The congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as a part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress;[1] provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall, in any manner, affect the first and fourth clauses in the ninth section of the first article;[2] and that no state, without its consent, shall be deprived of its equal suffrage in the senate.[3]
[1] No one realized more fully than the framers of the constitution that, with the best thought which they could give to it, the constitution might need amending, and therefore they provided ways for proposing and ratifying amendments.
It is purposely made difficult to amend the constitution because the fundamental law should not be changed except for weighty reasons. If these exist, the amendments may be made; the difficulty is not so great as to be insurmountable.
[2] By reading the clauses referred to, the student will readily see whom this was a concession to.
[3] This was to protect the small states, in whose interest the senate was organized.
The first ten amendments were proposed by congress at its first session in 1789, and they were ratified in 1791.
Two other amendments were proposed at the same time, but they were not ratified. One of them was to regulate the number of representatives; the other, to prevent congressmen from increasing their own salaries.
The eleventh amendment was proposed in 1796, and ratified in 1798.
The twelfth amendment, a consequence of the disputed election of 1801, was proposed in 1803, and ratified in 1804.
An amendment prohibiting citizens of the United States from accepting any titles, pensions, presents, or other emoluments from any foreign power, on pain of loss of citizenship, was proposed in 1811, but it was not ratified.
An amendment making slavery perpetual was proposed in 1861, in the hope that this might avert the war, but it was not ratified.
The thirteenth and fourteenth amendments were proposed in 1865 and 1868 respectively, and they were ratified the same years.
The fifteenth amendment was proposed in 1869, and ratified in 1870.
The propositions of amendments have thus far been made by congress, and all ratifications have been made by the state legislatures.
Pertinent Questions.
State four ways in which the constitution may be amended. Whattemporarylimitation was placed upon the power to amend the constitution? Whatpermanentprohibition? How is the English constitution amended? In what casemustcongress call a convention to propose amendments? Must the convention thus called propose any amendments? Which is the better of the two ways of proposing amendments? When an amendment is proposed by two-thirds of both houses of congress, is it necessary to secure the approval of the president? Can a state withdraw its ratification of an amendment? When is an amendment, once proposed, dead? Did it take three-fourths ofallthe states or only three-fourths of the loyal states to ratify the thirteenth amendment? How many of the disloyal states finally ratified it? How is the ratification and consequent validity of any proposed amendment made known?
Clause 1.—Prior Debts and Engagements.
All debts contracted and engagements entered into before the adoption of this constitution, shall be as valid against the United States under this constitution as under the confederation.
The debts were incurred and the engagements were entered into by the United States, and changing theform of governmentwould not release the country from its obligations. The insertion of this provision however, served as an explicit statement of the purpose of the government to live up to its engagements.
Clause 2.—National Supremacy.
This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
This provision settles definitely, and in what would seem to be unmistakable terms, the question of supremacy, about which so much discussion has been carried on. Within its sphere, within the limitations placed upon it by the constitution itself, the national government has the supremacy over any and all state governments.
Clause 3.—Oath of Office.
_The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution;[1] but no religious test shall ever be required as a qualification to any office or public trust under the United States.[2]
[1] The first law passed by congress under the constitution was an act prescribing the form of the oath required by the provision above. It is as follows: "I, A. B., do solemnly swear, or affirm (as the case may be), that I will support the constitution of the United States."
[2] In all other countries at the time of the adoption of this constitution eligibility to public office was limited to members of the established church of the country. This constitution set the example of abolishing religious tests for public office, and the wisdom of this is so apparent that it has been followed entirely or in part by many of the civilized nations.
The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.
Nine states made two-thirds of the entire number. Eleven states ratified the constitution within nine months of the time of its submission to them. As soon as nine states had ratified, congress made arrangements for putting the new form of government into operation.
The mode of ratification herein specified ignored the existence of the articles of confederation, and in specifying this mode the convention disregarded the instructions of the congress which called it. The congress had expressly provided that the work of the convention should be submitted to the congress and the state legislatures for approval. But this provision places the power to ratify in the hands of conventions elected by the people in the several states, which arrangement is in harmony with the opening words of the preamble.
Pertinent Questions.
What is the recognized law of nations in regard to the payment of the debts of a nation when it changes its form of government? If England should become a republic would this rule apply? Does it apply when a territory becomes a state? Were the debts of the confederation paid? How? What was the amount of the debt of the United States at the time of the adoption of the constitution? What is the value of the notes and bonds of the "Confederate States of America"? Why?
Which is sovereign, the nation or the individual states? Where else are there any provisions which teach the same thing? Why shouldjudgesbe specially mentioned in VI. 2? What department of the government makes treaties? Are they binding upon the other departments? Upon the several states? Can a state nullify an act of congress? Has any state ever tried to do so?
Why arestateofficers bound to support the constitution of theUnitedStates? Is the requirement to take the "oath of office" a religious test?Why is the choice of oath or affirmation given? What was the iron-cladoath?
Would the ratification of the constitution by nine states have made it binding upon the other four? The articles of confederation required the consent of all the states to any amendment to them; by what right was this constitution adopted against the wishes of Rhode Island and North Carolina? If those two states had persisted in their refusal to ratify the constitution, what would have been their relations to the United States? Justify your answer.
We have now considered the constitution about as it was presented to the states for ratification. Judging by our own affection for the noble instrument we would expect to learn that it was ratified promptly and unanimously. But, as a matter of fact, much hard work was required on the part of its friends to secure its ratification. Its every provision had to be explained and justified. Probably the most able exposition was made by Hamilton, Madison and Jay, in a series of papers entitled, "The Federalist."
One of the greatest objections urged against the constitution was that it did not guarantee sufficiently the rights of individuals. It will be remembered in this connection that the principal grievance against England, as expressed in the Declaration of Independence, was that personal rights had not been respected; and that, in consequence, the first form of government organized after independence, The Articles of Confederation, gave the general government no power to reach individuals. Experience showed this to have been a mistake, and the constitution authorizes the general government to execute its laws directly, enabling it to hold individuals responsible. On account of this re-enlargement of power, many people honestly feared that the new government might trespass upon personal rights as England had done. And several states at the time of ratifying suggested the propriety of so amending the constitution as to remove these fears.
In accordance with these recommendations, amendments were proposed at the first session of congress. The house of representatives proposed seventeen, to twelve of which the senate agreed. Only ten, however, were ratified by the legislatures of three-fourths of the states. They are, of course, the first ten among those that follow. It was decided by the same congress that the amendments should not be incorporated into the main body of the constitution, but should be appended to it as distinct articles. They have, however, the same force as the original constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;[1] or abridging the freedom of speech or of the press;[2] or the right of the people peaceably to assemble and to petition the government for a redress or grievances.[3]
[1] The chief purpose for which many of the early settlers came to America was that they might "worship God according to the dictates of their own conscience." Hence their descendants putfirstamong the individual rights to be protected, this freedom of religion. But this provision does not authorize any one to commit crime in the name of religion.
[2] The only limitation upon speech in this country is that the rights of others be respected. Any one may think as he pleases upon any subject, and may freely express his opinion, provided that in doing so he does not trespass upon the rights of others.
[3] It would seem that under a republican form of government this right might be assumed to be secure. The provision is meant to "make assurance doubly sure." History had shown the necessity of such precaution.
A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
It should not be the policy of a republic to keep a large standing army. An army is expensive, it takes so many men from productive industries, and it is dangerous to liberty—it may from its training become the instrument of tyranny.
But a republic must have defenders against foes foreign or domestic. A well-trained militia may be depended upon to fight with valor against a foreign foe, and may at the same time serve as a check upon usurpation.
For definition ofmilitia, see page 162.
No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be described by law.
To "quarter" soldiers in any house is to allot them to it for food and shelter.
This, it will be remembered, was one of the grievances of the colonies. This quartering of soldiers had been, and indeed is in some countries to this day, a mode of watching and worrying persons for whom officers of the government entertained suspicion or ill will.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches, and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This, as well as the preceding provision, recognizes the maxim, "A man's house is his castle." It prevents the issuance of general warrants.
_No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury,[1] except in cases arising in the land or naval forces, or in the militia when in actual service in time of war, or public danger;[2] nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;[3] nor shall be compelled in any criminal case to be a witness against himself,[4] nor be deprived of life, liberty, or property, without due process of law;[5] nor shall private property be taken for public use without just compensation.[6]
[1] For information in regard to the method of conducting criminal trials, see Division I.
[2] The necessity here for prompt and exact obedience to orders is so urgent, that summary methods of trial must be permitted.
For information regarding trial by court martial, see appendix, page 338.
[3] That is, when a jury has rendered its verdict and judgment has been pronounced, the accused cannot be compelled to submit to another trial on the same charge. But if the jury disagrees and fails to bring in a verdict, he may be tried again.
[4] Accused persons used to be tortured for the purpose of extorting from them a confession of guilt.
[5] In a despotism, the lives, liberty and property of the people are at the command of the ruler, subject to his whim. [6] For an illustration of the method of securing private property for public use, see page 18.
In all criminal prosecutions the accused shall enjoy the right to a speedy[1] and public[2] trial by an impartial jury[3] of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,[4] and to be informed of the nature and cause of the accusation;[5] to be confronted with the witnesses against him;[6] to have compulsory process for obtaining witnesses in his favor;[7] and to have the assistance of counsel for his defense.[8]
The importance of this provision is likely to be underestimated. Says Montesquieu, "Liberty consists in security. This security is never more attacked than in public and private accusations. It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends." And Lieber, in his very able work on Civil Liberty and Self-Government, says, "A sound penal trial is invariably one of the last fruits of political civilization, partly because it is one of the most difficult of subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society…. It is one of the most difficult things in all spheres of action to induce irritated power to limit itself."
Besides the guarantees of the constitution, Lieber mentions the following as characteristic of a sound penal trial: the person to be tried must be present (and, of course, living); every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must beguiltyornot guilty;[Footnote: In some countries the verdict may leave a stigma upon an accused person, against whom guilt cannot be proven. Of this nature was the old verdict, "not proven."] the punishment must be in proportion to the offense, and in accordance with common sense and justice; and there must be no injudicious pardoning power, which is a direct interference with the true government of law.
Most, if not all but the last, of the points mentioned by Dr. Lieber are covered by that rich inheritance which we have from England, that unwritten constitution, the common law. The question of how best to regulate the pardoning power is still unsettled.
[1] He may have his trial at the next term of court, which is never very remote. But the accused may, at his own request, have his trial postponed.
[2] Publicity is secured by the keeping of official records to which all may have access, by having an oral trial, by the admission of spectators to the court room, and by publication of the proceedings in the newspapers.
[3] For the mode of securing the "impartial jury," see page 63.
[4] It is provided in the body of the constitution (III., 2, 3,) that criminal trial shall be by jury, and in the state where the crime was committed. This amendment makes the further limitation that the trial shall be in thedistrictwhere the crime was committed, so a person accused of crime cannot be put to the trouble and expense of transporting witnesses a great distance.
[5] The nature of the accusation is specified in thewarrantand in the indictment, both of which, or certified copies of them, the accused has a right to see.
[6] Not only do the witnesses give their evidence in the presence of the accused, but he has also the right to cross-examine them.
[7] But for this "compulsory process" (called a subpoena), persons entirely guiltless might be unable to produce evidence in their own behalf. The natural desire of people to "keep out of trouble" would keep some knowing the circumstances of the case from giving their testimony, and others would be afraid to speak up for one under a cloud and with all the power of the government arrayed against him.
[8] The accused may plead his own cause, or he may engage a lawyer to do it for him. If he is too poor to employ counsel, the judge appoints a lawyer to defend him, whose services are paid for out of the public treasury.
From the foregoing, it will be seen that great care is exercised to give a person accused of crime full opportunity to defend himself. And it must be remembered in this connection that it is a principle of our jurisprudence thatthe burden of proof lies upon the government. That is, the accused is to be deemed innocent until he isprovedguilty. We prefer that a number of guilty persons should escape punishment rather than that one innocent person should suffer.
In suits at common law,[1] where the amount in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law.[2]
[1] The meaning of this expression is difficult of explanation, but it covers most ordinary lawsuits. From the fact that a jury in criminal cases has already been guaranteed (III., 2, 3, and Am. VI.), it may be assumed that this provision is intended to cover civil suits.
[2] Among the "rules of common law" are these: 1. All suits are tried before a judge and a jury, the jury determining thefactsin the case and the judge applying thelaw. 2. The facts tried by a jury can be re-examined only by means of a new trial before the same court or one of the same jurisdiction.
The purpose of this provision is to preserve the jury trial as a real defense against governmental oppression. In the Supreme Court there is no jury; the trials are by the court. If questions offactcould be reviewed or re-examined by such a court on appeal the protection now given by the jury would be nullified.
Excessive bail shall not he required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Having enjoyed the protection of this and similar provisions for so many years, we can hardly appreciate their value. It must be borne in mind that those who "ordained and established" the constitution had been abused in just these ways, and that in this provision they provided against a real danger.
The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Certain rights which governments are prone to trample on have been mentioned in the preceding provisions. But not all of the personal rights could be enumerated. Hence this provision covering those unnamed.
The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
This provision gives a rule for interpreting the constitution. "It is important as a security against two opposite tendencies of opinion, each of which is equally subversive of the true import of the constitution. The one is toimplyall powers, which may be useful to the national government, which are notexpressly prohibited;and the other is, todenyall powers to the national government which are notexpressly granted." [Footnote: Story] The United States is "a government of limited powers," and has only such implied powers as are necessary to carry out the express powers. On the other hand, a state has all powers not denied to it by the state or federal constitutions.
Pertinent Questions.
What is the general purpose of the first ten amendments? Do they restrict the general government or the state governments, or both? When and how were these amendments proposed? When and how ratified? What three limitations to the power of amendment does the constitution contain?
Is there any "established" or state church in the United States? How do you suppose that this came about? Are we as a people indifferent to religion? Can a person say what he pleases? Can he publish whatever opinions he pleases? What isslander?Libel?Why should these last two questions be asked here? Petition whom? What's the good of petitioning? What petitions did you learn about at the beginning of this study? Can soldiers in the regular army petition? Why? Has the "right of petition" ever been denied in this country?
Wherein is a standing army dangerous to liberty? Is this true of the navy?How is a "well-regulated militia" a check upon usurpation of authority?Does Amendment II. authorize you to keep a revolver? To carry it in yourpocket? How often is the army mentioned in the Declaration ofIndependence, and what is said?
What are the objections to "quartering" soldiers in a private house? Does the amendment protect tenants? Why the exception in the amendment? What mention of quartering soldiers in the Declaration of Independence?
Get and read a warrant of arrest. A search warrant. Has a warrant always been needed as authority for arrest? Are arbitrary arrests, searches and seizures permitted in any civilized countries today?
What is a capital crime? An infamous crime? A presentment? An indictment? A grand jury? How do the proceedings of a grand jury compare with those of a petit jury? Why the differences? Why the exception in the first clause of the amendment? Can a convicted and sentenced person ask for a new trial? Under what other circumstances can persons be tried again? In what connections have you heard of private property being taken for public use.
Taking each guarantee in the sixth amendment, show the wrongs which an accused person, presumably innocent, would suffer if the provision were not recognized or that guarantee removed.
Find out all you can aboutcommon law. What is meant by acivilsuit as distinguished from acriminalsuit? What is meant by a case inequity?When an appeal is taken what is subject to re-examination? What is not? Why?
What conditions determine the just amount of bail? Of fines? What cruel punishments have you heard or read of as being administered by public authority? When and where were such punishments not "unusual"? Was the eighth amendment necessary? What limit is there to things which "The People" may do? To the powers of the United States government? To those of a State government?
Find the history behind each provision in the ten amendments. From what country did we obtain the notions that the rights here preserved belong to freemen? From under what other country could the Colonies have come ready to be the United States as we love it, or from what other country could we have inherited such notions?
Since these ten amendments are intended for the protection of individuals against governmental oppression, it will be an excellent scheme now for the student to arrange in the form of a tabulation the various directions in which such protection is guaranteed by the constitution as amended. The following is simply suggestive:
I. From Legislative Oppression.—1. Thought; 2. Expression; 3. Bills of Attainder; 4.Ex post factolaws; 5. Social distinctions; 6. Assembly; 7. Petition.
II. From Executive Oppression.-1. Military; 2. Searches and seizures; 3.Life, Liberty, or Property; 4. Suspension ofHabeas Corpus.
III. From Judicial Oppression.-1. Before trial: arrest, bail, information as to accusation, time of trial; 2. During trial: publicity, jury, evidence, counsel, punishment; 3. After trial: retrial; 4. Treason.
IV. From State oppression.
LIMITING THE JURISDICTION of UNITED STATES COURTS.
The judicial power of the United States shall not be construed to extend to any suit in law or equity,[1] commenced or prosecuted against one of the United States[2] by citizens of another state, or by citizens or subjects of any foreign state.[3]
[1] Equity is hard to define. According to Aristotle it is "the rectification of the law, when, by reason of its universality, it is deficient." Blackstone says, "Equity, in its true and genuine meaning, is the soul and spirit of all law…. Equity is synonymous with justice." It is the province of law to establish a code of rules whereby injustice may be prevented, and it may therefore be said that all law is equitable. "In a technical sense, the term equity is applied to those cases not specifically provided for by positive law." (See page 208; also Dole's Talk's About Law, page 502.)
[2] According to III. 2, a state could be sued for a debt the same as an individual, and shortly after the adoption of the constitution several of them were sued for debts incurred during the Revolutionary War. Pride and poverty both prompted the states to desire immunity from such suits. Hence the adoption of this amendment. (See page 209.)
[3] A non-resident secures the payment of a debt due from a state in the same way as a resident—by legislative appropriation.
The amendment has been discussed in connection with Article II. of the constitution, pages 184-6.
1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
This amendment, one of the "first fruits" of the Civil War, put an end to slavery in the United States. The wording was taken, almost verbatim, from the Ordinance of 1787.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.[1] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.[2]
[1] This provision defines citizenship. It was worded with the special view of including the negroes. It embodies the principle of the Civil Rights Bill, and is intended to guarantee to the negroes the protection implied in citizenship.
[2] Some of the amendments impose limitations only on the general government. Lest the states in which slavery had recently been abolished should endeavor to oppress the ex-slaves this provision was made as a limitation upon the states.
But this provision is general in it nature, and by means of it the United States can protect individuals against oppression on the part of the states. Pomeroy [Footnote: Constitutional Law, p. 151.] regards this as the most important amendment except the thirteenth.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Each state determines who may vote within its borders. This provision was intended as aninducementto the former slave states to grant franchise to the colored men. It does notcompelthem to do this. But granting the franchise increases their representation. The fifteenth amendment is moreimperativein this direction.
No person shall be a senator or representative in congress, or elector of president or vice-president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.[1] But congress may, by a two-thirds vote of each house, remove such disability.[2]
[1] The primary purpose of this provision was to exclude from public office those who in the Civil War, by entering the service of the Confederate States, broke an oath previously taken. Though the persons whom it was immediately intended to affect will soon all be "with the silent majority," the provision, by being made part of the constitution, will remain a warning to all in the future.
[2] The disabilities have been removed from all but a few of those immediately referred to. This clause seems to put another limitation upon the power of the president to grant pardons. From 1862 to 1867 the president had been specially authorized by congress to grant amnesty to political offenders. And in 1867 President Johnson continued to grant such amnesty, denying the power of congress to put any limitation upon the president's pardoning power. But this provision specifically places the power to relieve certain disabilities in the hands of congress. The "two-thirds" vote is required in order that such disabilities may not be easily removed.
The validity of the public debt of the United States, authorized by law, including debts incurred for the payment of pensions, and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave, but all such debts, obligations and claims shall be held illegal and void.
Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This section needs little comment. It means simply that any expense incurred on the part of government in suppressing rebellionshall be paid; and that debts incurred in aid of rebellionshall not be paid. It applies not only to the late Civil War but to all future wars of the same kind.
The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.
Congress shall have power to enforce this article by appropriate legislation.
This amendment was intended to put negroes upon the same footing as white people in the matter of suffrage.
Each state, as has previously been stated, prescribes the qualifications of voters within its borders. It may require that they be fifteen or twenty-five or twenty-one or any other number of years old; it may or may not require a property qualification; it may or may not require an educational qualification; it may include or exclude women as voters; it may draw the line at imbeciles and felons, but it cannot draw the color line. A black citizen must be permitted to vote upon the same conditions as a white one.
Pertinent Questions.
What is meant by a state "repudiating" a debt? What states have done so?What reason did each assign for doing so? Can a city repudiate? A county?
Were amendments XIII., XIV., and XV. constitutionally adopted? [Footnote:See Wright, 284; Andrews, 272; and Pomeroy, 76.]
How was slavery abolished in each of the states? [Footnote: See page 343.] What does the emancipation proclamation say about slavery? Can slavery exist in Alaska? Why?
Are you a citizen of the United States? How may an alien become a citizen? May a person be a citizen of the United States without being a citizen of any state? A citizen of a state without being a citizen of the United States? [Footnote: See Wright, 287.] How does a citizen of the United States become a citizen of a certain state? What are some of the "privileges and immunities" of a citizen of the United States? [Footnote: See Wright, 287.] Can a Chinaman become a citizen? An Indian? Does this section give women the right to vote?
What provision of the constitution is amended by the second clause of the fourteenth amendment? What change is made? How often does the "counting" take place? What is it called? When will the next one occur? Has the penalty mentioned in the second clause ever been inflicted?
Name persons affected by the third clause of the fourteenth amendment. Name persons from whom the disabilities have been removed. How were they removed? Name persons against whom the disabilities still lie. May they vote? What provision of the original constitution is affected by the last sentence of this clause, and how is it modified?
How much money was expended in suppressing the rebellion? How was it raised? How much debt has been paid? How much remains unpaid? Did you ever see a United States bond or note? How much is a confederate bond for $1000 worth? Why? Have any emancipated slaves been paid for by the government?
What is the necessity of the clause commencing, "The congress shall have power?"
What is secured to negroes by the thirteenth amendment? By the fourteenth? By the fifteenth? Name persons who are citizens but cannot vote. Name three eminent colored men.
What clause could be omitted from the constitution without affecting it?
Classification.—Aristotle divided governments into three chief classes, based upon the number of persons constituting the governing element, as follows: government byone, monarchy; by thefew, oligarchy; by themany, democracy.
Subdivisions of these classes may be made as follows.
1. Byone, monarchy; hereditary or elective; absolute or limited.
2. By thefew, oligarchy or aristocracy.
3. By themany, democracy or republic.
Definitions and examples.—A hereditary monarchy is one in which the succession is acquired by birth, the usual order being from father to eldest son; examples, England, Prussia, etc.
An elective monarchy is one in which the succession is by election; the term for life; example, the old German empire, in which the emperor was chosen by certain princes called "electors." [Footnote: Our mode of electing a president may have been suggested in part by this old practice.]
An absolute monarchy is one in which the three functions of government as related to law—the legislative, executive and judicial—are all vested in one person; examples, Russia and Turkey in Europe, and most of the countries of Asia and Africa.
A limited monarchy is one in which the sovereign's power is confined chiefly to executing the laws framed and interpreted by other departments; examples, England, and most of the other countries of Europe.
An oligarchy is that form of government in which the supreme power is vested in the hands of a few (oligos, few); example, the triumvirates of Rome.
An aristocracy is really a government by the best (aristos, the select, the best). This is the sense in which the word was first used. It has come to mean government by a privileged class. Aristocracy seldom, if ever, exists alone.
A democracy is that form of government in which the functions are administered directly by the people, only the clerical or ministerial work being done by officers, and they appointed by the people; examples, the old German tribes, some of the states of ancient Greece, some of the present cantons of Switzerland, the early settlements of New England, and in a limited sense our own school districts and towns.
A republic is a representative democracy. A democracy is practicable only within a very limited area. When the area grows large the people must delegate much of work of government to representatives. Examples, the United States, each state in the Union, Switzerland, and most of the countries of America.
The Origin of Each Typical Form.—Monarchy and oligarchy both probably owe their existence to war. The successful chieftain or leader in war became the king, and his retainers or followers became the privileged classes. Those who were subdued either became slaves or were simply "the common people." Democracy had its beginnings, and flourishes best, in times of peace. The people, though they had to fight again and again to secure recognition, have really won their right to it by the arts of peace.
The Criteria of Good Government.—Among the tests by which the goodness or badness of a government, or form of government, may be determined, are the following:
1. A good government isstable. Stability is the foundation of worthiness of character in governments as well as in persons. The basis of progress is permanence—one cannot grow wise, or rich, or strong, unless he can preserve at least a part of what he gains. "Conduciveness to progress includes the whole excellence of government." [Footnote: Mills Representative Government.]
2. A good governmenttends to increase the sum of good qualities in the governed. Strength comes from exercise. Therefore a government is excellent in proportion as it works up to the possibilities of a people for self-government and fits them to go on advancing in intellectual and moral power.
3. A good governmenthas proper machinery. This should be "adapted to take advantage of the amount of good qualities which may at any time exist, and make them instrumental to right purposes." [Footnote: Mills Representative Government.]
"Representative Government the Ideally Best Polity."—Every student who has access to Mills' Representative Government should read the chapter with the heading at the beginning of this paragraph. He combats the proposition, "if a good despot could be insured, despotic monarchy would be the best form of government." Granting that much good might be done, he shows that the very passivity of the people must result in deterioration, "that is, if the nation had ever attained anything to decline from." On the other hand, he shows that participation in public affairs gives a mental and moral training otherwise unattainable. After showing the nature of the mental development acquired, he says: "Still more salutary is the moral part of the instruction afforded by the participation of the private citizen, if even rarely, in public functions. He is called upon, while so engaged, to weigh interests not his own; to be guided, in case of conflicting claims by another rule than his private partialities; to apply, at every turn, principles and maxims which have for their reason of existence the general good; and he usually finds associated with him in the same work minds more familiarized than his own with these ideas and operations, whose study it will be to supply reasons to his understanding, and stimulation to his feeling for the general good. He is made to feel himself one of the public, and whatever is their interest to be his interest. Where this school of public spirit does not exist … a neighbor, not being an ally or an associate, since he is never engaged in any common undertaking for the joint benefit, is therefore only a rival."
Dangers in Each Form of Government.—While each of the typical forms has merits of its own,—the monarchy having stability, the aristocracy securing the benefit of inherited good qualities, and democracy the advantages referred to in the preceding paragraph—there is danger in each form. Monarchy continually tends toward that inconsiderate exercise of power which we call tyranny. Aristocracy tends toward oligarchy; government by thebestis prone to decline into government by thefewwithout regard to qualification. And democracy is in danger of degenerating into mob rule.
Every Government Aims to be Aristocratic.—That is, each government in theory seeks to have those rule who are best fitted to manage public affairs. This is the thought, for instance, in our requiring certain qualifications in voters and office-holders.
Our Own Government.—We fondly believe that our own government combines to a high degree the excellencies of all the forms.
Our hope for stability lies chiefly in the fact that our corner stone is eternal justice, the equality of all men before the law. Even the severe shock of civil war has been endured, and our system is more strongly intrenched in the confidence of the world than ever before.
We believe in the potency of good blood and good training. But the worth of each individual must beshown, it will not be taken for granted. We will neither lift him up because he is "his father's son," nor cast him down because his father was unworthy.
Situated as we are, with no powerful rivals near us, with the ocean between us and the countries of Europe, the common defense requires no great standing army to eat up our substance and to menace our liberties. Living in the north temperate zone, the belt of highest civilization, in a country capable of producing almost everything desirable, there is every reason to believe that, if we are true to ourselves and our opportunities, we may long enjoy prosperity and peace.
Debate.
Resolved, That universal suffrage is dangerous to the well being of society.
Ignorance of the law is no excuse.
At first sight this would seem unjust, since no one but a lawyer can be expected to have much legal knowledge. But as law is simply common sense applied, the exercise of ordinary judgment is usually sufficient to enable a person to act safely.
To present a few of the more common principles of commercial law, is the purpose of the following pages.
Definitions.—A contract is an agreement between two or more parties, containing on the one hand anofferand on the other anacceptance.
Contracts areexpressorimplied. An express contract is one whose terms are definitely stated in words; an implied contract is one whose terms are understood from the circumstances. A written contract is express; an oral contract may be express or implied.
Fundamental Principles.—Every one able to contract is free to enter into any agreement not forbidden by law. Every such person is bound to fulfill every legal contract that he makes.
Essential to a Contract.—To be binding, however:
1. A contract must be to do a lawful act.
Most contracts are permitted by law. But a contract the carrying out of which is recognized as subversive of justice, morality, or the general welfare, is illegal, and therefore void.
2. The thing contracted to be done must be possible in its nature.
That a person finds it impossibleunder the circumstancesto live up to his contract should not and does not release him from responsibility.
3. The parties to the agreement must be competent to contract.
Persons not able to contract are minors, lunatics, idiots and drunk people, and married women (except in some states in relation to their separate estates). The purpose of this arrangement is to protect those who cannot protect themselves. A minor may, however, enforce a contract if he chooses to do so. A contract with a minor for the necessaries of life, when they are not or cannot be furnished by a parent or guardian, is valid. And any contract ratified by a minor after coming of age is binding upon him. A person unable to contract personally cannot contract through an agent. But he may act as an agent.
4. The parties to the contract must assent to it.
The assent must be voluntary. It may be given by words, by acts, or by accepting the benefits of the offer. If acceptance is by letter, the contract is complete when the letter of acceptance is mailed. The parties must assent to the same thing. Assent imposing a new condition is no assent.
5. The promise must be for a consideration.
The law will not compel a person to give something for nothing. But the amount of the consideration is usually unimportant, so long as it is reasonable. Anything is a consideration which is of benefit to the person promising or of loss or inconvenience to the other. An illegal consideration is, however, not a consideration; nor is the performance of a moral duty, nor the doing of what would be a legal duty without the promise in question. If the consideration fails, the contract fails. One has no right to sue on a contract unless he has performed or offered to perform his part.
6. The contract must be made without fraud.
Fraud may be practiced in two ways, by making statements known to be false or by concealing facts that ought to be revealed. But if the parties meet on equal terms, with the same sources of information, and if nothing is done to conceal faults, there is no fraud in law. "Let the buyer beware," is an ancient maxim, and a buyer must exercise reasonable diligence and prudence. Fraud absolves the injured party, but the defrauding party may be held to the contract; that is, the contract is voidable at the option of the party deceived.
7. Some contracts must be in writing.
The principal classes of commercial contracts which must be in writing to be binding, are: (a) agreements for the sale of property of more than a certain value; (b) agreements of guaranty; (c) agreements not to be performed within a year.
In the famous English "Statute of Frauds," which is the basis of the American local statutes on matters referred to in this section, the value of personal property requiring written contract was ten pounds or fifty dollars. In the United States the value varies in different states from $30 to $200. But if part of the property is delivered or part of the purchase money is paid the whole contract is binding, even if not in writing.
A guaranty is an agreement by which a person warrants that a certain third person shall duly perform an engagement. Thus if A obtains goods from B upon the assurance of C that they will be paid for, C is said to guarantee the debt.
A contract whichmaybe performed within a year does not come under the statute, even if such performance seems improbable at the time of making the contract.
The style of the writing is immaterial—it may be formal or informal, in ink or pencil. It may be made by the principal or by his agent.
Pertinent Questions.
How are the laws—legislative enactments and decisions of the SupremeCourt—made public? Why are they thus published?
Tell whether the following agreements are valid contracts or not, and why:
1. An agreement to print a libel. A lease of a house for gambling purposes. A contract executed on Sunday. A contract for work to be done for five consecutive days, beginning on Friday. How would it affect the case if the work were the removing of goods from a building in imminent danger of falling? The agreement of a tinsmith never again to work at his trade. His agreement not to work at it within a specified time or in a certain town.
2. An agreement to swim across the ocean. To pay for a horse at the rate of one kernel for the first nail in the horse's shoes, two for the second, four for the third, eight for the fourth, and so on. To deliver goods at a certain time, though the delivery at the proper time may be prevented by some accident. Is a person released from responsibility by sickness?
3. An agreement by an orphan to pay for necessaries at some future time. If the price charged is exorbitant, is he bound to pay it or only a fair market price? A man while drunk buys a horse for which he has no use, but after becoming sober continues to use the horse. If the price is excessive, how much must he pay? When a married women buys goods on credit, is she acting as the principal or as her husband's agent?
4. An order for goods to be sent to a man's house, nothing being said about payment. An offer retracted before acceptance. An offer for a certain horse; an acceptance under the impression that a different horse is meant. A service permitted though uninvited; give an example. A man in St. Paul offers by letter a certain piece of property at a certain price to a man in Chicago; an hour after mailing the letter he changes his mind; how can he prevent a contract?
5. A agrees to give B $25 for a silver dime. But if this particular dime were of a rare kind and desired by A, a wealthy coin collector, to complete a set, would the consideration be sufficient? An offer shouted from a fourth story window just as the roof is about to fall, in consequence of which offer a fireman at unusual personal risk successfully attempts the rescue. An offer and acceptance for a horse which is afterwards discovered to have been dead at time of sale. A promise made under threat of spreading an infamous report. An agreement for the purpose of securing the postponement of the payment of a debt. How many "considerations" are there in a valid contract?
6. The sale of an unfashionable "ready-made" suit of clothes, nothing being said about the style. The sale of a plated watch chain, the dealer permitting the purchaser to suppose it solid gold. The sale of a blind horse, nothing being said about its sight, no effort being made to conceal its blindness, and full opportunity for examination being given to the purchaser. The sale of a house and lot at a certain price, greater than the purchaser had at first intended to give, upon the representation of the seller that he had "been offered" such a sum. The purchase of a piece of land which unknown to the vendor contains a valuable mine, nothing being said to mislead said vendor.
7. An oral order for goods to the value of $500. How does the buyer's receiving part of the goods affect the matter? How else could the contract be made binding? What position does a person assume by endorsing a note? By orally saying that a debt of another will be paid? An oral engagement made December first to work a year beginning January first.
Definitions.—An agent is a person authorized to act for another in dealing with third parties. The one for whom the agent acts is called the principal.
Authority of Agent.—An agent's authority may be granted orally or in writing. When written it is called a "power of attorney." A general agent has all the authority implied in his employment. A special agent has only such authority as is specifically granted.
Responsibility of the Principal.—Between the principal and his agent responsibility is determined by their contract. Expressly or impliedly the principal agrees to pay for the service rendered.
It is in the principal's relation to third parties that the most important rule of agency appears. It is this:The principal is responsible for the authorized acts of his agent. The theory is that the acts are those of the principal, the agent being merely an instrument. And accordingly, the principal is bound not only by such acts of his agent as he has really authorized, but also by such as heapparentlyauthorizes.
Responsibility of Agent.—The agent is responsible to his principal for any violation of their contract. Expressly or impliedly he is bound to obey orders, to exercise ordinary skill and care in the performance of his duty, and to refrain from putting his interests in adverse relation to those of his principal.
To the third party the agent is not responsible, except in the following cases: When he specifically assumes responsibility, when he conceals the identity of his principal, when he exceeds his authority, or when he acts fraudulently.
Termination of Agency.—An agency terminates at the death of either principal or agent. It may also be terminated by revocation of authority, which takes effect upon receipt of the notice, or by the bankruptcy or lunacy of the principal, judicially declared.
Pertinent Questions.
In the following cases name the principal, the agent, and the third party: A clerk in a store; a man employed to sell goods by sample; a cashier in a bank; a conductor on a train; a commission merchant; a partner acting for a firm, a sheriff.
May a minor act as principal? As agent? A watch left at a jeweler's store for repairs is injured by the workman; who is responsible to the owner? On account of a road overseer's neglect a horse is injured by stepping through a hole in a bridge; to whom shall the owner look for damages? If a person is notified that another claims to represent him as agent and he neglects to repudiate the claim, is he responsible for acts of the claimant as agent?
May an agent having authority to fix prices sell to himself?
May a clerk in a store take goods at regular marked prices?
An agent transacts business after his principal's death but before he has received notice thereof, is the transaction binding upon the heirs?