The Government Class Book Part 15

--3. It is further provided, with a view to the independence of the judges, that their "compensation shall not be diminished during their continuance in office." Salaries are fixed by congress. To give congress power over the purse of an officer, is to give it power over his will.

Dependence upon the legislature would be as great an evil as dependence upon the appointing power. Besides, men generally selected for high judicial offices are eminent lawyers, pursuing a lucrative professional business; and, without a liberal salary, men of the greatest ability would not accept these offices; or if in office, an essential reduction of their compensation might induce them to resign their offices.

--4. The next section enumerates the cases to be tried in these courts.

It is evident from their nature that state courts are not the proper tribunals to try them. Also all violations of the laws of the United States are tried in the national courts. Thus, the counterfeiting of United States coin, murder and other crimes committed on the sea, beyond the jurisdiction of a state, smuggling goods, that is, secretly importing dutiable goods without paying the duties, infringements of patent rights, &c., are prosecuted in courts of the United States.

--5. The third clause of this section declares, that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the same state where the said crimes shall have been committed." This is intended to secure the trial of the accused among his friends and acquaintances, and near the residence of his witnesses, whose attendance in a distant state could not be had without great inconvenience and expense, which might deprive him of the benefit of an important witness.

--6. There are three kinds of national courts: the supreme court, circuit courts, and district courts. Every state const.i.tutes at least one district. The larger states are divided into two or more districts. In each district is a _district judge_, who holds a court four times a year. There are also in each district, a _district attorney_, to conduct suits on the part of the United States, and a _marshal_, whose business is similar to that of a sheriff. This court tries the more common civil cases, arising under the laws of the United States, and the lower crimes against the laws of the United States, committed on land and sea. This court has in some cases a jury.

--7. There are nine _circuits_, each embracing several states. In each circuit is a justice or a judge, who holds a court in his circuit twice a year. The district judge of the district in which a circuit court is held, sits with the circuit judge in holding a circuit court. This court tries causes between citizens of different states, between aliens and citizens, and those in which the United States are a party. It also tries some cases in appeal from the district courts. It tries matters relating to affairs on the high seas, and all felonies punishable with death. It has a grand and a pet.i.t jury.

--8. The _supreme court_ is composed of the nine judges of the circuit courts, one of whom is chief-justice, the others are called a.s.sociate justices. It holds one session annually at the seat of government, commencing in January or February, and continuing about two months. It will be seen from this section of the const.i.tution, that this court has _original_ jurisdiction in but few cases. Its princ.i.p.al business is to rejudge cases brought up from the circuit courts.

--9. An important object of a supreme court of the United States, is to secure a correct and uniform interpretation of the const.i.tution and laws of the United States. State laws and decisions of state courts, are sometimes made which are supposed to be repugnant to the const.i.tution and laws of the United States. What may be p.r.o.nounced const.i.tutional in one state, may be declared unconst.i.tutional in another. Therefore it is provided that when an act or judgment in a case tried in the highest or last court in a state is deemed inconsistent with the const.i.tution or laws of the United States, such case may be removed to the supreme court of the United States, whose decision governs the judgment of all inferior courts throughout the union.

Chapter XLIII.

Treason, defined; its Punishment.

--1. The const.i.tution defines treason, as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Art. 3, sec. 3.

A p.r.o.neness to construe less aggravated crimes into acts of treason, made it proper that the const.i.tution should define the crime. The term _levying war_ has the sense here which it was understood to have in the English statute, from which it was adopted. An a.s.semblage of men for a treasonable purpose, such as war against the government, or a revolution of any of its territories, and in a condition to make such war, const.i.tutes a levying of war.

--2. War can be levied only by the employment of force; troops must be embodied; men must be openly raised; but there may be treason without arms, or without the application of force to the object. When war is levied, all who perform a part, however remote from the scene of action, being leagued in the conspiracy, commit treason. But a mere conspiracy to levy war is not treason. A secret, unarmed meeting of conspirators, not in force, nor in warlike form, though met for a treasonable purpose, is not treason; but these offenses are high misdemeanors.

--3. The const.i.tution also prescribes the proof necessary for the conviction of treason. "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." No evidence less than this should be considered sufficient to convict a person of a crime for which he is to suffer death.

--4. "Congress shall have power to declare the punishment of treason."

Art. 3, sec. 3. By the common law, the punishment of treason was of a savage and disgraceful nature. The offender was drawn to the gallows on a hurdle; hanged by the neck and cut down alive; his entrails taken out and burned while he was yet alive; his head cut off; and his body quartered. Congress, in pursuance of the power here granted, has very properly abolished this barbarous practice, and confined the punishment to simple death by hanging.

--5. But the same clause provides, that "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." _Attainder_ literally signifies a staining, or rendering impure; but it here means a conviction and judgment in court against the offender. By the common law, the sentence of death for treason was made to affect the _blood_ of the traitor; so that he could neither inherit property nor transmit it to heirs; but his estate was forfeited. This practice, so unjust to the innocent relatives of an offender, is properly abolished by the const.i.tution; and congress has declared that "no conviction or judgment shall work corruption of blood, or any forfeiture of estate." So that while this law continues, there is no forfeiture, even during the life of the person attainted.

Chapter XLIV.

State Records; Privilege of Citizens; Fugitives; Admission of New States; Power over Territory; Guaranty of Republican Government.

--1. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof." Art.

4, sec. 1. Without this provision, a person against whom a judgment has been obtained, might remove with his property into another state, where the property could not be taken on execution without a new trial and judgment; which, at so great a distance from the residence of the creditor and his witnesses, would be very difficult and expensive, and perhaps impossible. Now, the proceedings of the court in which a judgment is obtained, if sent to the place where the debtor resides, have the same effect as in the state in which such proceedings were taken.

--2. There are several other cases which this provision is intended to meet. But, as is seen, the effect of these acts, records, and judicial proceedings, and the manner of proving them are to be prescribed by congress. In pursuance of the power here granted, congress has enacted, that a certificate under seal of the clerk of a court of record, transmitted to any state of the union, shall there be deemed evidence of the facts therein stated. But if the thing certified is a judicial proceeding, such sealed certificate must be accompanied by the certificate of the presiding judge or justice, that the attestation of the clerk is in due form. Acts of a state legislature, to be ent.i.tled to credit in another state, must have the seal of the state affixed to them.

--3. The next section of this article provides, that "the citizens of each state shall be ent.i.tled to all the immunities and privileges of citizens in the several states." This means that the citizens of any state going into other states, shall not, by the laws of those states, be deprived of any of the privileges of citizens; but shall be ent.i.tled to the privileges which are enjoyed by persons of the same description in the states to which they remove. Without such a provision, any state might deny to citizens coming into it from other states, the right to buy and hold real estate, or to become voters, or to enjoy equal privileges in trade or business. A state may, however, prescribe a certain term of residence therein as a qualification for voting at elections.

--4. The next clause of this section provides for apprehending "a person charged with crime, who shall flee from justice and be found in another state." The governor of the state from which such person has fled, sends a requisition to the governor of the state in which he is found, demanding his delivery to the proper officers, to be conveyed back for trial. Without such authority to apprehend criminals, they might escape justice by taking shelter in another state.

--5. In the same section it is provided, that "no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This clause was intended for the benefit of the slaveholding states. By the common law, a slave escaping into a non-slaveholding state became free. As it was presumed that other northern states would follow Ma.s.sachusetts in abolishing slavery, the southern states wanted some provision to enable them to reclaim their fugitive slaves.

--6. The manner in which slaves are to be reclaimed, is prescribed by an act of congress. The owner of a runaway slave, finding him in a free state, arrests him and brings him before a magistrate; and if he proves his t.i.tle to the slave to the satisfaction of the magistrate, the slave is delivered to the owner or claimant. Free colored persons have sometimes been arrested, and, on false testimony, delivered to claimants, taken to slave states and held as slaves. Hence the opinion prevails extensively that a person claimed as a slave should be ent.i.tled to trial by a jury; and that the fact of his being a slave should be proved to the satisfaction of a jury before his delivery to a claimant.

Many persons, believing freedom to be the natural right of all men, hold that all laws for returning fugitive slaves are wrong, and ought not to be obeyed.

--7. The first clause of the next section provides, that "new states may be admitted into this union," and requires the consent of congress and of the states concerned, to the formation of new states from old ones. A provision of this kind was deemed necessary in view of the large extent of vacant lands within the United States, and of the inconvenient size of some of the states then existing. The territory north-west of the Ohio river had been ceded to the general government by the states claiming the same; and a territorial government had already been established therein by the celebrated ordinance of 1787. From this territory have since been formed and admitted, the states of Ohio, Indiana, Illinois, Michigan and Wisconsin.

--8. South of the Ohio river also was a large tract, princ.i.p.ally unsettled, within the chartered limits of Virginia, North Carolina and Georgia, extending west to the Mississippi river, from which, it was presumed, new states would be formed. Justice, however, to these states, as well as to others in all future time, required the general provision above mentioned, that "no state should be divided without the consent of its legislature and of congress."

--9. The next clause authorizes congress "to dispose of and make all needful rules and regulations respecting the territory and other property of the United States." If the general government has power to acquire territory, it must have the right to exercise authority over it.

This express grant establishes beyond doubt a power which had been questioned under the confederation. In pursuance of the power here granted, congress has made rules and regulations for governing the people of different portions of such territory previously to their admission as states into the union.

--10. The next section declares, that "the United States shall guaranty to every state in this union a republican form of government; and shall protect each of them against invasion, and on the application of the legislature, or of the executive (when the legislature cannot be convened,) against domestic violence." Art. 4, sec. 4. The propriety of a power to prevent a state from changing its government to any other than a republican form, is evident. It is equally proper that a state, when invaded by a foreign enemy, or in case of an insurrection within its own borders, should have protection and aid from the general government; especially as the states have surrendered to it the right to keep troops or ships of war in time of peace. (Art. 1, sec. 10.)

Chapter XLV.

Provision for Amendments; a.s.sumption of Public Debts; Supremacy of the Const.i.tution, &c.; Oaths and Tests; Ratification of the Const.i.tution.

--1. The 5th article provides for amending the const.i.tution. It prescribes two different modes for proposing amendments, and two modes of ratifying them. Amendments may be proposed by two-thirds of both houses of congress; or, on the application or request of two-thirds of the states, congress shall call a convention for proposing amendments.

Proposed in either of these modes, amendments, to become valid as parts of the const.i.tution, must be ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths of them; the mode of ratification, whether by the legislatures or by conventions, to be proposed by congress.

--2. As the best human government is imperfect, and as all the future wants and necessities of a people can not be foreseen and provided for, it is obvious that every const.i.tution should contain some provision for its amendment. But if amendments could be made whenever desired by a bare majority of the states, the strength and efficiency of the const.i.tution might be greatly impaired by frequent alterations. It is therefore wisely provided, that a mere proposition to amend cannot be made but by a majority of at least two-thirds of congress, or of the legislatures of at least of two-thirds of the states; and that such proposition must be ratified by a still larger majority (three-fourths) of the states. It was thought better to submit occasionally to some temporary inconvenience, than to indulge in frequent amendments of the const.i.tution.

--3. The 6th article acknowledges the obligation of the general government to pay "all debts contracted before the adoption of the const.i.tution." As has been observed, congress had borrowed money for the payment of which it was unable to provide; and one object of a change of government was to make provision for fulfilling the engagements of the nation. This clause, it is said, was also intended to allay the fears of public creditors, who apprehended that a change in the government would release the nation from its obligations.

--4. The next clause declares, "This const.i.tution, and the laws made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the const.i.tution or laws of any state to the contrary notwithstanding." If all state authorities were not bound by the const.i.tution and laws of the United States, nothing would have been gained by the union. If the laws and treaties made by the general government could be disregarded or nullified by any power in a state, why was power to make them given to the general government?

--5. The last clause of the 4th article requires certain officers, both of the United States and of the several states to be "bound by oath or affirmation to support this const.i.tution." Binding the conscience of public officers by oath or solemn affirmation, has ever been considered necessary to secure a faithful performance of their duties. They are generally required to swear not only to support the const.i.tution, but also to discharge the duties of their offices to the best of their ability.

--6. The same clause declares that "no religious test shall ever be required as a qualification to any office or public trust under the United States." _Test_ here means an oath or a declaration in favor of or against certain religious opinions, as a qualification for office. In England, all officers, civil and military, were formerly obliged to make a declaration against transubstantiation, and to a.s.sent to the doctrines and conform to the rules of the established church. Desirous of securing to every citizen the full enjoyment of religious liberty, the introduction of tests was prohibited by the const.i.tution.

--7. The 7th and last article declares: "The ratification of the conventions of nine states shall be sufficient for the establishment of this const.i.tution between the states so ratifying the same." The immediate ratification of the const.i.tution by all the states was hardly to be expected; a unanimous ratification, therefore, was not required.

But a union of less than nine states was deemed inexpedient. The framers concluded their labors on the 17th of September, 1787; and in July, 1788, the ratification of New Hampshire, the ninth state, was received by congress.

--8. The dates of the ratifications of the several states are as follows: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Ma.s.sachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 26, 1788; New York, July 26, 1788; North Carolina, November 21, 1789; Rhode Island, May 29, 1790. The two last named states did not accede to the const.i.tution until after proceedings under it had commenced. The ratification of North Carolina was received by congress in January, 1790; that of Rhode Island in June following.

--9. The first Wednesday of January, 1789, was appointed by congress for choosing electors of president in the several states, and the first Wednesday of February for the electors to meet in their respective states to elect the president. Gen. Washington was unanimously elected, and on the 30th of April was inaugurated president. Proceedings under the const.i.tution, however, had commenced on the 4th of March preceding.