, as against that of a large standing army. What circumstances favor us in adopting the militia system? What country in Europe is most like us in this respect? Why is this possible in that country? Where are most of the officers of the U.S. army educated? How are appointments to the institution made? By what authority has congress established it? What is a military "draft?"
Who has charge of this department of the government? Name the four highest officers in the U. S. army. For the organization of the army, see page 309.
13. Name the present secretary of the navy; the two highest naval officers. Where are most of the naval officers educated? How does the navy of the United States compare with the navies of other great powers? Why? For organization of navy, see appendix.
14. What is the difference between military law and martial law? How are these "rules" made known? What is the source of authority in a military court? In a civil court? Is there any liability of a conflict of jurisdiction between these courts? When was flogging abolished in the army? In the navy? What punishments are inflicted by courts martial?
15. Distinguish between the militia and the regular army. Between militia and "volunteers."
16. How many regiments of organized militia in this state? Name the principal regimental officers. By whose authority were these appointed? Is there any "company" near you? Have you seen them drilling? Who prescribed the "tactics?"
17. Over what portions of this state has congress this "exclusive jurisdiction?" Give a brief sketch of the District of Columbia. When and by whom was slavery abolished therein?
18. Why should this be spoken of as "the sweeping clause?"
Debate.
Resolved, That free trade should be the ultimate policy for any country.
References.
PROTECTION.—Articles in Cyclopedias; Casey's Social Science, McKean'sAbridgment; Greeley's Political Economy; Byle's Sophisms of Free Trade;Elder's Questions of the Day; Bowen's Political Economy.
FREE TRADE.—Articles in Cyclopedias; Grosvenor's Does Protection Protect?Sumner's History of Protection in U.S.; Fawcett's Free Trade andProtection; David A. Wells' Essays; Pamphlets published by the Free TradeClub, N.Y.
A very fair statement of both views may be found in Macvane's PoliticalEconomy.
Clause 1.—The Slave Trade.
The migration or importation of such persons[1] as any of the states now existing shall think proper to admit, shall not be prohibited by congress prior to the year one thousand eight hundred and eight, but a tax or duty may he imposed on such importation,[2] not exceeding ten dollars for each person.[1]
[1] The framers of the constitution disliked to tarnish the instrument by using the word slave, and adopted this euphemism.
At that time there was a general desire, not ripened into a purpose however, that slavery might soon cease to exist in the United States.
This clause, which permitted the continuance for a time of the slavetrade, was a concession to North Carolina, South Carolina and Georgia. The other states had already prohibited the slave trade, and it was hoped by all that before the time specified the abolition of slavery would be gradually accomplished.
[2] No such tax was imposed.
This provision is now obsolete, and is of interest only historically. (For further discussion of slavery, see page 343.)
Clause 2.—The Writ of Habeas Corpus.
The privileges of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
"It has been judicially decided that the right to suspend the privilege of the writ rests in congress, but that congress may by act give the power to the president." [Footnote: Lalor's Cyclopedia of Political Economy]
The privilege of the writ never was suspended by the general government until 1861. Questionable suspensions of the writ, covering a very limited territory, had been made in two or three instances by generals.
So valuable as a "bulwark of liberty" is this writ considered to be, that the courts of the United States have decided that, even in time of war, the privilege of the writ can be suspended only in that part of the country actually invaded, or in such a state of war as to obstruct the action of the federal courts.
Clause 3.—Certain Laws Forbidden.
No bill of attainder[1] or ex post facto law[2] shall be passed.
[1] A bill of attainder was a legislative conviction for alleged crime, with judgment of death. Those legislative convictions which imposed punishments less than that of death were called bills of pains and penalties. [Footnote: Cooley's Constitutional Limitations] The term is here used in its generic sense, so as to include bills of pains and penalties.
The great objection tobillsof attainder is that they are purelyjudicialacts performed by alegislativebody. A legislative body may and should try apoliticaloffense, and render a verdict as to the worthiness of the accused to hold public office. But to try him when conviction would deprive him of any of his personal rights—life, liberty, or property,—should be the work of a duly organizedjudicialbody.
This provision, then is directed not so much against the penalty (for limitations upon penalties are found elsewhere in the constitution,) as against the mode of trial. Or we may say that it is intended to prevent convictionwithouta trial; for in previous times legislative bodies had frequently punished political enemies without even the form of a trial, or without giving them an opportunity to be heard in their own defense, by passing against them bills of attainder.
[2] Anex post factolaw is, literally, one which acts back upon a deed previously performed. But as here intended, it means a law makingworsesuch an act, either by declaring criminal that which was not so regarded in law when committed, or by increasing the penalty and applying it to the act previously performed.
But a law may be passed makingbetter, in a sense, some previous act. That is, an unforseen but imperative necessity may call for the doing of something which is not unlawful, but which needs, yet has not received, the sanction of law. This act mayafterwardsbelegalizedby the legislature.
The things forbidden by this clause would, if permitted, render unsafe all those personal rights for the security of which the constitution was framed and the government founded.
Clause 4.—Direct Taxes
No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.
This clause emphasizes the first sentence of clause three, section two, of this article. It wasintendedto prevent the taxation of thetwo-fifths of the slavesnot enumerated for representation, and was evidently inserted as a concession to the slave states. But the abolition of slavery takes from the clause all force except that mentioned at the beginning of this paragraph.
No capitation tax (that is, so muchper head) has ever been levied by the general government.
Clause 5.—Duties on Exports.
No tax or duty shall be laid on articles exported from any state.
This was designed to prevent discrimination against any state or section.
Though the question has never been judicially determined, it is generally understood that since anything exported must be exported from some state (or territory), this clause prohibitsallexport duties.
Clause 6.—Commercial Restrictions.
No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state, be obliged to enter, clear or pay duties in another.
This provision has the same object in view as that which requires duties to be uniform—the impartial treatment of the several states. It shows, too, the fear felt by many that the general governmentmightshow partiality.
The latter part of the clause virtually establishes free trade among the states.
Clause 7.—Care of Public Funds.
No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall he published from time to time.
There are two great purposes to be subserved by this provision: First, to impose upon those handling the money a feeling of responsibility, and thus to increase the probability of carefulness; second, to prevent the use of public funds for any purpose except those authorized by the representatives of the people. This is in harmony with the provision which gives to congress the power to raise money.
Incidentally, too, this is a protector of our liberties. Those who have charge of the public purse are appointees of the president. But for this provision he might, as rulers in arbitrary governments do, use the public treasury to accomplish his own private purposes; and one of these purposes might be the overthrow of our liberties. This thought undoubtedly was a prominent one in the minds of the framers of the constitution.
The account of receipts and expenditures is reported to congress annually by the secretary of the treasury.
Clause 8.—Titles of Nobility.
No title of nobility shall be granted by the United States;[1] and no person holding an office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state[2]_.
[1] This is in harmony with the principle "All men are created equal." And, while in society there are classes and grades based upon learning, wealth, etc., we intend that all shall be equal before the law, that there shall be no "privileged classes."
[2] The purpose of this is evident—to free public officers from blandishments, which are many times the precursors of temptations to treason.
An amendment to the constitution was proposed in 1811, prohibiting any citizen from receiving any kind of office or present from a foreign power, but it was not ratified.
Clause 1.—Unconditional Prohibitions.
No state shall enter into any treaty, alliance, or confederation;[1] grant letters of marque and reprisal;[2] coin money;[3] emit bills of credit;[4] make anything but gold and silver coin a tender in payment of debts;[5] pass any bill of attainder,[6] ex post facto law,[6] or law impairing the obligation of contracts,[7] or grant any title of nobility.[6]
[1] Otherwise the intrigues of foreign nations would soon break up the Union.
[2] Had the states this power, it would be possible for any one of them to involve the whole country in war.
[3] This provision secures the uniformity and reliability of our coinage.
[4] A state may borrow money and may issue bonds for the purpose. But these bonds are not bills of credit, because they are not designed to circulate as money.
The evils of state issuance of bills of credit we cannot appreciate, but the framers of the constitution had experienced them, and based this provision on that bitter experience.
[5] This has the same general purpose as the preceding.
It will be observed that there is no such prohibition on the United States, and the implied power to emit bills of credit and to make things other than gold and silver legal tender, has been exercised.
[6] Forbidden to the states for the same reason that they are forbidden to the United States.
[7] The purpose is to preserve the legal obligation of contracts. "The spirit of the provision is this: A contract which is legally binding upon the parties at the time and place it is entered into by them, shall remain so, any law of the states to the contrary notwithstanding." [Footnote: Tiffany quoted by Andrews.]
Under this provision many questions have arisen. One of them is this: May a state pass insolvent or bankrupt laws? It has been decided by the United States Supreme Court that a state may pass insolvent laws uponfuturecontracts, but not uponpastcontracts. But no state can pass a bankrupt law.
Clause 2.—Conditional Prohibitions.
No state shall, without the consent of the congress,[1] lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;[2] and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States;[3] and all such laws shall be subject to the revision of the congress.[4] No state shall, without the consent of congress, lay any duty of tonnage,[5] keep troops or ships of war in time of peace,[6] enter into any agreement or compact with another state,[7] or with a foreign power,[7] or engage in war, unless actually invaded, or in such imminent danger as not to admit of delay.[8]_
[1] By implication, congress may give the states permission to do the things enumerated in this paragraph. But it never has.
[2] The inspection laws are designed to secure to consumers quality and quantity in commodities purchased. Thus, in some states there is a dairy commissioner whose duty it is to see that no substance is offered for sale as butter which is not butter. And officers may be appointed to inspect the weights and measures in stores. Such officers may be provided for without the consent of congress. But no fees can be charged for this service more than are necessary to pay the officers. In other words, the offices cannot be made a source of revenue to the state.
[3] This is to free the states from any temptation to use the power which might be conferred under this clause for their own gain, to the detriment of a sister state.
[4] This secures to congress the control of the matter.
[5] That is, a tax upon the carrying power of a ship. This is in harmony with the provision which forbids the states to levy duties on imports.
[6] This prohibits the keeping of a standing army, but each state may have its organized militia.
[7] In the preceding clause, the states are forbidden to enter into treaties, etc.,—that is, intopoliticalcompacts; and the prohibition is absolute. Here they are prohibited from entering intobusinesscompacts, unless permitted by congress.
[8] For a state to engage in war would be to embroil the country in war. But the militia might be sent to repel invasion. They would, however, be defending not the state simply, but also the United States.
"We have thus passed through the positive prohibitions introduced upon the powers of the states. It will be observed that they divide themselves into two classes: those which are political in their character, as an exercise of sovereignty, and those which more especially regard the private rights of individuals. In the latter the prohibition is absolute and universal. In the former it is sometimes absolute and sometimes subjected to the consent of congress. It will at once be perceived how full of difficulty and delicacy the task was, to reconcile the jealous tenacity of the states over their own sovereignty, with the permanent security of the national government, and the inviolability of private rights. The task has been accomplished with eminent success." [Footnote: Story.]
Pertinent Questions.
When was slavery introduced into the United States? Give an account of the steps taken to abolish it.
What is the use of the writ of habeas corpus? If a sane person were confined in an asylum, how could he be got out? Could a person who had taken religious vows imposing seclusion from the world, be released by means of this writ? Show the necessity of power to suspend the writ in cases of rebellion or invasion.
Could the thing forbidden in abillof attainder be done by a court?Give an example of anex post factolaw.
What is meant by "entering" and "clearing" a port?
How could the president get hold of any United States money other than that received in payment of his salary?
Could you receive a present from a foreign government? Name any American who has received a title or a present from a foreign government. Must a titled foreigner renounce his title on becoming an American citizen?
What are "greenbacks?" Did you ever see a state "greenback?" When do you expect to see one?
What is a contract? Could a legislature pass a law doing away with imprisonment for debt? What argument did Daniel Webster make in the famous Dartmouth College Case?
Name the various state inspectors in this state. How are they paid? May a state impose taxes to defray its own expenses? What prohibitions apply to both the general and the state governments. Arrange all the prohibitions in tabular form, classifying as indicated by Judge Story in the paragraph quoted.
It seems to us a matter of course that after the laws are made there should be some person or persons whose duty it should be to carry them into execution. But it will be remembered that under the confederation there was no executive department. The colonists had suffered from kingly rule, and in forming their first government after independence, they naturally avoided anything having the appearance of kingliness. After trying their experiment for some years, however, their "sober second sense" told them that the executive branch is a necessity, and when the convention assembled to "revise the articles of confederation" (as they at first intended to do) one of the things upon which there was practical unanimity of opinion was the necessity of having the government organized into three branches, or, as they are sometimes called, departments.
The question in regard to the executive branch was how to organize it, so as to secure two chief qualities; namely, energy of execution and safety to the people. The former was fully appreciated, for the weakness of execution during the confederation period, or the lack of execution, had impressed upon all thinking persons the necessity of more vigor in carrying out the laws. The experience during colonial days emphasized the necessity of surrounding the office with proper safeguards. And among those intrusted with the organization of a scheme of government, were many who were well versed in history—men who knew that the executive branch is the one in which lies the menace to human liberty. Under these two main divisions of the problem, arose such questions as: How many persons shall constitute the executive? What shall the term be? How shall the executive be chosen? What powers, other than those which are purely executive, shall be vested in this branch? How shall this branch be held responsible, without crippling its efficiency?
How well the problem was solved, we shall find out in our study of the provisions of the constitution pertaining to this branch.
Clause 1.—Vestment of Power.
The executive power shall be vested in a president of the United States of America.[1] He shall hold his office during the term of four years,[2] and together with the vice-president,[3] chosen for the same term, shall be elected as follows:
[1] This sentence answers the question, "How many persons shall constitute the executive?" and gives the official title thereof.
The executive authority is vested in one person for two chief reasons: To secure energy in execution, and to impose upon the executive a sense of responsibility. If the executive power were vested in a number of persons, the differences and jealousies sure to arise, and the absence of responsibility, would result in a feeble administration, which is but another name for a bad administration.
[2] The term first reported by the committee of the whole was seven years, with the provision forbidding re-election. Some of the delegates were in favor of annual elections, while others thought that the executive should be elected for life or good behavior. And other terms, varying from two to ten years, had their advocates. After much discussion, the term of four years was agreed upon as a compromise, and no limitation was put upon the number of terms for which a person might be elected.
In another place it is made the duty of the president to recommended to congress such measures as he deems necessary for the good of the country. He should, therefore, have a term long enough to fairly test his "policy" and to stimulate him to personal firmness in the execution of his duties, yet not so long as to free him from a sense of responsibility. It was thought that a term of four years would cover both of the conditions mentioned.
[3] The purpose of having a vice-president is to provide a successor for the president in case of his disability or death.
Clause 2.—Number and Appointment of Electors.
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
Three plans for the election of president and vice-president were proposed: First, election by congress; second, election by the people; third, election by persons chosen by the people for that special purpose.
The objection to the first plan was, that it would rob the executive branch of that independence which in our plan of government it is designed to possess—it would render the executive branch in a measure subordinate to the legislative.
The objections to the second plan came from two sources. Some of the delegates feared that, inexperienced as they were, the people could not be trusted to act wisely in the choice of a president—that they would be swayed by partizan feeling, instead of acting with cool deliberation. And the small states feared that in a popular election their power would count for little.
Then the compromise in the organization of the congress was remembered, and it was resolved that the election of the president and vice-president should be placed in the hands of persons chosen for that special purpose, and that the number of the electors from each state should be that of its representation in congress. This satisfied both parties. Those who thought that the people could not be intrusted with so important a matter as the choice of the president, hoped that this mode would place the election in the hands of the wise men of the several states. And the delegates from the small states secured in this all the concession which they could fairly ask.
This matter being settled, the next question was: How shall the electors be chosen? There being much difference of opinion on the subject, it was thought best to let each state choose its electors in the way which it might prefer.
Naturally the modes of choosing electors varied. In some states the legislature chose them, but this mode soon became unpopular. [Footnote: South Carolina, however, retained this mode until very recently.] In some states they were chosen by the people on a general ticket, and in others, by the people by congressional districts. The last is the fairest way, because it most nearly represents the wishes of the people. By electing on a general ticket, the party which is in the majority in any state can electallof the electors. But, for this very reason, the majority in each state has finally arranged the matter so that this is now the practice in nearly all the states.
The present system of nominations and pledged electors was undreamed of by the framers of the constitution. They intended that in the selection of the president each elector should be free to vote according to his own best judgment. But it has come to pass that the electors simply register a verdict already rendered. Briefly the history of the change is this: During the administration of Washington (who had been elected unanimously) differences of opinion on questions of policy gave rise to political parties. To secure the unity of action so essential to success, the leaders of the respective parties, by agreement among themselves, designated, as each election approached, persons whom they recommended for support by electors of their party. Gradually the recommendation came to be looked upon as binding. In 1828 the Anti-Masonic party, having no members of congress to act as leaders, held a "people's convention." Its nominees received a surprisingly large vote. The popularity of this mode of nomination thus appearing, the other parties gradually adopted it, and since 1840 it has remained a recognized part of our political machinery.
Clause 3.—Election of President and Vice-President.
The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and the number of votes for each; which list they shall sign and certify, and transmit, sealed, to the seat of the government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such a majority, and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them president, and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the president, the vote shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president, the person having the greatest number of votes of the electors, shall be vice-president. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president.
Under this provision Washington was elected president twice and Adams once. In the disputed election of 1800, it was found that this mode would not do. The faulty feature in the plan is found in the first sentence, which requires the electors to vote for two persons for president. In this election, Jefferson and Burr, candidates of the same party, received the same number of votes and each had a majority. The power to choose then devolved upon the house of representatives. There were at that time sixteen states, and consequently sixteen votes. Of these Jefferson received eight, Burr six, and the remaining two were "scattering." As it required nine votes to make a majority, no one was elected. The balloting was continued for seven days, thirty-six ballots being taken. On the thirty-sixth ballot Jefferson received ten votes to four for Burr. Jefferson thus became president and Burr vice-president. But the consequent bitterness of feeling was much regretted, and it was determined to change, slightly, the mode of election. The changes consisted in having the electors vote for one person for president and for a different person for vice-president; and when the election is thrown into the house of representatives, the selection is to be made from thethreehighest instead of thefivehighest as originally. The change was made by the twelfth amendment, passed in 1804, which is here given in full.
The Twelfth Amendment.
The electors shall meet in their respective states and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for president shall be president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March, next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president.