Essays on the Constitution of the United States Part 25

It is apprehended, from the duplicity in the wording of 1st art., 4th sec., that seemingly to leave in the power of the respective legislatures to regulate the elections, and still, that Congress may at any time by law make or alter such regulations; and the undesigned wording of the sixth article, that the const.i.tution and laws of the United States which shall be made in pursuance thereof shall be the law of the land, anything in the const.i.tution or laws of any State to the contrary notwithstanding, will render the whole system ineffectual, if not nugatory, and a new system as destructive to the liberties of the citizens as that of the ratio of voices to the ratio of property introduced. Besides being liable to have the whole State erected into one district, and consequently may give rise to the inconveniences I mentioned before.

VII, SEC. 6; VIII, SEC. 6; IX, SEC. 6; X, SECTION 6; XI, SEC. 6; XII, SEC.

2, 6; XVI, SEC. 6; XIII, x.x.xV, XLI.

By the 13th paragraph "no member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to the subjects of the State by this const.i.tution, unless by the law of the land, or judgment of its peers."

The 35th adopts, under certain exceptions and modifications, the common law of England, the statute law of England and Great Britain, and the acts of the legislature of the colony, which together formed the law on the 19th of April, 1775.

The 41st provides that the trial by jury remain inviolate forever; that no acts of attainder shall be pa.s.sed by the legislature of this State for crimes other than those committed before the termination of the present war. And that the legislature shall at no time hereafter inst.i.tute any new courts but such as shall proceed according to the course of the common law.

There can be no doubt that if the new government be adopted in all its lat.i.tude, every one of these paragraphs will become a dead letter: nor will it solve any difficulties, if the United States guarantee "to every state in the union a republican form of government;" we may be allowed the form and not the substance, and that it was so intended will appear from the changing the word _const.i.tution_ to the word _form_ and the omission of the words, _and its existing laws_. And I do not even think it uncharitable to suppose that it was designedly done; but whether it was so or not, by leaving out these words the jurisprudence of each state is left to the mercy of the new government. By 1st art., 8th sec., 1st clause, "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States."

By the 9th clause of the same section, "To const.i.tute tribunals inferior to the court."

By the 18th clause, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this const.i.tution in the government of the United States, or in any department thereof."

The 3d art., 1st sec., "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."

By sec. 2nd, "The judicial power shall extend to all cases in law and equity." To have in various instances an original and exclusive, in others a concurrent jurisdiction, and the supreme court in many cases an appellate jurisdiction, both as to law and fact. It provides, indeed, that the trial for crimes shall be by jury, but has left the trial in civil matters to the mercy of construction and their own legislative sovereign will and pleasure.

By the 3d art., 3d sec., "The Congress shall have power to declare the punishment of treason, but no attainder shall work a corruption of blood or forfeiture, except during the life of the person attainted." By 1st art., 9th sec., 3d clause, "No bill of attainder or ex post facto law shall be pa.s.sed."

XVII, XVIII, XIX, XX, XXI, XXIII, XL.

The 17th orders "That the supreme executive power and authority of this State shall be vested in a governor." By the 18th he is commander-in-chief of the militia and admiral of the navy of the State; may grant pardons to all persons convicted of crimes; he may suspend the execution of the sentence in treason or murder.

By the 19th paragraph he is to see that the laws and resolutions of the legislature be faithfully executed.

By the 27th he is president of the council of appointment, and has a casting vote and the commissioning of all officers.

The 20th and 21st paragraphs give the lieutenant-governor, on the death, resignation, removal from office, or impeachment of the governor, all the powers of a governor.

The 40th paragraph orders that the militia at all times, both in peace and war, shall be armed and disciplined, and kept in readiness; in what manner the Quakers shall be excused; and that a magazine of warlike stores be forever kept at the expence of the State, and by act of the legislature, established, maintained, and continued in every county in the State.

Whoever considers the following powers vested in the government, and compares them with the above, must readily perceive they are either all enervated or annihilated.

By the 1st art., 8th sec., 15th, 16th and 17th clauses, Congress will be empowered to call forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, for the governing such part of them as may be employed in the service of the United States, and for the erection of forts, magazines, etc.

And by the 2nd art., 2d sec., "The president shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into actual service of the United States, except in cases of impeachment."

And by the 6th art., "The members of the several state legislatures, and all the executive and judicial officers; both of the United States, and of the several states, shall be bound by oath or affirmation to support the const.i.tution." Can this oath be taken by those who have already taken one under the const.i.tution of this state?

XVIII, SEC. 17; XIX, SEC. 17; XX SEC. 17; XXI, SEC. 17; XXIII, SEC. 17; XXII TO x.x.x INCLUSIVE.

These paragraphs regulate the election, appointment, construction and duration of all the state, county and district officers, including the delegates to Congress, and how they severally are to be created and commissioned.

The 22d directs that the treasurer shall be appointed by act of the legislature to originate with the a.s.sembly. The 23d establishes a council to appoint the officers.

The 24th directs that the military officers shall be, during the pleasure of the council, the chancellor, judges of the supreme court, the first judge in every county until the age of 60.

Twenty-five and 28, which offices are incompatible, and the tenure and duration of such officers.

Twenty-six, that sheriffs and coroners be annually appointed, and shall not continue more than four years.

Twenty-seven, that the officers of the court be appointed by the respective courts, except the attorneys, by the first judge of every court.

Twenty-nine, provides that town clerks, supervisors, a.s.sessors, constables and collectors, and all other officers heretofore elegible by the people, shall always continue to be so elegible.

Thirty, directs the mode how the delegates to represent this state in the general Congress of the United States shall be elected.

I apprehend that the paragraphs aforesaid will be compleatly rendered unoperative by the following articles in the new const.i.tution:

Second article, second section, second clause, the president "shall have power, and by and with the advice and consent of the Senate, shall appoint emba.s.sadors, other public ministers and consuls, judges of the supreme court, and all officers of the United States where appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the power of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments." By the 1st art., 8 section, 9, 18 clauses, Congress have power "to const.i.tute tribunals inferior to the supreme court, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this const.i.tution in the government of the United States, or in any department or officer thereof."

By the third article, 2d section, there is an extensive federal power as above-mentioned.

By the 2d article, 2d section, the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States."

From these powers lodged in Congress and the powers vested in the states, it is clear that there must be a government within a government, two legislative, executive and judicial powers. The power of raising an army in time of peace, and to command the militia, will give the president ample means to enforce the Supreme laws of the land.

XXIII, SEC. 21; XXIV, SEC. 21; XXV, SEC. 21; XXVI, SEC. 21; XXVII, SEC.

21; XXVIII, SEC. 21; XXIX, SEC. 21; x.x.x, SEC. 21; x.x.xI, SEC. 2; x.x.xII, x.x.xIII, x.x.xIV.

The 32d paragraph orders, "That a court shall be inst.i.tuted for the trial of impeachments and the correction of errors under the regulations which shall be established by the legislature, and to consist of the president of the senate for the time being, and the senators, chancellors and judges of the supreme court."

The 33d vests the power of impeaching all officers of the state for mal and corrupt practice in the representatives of the people in a.s.sembly.

The 34th allows the parties impeached or indicted for crimes and misdemeanors to have counsel.

This system is undermined and rendered nugatory by 1st art., 6th and 7th clauses, where the senate in the new const.i.tution, have the trial and judgment on all impeachments.

By 3d art., 2d sec, 3d clause, the trial of all crimes is regulated.

By the 3d art., 3d sec., it is defined what shall be treason, the proof required, the punishment, and how the judgment in attainder shall operate.

x.x.xIII, SEC. 32; x.x.xIV, SEC. 32; x.x.xV, SEC. 13; x.x.xVII, SEC. 1; x.x.xVIII, x.x.xIX.

The 38th paragraph provides "that the free exercise and enjoyment of religious procession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind, provided that the liberty of conscience hereby granted shall not excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the State."

The 39th provides that "no minister of the gospel, or priest of any denomination whatsoever, shall at any time hereafter, under any pretence or description whatever, be eligible to or capable of holding any civil or military office or place within this state."

The first of those articles protects us from persecution in religious matters. The other excludes the clergy from enjoying any office, civil or military. Two provisions pa.s.sed by in silence by the framers of the new const.i.tution; and although possibly the leaders in both have been equally averse to a democratic system, and have had the same object, the ruin of state government, in view.

XLII.

This paragraph provides "that it shall be in the discretion of the legislature to naturalize all such persons and in such manner as they shall think proper."

The 1st art., 8 sec., 4th clause, give to the new government power to establish a uniform rule of naturalization.