LIBRARY OF CONGRESS. fjfiqu. §ajnjrir$[t !f a. Shelf JlttLSi %1 UNITED STATES OF AMERICA - -- U-ftA 1 THE Government Class Book A Manual of Instruction in the Principles of Constitutional Government and Law Part I. Principles of Government ; I. General Principles of Government. II. Government in the State. III. The United States Government. Part II. Principles of Law; I. Common and Statutory Law (or Municipal Law). II. International Law. By ANDREW W. YOUNG, AUTHOR OF "AMERICAN STATESMAN,'' ''CITIZEN'S MANUAL OF GOVERNMENT AND LAW," ETC., ETC. THOROUGHLY REVISED By SALTER S. CLARK, COUNSELLOR AT LAW. REVISED EDITION 1894. NEW YORK : Maynard, Merrill & Co., 43, 45 and 47 East Tenth Street. 1894. Ytf Copyright, 1894, by Maynard, Merrill & Co. Press of J. J. Little & Co. Astor Place, New York PREFACE The study of the principles of political science is a necessary part of a liberal education. In a country where the people govern themselves the science of gov- ernment is a necessary part of a common-school educa- tion. In the United States the people elect their own law-makers and rulers, establish their own constitu- tions, and determine even the fundamental principles upon which men shall be governed. The danger of entrusting such power to the ignorant has not failed of illustration in our States and cities. Having universal suffrage, the people must learn to govern themselves for the sake of their own preservation and welfare. !Nor is a knowledge of the principles of legal science less necessary to every citizen. The laws of man know as little of mercy as the laws of nature, in that law never admits ignorance as an excuse for wrong. It is a proof of the essential justice of our system of juris- prudence, that so many citizens pass safely through life, totally ignorant of the law, and relying merely upon their own sense of what should be. And yet every day gives proof that ignorance is always dan- gerous. The study of such a work as this will not make a youth a lawyer, but it will fix in his mind a system of broad principles, which cannot fail to be useful practically. Though these facts are self-evident, the popular 4 PREFACE study of law and good government has been strangely neglected in this and every other country. The aim of this book, in supplying a manifest want, is to present, in such form as to be used chiefly as a text-book for schools, a broad and comprehensive view of the prin- ciples of government and law in the United States. These principles are substantially the same throughout the country, and the young may easily learn the varied rights and duties of a citizen in relation to his govern- ment and his fellow-men. The book is divided into two parts : Part I., Principles of Government, is devoted (after a few chapters upon general principles), first, to gov- ernment by the State, and second, to government by the Nation. It is here that the book is believed to have its chief advantage over others of its kind. In all that we have examined, either one or the other of these subjects has been neglected. Some of our Ameri- can youth have grown to manhood with so little appre- ciation of the political importance of the State, as to believe it nothing more than a geographical division ; others have placed the State too high, and failed to realize the power and dignity of the Nation. In real- ity, the National Government, on the one hand, is of far greater historic interest and permanent political importance, as really governing the future freedom or serfdom of the people. On the other hand, the State, which says whether the particular individual shall vote, what rights of property he shall have, and what shall be the punishment for his crimes, enters far more into the daily affairs of the single citizen, touches him at more points, and is therefore of greater temporary in- terest. Both subjects should be studied, and it is of PREFACE 5 especial importance at this time that their relation to each other should be clearly presented to the youth of the land, for State rights and National rights must forever coexist. Part II., Principles of Law, contains also two divi- sions, the first one presenting the main principles which govern the rights and duties of man to man in his every-day life, and his varied rights connected with personal security, liberty, and property ; and the second giving the rules by which the relations' of nations to each other are regulated. Thus the volume presents a general view of the position of the citizen in all the relations he may sustain in this country : to his fellow- citizen, to his State, to his Nation, and to foreign nations. Extensive improvements were made by Salter S. Clark, Esq., of JSTew York, in the original form of this work. Changes and additions had been rendered necessary by historic events. A more natural and logical order was pursued, with proper subordination of topics. Each paragraph of a chapter was confined to a single specified subject. Analyses and diagrams were added, where appropriate, to be used as black- board exercises, with review questions for the use of both pupil and teacher. The present edition has been carefully revised. Yery few material changes have been made, but some corrections and additions were required to adapt the book to present needs. It is confidently hoped that this work, tested by long experience, may find as much favor in the future as it has received in the past. New York, May, 1894. ANALYSIS OF CONTENTS Part I. — Principles of Government. Div. I.— General Principles. Div. II.— State Governments. Sec. I. — Introductory. Sec. II. — Legislative Department. Sec. III. — Executive Department. Sec. IV. — Judicial Department. - Div. III.— The National Government. 'Sec. I. — Its Origin and Nature. Sec. II. — Legislative Department. -{ Sec. III. — Executive Department. Sec. IV. — Judicial Department. Sec. V. — Miscellaneous Provisions. Part II. — Principles of Law. ( Div. I.— Municipal Law. Sec. I. — Civil Rights in General. Sec. II. — Contracts. Sec. III.— Real Estate. Sec. IV. — Criminal Law. . Div. II.— International Law. Sec. I. — Peaceful Relations of Nations. Sec. II. — Relations of Nations in War. CONTENTS PAKT I — Principles of Government DIVISION I General Principles CHAPTER PAGE I. Mankind fitted for Society, Government, and Law, 11 II. Rights, Liberty, and Law, classified, . . .14 III. Different Forms of Government, . . . .19 DIVISION II State Governments SECTION I— INTRODUCTORY THEIR BASIS — THE CONSTITUTION: ELECTIONS: THREE DEPARTMENTS IV. Constitutions: Their Nature, Object, and Establish- ment, 23 V. Qualifications of Electors, . . . . .26 VI. Elections, 29 VII. Division of Powers of Government, . . .32 SECTION II LEGISLATIVE DEPARTMENT VIII. Legislature: how constituted, . . . .35 IX. Meetings and Organization, 38 X. Manner of Enacting Laws, 41 CONTENTS SECTION III EI APTER EXECUTIVE DEPARTS XL State Officers, . XII. County Officers, XIII. Town Officers, XIV. Cities and Villages, XV. Taxes, .... XVI. Education, XVII. Public Institutions, XVIII. Militia, .... SECTION IV JUDICIAL DEPARTMENT XIX. Courts, XX. Legal Proceedings, . . DIVISION III The National Government PAGE 46 49 56 59 63 67 72 75 78 82 SECTION I ITS ORIGIN AND NATURE XXI. Government before the Revolution, . . .93 XXII. The Confederation, 96 XXIII. The Union under the Constitution, . . . 100 XXIV. Constitution of the United States, .... 104 SECTION II LEGISLATIVE DEPARTMENT XXV. House of Representatives, . . . . . 130 XXVI. Senate 134 XXVII. General Legislative Regulations, 137 XXVIII. Powers of Taxation, 140 XXIX. Power to Regulate Commerce, 143 XXX. Other Powers relating to Peace, 147 XXXI. Powers relating to War, . 155 XXXII. Prohibitions on the United States, 160 XXXIII. Prohibitions on the States, 163 CONTENTS SECTION III EXECUTIVE DEPARTMENT CHAPTER PAGE XXXIV. President and Vice-President: Election, Qualifica- tions, etc., ........ 168 XXXV. Powers and Duties of the President, . . .172 XXXVI. Auxiliary Executive Departments, .... 176 SECTION IV JUDICIAL DEPARTMENT XXXVII. National Courts and their J urisdiction, . . . 180 XXXVIII. Treason, 185 SECTION V MISCELLANEOUS PROVISIONS XXXIX. Relations of States, 187 Test: Rat- . 190 . .193 . 199 XL. Amendment: Debt: Supremacy: Oath: ification, XLI. The First Twelve Amendments, XLII. The 13th, 14th, and 15th Amendments, PART II. — Principles op Law DIVISION I Municipal Law SECTION I CIVIL RIGHTS IN GENERAL XLIII. Absolute Civil Rights, 205 XLIV. Relative Civil Rights, 209 SECTION II CONTRACTS XLV. Contracts in General, 212 XLVI. Marriage, 218 10 CONTENTS CHAPTER PAGE XLVIL Principal and Agent, 222 XLVIII. Partnership, . . . . . . .225 XLIX. Sales of Personal Property, 228 L. Gifts: Fraudulent Transfers, 231 LI. Promissory Notes and Bills of Exchange, . . 233 LII. Services, 240 LIII. Insurance, 242 LIV. Shipping, . 244 LV. Interest, . 246 SECTION III REAL ESTATE LVI. Estates in Real Property, 247 LVII. Deeds and Mortgages, 249 LVIII. Appurtenances, 252 LIX. Landlord and Tenant, ...... 255 LX. Distribution of Property upon Death, . . . 258 SECTION IV CRIMINAL LAW LXI. Crimes, 261 DIVISION II International Law SECTION I PEACEFUL RELATIONS OF NATIONS LXII. Nature and Authority of International Law, LXIII. Ordinary Rules of Peace, 268 272 SECTION II RELATIONS OF NATIONS IN WAR LXIV. Causes and Objects of War, LXV. Rights and Duties of Belligerents, . LXVI. Rights and Duties of Neutrals, 276 278 282 PRINCIPLES OF Government and Law PART I Principles of Government division I General Principles CHAPTER I MANKIND FITTED FOR SOCIETY, GOVERNMENT, AND LAW 1. Mankind Social — Men are by nature fitted for society. By this we mean that they are naturally disposed to associate with each other. They could not be happy without such association. Hence we conclude that the Creator has designed men for society. 2. Dependent on Each Other — Man is so formed that he is dependent upon his fellow-men. He has not the natural strength of some animals. We can hardly imagine how a man could defend himself against the beasts, or even procure the necessaries of life, without assistance from his fellow-beings. But by means of speech men learn from each other how to 12 PRINCIPLES OF GOVERNMENT supply their wants and improve their social condi- tion. 3. Each Must Support Himself — But, although men need the assistance of each other, society is so formed that each must take care of himself. If every man were fed and clothed from a common store provided by the labor of all, many, depending upon the labor of others, would be less industrious than they now are. By the present arrangement, which obliges every man to provide for his own wants, more is produced, a greater number are cared for, and the general welfare is better promoted than if each labored for the benefit of all. 4. Right of Property — From this arrangement comes the right of property. If each man's earnings should go into a common stock for the use of all, there would be nothing that any one could call his own. But if each is to provide for himself, he must have a right to use and enjoy the fruits of his own labor. 5. Common to All — But all men in society have the same rights. Therefore we cannot rightfully supply our own wants or gratify our own desires any further than is consistent with the rights of others. But man is by nature selfish, and many would infringe the rights of others, for their own selfish ends, unless restrained. Hence we see the necessity of some fixed rules that each one may know what he may do, and what he must not do. 6. Law — These rules for regulating the social actions of men are called laws. Zaio, in a general sense, is a rule of action, and is applied to all kinds of action ; as, the law of gravitation, the laws of chemistry, etc. But GENERAL PRINCIPLES 13 in a limited sense, it denotes the rules of human action prescribing what men are to do, and forbidding what they are not to do. 7. Man a Moral Being- — We have seen that man is fitted for law, because he is designed for society, and law is necessary to govern society. By nature, also, he is fitted for government and law, because he is a moral being. The word moral has various significa- tions. When we say, a moral man, we mean a virtuous or upright man. But in a wider sense it relates to the social actions of men, both right and wrong, as when we say, his morals are good, or his morals are bad. When it is said that man is a moral being, it is meant that he has a sense of right and wrong, or at least the power of acquiring it. He knows what is right and what is wrong, and he knows that he ought to do the right and avoid the wrong. Therefore he is fitted to understand why laws are right. 8. Government Necessary — Thus we have seen that men are social, reasonable, and moral beings, and that for each one of these reasons they are fitted for society and law. But law cannot exist without government. Law is a rule of action laid down by the supreme power, and if there is no supreme power there can be no law. Hence we see the necessity for government. It is not probable that people knowingly acted on these prin- ciples in first forming governments; that is, deliber- ately met together and agreed to have a certain government and certain laws. But it is these princi- ples that maintain law and government now. 14 PRINCIPLES OF GOVERNMENT CHAPTER II EIGHTS, LIBERTY, AND LAW, CLASSIFIED 1. Rights — A right is a just claim. We have a right to what we have acquired by honest labor, or other lawful means, because we are justly entitled to freely use and enjoy it. We have a right to our lives, and to our freedom; that is, to do whatever we think necessary for our own safety and happiness, provided we do not trespass upon the rights of others, because it would be unjust to deprive us of our lives or freedom. 2. How Forfeited — But society has its rights also, and if we infringe them it is just we should be punished by losing some of our own. We may forfeit them by some offence or crime. If, for example, a man is fined for breaking a law, he loses his right to the money he is obliged to pay. By stealing, he forfeits his liberty, and may be justly imprisoned. By committing murder, he forfeits his right to life, and may be hanged. 3. Political Rights — Rights are political or civil. Political rights are those which each citizen has with reference to sharing in the government. The word political, in a general sense, relates to the government. The whole body of the people united under one gov- ernment is called the political body, or body politic. The right of the people to choose and establish for themselves a form of government, or constitution, and the right to elect persons to make and execute the laws, are political rights. The right of voting at elections is therefore a political right. Political rights are derived from the constitution. Under absolute monarchies, GENERAL PRINCIPLES 15 therefore, where there is no constitution, the people have no political rights ; under democracies they have more than under any other form of government. 4. Civil Rights are all those which are not political. They are the rights which govern our ordinary, every- day actions ; such as, the right to go where we please, to do whatever we wish with our own property, or to control our children. They are also called natural rights, because given to us by nature, or by birth ; and sometimes inalienable rights, because they cannot justly be taken away from us. They are called civil because they relate to the ordinary duties of a citizen. 5. Absolute Civil Rights — Civil rights are either absolute or relative. The absolute civil rights are such as we have as individuals, as members of society, in our relations to all the other members of society. They are divided into three classes : the right of per- sonal security, which is the right to be secure from injury to life, body, health, or reputation ; the right of personal liberty, which is the right to go wherever we please ; and the right of private property, or the right to acquire property and enjoy it without disturbance. These are often called personal rights, or the rights of persons. The term rights of person includes only the first two ; viz., the rights of personal security and per- sonal liberty. Religious rights, which consist in the right to worship God in whatever way each one thinks best, and to make known and maintain his religious beliefs, are absolute rights. 6. Relative Civil Rights are such as we have in our relations to particular persons or classes. They are either public or private. The public relative civil rights are those we have in our relations to the gov- 16 PRINCIPLES OF GOVERNMENT eminent (except the right to share in it) ; as, the right to be protected by it, and the right the government and its officers have to our obedience. The private relative civil rights are such as are connected with the four relations of husband and wife, parent and child, guardian and ward, and employer and employed ; as, the right of the parent to be obeyed by the child, or the right of the wife to be supported by her husband. 7. Liberty is the being free to exercise and enjoy our rights, and is called natural, political, civil, or religious, according to the particular class of rights referred to. Thus the exercise of rights guaranteed by the constitution or political law is called political liberty. The free enjoyment of rights secured by the civil or municipal laws is called civil liberty. And free- dom of religious opinion and worship is called religious liberty. Freedom of speech and freedom of the press mean the liberty to speak and print whatever we choose, provided we do not abuse the right. 8. Law — It is easy to see that it makes little dif- ference how many rights a man has, unless there is some power to insure him the liberty to enjoy them. The object of law is to secure to all men the various kinds of rights we have described. It has different names, corresponding to the kinds of rights which it protects ; as, the political lata, which secures our polit- ical rights, and the civil or municipal law, which secures our civil rights. The word municipal was used by the Romans to designate that which related to a municipium ; i.e., a free town, or city. And so, often, we use the term municipal law as denoting the law that relates to cities or towns, but here it is used in a broader sense, and includes the body of laws GENERAL PRINCIPLES 17 which prescribe what we may, or must not, do, and is equivalent to civil law* The constitution is the polit- ical law ; the body of laws governing the ordinary actions of men is the civil or municipal law ; and the rules which regulate the intercourse of nations consti- tute international law. 9. The Moral Law is that which prescribes man's duties not only to his fellow-men, but also to God. It is briefly expressed in the decalogue, or ten command- ments, and is still more briefly summed up in the two great commandments, to love God with all our heart, and to love our neighbor as ourselves. It is sometimes called the divine law, because God is its author; and the revealed law, or law of revelation, because it is revealed to man in the Scriptures. As a rule of con- duct it is also the same as the law of nature, the only difference between them being in their origin ; the former, the revealed law, coming directly from God, and the latter, the law of nature, coming from nature — that is, our own consciousness in its perfect state. 10. Broader than Civil Law — Although the moral law is a perfect rule of action, to which all human laws ought to conform, yet the civil law does not, and can- not, embrace all that the moral law does. The moral law is directed not only to the outward acts, but also to the thoughts and intents of the heart. It requires us to love our Creator supremely, and our neighbor as ourselves ; in other words, to do to others as we would that they should do to us. But as the omniscient God only knows when men fail in these duties, no human * Care must be taken to distinguish the term, as used in this con- nection, from the Civil Law, a name for the old Roman law. 2 18 PRINCIPLES OF GOVERNMENT authority could enforce such a law. Human laws, therefore, have respect chiefly to the outward acts of men, and are designed to regulate their intercourse with each other. Rights of Citizens I. POLITICAL ; these are 1. Right of all to establish a government, and 2. Right of each to share in it, by voting. II. CIVIL ; these are 1. Absolute ; they are the right of i 1. Personal Security, \ 2. Personal Liberty, and ( 3. Private Property. 2. Relative ; these are 1. Public ; they are 1. Right of people to protec- tion of government, and "1 2. Right of government to obedience of people. Private ; arising from relations of 1. Husband and wife, 2. Parent and child, 3. Guardian and ward, and 4. Employer and employed. GENERAL PRINCIPLES 19 CHAPTER III DIFFERENT FORMS OF GOVERNMENT 1. Patriarchal Government — Governments have existed in a great variety of forms. Most existing governments are, more or less, mixtures of the differ- ent kinds. The earliest governments of which we have any knowledge are the patriarchal. Patriarch, from the Greek pater, father, and archos, chief, or head, , means the father and ruler of a family. This kind of government prevailed in the early ages of the world, and is the form adapted to a state of society where the people dwell together in families or tribes, and are not yet formed into states or nations. Abraham was a patriarchal ruler. 2. Theocracy — After their departure from Egypt, the government of the Hebrews was a theocracy. This word is from theos, God, and frratos, power, and sig- nifies a government by those who are also the relig- ious rulers, or, as it is claimed, by the immediate direc- tion of God. The laws by which they were governed they believed were given to them on Mount Sinai by God himself, their leader and king. 3. Most Common Forms — But the most common forms of government are monarchy, aristocracy, and democracy. Many claim that all kinds of government may be reduced to one of these three. For example, the patriarchal government is but a kind of monarchy. The power of government is, in a general sense, called the supreme power, or sovereignty. 4. Monarchy — The form of government in which 20 PRINCIPLES OF GOVERNMENT the supreme power is in the hands of one person is called a monarchy. The word monarch is from two Greek words, monos, sole or only, and archos, a chief ; and is a general name for a single ruler, whether he be called king, emperor, or prince. A government in which all power resides in or proceeds from one person is an absolute monarchy. If the power of the monarch is restrained by laws or by some other power, it is called a limited monarchy. The English Government is a limited monarchy. A monarchy is called hered- itary in which the crown passes from father to son, or from the monarch to his successor, by inheritance. On the death of a sovereign, the eldest son is usually heir to the crown. A monarchy is elective where, on the death of the ruler, his successor is appointed by an election. Only a few such monarchies have existed. 5. Despotism — An absolute monarchy is sometimes called despotism. The words despot and tyrant at first meant simply a single ruler. They are now applied, for the most part, to rulers who exercise authority over their subjects with severity. In an absolute des- potism, the monarch has entire control over his sub- jects. They have no law but the will of the ruler, who has at command a large force of armed men to keep his people in subjection. The governments of Russia and Turkey are more despotic than any others in Europe. 6. Aristocracy is the form of government in which the power is exercised by a privileged order of men, distinguished for their rank and wealth. The word aristocracy is from the Greek word aristos, best, and kratos, power, or krateo, to govern ; and meant, orig- inally, government by the best men. It is also used GENERAL PRINCIPLES 21 for the nobility of a country under a monarchical gov- ernment. Nobles are persons of rank above the com- mon people, and bear some title of honor. The titles of the English nobility are duke, marquis, earl, vis- count, and baron. These titles are hereditary, being derived from birth. In some cases they are conferred upon persons by the king. 7. Democracy is government by the people ; the word democracy being from the Greek demos, the people, and krateo, to govern. In a government purely democratic, the great body of freemen meet in one assembly to make and execute the laws. There were some such governments in ancient Greece ; but they necessarily comprised small territories, scarcely more than a single town. The freemen of a state could not all meet in a single assembly. 8. A Republic is that kind of democracy in which the power to enact and execute the laws is exercised by representatives, who are persons elected by the people to act for them. The people not only enact the laws and execute them through the representatives whom they elect, but also adopt their own constitution or form of government, and thus all power comes from the people, the government being properly called a representative democ7 % acy. A republic is sometimes also called a commonwealth, because its object is the com- mon happiness of all. 9. In this Country the people are everywhere under two governments, the State and the National Govern- ment. The United States is a republic, and so, also, is each State. Each State has given up to the Nation those powers and duties which naturally belong to a nation in its relations with foreign powers, as the 22 PRINCIPLES OF GOVERNMENT right to make war or treaties, and also has given up the power to make laws on subjects in which all the people in the country are interested together, as com- merce, the coining of money, and patents. But the State retains all the powers it has not given up, and both State and National Governments are independent of each other, each in its own sphere. The Territories, until they become States, are under the United States Government. It grants them, to a certain extent, through Congress, self-government, on the plan of the State governments, but it can take it away at any time. Kinds of Government I. Monarchy ; this may be, 1. As to Power, 1. Absolute, or 2. Limited. 2. As to Title, 1. Hereditary, or 2. Elective. II. Aristocracy; III. Democracy ; this may be, j 1. Pure Democracy, or ( 2. Republic. DIVISION II State Governments SECTION I.— INTRODUCTORY Their Basis, the Constitution; Elections; Three Depart- ments CHAPTER IV constitutions : their nature, object, and estab- lishment 1. Republic the Best Government — Of all the different forms of government which have existed, a republican government, on the plan of that which has been established in this country, is believed to be best adapted to secure the liberties of a people, and to pro- mote the general welfare. Under the reign of a wise and virtuous ruler, the rights of person and property may be fully enjoyed, and the people may be in a good degree prosperous. But the requisite virtue and wis- dom combined have seldom been found in any one man (i.e., a monarchy), or a body of men (i.e., an aristocracy). And, as we in this country believe, ex- perience has proved that the objects of civil govern- ment may be best secured by a written constitution founded upon the will or consent of the people. Each State in the Union has such a constitution, and the Nation itself has one. 24 STATE GOVERNMENTS 2. Constitution — The word constitute is from the Latin, and signifies to set, to fix, to establish. Consti- tution, when used in a political sense, means the estab- lished form of government of a state. In a free government, like ours, it is properly called the political law, being established by the people as a body politic. (Page 16, § 8.) It is also called the fundamental law, because it is the foundation of all other laws of the state, and of all the powers of the state, legislative, executive, and judicial. 3. Nature — A constitution is in the nature of an agreement between a whole community, or body politic, and each of its members. This agreement or contract implies that each one binds himself to the whole, and the whole binds itself to each one, that all shall be governed by certain laws and regulations for the com- mon good. 4. Convention — In forming a constitution, the peo- ple must act collectively. But their number is too large to meet in a single assembly. Therefore they choose a small number to act for them. One or more are chosen in each county, or smaller district, and are called delegates. A delegate is a person appointed by another with power to transact business as his repre- sentative. The assembly composed of the delegates so elected is called a convention, a name given to most public meetings other than legislative assemblies. The convention draws up in proper form a paper contain- ing the fundamental laws and general form of govern- ment, under which it thinks the people wish to be governed. 5. Adoption by People — But what has thus been prepared by the convention is not yet a constitution. INTRODUCTORY 25 It is only a draft of one, and cannot, in general, be- come a constitution without the consent of the people to be given at an election. If a majority of the per- sons voting at such election vote in favor of the proposed constitution, it is adopted, and becomes the constitution of the State. 6. Amendment — A constitution usually provides for its own amendment. Amendments are, generally, pro- posed and passed by the legislature, sometimes on two successive years, and then submitted to the people. 7. Value — One of the most valuable rights of the people under a free government is the right to have a constitution of their own choice. Indeed, it is in this right that their freedom principally consists. It is by the constitution that their rights are secured. The legislature can pass no laws that the constitution for- bids, and if they should enact unjust and oppressive laws, the people, having by their constitution reserved the right to displace them, may do so by electing others in their stead.* 8. Other Governments — In an absolute monarchy the people have neither the right to establish their own form of government, nor the right to elect their law-makers. The will of the monarch is the only law. In a limited monarchy they have some political rights. In Great Britain the people elect representatives to the House of Commons, which is the most important part * It would seem to follow from this that the people of any State, having the right to select their own form of government, might, if they wished, choose any form ; for example, a monarchy. But it must be remembered that this country is a nation, and not a collec- tion of States, and that the United States Constitution has guaran- teed to every State in the Union a republican government, or, in other words, forbidden any other form. 26 STATE GOVERNMENTS of the legislature ; but they did uot originally establish the form of government. The English have no written constitution. What is called the English constitution consists of the body of fundamental laws, principles, and customs which in the course of centuries have become securely fixed. But Parliament, the English law-making body, has the power to make any law it sees fit. CHAPTER V QUALIFICATIONS OF ELECTORS 1. Electors — One of the first provisions usually inserted in the constitution of a free state is that which declares who shall be allowed to take a part in the government ; that is, to whom the political power shall be intrusted. The political power of the people consists chiefly in the right to vote, called the right of suffrage. The constitution regulates this, and does not give it to every one in the state, but only to such as are qualified to exercise it understandingly. Those who have the right of suffrage are called electors* When, therefore, we speak of the people politically, we mean those only who are qualified electors. 2. Age — An elector must be twenty-one years of age. Before that age young men have not the neces- sary knowledge and judgment to act with discretion. Some are competent at an earlier age ; but a constitu- tion can make no distinction between citizens. It has, therefore, in accordance with the general opinion, fixed the time at the age of twenty-one when men shall be * These are not Presidential Electors. The word is used here in a general sense. For Presidential Electors, see page 169. INTRODUCTORY 27 deemed capable of exercising the rights and perform- ing the duties of freemen. 3. Sex — It is a general rule that no female can vote, although the question has been settled in some States in favor of female suffrage. 4. Residence — That a man may vote understand- ing^, he must have resided long enough in the State to have become acquainted Avith its government and laws, and to have learned the character and qualifica- tions of the persons for whom he votes. State con- stitutions therefore require that electors shall have resided in the State for a specified period of time, vary- ing, however, in the different States from three months to two years. In most of the States they must also have resided for some months in the county or district, and be residents of the town in which they offer to vote. 5. Aliens — Persons born in foreign countries are aliens, and have no right to vote, though residing here. They are presumed to have too little knowledge of our government, and to feel too little interest in public affairs, on their first coming hither, to be duly quali- fied for the exercise of political power. Laws, however, have been enacted for naturalizing aliens after they shall have resided here long enough to become acquainted with and attached to our government. By naturaliza- tion they become citizens, entitled to all the privileges of native or natural-born citizens except election to the office of President or Yice-President. (See page 148.) 6. Criminals — It is provided also in State constitu- tions that electors convicted of infamous crimes are disfranchised. Franchise is a right or privilege. The right of voting is called the elective franchise / and an elector when deprived of this privilege is dis- 28 STATE GOVERNMENTS franchised. Men guilty of high crimes are deemed unfit to be intrusted with so important a duty as that of electing the persons who are to make and execute the laws of the State. It is provided, however, that if such persons are pardoned before the expiration of the term for which they were sentenced to be imprisoned, their forfeited rights are restored. * 7. Idiots and lunatics have no right to vote, for the reason that they cannot use it understandingly. 8. Property — In general it is not now necessary for an elector to own property. By the earliest constitu- tions of many of the old States, electors were required to own property, or to have paid rents or taxes, to a certain amount. In the constitutions of the newer States, and the amended constitutions of the old States, property has not been made a qualification of an elector. In many States, however, paupers have no vote. 9. Color — There is now no distinction of color in the right to vote, and the negro has the same privilege as the white man in all the States. TJp to the adoption of the fifteenth amendment to the Constitution of the United States, in 1870, colored people, whether slave or free, could not vote in the Southern States, and in only three or four of the Northern States. Eecent laws have greatly restricted the immigration of the Chinese. They have no political rights in this country. Thus it will be seen that while all the people in a State have civil rights, less than half have political rights. INTRODUCTORY 29 CHAPTER VI ELECTIONS 1. When Held — For the convenient exercise of political power, as well as for the purposes of govern- ment generally, the territory of a State is divided into districts of small extent. A State is divided into counties, and these are divided into towns or town- ships. The people of every county and every town have power to manage their local concerns. The electors of the State meet every year in their respective towns for the election of officers. Governors in most of the States are elected every two or four years, but many officers elected by the people are chosen every year. All the electors of the State may vote for State officers, but only residents of the respective towns or counties can vote for the town and county officers. In most States the general State election is held in October or November. 2. Inspectors of Election — Elections are conducted by persons designated by law, or chosen by the electors of the town, for that purpose. It is their duty to pre- serve order, and to see that the business is properly done. They are usually called judges of election or in- spectors of election. Persons also (usually two) serve as clerks. Each clerk keeps a list of the names of the persons voting, which is called a poll-list. Poll, which is said to be a Saxon word, signifies head, and has come to mean person. By a further change it has been made to signify an election or the place where the voting is done. 30 STATE GOVERNMENTS 3. Voting — The polls, i.e., the voting places, are gen- erally open one day, from sunrise to sunset. The in- spectors receive from each voter a ballot, which is a piece of paper containing the names of the persons voted for, and the title of the office to which each of them is to be elected. The voting in most of the States is by ballot, but in one or two it is viva voce ; that is, by the elector speaking the name of the person for whom he votes. 4. Challenging- — If no objection is made to an elector's voting, the ballot is put into the box and the clerks enter his name on the poll-list. If the inspec- tors suspect that a person offering to vote is not a qualified elector, they may question him upon his oath in respect to his age, the term of his residence in the State and county, and citizenship. Any bystander also may question his right to vote. This is called challeng- ing. A person thus challenged is not allowed to vote until the challenge is withdrawn, or his qualifications are either proved by the testimony of other persons or sworn to by himself. 5. Registration — In a few States the voters are registered, especially in the large cities. A list is made some days before the election, of the names of all who present themselves and, upon examination, are shown to be qualified electors ; and those only whose names have been registered are allowed to vote on election- day. Thus many interruptions to voting by the exami- nation of voters at the polls, and much illegal voting, are prevented. 6. Canvassing — After the polls are closed, the box is opened and the ballots are counted. This is called canvassing the votes. If the number of ballots agrees INTRODUCTORY 31 with the number of names on the poll-lists, it is pre- sumed no mistake has been made either in voting or in keeping the lists. If there are more ballots than names, in some States the election will be void, in others a number of ballots equivalent to the excess will be drawn out and destroyed. If the election is one for the choosing of town officers, it is there determined who are elected, and their election is publicly declared. The election of county and State officers cannot be determined by the town canvassers. A statement of the votes given in each town for the persons voted for is sent to the county canvassers, who, from the returns of votes from all the towns, determine and declare the election of the officers chosen for the county. To determine the election of State officers, and of such others as are elected for districts comprising more than one county, a statement of the votes given for the several candidates is sent by the several boards of county canvassers to the State canvassers, who, from the returns of votes from the several counties, deter- mine the election of the State officers. 7. Number Necessary — In most of the States per- sons are elected by a plurality of votes. An election by plurality is when the person elected has received a higher number of votes than any other, though such number be less than half of all the votes given. Sup- pose, for example, three candidates receive 1,000 votes : one receives 450 ; another, 300 ; the third, 250 votes. The first, having the highest number, though not a majority, is elected. In most of the States of New England a majority — that is, more than one half of all the votes given — is necessary to the election of many of the higher officers. The least number of votes out 32 STATE GOVERNMENTS of 1,000, by which a person can be elected by this rule, is 501. 8. Objections — Either of these modes is open to objection. When a simple plurality effects an election, 1,000 votes may be so divided upon three candidates as to elect one by 334 votes ; or of four candidates, one may be elected by 251 votes, and against the wishes of nearly three fourths of the electors. The objection to the other mode is that if no person receives a majority of all the votes, another election must be held. Nu- merous trials have, in some instances, been necessary to effect a choice ; and the people of a district have remained for a time without a representative in the State or national legislature. CHAPTER VII DIVISION OF POWERS OF GOVERNMENT 1. Three Departments — Government is divided into three distinct divisions, or, in other words, sovereign power may be exercised in three directions : in making laws, in enforcing them, and in judging whether par- ticular cases come under certain laws. In all free countries these powers are exercised by three separate departments, called the legislative, executive, and judi- cial departments. In a monarchy, though they may exist, the other two are more or less under the control of the executive department, the monarch. In this country the three departments exist in every State and are kept distinct from each other. 2. Legislative — The legislative department is that by which the laws of the State are made, and is called INTRODUCTORY 33 the legislature. Its object is to make such laws as are not embodied in the constitution. The constitution establishes not only the form and the departments of government, but also certain broad principles of law, which the legislature cannot violate ; but it leaves to the legislature the making of the particular laws to carry out those principles in detail, and there are many subjects on which the legislature is unrestrained. It would be impossible for a State to adopt, as a constitu- tion, a system of laws that would not need change and addition. 3. Its Divisions — The legislature is composed of two bodies, or houses, as they are called, the members of each being elected by the people. Both must agree to a measure before it becomes a law. In limited mon- archies where one branch of the legislature is elective, the other is an aristocratic body, composed of men of wealth and dignity, as the British House of Lords. 4. Executive^ — The executive department is intrusted with the power of executing, or carrying into effect, the laws of the State. Its principal officer is a gov- ernor, who is elected by the people. He is assisted by a number of other officers, some of whom are elected by the people ; others are appointed in such manner as the constitution or laws prescribe. 5. Judicial— The judicial department is that by which justice is administered to the citizens. Its duty is to decide the meaning of laws, and whether particu- lar cases fall within them. It embraces the several courts of the State. All judges and justices of the peace are judicial officers. 6. Separation — Experience has shown the propriety of dividing the civil power into these three depart- 3 34 STATE GOVERNMENTS ments, and of confining the officers of each department to the powers and duties belonging to the same. Those who make the laws should not exercise the power of executing them ; nor should they who either make or execute the laws sit in judgment over those who are brought before them for trial. It would give too much power to one, and would endanger the lib- erty of the people. Yet in many instances this prin- ciple is violated to a degree. In many States the gov- ernor must approve a measure before it can become a law, and thus he has legislative power. In some he appoints the judges, and so has judicial power. Departments of Government I. LEGISLATIVE— Law-Making : consists of ( 1. Senate, -< 2. House of representatives, and ( 3. Governor (in many States). " II. EXECUTIVE — Law-Executing : represented % 1. Governor, and 2. All other executive officers. III. JUDICIAL — Law-Interpreting and Ap- plying : consists of • All the judges. LEGISLATIVE DEPARTMENT 35 SECTION II— LEGISLATIVE DEPARTMENT CHAPTER VIII LEGISLATURE I HOW CONSTITUTED 1. Two Houses—The legislature of every State in the Union is composed of two houses — a senate and a house of representatives, sometimes called the upper and lower house* In most of the States the two houses together are called the general assembly. a. Senate 2. Character — The senate, as well as the other house, is a representative body, its members being elected by the people to represent them. It is a much smaller body than the lower house, and consists, gen- erally, of from twenty-five to fifty members in the different States. It was designed to be, and is, a more * Though both are representative bodies, only the lower house is called the " House of Representatives." The reason for this may be: Under the governments of the Colonies, while yet subject to Great Britain, there was but one representative assembly. The other branch of the legislature was called a council, consisting of a small number of men who were appointed by the King. After the Colo- nies became free and independent States, the senate was substituted for the old council, and the other house kept its old name. The lower house in the States of New York, Wisconsin, Nevada, and California, is called the assembly; in Maryland, Virginia,, and West Virginia, the house of delegates; in North Carolina, the house of commons ; and in New Jersey, the general assembly. 36 STATE GOVERNMENTS select body, composed of men chosen with reference to their superior ability or their greater experience in public affairs. 3. Terms — Senators are chosen for terms of four years in about half the States ; in the rest for terms of one, two, or three years. In most of the States in which senators are elected for longer terms than one year, they are not all elected at the same time. They are divided into classes, and those of one class go out of office one year, and those of another class another year ; so that only a part of the senators are elected every year, or every two, or three, or four years. 4. Apportionment — This means the division of the State into portions ; from each portion its inhabitants elect one senator. Senators are differently apportioned in different States. In some States they are appor- tioned among the several counties, so that the number to be elected in each county shall be in proportion to the number of its inhabitants. In others they are elected by districts, equal in number to the number of senators to be chosen in the State, and a senator is elected in each district. The districts are to contain, as nearly as may be, an equal number of inhabitants, and sometimes they comprise several counties. h. House of Representatives 5. Character — This house also is elective, and is a larger body than the senate. It consists, generally, of from one hundred to two hundred members in the different States. 6. Terms — In most of the States members are elected for two years' terms ; in the others, chiefly the Eastern States, annually. LEGISLATIVE DEPARTMENT 37 7. Apportionment — Since the number of represen- tatives is much larger than that of senators, the dis- tricts from which they are elected will, in the same State, be much smaller. Kepresentatives are appor- tioned among the counties in proportion to the popu- lation in each. In some States they are elected in districts of equal population, counties being sometimes divided in the formation of districts. In the New England States representatives are apportioned among the towns. c. Provisions affecting hoik 8. Census — The different modes of apportioning members of the legislature have in view the same object — equal representation ; that is, giving a mem- ber to the same number of inhabitants throughout the State. But in some counties the population increases more rapidly than in others. The representation then becomes unequal, being no longer in proportion to population. In order to keep the representation throughout the State as nearly equal as possible, the constitution requires that, at stated times, the people of the State shall be numbered, and a new apportionment of senators and representatives be made among the several counties according to the number of inhabitants in each county ; or if the State is one in which mem- bers of the legislature are chosen in districts, a new division of the State is made into districts. This enumeration or numbering of the people is called the census, and is taken in some States every ten years, in others of tener. But many States depend on the census which the United States takes every ten years. 9. Qualifications — The constitution also prescribes 38 STATE GOVERNMENTS the qualifications of senators and representatives. If, as qualifications for an elector, full age, citizenship, and a considerable term of residence in the State and county are properly required, as we have seen (page 26), they must be at least equally necessary for those who make the laws. In no State, therefore, are any but qualified electors eligible to the office of senator or representative. In some States greater age and longer residence are required ; and in some the age and term of residence have been still further increased in the case of senators. The property qualification formerly necessary for members of the legislature, as well as for voters, has been almost entirely abolished. 10. Vacancy — If a member of the legislature dies or resigns his office before the expiration of the term for which he was chosen, the vacancy is filled by the election of another person at the next general election, or at a special election called for that purpose, or in such other manner as the constitution may provide. But a person chosen to fill a vacancy holds the office only for the remainder of the term of him whose place he was chosen to supply. 1 1. Salary — Each member has a salary, fixed by law. CHAPTER IX MEETINGS AND ORGANIZATION 1. How Often — The legislature meets as often as the constitution requires : in about half of the States annually, in the others biennially, or once in two years. A legislative session includes the daily meet- ings of a legislature from the time of its first assem- LEGISLATIVE DEPARTMENT 39 bling to the clay of final adjournment. Thus we say the session commenced in January and ended in March. The . word session has reference also to a single sitting, from the hour at which the members assemble on any day to the time of adjournment on the same day. Thus we say the legislature holds a daily session of four hours ; or, it holds two sessions a day, as the case may be. 2. Place — Meetings of the legislature are held at a certain place permanently fixed by law of the State, at which the principal State officers keep their offices. Hence it is called the seat of government, or, perhaps more frequently, the capital of the State. Capital is from the Latin caput, the head, and has come to mean chief, or the highest. In this country the word capi- tal, applied to a city, now generally indicates the seat of government. 3. Organization — When the two houses have assem- bled in their respective chambers, and the oath of office has been administered, each house proceeds to organize. This consists in appointing proper officers, and in deter- mining the right of members to their seats. Each house is the sole judge of who has been elected to it. The first officer elected is the presiding officer, or chairman, who is usually called speaker. The lieutenant-gover- nor, in States in which there is one, presides in the sen- ate, and is called president of the senate. In the absence of the presiding officer, a temporary speaker or presi- dent is chosen, who is called speaker, or president, pro tempore, commonly abbreviated pro tern., which is a Latin phrase, meaning for the time. 4. Presiding: Officer's Duty — The duty of the per- son presiding is to keep order and to see that the busi- 40 STATE G0VERN3IENTS ness of the house is conducted according to certain established rules. When a vote is to be taken he puts the question, and when taken he declares the question to be carried or lost. This part of the speaker's busi- ness is similar to that of the chairman of an ordinary public meeting. 5. Minor Officers — The other officers chosen by each house are : a clerk, to keep a record or journal of its proceedings, to take charge of papers, etc. ; a sergeant- at-arms, to arrest members and other persons guilty of disorderly conduct, to compel the attendance of absent members, and to do other business of a like nature ; also one or more door-keepers. The officers mentioned in this section are not chosen from the members of the house. 6. Quorum — The constitution determines what por- tion of the members shall constitute a quorum to do business, i.e., how many must be present. Quorum is the Latin of the English words of whom, and has strangely come to signify the number or portion of any body of men who have power to act. In most States a majority will constitute a quorum ; in some a greater number is required, two-thirds or three-fifths. 7. Proceedings Open — Constitutions generally re- quire also that the proceedings of legislative bodies shall be open to public inspection. The doors may be closed against spectators only when the public good shall require secrecy. And that the people may be fully informed of what is done, each house is required to keep and publish a journal of its proceedings. 8. Interruptions — Provision is also made, either by the constitution or by law, against injury or interrup- tion to the business of the legislature. Members may LEGISLATIVE DEPARTMENT 41 not, by any prosecution at law, except for crimes and misdemeanors, be hindered during their attendance at the sessions of the legislature, nor in going to or returning from the same. Each house may compel the attendance of absent members. It may for good cause expel a member and punish not only its mem- bers and officers, but other persons, for disorderly con- duct or for obstructing its proceedings. CHAPTER X MANNER OF ENACTING LAWS 1. Power — The legislature of every State has power to enact any law, on any subject, not forbidden by the Constitution of the United States or its own constitu- tion, and not at variance with any law of Congress. In this particular the extent of its power is broader than that of Congress, for the latter can legislate only on the particular subjects named in the United States Constitution. The subjects which the United States Constitution forbids to the State legislatures will be found in a later chapter (page 163). The State con- stitutions also contain prohibitions meant to restrain the legislature from making oppressive laws, or such as would endanger the people's absolute rights. (See page 15, § 5.) If any laAvs are passed contrary to these constitutional provisions, they will be void and of no effect. 2. Rules — Constitutions prescribe no method of passing laws. They leave it entirely to the legislature itself. But it would be impossible for such a body to act without some order, and so each legislature estab- 42 STATE GOVERNMENTS lishes certain rules, which are seldom departed from. But, though ordinarily followed, these rules may be departed from, and the law will be just as valid, pro- vided a quorum is present and a sufficient number vote for it. 3. Governor's Message — When the two houses are duly organized and ready for business, the governor sends to both houses a written communication called a message^ in which, as the constitution requires, he gives to the legislature information of the condition of the affairs of the State, and recommends such measures as he judges necessary and expedient. The message is read to each house by its clerk. 4. Other Measures — But the measures to which the governor calls the attention of the legislature are but a small portion of those which are considered and acted upon. Many are introduced by individual mem- bers. Others are brought into notice by the petitions of the people in different parts of the State. Petition generally signifies a request or prayer. As here used, it means a written request to the legislature for some favor — generally for a law granting some benefit or relief to the petitioners. Petitions are sent to mem- bers, usually to those who represent the counties or districts in which the petitioners live, and are by these members presented to the house. Laws may be intro- duced in either house. 5. Committees — The subjects to be acted on by a legislature are very numerous, and if the whole house carefully examined each measure and listened to all the reasons why the measure was necessary it could not finish half its labor. So committees are appointed at the beginning of the session, consisting of from LEGISLATIVE DEPARTMENT 43 three to seven members, each committee having charge of some particular subject : such as, the committee on finance, or the money matters of the State, called the ways and means committee ; the committee on agri- culture ; on manufactures ; on railroads ; on education ; and a great many other subjects. As soon as a meas- ure is introduced into the house it is referred to its appropriate committee, to examine into its necessity and report to the house the result of the examina- tion. These committees are so numerous that every member is on at least one or two, and are called stcmdmg committees^ because they continue through the session. When a question arises having no re- lation to any particular subject on which there is a standing committee, it is usually referred to a special or select committee appointed to consider this par- ticular matter. 6c Committee Meetings — Committees meet in pri- vate rooms during hours when the house is not in ses- sion ; and any person wishing to be heard in favor of or against a proposed measure may appear before the committee having it in charge. Having duly consid- ered the subject, the committee reports to the house the information it has obtained, with the opinion whether the measure ought or ought not to become a law. Measures reported against by committees seldom receive any further notice from the house. 7. Bills — If a committee reports favorably upon a subject, it usually brings in a bill with its report and recommends its passage. A hill is the form or draft of a law. Sometimes it is prepared in correct form before it is introduced into the house or referred to the committee. In other cases, as, for instance, Avhen 44 STATE GOVERNMENTS the subject is brought before the house by petition, the committee prepares it. 8. Three Readings — A bill before it is passed is read three times, on three separate days. In some legisla- tures the rules allow the first and second readings to be on the same day. The first and second readings consist often of merely reading the title or the enacting clause. Then amendments to it may be introduced, and adopted or rejected. Finally, the third reading is had, this time the clerk really reading the bill, except where it is a long one, and the final vote is taken. Debate on the bill is not usually had until after the second read- ing. There are a great many rules covering every point which may arise, such as the order of business, and when debate shall be allowed ; and these rules are usually followed : but sometimes, in cases of exigency, all the rules are suspended and a bill is introduced and passed immediately, without being referred to a com- mittee or even being read. 9. Passage — When the final vote is to be taken, the speaker puts the question : " Shall the bill pass ? " If a majority of the members present vote in the affirm- ative (the speaker also voting), the bill is passed ; if a majority vote in the negative, or if the ayes and noes are equal, the bill is lost. In a senate where a lieutenant- governor presides, not being properly a member, he does not vote, except when the ayes and noes are equal, in which case there is said to be a tie ; and he deter- mines the question by his vote, which is called the casting vote. In some States, on the final passage of a bill, a bare majority of the members present is not sufficient to pass it, in case any members are absent. The constitutions of those States require the votes LEGISLATIVE DEPARTMENT 45 of a majority of all the members elected to each house. 10. Other House — When a bill has passed one house it is sent to the other, where it passes through the same forms of action ; that is, it is referred to a committee, reported by the committee to the house, and is read three times before a vote is taken on its passage. This vote having been taken, the bill is returned to the house from which it was received. If it has been amended, the amendments must be agreed to by the first house, or the second must recede from its amend- ments, or the amendments must be so modified as to secure the approval of both houses, before the bill can become a law. 11. Veto — But in many of the States a bill, when passed by both houses, is not yet a law. As the two houses may concur in adopting an unwise measure, an additional safeguard is provided against the enactment of bad laws, by requiring all bills to be sent to the gov- ernor for examination and approval. If he approves a bill, he signs it, and it is law ; if he does not sign it, it is not a law. In refusing to sign a bill, he is said to negative or veto the bill. Veto, Latin, means I forbid. 12. No Absolute Veto — But no governor has full power to prevent the passage of a law. If he does not approve a bill, he must return it to the house in which it originated, stating his objections to it ; and if it shall be again passed by both houses, it will be a law without the governor's assent. But in such cases greater major- ities are generally required to pass a law. In some States a majority of two-thirds of the members present is necessary ; in others, a majority of all the members elected. In some States if the governor does not return 4:6 STATE GOVERNMENTS a bill within a certain number of days, it becomes a law without his signature and without being considered a second time. 13. Taking- Effect — Laws become operative the min- ute the last act is done ; in those States where the gov- ernor must approve them, the minute he signs his name, unless the law itself provides otherwise. But this would often create great hardship, for one might violate a law before he had time to hear of it. Therefore constitu- tions often provide that a law shall not take effect for some days after its passage, or the law itself may so provide. SECTION III.— EXECUTIVE DEPARTMENT CHAPTER XI STATE OFFICERS 1. Classification — The executive officers of a State may be divided into two classes : those whose duties relate to the whole State, as the governor or the attor- ney-general, and those whose duties relate only to some particular portion of it, as the sheriffs. The first class are elected by all the people of the State, and have their offices at the capital; the latter are elected by the people of the particular district (county, town, or city), and have their offices there. In this chapter we will treat only of the first class. 2. Governor — The chief executive officer of a State is the governor. In a monarchy the chief executive EXECUTIVE DEPARTMENT 47 officer is the monarch himself. But there is this differ- ence : in a monarchy the monarch is the source of power, and all inferior officers are his agents and responsible to him alone ; in a republic the people are the source of power, and inferior officers are their agents, responsible to them with the governor, and not to him. He is called the chief officer because he has the highest duties to perform. 3. Term — The governor is elected by the people, for different terms in the different States. In most States the term is either two or four years ; in some New England States it is one year. 4. Qualifications — The qualifications for the office of governor are also different in the different States. To be eligible, a person must have been for a certain number of years a citizen of the United States, and for a term of years preceding his election a resident of the State. He must also be above a certain age, which in a majority of the States is thirty years ; and in some States he must own a certain amount of property. 5. Executive Powers — The governor's executive powers and duties are numerous and important. He represents the State in its dealings with other States. He is commander-in-chief of the military force of the State, and can call it out in times of insurrection. He is to take care that the laws are faithfully executed, and may require information at any time from the different executive officers concerning the condition of affairs in their respective departments. He communi- cates by message to the legislature, at every session, information of the condition of the State, and recom- mends such measures as he judges necessary and expe- dient. He may convene the legislature on extraordi- 48 STATE GOVERNMENTS nary occasions ; that is, when some important matter arises requiring immediate attention. 6. Legislative Powers — In most States the governor has the veto power. (See p. 45, §11.) 7. Judicial Powers — A governor has power to grant reprieves and pardons, except in cases of impeachment, and, in some States, of treason. To reprieve is to post- pone or delay for a time the execution of the sentence of death upon a criminal. To pardon is to annul the sentence by forgiving the offence and releasing the offender. A governor may also commute a sentence, which is to exchange one penalty or punishment for another of less severity ; as, when a person sentenced to suffer death is ordered to be imprisoned. 8. Appointments — The governor also appoints some executive or judicial officers. The power of appoint- ment varies greatly in the different States : in some he appoints all the higher executive and judicial officers, such as the secretary of state, the attorney-general, or the judges of the courts ; in others, those are all elected, and he only appoints some lower officers, such as nota- ries, lie almost never has the power to appoint legis- lative officers. He also fills vacancies in executive and judicial offices, until the next election, when they occur through death or resignation. He has in some cases the power of removal for misconduct. These are only the principal powers and duties devolved on the governor. He has many others. 9. Councils — In a feAV States an executive council is elected by the people, whose duty it is to advise the governor. In many cases, as, for instance, appoint- ments, he must obtain their consent. 10. Lieutenant-Governor — In many of the States EXECUTIVE DEPARTMENT 49 this office does not exist.* He has few duties. In most States where the office exists, he presides in the senate, in which he has only a casting vote. The chief object of this office seems to be to provide a suitable person to fill the vacancy in the office of governor in case the latter should die, resign, be removed, or other- wise become incompetent. 11. Assistant Officers — Among the executive offi- cers who assist in the administration of the government, there are in every State some or all of the following : a secretary of state, a comptroller or auditor, a treas- urer, and an attorney -general. In some States they are appointed by the governor, in others by the legis- lature, and in others they are elected by the people. 12. The Secretary of State has charge of the State papers and records. He keeps a record of the official acts and proceedings of the legislature and of the executive departments, and has the care of the books, records, deeds of the State, parchments, the laws enacted by the legislature, and all other papers and documents required by law to be kept in his office. 13. The State Comptroller, in some States called auditor, manages the financial concerns of the State ; that is, the business relating to the money, debts, land, and other property of the State. He examines and adjusts accounts and claims against the State, and superintends the collection of moneys due the State. When money is to be paid out he draws a warrant on the State treasurer. 14. The State Treasurer has charge of all the moneys of the State, and pays out the same as * Viz. : Alabama, Arkansas, Delaware, Georgia, Maine, Maryland, New Hampshire, New Jersey, Oregon, Tennessee, and West Virginia. 4 50 STATE GOVERNMENTS directed by law, and keeps an accurate account of such moneys. 15. Official Bonds — Auditors, treasurers, and other officers intrusted with the care and management of money or other property are generally required, before they enter on the duties of their offices, to give bonds, in sums of certain amount specified in the law, with sufficient sureties, for the faithful performance of their duties. The sureties are persons who sign the bond with the officer, and bind themselves to pay the State all damages arising from neglect of duty on the part of the officer, not exceeding the sum mentioned in the bond. 16. The Attorney-General is a lawyer who acts for the State in lawsuits in which the State is a party. He prosecutes persons indebted to the State, and causes to be brought to trial persons charged with certain crimes. He also gives his opinion on questions of law submitted to him by the governor, the legislature, and the executive officers. 17. Other Officers — There are also in some States the following officers : a surveyor-general, who super- intends the surveying of the lands belonging to the State, and who keeps in his office maps describing the bounds of the counties and townships ; a superintend- ent of schools or superintendent of public instruction, who attends to many matters connected with the pub- lic schools of the State ; a State printer, who prints the laws and all State papers ; a State librarian, who has charge of the State library ; and others. EXECUTIVE DEPARTMENT 51 CHAPTER XII COUNTY OFFICERS 1. Reasons for Division — A State is divided into counties,* and each county is divided into towns, townships, or districts. f There are several reasons for this division : for convenience in the legislative, execu- tive, and judicial departments. Some laws may be necessary in some parts of the State that are not needed in others, and which the people of those parts can better make for themselves ; and the boundaries must be clearly fixed that it may be known who comes under the regulations or who can make them. So, too, there are many executive officers, such as sheriffs and collectors of taxes, but each must have his jurisdiction confined to particular limits or there would be great confusion. There are many lower courts, too, and the jurisdiction of each must be clearly defined. 2. Origin of Comity — Counties in England were formerly districts governed by counts or earls, from * Counties in the same State are about the same size, and have about the same population ; but the counties of one State as compared with those of another vary very greatly as to number, size, and population. In 1892, Massachusetts had 14 counties, Texas 261, and Oregon 31. In Massachusetts there were about 500 square miles in a county, in Texas 1,005, and in Oregon 3,050 ; in Massachusetts the population in a county was about 160,000, in Texas 8,500, and in Oregon 10,000. Counties exist in every State except South Carolina and Louisiana, where districts and parishes prevail. f Towns or townships also vary in size, but perhaps a fair average would be from five to ten miles square. Towns do not exist, gener- ally, in the Southern States or the extreme Western States. There the county is divided into districts for special purposes. 52 STATE GOVERNMENTS which comes the name of county. A county was also called shire, and an officer was appointed by the count or earl to perforin certain acts in the principal town in the county, which was called shire town, and the officer was called shire-reeve, or sheriff. He was a more important officer than the sheriff of a county in this country now is. The court-house and other county buildings are situated at the principal place in the county, and it is called the county-seat, or capital. 3. Political Importance — In the Southern and ex- treme Western States the county is the most important political division, and exercises most of the local gov- ernmental powers, such as many important powers with regard to the establishment of common schools, regulation of roads, laying and collection of taxes, care of the poor, etc. In New England the town exercises most of these powers, and the county has very little importance. In the remainder — that is, in the Middle and "Western States (except those far west) — these powers are divided between the county and town. 4. Corporations — Counties, towns, cities, and villages are municipal corporations. Let us see what a corpora- tion is. Persons, in a legal sense, are divided into two classes, natural persons and corporations. Natural Persons are human beings, as God made them ; Cor- porations are artificial persons, or bodies, created by law. In other words, a corporation (also called a body politic, or body corporate) is an association of persons authorized by law to transact business under a common name and as a single person. The laws of the State give such authority to the inhabitants of counties and towns. The people of a town or county have power, EXECUTIVE DEPARTMENT 53 to some extent, to buy, hold, and sell property, and sue and be sued, as single individuals. Therefore they are corporations. So, also, is the State itself. But there are two kinds of corporations : public, or municipal, and private. Public, or municipal corporations are those organized for purposes of government, such as counties, towns, cities, and villages ; private corpora- tions are all others, such as banks, railroad companies, and churches. 5. County Commissioners — We have seen that a county is a corporation, and that corporations have power to act as single persons. But a corporation must act by means of natural persons, i.e., by its agents. The chief agent of a county — that is, the body which exercises the most important corporate powers — is a board of county commissioners (usually three). In a few States these powers are exercised by and in the name of the hoard of supervisors, which is composed of the supervisors of the several towns in the county, of whom there is one supervisor in each town. These boards have charge of the county property, and may make orders and contracts in relation to the building or repairing of the court-house, jail, and other county buildings. In those States in which the county exer- cises more political power than the town, these boards have many powers with regard to schools, roads, taxes, etc. The following are the more important county offices which exist in every State : 6. County Treasurer — There is in each county a treasurer to receive and pay out the moneys of the county, as required. There is also, in some States, a county auditor to examine and adjust the accounts and debts of the county. The business of county treasurers 54 STATE GOVERNMENTS and auditors in their respective counties is of the same nature as that of State auditors and treasurers, and they are required to give bonds in the same way. In States in which there is no county auditor, the duties of auditor are performed by the treasurer. 7. Recorder — There is also in each county a register or recorder, who records in books provided for that purpose all deeds, mortgages, and other instruments of writing required by law to be recorded. In New York and in some other States the business of a register or recorder is clone by a county clerk, who is also clerk of the several courts held in the county. In some States deeds, mortgages, and other written instruments are recorded by the town clerks of the several towns. 8. Sheriff — Another county officer is a sheriff, whose duty it is to execute all warrants, writs, and other pro- cesses directed to him by the courts ; to apprehend per- sons charged with crime; and to take charge of the jail and of the prisoners therein. It is his duty, also, to preserve the public peace ; and he may cause all per- sons who break the public peace within his knowledge or view to give bonds, with sureties, for keeping the peace and for appearing at the next court to be held in the count}^, and to commit them to jail if they refuse to give such bonds. A sheriff is assisted by deputies. 9. Coroner — There are in each county one or more coroners, whose principal duty is to inquire into the cause of the death of persons who have died by vio- lence, or suddenly, and by means unknown. Notice of the death of a person having so died is given to a coroner, who institutes an examination. A jury is summoned to attend the examination ; witnesses are examined ; and the jury give their opinion in writing as EXECUTIVE DEPARTMENT 55 to the cause and manner of the death. Such inquiry is called a coroner's inquest. 10. The District Attorney is a lawyer who attends all courts in the county in which persons are tried for crimes, and conducts the prosecution. As all crimes and breaches of the peace are considered as committed against the State, and prosecuted in its name, this attorney is sometimes called State's attorney, or prose- cuting attorney. 11. Other Officers — There are often other officers in each county ; such as, assessors, who assess the value of each one's property so that it may be known what tax he shall pay; collectors of taxes; a county sur- veyor / a superintendent of schools. 12. Elected — County officers are generally elected by the people of the county, for terms of from one to four years. Some of them are, in some of the States, appointed by some authority prescribed by the consti- tution or laws of the State. 13. Whom They Represent — While the different county officers are alike in this respect, that their jurisdiction extends only to their particular county, and also in this fact, that in their official acts they act as representatives or agents of the people ; they differ from each other in this, that while some represent the people of the whole State (and in that sense may be called State officers), others represent only the people of their own county. Thus, when a sheriff arrests a man for crime, it is the State which arrests him by the hand of its agent in that county ; when the district attorney prosecutes him, it is the State which is trying him for the crime against itself. (See page 83, foot- note.) On the other hand the county commissioners 56 STATE GOVERNMENTS commonly act only as agents of their county. Some officers may represent the State in some of their duties, and the county in others. CHAPTER XIII TOWN OFFICERS 1. Towns — In all the States except those far west and most of the Southern States, each county is subdi- vided. These subdivisions are called towns at the East, and townships at the West and South. At the West and South a village or city is often called a town. But in this book we shall use the word town as mean- ing an organized subdivision of a county. In those States where towns do not exist, the county exercises all the local governmental powers and has all the necessary officers. It must be remembered, then, that this chapter does not apply to all the States. 2. Chief Qfflcer — Since a town is a corporation, it must, like a county, have some one to represent it and act for it. The principal officer, or board, whose duty this is, has different names in different States. In the New England towns there are what are called select- men, three or more in each town. In a few States there are trustees of townships. In a few other States there is in each town one such officer, called super- visor. The powers and duties of these officers are the most numerous and important in New England, where the town is the most important division of the State. They have duties with regard to taking charge of the town property, laying out and repairing roads, collect- ing taxes, providing for the poor, etc. In those States EXECUTIVE DEPARTMENT 57 where the county is the more important division, the town officers have fewer of these duties, and the county officers have more. 3. Treasurer — There is often a town treasurer, with duties, in his own town, analogous to those of a county treasurer. 4. Town Clerk — A town clerk in each town keeps the records, books, and papers of the town. He records in a book the proceedings of town meetings, the names of the persons elected, and such other papers as are required by law to be recorded. 5. Constables — There are several constables in each town. Their principal duties are to serve all writs and processes issued by justices of the peace. The business of a constable in executing the orders of a justice of the peace is similar to that of a sheriff in relation to the county courts. 6. Highways — For the repairing of highioays a nil bridges, a town is divided by the proper officers into as many road districts as may be judged convenient ; and a person residing in each district is chosen, called over- seer, or supervisor, or surveyor of highways, whose duty it is to see that the roads and bridges are repaired and kept in order in his district. In some cases a tax is laid for the purpose, and ordinary laborers do the work. In others, each one taxed may work on the road himself a certain number of days, or he may pay the tax, according as he wishes. 7. Overseers of the Poor provide for the support of paupers belonging to the town, who have no near rela- tives able to support them. In some States there is in each county a poor-house, to which the paupers of the several towns are sent to be provided for ; the expense 58 STATE GOVERNMENTS to be charged to the towns to which such poor per- sons belonged. 8. Other Officers — There are often in every town other inferior officers : assessors and collectors of taxes (see Chapter XY.) ; certain school officers ; fence vieio- ers, who settle disputes as to division fences ; pound keepers, who take charge of stray animals ; sealers, who keep correct copies of the standard of weights and measures ; and others. 9. Elected — Most town officers are elected by the electors of their respective towns at the annual town meetings, for terms of one year. 10. Town Meetings — These are meetings of the electors held once a year in every town for the election of town officers and for certain other business. They exist only in New England and a few other States which have been under the influence of New England. At them the people not only elect officers, but take some share in the government. For instance, they have power to vote what money shall be raised for school purposes, for highways, and other purposes; what salaries shall be paid different officers; what proceedings shall be taken at law ; aud other powers. This, as far as it goes, is pure democracy. With a county it is different. The people of a county never meet together except to elect officers, and take no part, directly, in the direction of affairs. EXECUTIVE DEPARTMENT 59 CHAPTER XIV CITIES AND VILLAGES 1. Reasons for Incorporation — A city, or a village,* is a particular portion of a town which has become so thickly populated that a different kind of government is needed from that of the rest of the town. For instance, where there are many people who use the streets, sidewalks will be necessary; and where the houses are near to each other, as in the ordinary vil- lage, fire-engines and fire-companies will be necessary to prevent the Avhole place from being destroyed ; and if the population is still more dense, as in a city, many other regulations are necessary — such as, with regard to police, water supply, cleaning the streets, sewers, etc. But towns do not have the power to regulate these things. It is thought best that the people living in those thickly populated portions should do it them- selves. The legislature of the State gives them these powers by incorporating them into a village or city. 2. Charter — Whenever, therefore, the inhabitants of any portion of a town become so numerous as to require a government with more powers than the rest of the town, they petition the legislature for a law incorporating them into a village, or, if they are very numerous, a city. The law or act of incorporation is usually called a charter. The word charter is from the * The word village very often means only a collection of houses, or of people living near one another, but in this chapter we shall use the word for an incorporated village. In Connecticut and Pennsyl- vania an incorporated village is called a borough. QO STATE GOVERNMENTS Latin charta, which means paper. The instruments of writing by which kings or other sovereign powers granted rights and privileges to individuals or corpora- tions were written on paper or parchment, and called charters. In this country it is commonly used to desig- nate an act of the legislature conferring privileges and powers upon cities, villages, and other corporations. 3. Its Contents — The charter describes the bounda- ries of the city or village, prescribes what officers it shall have, and what shall be their powers and duties. 4. City Officers — The chief executive officer of a city is a mayor. A city is divided into wards of con- venient size, in each of which are chosen one or more aldermen (usually two) and such other officers as are named in the charter. The mayor and aldermen con- stitute the city council, which is a kind of legislature, having the power to pass such laws (commonly called ordinances) as the government of the city requires.* There are also elected in the several wards assessors, constables, collectors, and other necessary officers, whose duties in their respective wards are similar to those of like-named officers in country towns, or town- ships. 5. Village Officers — The chief executive officer of a village is, in some States, called president. The vil- lage is not divided into wards, the number of its inhabitants being too small to require such division. Instead of a board of aldermen there is a board of trustees or directors, who exercise similar powers. The president of a village is generally chosen by the trust- ees from their own number. In some States incor- * In some cases there are two boards, in analogy with the two legislative houses of the State. EXECUTIVE DEPARTMENT 61 porated villages are called towns, and their chief executive officer is called mayor. 6. General Law — The constitutions of some States require the legislature to pass a general law prescrib- ing the manner in which the people in any place may Diagram showing the relation between County Town, City, and Village. The whole diagram represents a county. The numbers represent the towns into which it is divided. A represents a city. b, c, d, and e represent villages. form themselves into an incorporated village without a special law or charter. 7. Subject to Laws of State — The inhabitants of cities and villages, however, are not governed alone by laws made by the common council and the trustees. Those laws and regulations relate only to local mat- ters. Most of the laws enacted by the legislature are of general application, and have the same effect in 62 STATE GOVERNMENTS cities and villages as elsewhere. Thus the laws of the State require that taxes shall be assessed and levied upon the property of the citizens of the State to clef ray the public expenses, and the people of the cities are required to pay their just proportion of the same ; but the city authorities lay and collect additional taxes for city purposes. 8. Corporations — We have seen that the State, counties, towns, cities, and villages are all corporations, and that there are also other corporations, such as banks, railroad companies, etc. Now all corporations are alike in some particulars. They all continue after the persons first composing them are dead. They all have power to buy and sell property, and to borrow money to a certain extent. But they also differ in some respects. A State differs from other municipal corporations in the manner of formation. A State is formed by the people when they adopt the constitution ; the other municipal corporations — i.e., cities, towns, etc. — are formed by the legislature. Again, all municipal corporations differ from other corporations in two par- ticulars : their purpose and their membership. Muni- cipal corporations are organized only for purposes of government ; the others are organized for other pur- poses, such as business (banks, insurance companies, etc.), religion (churches), or charity (hospitals, etc.). Of a municipal corporation every one is a member who lives within its limits, whether he wishes to be or not ; but in other corporations one only becomes a member by his own choice. EXECUTIVE DEPARTMENT 63 CHAPTER XV TAXES 1. Reasons for Them — Every government must have the power of providing means for its support. The different State, county, and town officers must be paid salaries ; money is needed for public buildings, such as State-houses, court-houses, jails, etc. ; and there are other necessities. The money which is needed to pay the expenses of administering the government, if the State, county, or town has no permanent source of revenue or income, must be raised by taxation. A tax is a sum of money assessed upon the person of a citizen for the use of the government. When each one is required to pay a certain sum, the same for all, it is called a poll- tax, or capitation tax, being a certain sum on every poll, or head. But, as persons ought to contribute to the public expenses according to their ability, taxes are more just when laid upon the citizens in proportion to the property each one owns. In ordinary speech we say that the property itself is taxed. 2. Land Tax most Common — Both real and personal property * are subject to taxation ; but in the United States most of the taxes are laid upon the land, for the reason that it is always difficult for the assessors to ascertain all the personal property each one owns. Poll- taxes are laid in many States, but they are very small. * Real estate, or real property, is land with the buildings and other articles erected or growing thereon. Personal estate, or personal property, is every other kind of property ; such as, goods, stocks and bonds, money, and debts due from debtors. 64 STATE GOVERNMENTS 3. Assessment — This means valuation. As every person is to be taxed in proportion to the value of his property, it is necessary, first, to make a correct valua- tion of all his taxable property. For this purpose, the assessor or assessors pass through the town, and make a list of the names of all the taxable inhabitants, and the estimated value of the property, real and personal, of each. If any one thinks his property is valued at too high a rate, he has an opportunity to appear before the assessors and ask to have the assessment reduced. The town assessors then make returns to the proper State and county officers of all the property, and its valuation, in the town. 4. Information — In some States persons liable to taxation are themselves required to furnish lists of all their taxable property, printed blank lists having been previously distributed among them for this purpose. To secure an accurate valuation, the assessors (called also listers) may require persons to make oath that they have made a true statement of their property and its value. 5. Exemptions — There are certain kinds of property which are exempt from taxation ; such as the corporate property of the State, of counties, and of towns, in- cluding the buildings in which the public business is done, the prisons, jails, asylums, etc., and the lands attached to them ; school-houses and churches, with the lands attached ; burying-grounds, and the property of literary and charitable institutions. But the prop- erty of business corporations, as railroad, banking, insurance, manufacturing, and other stock companies, like that of individuals, is liable to taxation. 6. Three Amounts — Before a tax-list can be made EXECUTIVE DEPARTMENT 65 out, showing what each one's tax is to be, it must be known what amount is to be collected in each town. This amount is made up of three parts : first, the sum wanted to pay the expenses of the town for the cur- rent year; second, the town's share of the county expenses; and third, its proportionate share of the expenses of the State government, or of what is to be raised for State purposes. In this country the amount that each one pays for State purposes is usually very much less than what he pays for county and town purposes. The ratio of the county to the town tax varies in proportion to the political importance of the county and town. In many States there is no town tax. 7. Apportionment — The apportionment of the amount of the State and county expenses among the several towns is made according to the amount of property in each as valued by the assessors. The State auditor or comptroller, having received from the several counties returns of the value of the property in each county, is enabled to determine its quota of the amount to be raised for State purposes. He sends to the proper officers in each county (county commissioners, or board of supervisors) a statement showing what part of the State tax the county is to pay. The county officers add to each county's share of the State expenses the sum to be raised in the county for county purposes, and apportion the whole amount among the towns in proportion to the value of the property in each. Then the town officers, in turn, add to each town's share of the amount of the State and county expenses the amount to be raised for town purposes, and this gives the whole sum to be collected in the town. This sum Q6 STATE GOVERNMENTS is divided up among the inhabitants of the town in proportion to their propert}^ as valued by the assessors, and a tax-list, showing what each one is to pay, is given to the collector. In cities and villages each one's tax includes also his proportionate share of the amount to be raised for city, or village, purposes. Taxes in cities are usually very much higher than anywhere else. 8. Collection — When the collector has received the taxes he pays them over to the town treasurer. The latter retains the portion collected for town purposes, and remits the remainder to his county treasurer. The county treasurer retains the portion collected for county purposes and remits the remainder to the State treas- urer. The system of assessment and collection of taxes varies in the different States. The system described in this chapter applies chiefly to the Northern States. 9. Tax Sales — Where a person neglects to pay his tax, means are provided by law to enforce payment. If he is taxed for personal property, sometimes the collector may seize his goods and sell them, and some- times suit must be brought in the usual w T ay. But if he is taxed for land, a different course is pursued. In a certain sense, the land itself is taxed. If the tax is not paid within a certain time, the proper authorities sell or lease the land for a certain period to any one who will pay the tax. The owner then has the right to redeem within a certain time, generally two or three years, by paying to the purchaser what he has paid for taxes, with interest. The purchaser does not have the right to take possession of the land until the time to redeem has expired. 10. Assessments — Assessment has been used in the EXECUTIVE DEPARTMENT 67 sense of valuation. But it is also often used to mean a tax laid in a city to pay for some public improvement ; such as, the building- of a sewer, the paving of a street, the laving out of a park, etc. In such cases the benefit of the improvement is felt, sometimes wholly, generally chiefly, by those who live near, and therefore they are required to pay for it. For instance, when a sewer is built in a side street, only the property on each side of that street is assessed for it. 11. Indirect Taxes — The taxes that have been described are called direct taxes. But there are also indirect 1 — In January, 1786, the leg- islature of Virginia proposed a convention of commis- sioners from all the States, to take into consideration the situation and trade of the United States and the necessity of a uniform system of commercial regula- tions. A meeting was accordingly held at Annapolis in September, 1786 ; but as commissioners from only live States'" attended, the commissioners deemed it unadvisable to proceed to business relating to an object in which all the States were concerned ; but they united in a report to the several States and to Con- gress, in which they recommended the calling of a gen- *New York, New Jersey, Pennsylvania, Delaware, and Virginia. 100 NATIONAL GOVERNMENT era! convention of delegates from all the States, to meet in Philadelphia in May, 1787, with a view not only to the regulation of commerce, but to such other amendments of the Articles of Confederation as were necessary to render them " adequate to the exigencies of the union." 9. Convention of 1787 — In pursuance of this rec- ommendation, Congress, in February, 1787, passed a resolution providing for a convention. All the States except Rhode Island appointed delegates, who met pursuant to appointment and framed the present Con- stitution of the United States. They also recom- mended it to be laid by Congress before the several States, to be by them considered and ratified in con- ventions of representatives of the people. 10. Adoption of Constitution — By this Constitu- tion, as soon as the people of nine States ratified it, it was to go into effect as to the States so ratifying. Conventions of the people were accordingly held in all the States. The ninth State, New Hampshire, sent its ratification to Congress in July, 1788 ; and measures were taken by Congress to put the new government into operation. North Carolina and Rhode Island, the last States to accept the Constitution, did not send their ratifications until the year after the government was organized. CHAPTER XXIII THE UNION UNDER THE CONSTITUTION 1. Confederacy and Nation — The Confederation and the Union under the Constitution were each a union of the States, but they differed vastly from each ORIGIN AND NATURE 101 other. This difference may be best summed up by saying that the first made a Confederacy, the second a Nation.* Under the Confederation the States, though united as States " in a firm league of friendship with each other," yet expressly " retained each its sover- eignty, freedom and independence." The people were citizens of the several States rather than of a con- solidated Nation. Under the Constitution the States are no longer sovereign. The Nation is above them, and they can do nothing contrary to the Constitution. They have in many respects surrendered their sover- eignty to the Nation for the good of all. If they attempt to withdraw, the Nation can coerce them.f The people of the States are also citizens of the United States. We will give in the following sections the chief differences between the Confederation and the * A confederacy is a league, or compact between individuals, whether persons or nations: a nation, as distinguished from. a con- federacy, is a people indissolubly bound together as a unit, a single people. One is a combination, the other a consolidation. There is another sense in which the word nation is often used, that of a people, or combination of peoples, having a common central authority, which represents them in all relations with foreign nations. The States were never known or treated by foreign powers as separate nations, and therefore in this sense the whole people were one nation even under the Confederation. Further than this, it may be said that even before the Constitution the whole people, besides being bound together by ties of common parentage and mutual dependence, often acted as a consolidated nation, a single sovereignty instead of thirteen. f At the time of the late Civil War the Southern States claimed that the Nation was but a Confederation, and that therefore they could withdraw. This they attempted to do, and set up a govern- ment of their own, calling it the "Confederate States of America." But — if force of arms can ever settle a logical question — it is now settled that our country is not a mere Confederation, but a Nation. 102 NATIONAL GOVERNMENT present Union, which taken together make one a Con- federacy and the other a Nation. 2. Name — The document which established the Con- federation professed in its name to make nothing but a league between the States, as States, calling itself "Ar- ticles of Confederation . . . between the States." The Constitution, on the other hand, professes to make a union of the people, and not of the States : thus its preamble reads, " We, the People of the United States . . . do ordain and establish this Constitution." 3. By Whom Adopted — The Articles of Confedera- tion were adopted by the State legislatures, acting for the States, as States ; the Constitution was adopted by conventions elected by the people in the several States. By whom they were framed is of little import. 4. Power — But the chief difference between the two was in their power. We have seen that the Confedera- tion had no power except to pass laws, and States and individuals could disobey them without fear of punish- ment, for it had no executive department to enforce, and no judicial department to judge of, its laws. But the Constitution gives the National Government all necessary powers to enforce obedience to its laws ; a complete executive department, with armies and money (or the power to raise them) at its command ; and also a judicial department free from State control. 5. State Equality — Again, under the Confederation, as in confederacies generally, the States were equal. They were entitled to an equal number of delegates in the Congress, in which they voted by States, each State having one vote ; that is, if a majority of the delegates of a State voted in favor of or against a pro- posed measure, the vote of the State was so counted ; ORIGIN AND NATURE 103 and a proposition having in its favor a majority of the States was carried. Under the Constitution both branches of the legislature votejw capita, the vote of each member counting one, and in the lower branch the representation is according to population, and thus the larger States have more members. The President, too, is elected, not by States, but by a majority vote of the Electors. (See pages 132, 170.) 6. National Government — The government of the Confederation, although sometimes called the National Government, was not really such, nor was it generally so regarded, as appears from the proceedings of the Convention that framed the Constitution. Early in the session of the Convention a resolution was offered, declaring " That a National Government ought to be established, consisting of a supreme legislative, judi- ciary, and executive." This resolution was strongly opposed by a large portion of the delegates, because it proposed to establish a national government. They were in favor of continuing the Confederation with a slight enlargement of the powers of Congress, so as to give that body the power to lay and collect taxes and to regulate commerce. But the friends of a national government prevailed ; and history has proved their wisdom. 7. Federal Union — But although the present gov- ernment, with its three departments, its powers, and its supremacy over the States, is properly a national government, yet it is not wholly such, but partly national and partly federal ; some of the federal fea- tures of the Confederation having been retained in the Constitution, as will appear on a further examination of this instrument. Hence the Union is still called. 104: NA TIONAL G YERN3IENT with propriety, the Federal Union, and the govern- ment the Federal Government. CHAPTER XXIV CONSTITUTION OF THE UNITED STATES [Note.— The following is the text of the Constitution and Amendments. It should be studied until the pupil can give the subject and substance of each paragraph. The titles of the articles and sections form no part of the document, but are added here for the purpose of convenience in reference. The large numbers at the left are placed there that the paragraphs may be referred to by number in the rest of the book.] Preamble AVe, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tran- quillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I Legislative Department Section 1. Division into Two Houses 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. House of Representatives 1. The House of Representatives shall be composed of members chosen every second year by the people of the sev- eral States ; and the electors in each State shall have the c> cS ORIGIN AND NATURE 105 qualifications requisite for electors of the most numerous branch of the State Legislature. 2. No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. 3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within' three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such man- ner as they shall by law direct. The number of Representa- tives shall not exceed one for every thirty thousand, but each State shall have at least one Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three; Massachusetts, eight; Rhode Island and Providence Plantations, one; Connecticut, jive; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten ; North Carolina, five ; South Carolina, five ; and Georgia, three. 4. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. 5. The House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeach- ment. Section 3. Senate 1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature 106 NATIONAL GOVERNMENT 9 10 11 12 13 14 thereof, for six years ; and each Senator shall have one vote. 2. Immediately after they shall be assembled in conse- quence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the sec- ond year ; of the second class at the expiration of the fourth year ; and of the third class at the expiration of the sixth year ; so that one third may be chosen every second year : and if vacancies happen, by resignation or otherwise, dur- ing the recess of the Legislature of any State, the Execu- tive thereof may make temporary appointments, until the next meeting of the Legislature, which shall then fill such vacancies. 3. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhab- itant of that State for which he shall be chosen. 4. The Vice-President of the United States shall be Presi- dent of the Senate, but shall have no vote, unless they be equally divided. 5. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. 6. The Senate shall have the sole power to try all impeach- ments : when sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief -Justice shall preside ; and no person shall be convicted without the concurrence of two-thirds of the mem- bers present. 7. Judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under 15 16 17 18 19 20 ORIGIN AND NATURE 107 the United States ; but the party convicted shall, neverthe- less, be liable and subject to indictment, trial, judgment and punishment, according to law. Section 4. Klections and Meetings of Congress 1. The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. 2. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a, different day. Section 5. Powers and Duties of the Houses 1. Each House shall be the judge of the elections, returns, and qualifications of its own members ; and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be author- ized to compel the attendance of absent members, in such manner, and under such penalties, as each House may provide. 2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member. 3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal. 4. Neither House, during the session of Congress, shall, 108 NATIONAL GOVERNMENT 21 22 23 24 without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. Section G. Privileges of and Prohibitions upon Members 1. The Senators and Representatives shall receive a com- pensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. 2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office. Section 7. Revenue Bills: President's Veto 1. All bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose, or concur with, amendments, as on other bills. 2. Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States; 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 OH J (i IN AND NATURE 109 journal, and proceed to reconsider it. If, after such recon- sideration, 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 reconsidered, and, if approved by two-thirds of that House, it shall become a law. But, in all such cases, the votes of both nouses shall be determined by yeas and nays, and the names of the persons voting for and against the bills shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, pre- vent its return, in which case it shall not be a law. 25 3. 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 limita- tions prescribed in the case of a bill. Section S. Legislative Powers of Congress The Congress shall have power : 1. 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; but all duties, imposts, and excises shall be uniform throughout the United States: 2. To borrow money on the credit of the United States: 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes: 2.) | 4. To establish a uniform rule of naturalization, and uni- 26 27 28 110 NATIONAL GOVERNMENT 30 31 32 33 34 35 36 37 38 39 40 41 42 form laws on the subject of bankruptcies throughout the United States: 5. To coin money; to regulate the value thereof, and of foreign coin; and fix the standard of weights and measures: 6. To provide for the punishment of counterfeiting the securities and current coin of the United States: 7. To establish post-offices and post-roads : 8. 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: 9. To constitute tribunals inferior to the Supreme Court: 10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations: 11. To declare war ; grant letters of marque and reprisal; and make rules concerning captures on land and water: 12. To raise and support armies ; but no appropriation of money to that use shall be for a longer term than two years: 13. To provide and maintain a navy: 14. To make rules for the government and regulation of the land and naval forces : 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions: 16. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be em- ployed in the service of the United States ; reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress : 17. To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same 43 44 45 46 47 48 49 50 ORIGIN AND NATURE 111 shall be, for the erection of forts, magazines, arsenals, dock- yards, and other needful buildings : And 18. 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. Section 9. Prohibitions upon the United States 1. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thou- sand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. 2. The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it. 3. No bill of attainder or ex post facto law shall be passed. 4. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. 5. No tax or duty shall be laid on articles exported from any State. 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. 6. 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 be published from time to time. 7. No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, ac- 112 NATIONAL 00VERN3IENT 51 52 53 cept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State. Section lO. Prohibitions upon the States 1. No State shall enter into any treaty, alliance, or con- federation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts ; or grant any title of nobility. 2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspec- tion laws ; 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 ; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. ARTICLE II Executive Department: The President and Vice- President Section 1. Term: Election: Qualifications: Salary: Oath of Office 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice- President, chosen for the same term, be elected as follows : 54 55 56 57 ORIGIN AND NATURE \\% 2. Each State shall appoint, in such manner as the Legis- lature 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. The following clause has been superseded by Article XII. of the Amend- ments : 3. 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 of the number of votes for each, which list they shall sign and certify, and transmit, sealed, to the scat of the government of the United States, directed to the President of the Senate. The Presidenl of the Senate shall, in the presence of the Senate and House of Represent- atives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such numl>er be a majority of the whole number of Electors appointed, and if there be more than one who have such majority, and have an equal num- ber of votes, then the House of Representatives shall immediately choose by ballot one of them for President ; and if no person have a majority, then, from the live highest on the list, the said House shall, in like man- ner, choose 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 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 the 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. 4. The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes, which day shall be the same throughout the United States. 5. No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Consti- tution, shall be eligible to the office of President ; neither 8 114 NATIONAL GOVERNMENT 58 59 60 61 shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. 0. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may, by law, pro- vide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President ; and such officer shall act accordingly, until the disability be removed, or a Presi- dent shall be elected. 7. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected ; and he shall not receive, within that period, any other emolument from the United States, or any of them. 8. Before he enter on the execution of his office, he shall take the following oath or affirmation : "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States ; and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." Section 2. President's Executive Powers 1. 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 the actual service of the United States ; he may require the opinion, in writing, of the principal officer in each of the executive Departments, upon any subject relating to the duties of their respective offices ; and he shall have power to grant reprieves and 62 63 64 65 ORIGIN AND NATURE H5 pardons for offences against the United States, except in cases of impeachment. 2. He shall have power by and with the advice and con- sent of the Senate to make treaties, provided two thirds of the Senators present concur ; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments arc not herein otherwise provided for, and which shall be established by law ; but the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the Heads of Departments. :>. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by grant- ing commissions which shall expire at the end of their next session. Section 3. President's Executive Powers (continued) 1. He shall from time to time give to the Congress infor- mation of the state of the Union ; and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both Houses, or either of them ; and in case of disagree- ment between them, with respect to the time of adjourn- ment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed ; and shall commission all the officers of the United States. Section 4. Impeachment 1. The President, Vice-President, and all civil officers of the United States shall be removed from office on impeach- 11(3 NATIONAL GOVERNMENT 66 68 ment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ARTICLE III Judicial Department Section 1. Courts : Terms of Office 1. 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. The judges both of the Supreme and inferior Courts shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. Section 2. Jurisdiction 1. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party, to controversies between two or more States ; between a State and citizens of another State ; be- tween citizens of different States ; between citizens of the same State claiming lands under grants of different States ; and between a State, or the citizens thereof, and foreign States, citizens, or subjects. 2. In all cases affecting ambassadors, other public minis- ters and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with 69 70 71 72 73 ORTGTK AND NATURE U7 such exceptions, and under such regulations, as the Congress shall make. 3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Section 3. Treason 1. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 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. 2. The Congress shall have power to declare the punish- ment of treason ; but no attainder of treason shall work cor- ruption of blood, or forfeiture, except during the life of the person attainted. ARTICLE IV Relations of States Section 1. Public Records 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, pre- scribe the manner in which such acts, records, and proceed ings shall be proved, and the effect thereof. Section 2. Rights in one State of Citizens of another 1. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. 118 NATIONAL GOVERNMENT K± 75 76 4 i 78 2. A person charged in any Slate with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which lie fled, be delivered up, to be re- moved to the State having jurisdiction of the crime. 3. 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. Section 3. New States : Territories 1. New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States con- cerned, as well as of the Congress. 2. The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Section 4. Protection afforded to States by the Nation 1. The United States shall guarantee to every State in this Union a republican form of government ; and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature can- not be convened), against domestic violence. 79 80 81 82 ORIGIN AND NATURE HO ARTICLE V Amendment The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Consti- tution, 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 part of this Constitution, when rati- fied 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 : provided, that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any man- ner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI National Debts : Supremacy of National Law : Oath 1. 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. 2. 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 not- withstanding. 3. The Senators and Representatives before mentioned, 120 NATIONAL GOVERNMENT and the members of the several Legislatures, and all execu- tive and judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VII Establishment of Constitution 8i 84 85 The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. [Constitution ratified by States, 1787-1790.] AMENDMENTS ARTICLE I Freedom of Religion, of Speech, and of the Press : Right of Petition Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridg- ing the freedom of speech or of the press ; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. [Adopted 1791.] ARTICLE II Right to Keep Arms 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. [Adopted 1791.] 86 87 88 ORIGIN AND NATURE 121 ARTICLE III Quartering of Soldiers in Private Houses No soldier shall, in time of peace, be quartered in any house without the consent of the owner ; nor in a time of war, but in a manner to be prescribed by law. [Adopted 1791.] ARTICLE IV Search Warrants 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 warrant shall issue but jipon probable cause, supported by oath or affir- mation, and particularly describing the [dace to be searched and the person or things to be seized. [Adopted 1791. J ARTICLE V Criminal Proceedings No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or pub- lie danger : nor shall any person be subject, for the same of- fence, to be twice put in jeopardy of life or limb, nor shall be compelled, in any criminal case, to be a witness against him- self ; nor be deprived of life, liberty, or property without due process of law ; nor shall private property be taken for public use without just compensation. [Adopted 1791.] 122 NATIONAL GOVERNMENT ARTICLE VI Criminal Proceedings 89 90 91 92 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor ; and to have, the assistance of counsel for his defence. [Adopted 1791.] ARTICLE VII Jury Trial in Civil Cases In suits at common law, where the value 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 the common law. [Adopted 1791.] ARTICLE VIII Excessive Punishments Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [Adopted 1791.] ARTICLE IX Rights of People not named The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. [Adopted 1791.] 93 94 95 OHIO IX AND NATURE [23 ARTICLE X Powers reserved to States 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. [Adopted 1791.] ARTICLE XI Suits against States The judicial power of the United States shall not be con- strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. [Adopted 1798.] ARTICLE XII Election of President and Vice-President 1. 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 per- son 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 the government of the United States, directed to the President of the Senate ; — the Presi- dent of the Senate shall, in the presence of the Semite and House of Representatives, open all the certificates, and the 124 NA TIONAL O VERNMENT 96 97 ^tfTt votes shall then be counted; — the person having the great- est number of votes for President shall be the President, if such number be a majority of the whole number of Elec- tors 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 Representatives 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. 2. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of Electors appointed ; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice-President ; a quorum for the purpose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. [Adopted 1804.] ORIGIN AND NATURE 125 98 9!) 100 ARTICLE XIII Slavery Section 1. Abolition of Slavery Neither slavery nor involuntary servitude, except as a pun- ishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Power of Congress Congress shall have power to enforce this article by appro- priate legislation. [Adopted 1865.] ARTICLE XIV Civil Rights : Apportionment of Representatives : Political Disabilities : Public Debt Section 1. Civil Rights 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its juris- diction the equal protection of the laws. Section 2. Apportionment of Representatives Representatives shall be apportioned among the several States according to their respective numbers, counting the 126 NATIONAL GOVERNMENT 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 execu- tive 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 par- ticipation in rebellion or other crime, the basis of repre- sentation 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. 101 102 Section 3. Political Disabilities No person shall be a Senator or Representative in Con- gress, or Elector of President and 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. But Congress may, iby a vote of two-thirds of each House, remove such disability. Section 4. Public Debt The validity of the public debt of the United States, authorized by law, including debts incurred for 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 obliga- 103 ORIGIN AND NATURE 127 tion incurred in aid of insurrection or rebellion against the United States, or any claim for loss or emancipation of any slave ; but all such debts, obligations, and claims shall be hold illegal and void. Section 5. Power of Congress The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. [Adopted 1868.] ARTICLE XV Right of Suffrage Section 1. Right of Negro to Vote 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. Section 2. Power of Congress The Congress shall have power to enforce this article by appropriate legislation. [Adopted 1870.] SUBJECT ANALYSIS 1. Constitution 1 bul I. Legislative Department ; [Art. I.] 1. Its Composition ; t 1. Division into Two Houses. [Sec. 1.] -] 2. House of Representatives. [Sec. 2.] ( 3. Senate. [Sec. 3.] II. Legislative Regulations ; 1. Elections and Meetings. [Sec. 4.] 2. Powers and Duties. [Sec. 5.] (Except law-making powers.) 3. Privileges of and Prohibitions upon Members. [Sec. 6.] III. President's Veto Power. [Sec. 7.] IV. Legislative Powers of Congress. [Sec. 8.] Prohibitions upon the United States. [Sec. 9.] Prohibitions upon the States.* [Sec. 10.] II. Executive Department— President and Vice-President ; [Art. II.] f 1. (1) Term, (2) Election, (3) Qualifications, (4) Salary, (5) Oath. [Sec. 1.] 2. President's Executive Powers. [Sees. 2 and 3.] [ 3. Subject to Impeachment. [Sec. 4.] III. Judicial Department; [Art. III.] 1. (1) Courts, (2) Term of Office, (3) Salary. [Sec. 1.] 2. Jurisdiction. [Sec. 2.] 3. Treason. [Sec. 3.] This logically does not belong to the division "The National Government,'" to "Miscellaneous Provisions," but it is thought best to retain the order of the Y. VI. SUBJECT ANALYSIS 129 I. Relations of States ; [Art. IV.] 1. Records of one State in another. [Sec. 1.] 2. Rights in one State of Citizens of another. [Sec. 2.] 3. (1) New States, (2) U. S. Territory. [Sec. 3.] 4. Protection of States by Nation. [Sec. 4.] II. Amendment. [Art. V.] III. (1) National, Debt; (2) National, Su- premacy ; (3) Oath. [Art. VI.] IV. Establishment of Constitution. [Art. VII.] II. Amendments 1. Arts. I. -VIII. Prohibitions on Congress as to Personal Rights. 2. Arts. IX. and X. Rights not named in Constitution. 3. Art. XI. Judicial Jurisdiction. 4. Art. XII. Election of President and Vice-President. 5. Art. XIII. Abolition of Slavery. 6. Art. XIV. (1) Equal Civil Rights, (2) Apportionment of Repre- sentatives, (3) Political Disabilities, (4) Public Debt. 7. Art. XV. Right of Suffrage. Constitution itself. There are some other cases where the true logical order is not followed in the Constitution. The provisions regarding the choosing of officers and impeachment in sections 2 and 3 of Article I. would more properly come in section 5, as they relate to certain powers of the Houses. That regarding revenue hills in section 7 would properly fall in the following section, as it relates to the law-making powers of Congress. 9 130 NATIONAL GOVERNMENT SECTION II.— LEGISLATIVE DEPARTMENT CHAPTER XXV HOUSE OF REPRESENTATIVES 1. Preamble — -The preamble is an important part of the Constitution. The object of the Constitution was to remedy the defects existing under the Confedera- tion, and some of the clauses of the preamble refer to those defects (1). * We have seen that the Union then was a very imperfect one. Instead of there being " domestic tranquillity," the States were continually quarrelling. It was impossible to " provide for the common defence " of the country against foreign ene- mies, or to " promote the general welfare " by broad measures, unless there were a strong central govern- ment. Had the Constitution not been adopted and had the States remained independent, it is not proba- ble that the country would have had the unexampled prosperity that it has. 2. Congress — This is the name of the national legis- lative body, and like the State legislatures it is divided into two Houses, called the Senate and House of Representatives (2). The former represents the States, and the latter the people. The members of the House, f called Representatives, are elected by the people of the States every second year (3). Members * These numbers refer to the paragraphs of the Constitution. The pupil should turn back to it at each reference. t The House of Representatives is frequently called simply the ''House" when spoken of in connection with the Senate. LEGISLATIVE DEPARTMENT 131 of the Congress under the Confederation were ap- pointed by the State legislatures, and for one year. 3. Electors — There was much discussion and differ- ence of opinion in the Convention as to what should be the qualifications of the voters who should elect the Kepresentatives. The qualifications of electors were various in the different States. In some of them owners of property, or tax-payers, in others freehold- ers * only, were voters. In some, only the latter voted for the higher officers ; in a few, suffrage was almost universal. Finally, as a compromise, it was decided that the qualifications should be the same in each State as those requisite for electors of its lower house, as it was presumed no State would object to such a rule (3). 4. Qualifications — A Representative must be twenty-five years of age, must have been a citizen seven years, and must live in the State from which he is chosen (4). The reasons for this will be readily understood. If voters must have certain qualifica- tions, surely those who make laws for them should have higher ones. (See Chap. V.) 5. Number — The Constitution does not limit the House to any definite number of Representatives ; it only declares that the number shall not exceed one for every 30,000 inhabitants. Otherwise it might become too large. It requires an enumeration of the inhab- itants every ten years ; and the next Congress there- after determines the ratio of representation f and the * A freeholder is one owning land, either absolutely or during his own or another's life. f The word ratio signifies rate, or proportion. It here means the number or portion of the inhabitants entitled to a Representative. 132 NATIONAL GOVERNMENT number of Representatives, and apportions them among the States (5). 6. Present Number — The first House of Repre- sentatives consisted of sixty-five members, and the ratio was about one to every 50,000 inhabitants. Since then, as the population has increased, Congress has increased the ratio, in order that the House might not grow too large to transact business ; but in spite of that the House has grown, until now (1894) it consists of three hundred and fifty-six members, being about one for every 173,900. 7. Every State Represented — But it may happen (and has happened) that some States have not a popu- lation equal to the ratio. In view of this the Constitu- tion provides that no State shall lose its representation in the House, by declaring that each State shall have at least one Representative (5). 8. Apportionment — With regard to how many Rep- resentatives the different States should have, the Con- vention found it difficult to agree. In the Congress under the Confederation, it will be remembered, the States were entitled to an equal number of delegates, and each State had one vote. But now it was pro- posed to apportion the Representatives according to population. On this point there were two causes of contention. First : The small States opposed it, be- cause it gave them fewer Representatives, and there- fore less power in Congress. The large States insisted on it, saying that they ought to have greater power because they had greater interests. Finally the small States yielded with regard to the House of Representa- tives. Second : The slaveholcling (Southern) States claimed that, in reckoning the population for the pur- LEGISLATIVE DEPARTMENT 133 pose of apportioning Representatives, slaves should be included ; the non-slaveholding (Northern) States * insisted that only free persons should be included, as the slaves could not vote themselves, and it was unjust to give the free persons extra votes simply because they owned certain property — that being what slaves were considered. The controversy on this point rose so high, and the parties were for a long time so unyielding, that fears were entertained of a sudden dissolution of the Convention. 9. Result — The result was a compromise. The Northern States finally consented that three-fifths of the slaves [the words " all other persons " in section 2 (5) mean slaves] should be counted, and the Southern States consented that direct taxes should be laid on the same basis ; so that the Southern States would have the larger share of Eepresentatives, but would pay the larger share of direct taxes.f But, as it resulted, the advantage, contrary to anticipation, was almost wholly on the side of the Southern States, for very few direct taxes were laid before the late Civil War, and thus they obtained the increased represen- ■ * Slavery then existed in all the States except Massachusetts ; but as there were very few slaves in the Northern States, they are gener- ally spoken of as if they were at that time non-slaveholding States. f To illustrate this rule by an example : Suppose a State contained 600,000 free persons and 500,000 slaves. Adding three-fifths of the number of slaves (300,000) to the number of free persons gives 900,000 as the number of the representative population : and the State would have been entitled to three Representatives for every two that a State which contained 600,000 free inhabitants and no slaves would have. So in apportioning taxes according to popula- tion, the State in the case we have supposed would have been obliged to raise three dollars for every two that it would have been obliged to raise if no slaves had been counted. 134 NATIONAL GOVERNMENT tation without the corresponding increase in taxa- tion. 10. Present Rule — The state of things described in the last section with regard to apportionment existed up to the Civil War. The 13th, 14th, and 15th Amend- ments changed the system. ISTow Eepresentatives are apportioned in proportion to the total population, whether white or black (100).* 11. Territories — By an act of Congress, every Ter- ritory in which a government has been established is entitled to send a delegate to Congress, who has a right to take part in the debates of the House, but not the right of voting there. CHAPTER XXVI SENATE 1. Reasons for Two Houses — In this country and in England it is thought best that the legislative body should consist of two houses. If there were only one house it might pass some very harmful or unjust laws, either through undue haste, ignorance, popular excitement, or the undue influence of popular but mis- taken leaders. But if there were another house, it would be improbable that the very same influences should exist in both, and thus one house would correct the hasty legislation of the other. And if one house were of a higher grade than the other, composed of wiser men, it is seen that its restrictive influence would be of the greater value. * The number of Indians not taxed is so small that it need not be considered. LEGISLATIVE DEPARTMENT 135 2. Character of Senate — For these reasons the Con- stitution has established the Senate, and has made it a body of greater dignity than the House of Representa- tives. The causes which make the Senate the more select body are four in number : (1) It has fewer mem- bers ; (2) they are elected by the State legislatures instead of by the people ; (3) the term of office is longer ; and (4) the qualifications are higher. 3. State Equality — In the Senate the States are equal in power, each having two members (8). The Convention readily agreed upon dividing Congress into two branches ; but, as has been observed, it was difficult to settle the mode of representation. The delegates from the large States insisted upon a repre- sentation in proportion to population, in the Senate as well as in the House ; and the small States contended for equality in both branches. The debate was long and animated ; and it became apparent that, as in the case of slave representation in the House, there must be a compromise. This was at length effected; the small States consenting to a proportional representa- tion in the House, and the large States to an equal representation in the Senate.* Thus while the House represents the people, the Senate represents the States, and this is one instance in which the federation prin- ciple is retained. (See page 103, sec. 7.) 4. Voting- — In the Congress under the Confedera- tion the voting was by States, but the Senate differs * It will be noticed that in the Convention which framed the Con- stitution there were many opposing interests, and that compromises were frequently necessary, each State giving up something. It was a spirit of patriotism which caused this, as well as the instinct of self-preservation, for without compromise no permanent union could have been formed, saving the rights of all. 136 NATIONAL GOVERNMENT in that respect. There the Senators vote separately, the vote of each Senator counting one, as in the House ; and a question is decided by the united votes of a majority of the members, and not by the vote of a majority of the States (8). 5. Term — The period of six years was also the result of a compromise in the Convention (8). The terms proposed varied from three to nine years, or even longer. One object in making it longer than a Representative's term was to obtain a body of men wiser and more experienced than the House would contain. Where a man is to be elected for a long term, greater care will be used in selecting him. A second object was to obtain independence of popular impulses. The Representatives were to reflect the will of the people, and so it was provided that they might be often changed : but the Senators were to serve as a check upon hasty action by the people's representatives, and for this purpose they must feel independent of the people to a certain degree. A long term tends to give this independence. A third object was to check frequent changes in the laws. The oftener a legislature is changed the more change- able and uncertain will be the laws ; and uncertainty and change often do more injury than evil laws. 6. Gradual Change — Senators are not all elected at the same time. One-third go out of office every two years (9). In favor of this arrangement are two im- portant considerations. First : It secures to the public at all times the benefit of the experience of at least two-thirds of the body. Whereas, if the terms of all the Senators expired at once, their places might be supplied mainly by new members without the requi- LEGISLATIVE DEPARTMENT 137 site knowledge and experience. Second : While a long term is intended to guard against the too frequent changes in the laws, it may also prevent, for too long a time, the amendment or the repeal of bad laws. Such amendment or repeal may be hastened by the election of new members in the place of the one-third who retire every two years. 7. Qualifications — Why these are higher than in the case of Representatives has been explained (see sec. 2). An additional reason for requiring them to have been citizens of the United States nine years is found in the fact that, with the President, they make treaties with foreign nations (62). A Senator should therefore have lived here long; enough to have become free from bias in favor of his native country. CHAPTER XXVII GENERAL LEGISLATIVE REGULATIONS* 1. Choice of Officers — It is considered important in legislative bodies that each house should have the choice of its own officers, in order that it may have proper control of them. A Speaker not responsible to the House of Representatives (e.g., if appointed by the President) might baffle the will of the entire House. One exception to this rule is that the Yice- President presides in the Senate. The States follow this by having the Lieutenant-Governor preside in the State Senate (7, 12). * Most of the provisions contained in sections 4, 5, 6, and 7 of Article I. will be easily understood, and many of them are similar to provisions in the State constitutions. We will speak only of a few which require some explanation. 138 NATIONAL GOVERNMENT 2. Impeachment — Impeachment and its trial have been described before (see page 82). As in the State legislatures, so in Congress, the lower House impeaches and the upper House tries. The officers subject to impeachment by the national House of Eepresenta- tives are the President, Yice-President, and all civil officers of the United States (not of any State) (65). This means all members of the civil (i.e., not military), executive, and judicial departments of the nation. Thus neither members of Congress nor of the army or navy can be removed in this way. In practice only officials of the highest rank are ever impeached. 3. Meetings of Congress — Congress meets every year, in December (16). But as every second year the entire House of Eepresentatives and one-third of the Senate are elected anew, the two sessions follow- ing an election are classed together and called " A Congress." The meeting of Congress in December, 1893, was the first session of the 53d Congress. 4. Rules — Like State legislatures, each House of Congress has its rules, which in most cases are strictly followed. A bill is introduced, referred to its appro- priate committee, reported by the committee, read, debated, and passed (or rejected), in substantially the same manner as in State legislatures (see page 44). But at any time either House may set aside all its rules, and pass laws in any manner it sees fit, provided no provision of the Constitution is violated. 5. Salary — In the Convention there was much dis- cussion as to whether it would be wise to allow salaries to members of Congress. On the one hand it was said salaries would tempt unworthy men to intrigue for an election ; on the other hand, the worthiest men LEGISLATIVE DEPARTMENT 139 might be shut out through poverty if no compensation were allowed. It was decided to allow compensation. The amount is fixed by Congress itself (21). 6. Arrest of Members— Members of Congress (except in certain cases) cannot be arrested when Congress is in session (21). This is in order that the people who elect them may not be deprived of their services. 7. Liberty of Speech — The clause which says that a member " shall not be questioned in any other place" for any speech, means that he shall not be sued, either civilly or criminally, for anything he says in debate (21). This is in order that members may feel the fullest freedom and independence. 8. Revenue Bills — These are bills for raising money for the government, either by direct or indirect taxa- tion. All other laws may originate in either House, but these must be passed by the House of Representa- tives first (23). The reason for this is that since the people pay the taxes, it is appropriate that the Repre- sentatives elected directly by them should propose all such laws. 9. Veto — But a bill having passed both Houses is not yet a law. It must be presented to the President, who is thus a part of the legislative department. There are three ways in which a bill, after having passed both Houses, may become a law : (1) it may be signed by the President ; (2) he may neglect to sign it for ten days ; and (3) he may return it to Congress within ten days, and each House may pass it a second time by a two-thirds vote (24, 25). 14:0 NATIONAL GOVERNMENT CHAPTEK XXVIII POWERS OF TAXATION 1. Nature of the National Government — Before treating of the several legislative powers we will first speak of a certain characteristic of the General Govern- ment in which it differs from the States, and which must be always kept in mind when considering its law-mak- ing powers. The United States Government is a gov- ernment of delegated powers '; that is, powers which have been delegated to it by the States, or the people of the States. It has only such powers as the People have given it, in the Constitution. Hence it is called a gov- ernment of limited powers. The States, on the other hand, existing before the General Government, and possessing entire sovereignty, at least in theory, may exercise all powers which they have not surrendered to the General Government. In other words, their powers are unlimited, except so far as they have parted with any of their original powers. Therefore, when the question arises whether the President or Congress have certain powers, we look in the Constitution, and if they are not there granted, they do not exist. But when the question arises, with regard to a State, whether its people have a certain power, we approach it from the other side and say they have the power unless the United States Constitution has received it. Most of the legislative powers of Congress are enu- merated in Article L, section 8. The first one grants the power to tax (26). 2. Necessity for the Taxing Power — This is one of LEGISLATIVE DEPARTMENT 141 the most important powers of government. A gov- ernment without the power to raise money hardly deserves the name. Without money it would have no power to enforce obedience to its laws, for it could not pay soldiers or civil officers, and men will not serve without pay. We have seen how the Confederation tried the experiment and failed.* This was one of its errors, corrected in the Constitution. 3. Manner of Taxation — Taxes f may be laid by the General Government in three ways : (1) upon per- sons directly, as poll or property taxes ; (2) upon goods when they are imported into the country from abroad ; or (3) upon goods when they are manufactured and used here. This clause (26) would also grant the power to lay export duties — that is, duties to be paid * See page 98. f The four words, taxes, duties, imposts, and excises, are not used to mean four different things, but only to cover all the usual methods of taxation. These words have not fixed meanings. Some of them have different meanings in different connections. At times some have the same meaning as others. Their most usual meanings when used in connection with one another are perhaps these : taxes, direct taxes laid on individuals, either as poll taxes, or taxes in proportion to property (see Chap. XV. for distinction between direct and indirect taxes) ; duties, indirect taxes of all kinds, including taxes on exports, imports, and excises ; imposts, duties on imports ; excises, duties on goods manufactured and used here. Another word, cudoms, usually means duties on imports and exports, but in this country, since there are no export duties, it usually means the same as imposts. Duties are specific and ad valorem. A specific duty is a specified sum of money charged upon every yard, pound, or gallon of any commodity. Thus, a duty of ten cents on a pound of tea, or of one dollar on a yard of cloth, or of fifty cents on a gallon of wine, is a specific duty. Ad valorem is a Latin phrase, signifying according to the value. An ad valorem duty is a certain percentage on the value or price. 142 NATIONAL GOVERNMENT on goods when sent from this to foreign countries — did not a later provision forbid it (48). 4. Objects — The objects for which taxes may be laid are also enumerated in the same clause (26). Since it is the theory of the Constitution that Congress shall have power over only those matters which affect the whole country, leaving all local matters to the States, so no tax can be laid except for some purpose of inter- est to all the people of the Nation. But the phrase " general welfare " is very broad. 5. Uniformity — The Constitution is careful to pro- vide that no State shall pay more than its just share of taxes. There are several provisions regulating this. First, direct taxes must be laid in proportion to popu- lation (5) ; second, all indirect taxes which may be laid (i.e., imposts and excises) must be uniform throughout the country (26) ; third, no export duties can be laid (48). The reasons for the last provision are that a tariff * of export duties which would bear equally on the States would be very difficult to make, since they do not export the same articles, some exporting cot- ton, others grain, and others manufactures, and that it would constitute a constant cause of irritation between the States. For instance, the Representatives of the cotton and grain States might combine and pass a law laying very low duties on cotton and grain and high ones on manufactures. 6. Taxes which have been laid — Up to the late Civil War very few direct taxes had been laid by the National Government. They were then laid for a few years, but now (1894) there are none. Some excise duties have been and are now laid, chiefly on liquors * A tariff means a list of duties laid. LEGISLATIVE DEPART3IENT 143 and tobacco, articles that are not necessary to the people, but are luxuries. During the Civil War the excise duties collected were about equal to the cus- toms. But from the beginning very many duties on imports have been laid, and it is from this source that most of the revenue has been raised. 7. Power to Borrow Money — This is given to Con- gress for the reasons already described, which justify State debts (page 74, sec. 7) (27). This power was exercised during the war until the national debt nearly reached the sum of $3,000,000,000. Without this power the government Avould have been almost helpless, for its regular income would have been wholly inadequate. CHAPTER XXIX POWER TO REGULATE COMMERCE (28) 1. Why given to Congress — This was for two rea- sons : (1) because it Avas a matter of general and univer- sal interest, and (2) because of the benefits that would flow from uniformity. The need of no power was more deeply felt under the Confederation than the power to regulate foreign trade. We thus see that the power to lay duties comes from two clauses. One (26) gives Congress the power, but only for purposes of revenue. If none should be needed for that purpose, or if the duties laid for revenue were not sufficient to regulate commerce, they might be laid under the other clause (28) to any amount. 2. Nature of Regulation — This regulation is of two kinds : (1) the laying of duties on goods imported from 144 NATIONAL GOVERNMENT abroad, for the purpose of protecting the commercial interests of this country ; and (2) making regulations which shall tend to render navigation less dangerous. The manner and object of regulating commerce by means of import duties will be seen if we consider the trade of England and America as it was after the Revolution. 3. Retaliatory Duties — England pursued the policy, for her own benefit, of laying heavy duties on mer- chandise imported there from this country. That injured us, and so, in order to compel her to abandon the policy, we wished to lay duties on articles sent here by the English merchants.* Under the Confederation this was attempted, but as each State could lay what duties it chose, there was no uniformity, and each would try to secure the trade by laying lower duties than the rest. So the Constitution gave Congress exclusive authority over the whole subject, and retali- atory duties were laid. 4. Protection — Another way in which it was * The effect of these duties may not be quite clear : Suppose the market value of a bushel of wheat in Great Britain to be $1, and the cost of raising the article here and carrying it there to be (together) $1. We can then raise it here and sell it there along with the Eng- lish producer. If now a duty of 40 cents a bushel is laid upon wheat from abroad, we cannot sell it for less than $1.40, and the English consumer, instead of buying it with this duty added, will buy of the English producer. But, the people of this country being then chiefly agricultural, more wheat was produced here than there was a market for, and the American farmer was dependent on the foreign markets. Being shut out of the English market, the value of our products fell, and we suffered loss. It was thought then that if we retaliated and laid duties on manufactured articles (of which England sent us a great number), and so shut them out, she would be influenced to abandon her duties. LEGISLATIVE DEPARTMENT 145 thought duties on imports would protect the commer- cial interests of the country was in encouraging and protecting the manufacturing interests.* This theory is called protection, and is the policy which the country has followed. High protective duties have been laid almost from the beginning, on articles manufactured from cotton, wool, and iron. 5. Free Trade — But it is believed by many that protection is a mistaken policy, at least in this country at present, and that while it encourages manufactures it injures some other interests. The opposing policy is called free trade. Its supporters urge that if the yard of cloth can be brought here and sold for less than it can be made here, the people who pay for it lose by shutting it out, and the few manufacturers are the only ones who gain.f The British Government now acts on the policy of free trade. 6. Collection of Duties — Certain places on the coast are designated by the laws of Congress, called * Suppose foreign cloth of a certain quality is sold in this country for $2.50 a yard, and cloth of the same quality manufactured here cannot be made for less than $3 a yard. There would now be no encouragement to any one to engage in the manufacture of such cloth, because, in order to sell it, he must reduce the price to that of the foreign article, which would subject him to a loss of 50 cents a yard. Let now a duty of $1 a yard be laid upon the foreign cloth, and the price would be $3.50, and preference would be given to the domestic article, unless the importer should reduce the price of his foreign cloth to $3 ; in which case, it is to be presumed, about an equal quantity of each would be consumed, and the duty of $1 a yard on the foreign cloth would go into the United States Treasury. f The question of free trade or protection belongs to the science of Political Economy ; and it is therefore necessary in a work of this character only to refer to the matter and not attempt to give the arguments used in support of either policy. 10 146 NATIONAL GOVERNMENT ports of entry, and a vessel must first come to one of these, where the master delivers a statement of the cargo to an officer, appointed by the President, called a collector of customs. The cargo is then examined, and the duties calculated and paid to the collector. If not paid the collector seizes the goods, which are for- feited to the government. 7. Registry — Another regulation of commerce is that by which a vessel built and owned in this country may be registered on the collector's books as an Amer- ican vessel. As such it has certain privileges which foreign vessels do not have. A foreign vessel is not allowed to engage in the coast trade here. An Amer- ican vessel, registered, is in all places entitled to the full protection of our government, and if it is taken or injured by foreigners in foreign waters, the United States Government must demand reparation from the government to which they belong. 8. Clearance and Entry — Every time a vessel (for- eign or domestic) leaves a port, what is called a clear- ance must be obtained. This is a certificate by the collector that all the fees upon the vessel have been paid, and the law been complied with in all respects. So when a vessel arrives at a port, the master must report its arrival to the collector of the port, deliver up a statement of its cargo and the clearance he re- ceived at the port from which he came. This is called entering the vessel.* 9. Navigation Laws — Coming now to the second class of regulations of commerce, Congress has passed many laws to render navigation less dangerous. The *In the coasting trade between ports of the United States, clear- ance and entry are not required, in general. LEGISLATIVE DEPARTMENT 147 following are some of the subjects : providing for light-houses, buoys, signal stations, and life-saving sta- tions along the coast; improving harbors; requiring vessels to take licensed pilots when near the coast; prescribing how many passengers and what provisions shall be carried ; quarantine ; * and many similar ones. 10. Commerce with Indians — In granting to Con- gress the power to regulate commerce f " with the Indian tribes," it was intended to lessen the dangers of war. Murders and war had been provoked by the improper conduct of some of the States. It was be- lieved that by a uniform policy difficulties would be more likely to be prevented. This was more impor- tant then than now, when the number of Indians has become so insignificant. CHAPTER XXX OTHER POWERS RELATING TO PEACE 1. Citizens and Aliens — The general distinction between them is this : citizens are those born in this country ; % aliens are those born in a foreign country, whether living here or in the foreign country. Both * This means a period of time for which vessels are detained before entering a port, so that they may be examined to see if there is any malignant disease on board. Quarantines are required by the health laws of the States ; and by the laws of Congress vessels are to be subject to the health laws of the State at whose ports they arrive. \ Commerce, in a broad sense, as used in this clause of the Consti- tution, means not only trade by sea and land, but all intercourse. \ Prior to the Civil War white people alone were citizens in the Southern States, but now under the 14th Amendment white and black stand on the same basis (99). Children take the citizenship of their parents. 148 NATIONAL GOVERNMENT include men, women, and children. But after living here a certain time an alien may become a citizen. Aliens have not all the rights of citizens. They can- not vote (see page 27).* In many States they have not full power to own real estate. In general, they are considered subjects of the nation from which they come, and not of this. 2. Naturalization — But to deny foreigners the rights of citizens after they shall have acquired a fixed residence here, and a knowledge of their civil and politi- cal duties, would be illiberal and unjust. The process by which an alien may become a citizen is called nat- uralization. Congress has the power to make a uni- form rule (29). The reason for this is that if it were left to the States, a person having become naturalized in one State might, on removing into another, be de- prived of the rights of citizenship until he should have been naturalized by the laws of such State. Besides, by the Constitution a citizen of any State is entitled to the privileges of a citizen in any other State (73). Now, after a person is once naturalized, he is a citizen of the United States and also of the State in which he resides at the time (99). By removing to another he becomes a citizen of that. 3. When Allowed — The laws of Congress prescribe that an alien may be naturalized after living in this country five years. The first step is to declare on * Naturalization and the right to vote are two separate matters, which must not be confused. Not all of those who are naturalized are given the right to vote {e.g., women and children). Although most States do give foreigners the right to vote, when naturalized, still they need not ; and some States even allow some aliens to vote. The State regulates voting, the United States naturalization. LEGISLATIVE DEPARTMENT 14Q oath before a court that it is his intention to become a citizen. This declaration he may make as soon as he arrives, or at any time. After the declaration he must wait two years. After that, the court, if satisfied that he has resided five years in the United States, and one year in the State in which the court is held, may admit him as a citizen. He then, before the court, renounces his allegiance to his old country, and swears to support the Constitution of the United States. But no alien can be compelled to become a citizen against his will. 4. Bankrupt Laws — A bankrupt is an insolvent debtor ; that is, a person who is unable to pay all his just debts. A bankrupt law is a law which, upon an insolvent's giving up all his property to his creditors, discharges him from the payment of his debts. Such laws are designed for the benefit of honest and unfor- tunate debtors, who, by having the enjoyment of their future earnings secured to them, are encouraged to engage anew in industrial pursuits. The reason the power was given to Congress to pass such laws (29) was that if it were left to the States the object could not be accomplished. No State law could release a debtor from debts to a creditor living out of the State, nor from debts contracted in another State. The dis- similar and conflicting laws of the different States, and the entire want of them in others, had caused great inconvenience. Important as such laws were deemed, there is now (1894) no national law on the subject." * Three such laws have been passed by Congress. Two of them existed but a year or two. The third was passed in 1867 and lasted until 1878. The reason for this short duration was the general senti- ment that it allowed many dishonest debtors to procure a release from their debts. 150 NATIONAL GOVERNMENT 5. Coinage — The coinage of the money is in every country a prerogative of the government. Congress has several powers with regard to coinage (30). No State can coin money (51). The object here, also, was to make uniformity throughout the country. Exercis- ing these powers Congress has passed laws by which we have a uniform currency throughout the Nation, and the convenient decimal system of dollars and cents, instead of the awkward system of pounds, shil- lings, and pence which existed before the Constitu- tion. The value of coin has been regulated in different ways : such as, by deciding how much metal (gold or silver) shall be put in a given coin, or what domestic coins foreign coins shall be equal to. The place where money * is coined is called a mint. There are several in the country, the principal one being at Philadelphia. 6. Weights and Measures — For the convenience of trade between the States, the weights and measures, like the coinage, should be the same in all the States. Without such uniformity commerce among the States would meet with very great embarrassment. Yet Con- gress has never exercised the power given it on this subject (30). The States still have the power to adopt their own standarcl.f * It must be remembered that coin is not the only money in the country. We have now in use United States notes, national-bank notes, gold and silver certificates, etc. Only coin and the United States notes are legal tender — i.e., if a man wishes to pay a debt he must pay with one of those two, if the creditor insists upon it. f The weights and measures used throughout the States are, how- ever, substantially the same. In 1836 the United States Govern- ment sent to each State a full set of weights and measures, as used in the Custom House, and these have been adopted by the States as their standards. LEGISLATIVE DEPARTMENT 151 7. Post-Office — The power of Congress over the mail is one of the most important it has (32).* In every nation the government assumes charge of the Post-office. It is impossible to conceive all the diffi- culties which might attend the exercise of this power had it been left to the different States. A uniform system of regulations is indispensable to efficiency, and could be secured only by placing this power in the hands of Congress. 8. Protection of Authors and Inventors — This Congress has power to effect by granting copyrights and patents (33). "Science and useful arts" are pro- moted by new books and new inventions. But if every man had the right to print and sell every book or writing, without compensation to the author, there would be little to encourage men of ability to spend, as is often done, years of labor in preparing new and useful works. Nor would men of genius be likely to spend their time and money in inventing and con- structing expensive machinery, if others had an equal right to make and sell the same. This power is given to Congress for the reason that if the States alone exercised it, no State could punish infringers beyond its own limits. In pursuance of the power here given, Congress has enacted the copyright and patent laws. 9. Copyright — A copyright is the sole right to print and sell a book, map, etc. It is obtained by the author by following a few simple requirements, the chief one of which is the mailing of two copies as soon as it is published to the Librarian of Congress. * A post-road is a road over which the mail is carried. All rail- roads are by law made post-roads, and there are very many others besides. 152 NATIONAL GOVERNMENT This secures to the author the sole right to print and sell his work anywhere in the United States for twenty-eight years, at the expiration of which time he may have his right continued for fourteen years longer. 10. Patents — A patent is the sole right to make, use, or sell a new invention. It is obtained by the inventor from the government, but there is much more to be done than in the case of a copyright. The Commissioner of Patents superintends the grant- ing of patents. The Patent Office is a part of the Department of the Interior (see page 178). To secure his patent the inventor must send to the Commissioner of Patents a written description of his invention, with drawings and model, and specify the improvement which he claims as his own discovery. If the exam- iners do not find that the invention had been before discovered, a patent is issued therefor, on the payment of certain fees. This secures to the inventor the sole right to make, sell, or use his invention anywhere in the United States for seventeen years.* 11. Courts — Under the power to establish inferior courts (34) Congress has established a system of courts which will be described later (see page 180). 12. Piracy — Congress (and not the States) has power to define and punish crimes committed on the high seas (35). Piracy is commonly defined to be forcible * In the case of both copyrights and patents, the granting of them is not proof that the book or invention is new. If any one is sued for infringement {i.e., printing the book or using the invention without permission from the one holding the copyright or patent) he may claim that the book or the invention is not new, and if he proves it the court adjudges the copyright or patent to be void. LEGISLA Tl VE I) EPA R TMENT \ 53 robbery or depredation upon the high seas. But the term felony was not exactly defined by law, conse- quently its meaning was not the same in all the States. It was sometimes applied to capital offences only ; at other times, to all crimes above misdemeanors. The power to define these offences is given to Congress for the sake of uniformity, and the power to punish them, because the States have no jurisdiction beyond their own limits. 13. Offences against the Law of Nations — Nor were these clearly defined. The power to define and punish them is given to Congress (35), because our citizens are regarded by foreign nations as citizens of the United States and not as citizens of their respec- tive States ; and therefore the General Government alone is responsible to foreign nations for injuries committed on the high seas by our citizens. 14. District of Columbia — In 1790 this became the seat of government. Over it, and over all the forts, arsenals, etc., belonging to the United States, Congress has exclusive authority * (42). This authority is necessary for the protection of the government. If the seat of government were within the jurisdiction of a State, Congress and other public officers would be dependent on the State authority for protection in the discharge of their duties, and the State might refuse them protection. f * So also with regard to all territory not included within any State (see page 190). f This actually happened to the Continental Congress. It was once, near the close of the Revolution, treated with insult and abuse while sitting at Philadelphia ; and the executive authority of Penn- sylvania having faded to afford protection, it adjourned to Prince- ton, in the State of New Jersey. 154 NATIONAL GOVERNMENT 15. Implied Powers — It is a general rule that where one is granted the power to do a thing, it implies that he shall have power to use all the neces- sary means to accomplish it. The last clause of sec- tion 8 (43) then was unnecessary, for the granting of the " foregoing powers " granted also the power " to make laws necessary and proper for carrying them into execution." * The reason the clause was added was to satisfy all possible doubt. Under this right of implied powers Congress has passed laws which it has been difficult to refer to their proper clauses in the Constitution, and which have occasioned much discus- sion ; such as laws establishing the national banks, incorporating railroads, purchasing foreign territoiy (such as Louisiana and Florida), and making the United States notes legal tender. In very many cases the laws passed under implied powers are wider in their scope and more important than those expressly authorized. 16. Other Powers — In other parts of the Constitu- tion other legislative powers are given to Congress. They will be noticed in their order. * For example: The power "to regulate commerce" includes the power to cause the construction of breakwaters and light- houses, the removal of obstructions from navigable rivers, and the improvement of harbors ; for in regulating and facilitating com- merce these works and improvements are necessary. So the power " to establish post-offices" implies the power to punish persons for robbing the mail. LEGISLATIVE DEPARTMENT 155 CHAPTER XXXI POWERS RELATING TO WAR 1. Declaring- War — Congress alone has this right (36). It is very evident that a single State ought not to be allowed to make war. The power to declare it is justly given to the National Government, because the people of all the States become involved in its evils. In monarchical governments this important power is exercised by the king, or supreme ruler. But here it is entrusted, not to the President, but to the representatives of the people, because the people are they who have to bear the burdens of war. 2. Letters of Marque and Reprisal — These are commissions issued by a government to private persons authorizing them to seize the property of a foreign nation or its subjects, as a reparation for some injury.* Congress has exclusive power to grant them (36, 51). A State should not be permitted to authorize its citi- zens to make reprisals ; for, although such authority, when granted in time of peace, is designed to enable the citizens of one country to obtain redress for inju- ries committed by those of another, without a resort * They are sometimes called simply Utters of marque, and are often issued in time of war, and sometimes in time of peace. When issued, it is generally to the owners or master of some armed vessel, which then goes out and captures the vessels and property of the foreign nation on the ocean. Such a vessel is called a privateer (see page 281). This method of obtaining reparation seems more like retaliation. But many things are allowed in war which are not justifiable at other times. Privateering is not as extensively practised as formerly. 156 NATIONAL GOVERNMENT to war, the tendency of reprisals is to provoke rather than to prevent war ; and when granted in time of war it is merely one means of carrying on the war. In both cases the National Government alone should have the power to grant the commissions, as it alone has the power to declare war, because the whole coun- try may become involved. The entire subject of war is taken away from the States and given to the Nation. 3. Captures — As a part of its power over war, Con- gress has power to make rules concerning the property captured in time of war. The general practice is to distribute the proceeds of the property among the cap- tors as a reward for bravery and a stimulus to exer- tion. The property captured is called prize. But proof must be made in a court of the United States that the property was taken from the enemy, before it is condemned by the court as a prize. 4. Army and Navy — So also Congress has power to raise, maintain, and make rules for the government of an army and navy (37-40).* Under the Confedera- tion the Congress could declare war, but could not raise or pay a single soldier (see page 98). A govern- ment must have an army, or at least the power to raise one. Without one it is virtually powerless, for not only must a nation be ready to fight foreign foes, but also occasions will arise when its supremacy can be * The policy of the country has been to maintain a very small army and navy, and undoubtedly much of our prosperity, as com- pared with other nations, is due to this. In European nations not only do the people have to bear the burden of an immense standing army, but in many of them several years of the best part of every man's life must be spent in service. LEGISLATIVE DEPART3IENT 157 maintained against insurrections or rebellions among its own subjects in no other way. So also maritime nations must have a navy to protect their commerce. In ordinary times the United States army and navy are filled by voluntary enlistments, but when these do not furnish enough men Congress provides for a con- scription, called during our late war a draft. By this the number needed are chosen by lot from among the citizens, and they are compelled to go, or furnish sub- stitutes. In order that Congress shall not lose control of the army when raised, it is provided that no appro- priation shall be made for a longer period than two years. It may, however, make as many successive appropriations as it sees fit, and they are now made every year for such year. 5. Militia — Congress also can provide for calling out the militia (40). It has so provided by delegating the power to the President, to be so exercised when he thinks the necessity provided for by the Constitution has arisen.* * Though the President is Commander-in-Chief of the army, navy, and militia, Congress still has practical control of all, for before they can be paid Congress must raise the money and appropriate it (49). In ordinary times this is done every year. 158 NATIONAL GOVERNMENT EXPKESS POWEKS OF CONGKESS [Under Art. I. sec. 8.] I. ORDINARY PEACE POWERS I. Raising Money ; 1. By Levying, 1. Direct Taxes, 2. Imposts, or 3. Excises : || (1. Payment of Debts, Z &o ] 2. Common Defence, or £ g, (3. General Welfare. 2. By Borr owing. II. Commerce, Regulation of; 1. Foreign, 2. Among States, and 3. With Indians. III. Naturalization. IV. Bankruptcy. V. Coinage; j" 1. Coining Money, ( 2. Regulation of Value, of j 1. Domestic Coin, and I 2. Foreign Coin. VI. Weights and Measures, Regulation of. YII. POST-OFFICE; Establishment of 1. Post-Offices, and 2. Post-Roacls. LEGISLATIVE DEPARTMENT 159 VIII. Science and Useful Arts, Encourage- ment OF, by granting ( 1. Copyrights, and \ 2. Patents. IX. Inferior Courts, Establishment of. X. Crimes; (1. Piracies, ) , . _ „ , \ a ^ , ir , « L 1. Define, and | 2. Felonies on High Seas, to j g Pimlsh 1 3. International Offences, ) [ 4. Counterfeiting ; to punish. M, U. S. Securities, and ( 2. U. S. Coin. XL Territory; Exclusive Legislation over \ 1. District of Columbia, and | 2. Forts, etc. II. POWERS RELATING TO WAR f I. Declaration of War. II. Letters of Marque, Granting of. III. Captures, Rules concerning. IV. Forces; f 1 A mi v ) ( j - Raise > 1. Aim}, tQ ) 2 Maintain< and -\ 2. Navy, ) ( 8 . Make Rules for. [3. Militia, to Provide for 1. Calling out, to 1. Execute Laws, 2. Suppress Insurrections, or 3. Repel Invasions. 2. ( Organizing, ) '■). Alining, [- at all times. 4. Disciplining, and ) 5. Governing, when in U. S. service. 160 NATIONAL GOVERNMENT CHAPTEE XXXII PROHIBITIONS ON THE UNITED STATES 1. "Where Found — Section 9 of Article I. names certain subjects which Congress is forbidden to legis- late upon.* Most of these form exceptions to the powers granted in the preceding section. 2. Slave-Trade — From an early period slaves had been imported into the Colonies from Africa. At the time when the Constitution was formed, laws prohibit- ing the foreign slave-trade had been passed in most of the States, but the delegates from a few States in the Convention insisted on having the privilege of import- ing slaves secured. A majority of the Convention were in favor of leaving Congress free to prohibit the trade at any time. But as it was doubtful whether certain States would in such case accede to the Consti- tution, and as it was desirable to bring as many States as possible into the Union, it was at length agreed that the trade should be left free for twenty years to all the States choosing to continue it (44, 79). Once more, a compromise, f 3. Habeas Corpus — The nature of this writ has * It must be remembered that sec. 9 of Art. I. does not apply to the States, but only to Congress. The prohibitions upon the States are found in sec. 10. For instance, a State legislature is not pro- hibited by the United States Constitution from suspending the writ of habeas corpus, as far as State offences are concerned. For this reason provisions similar to those in sec. 9 are generally found in State constitutions, as to habeas corpus, appropriations, statements, etc. f Congress did, however, in 1808 wholly prohibit the slave-trade. LEGISLATIVE DEPARTMENT 161 been heretofore explained (see page 88). The presence of this clause (45) here shows how important the writ was considered. In England its operation had at times been suspended for slight and insufficient rea- sons. The clause applies only to United States judges. They can grant the writ only in cases of violation of United States laws (see page 182). 4. Bill of Attainder — Attainder in this phrase means that forfeiture of property and loss of all civil rights (among them, the right to inherit property or transmit it to heirs) which a person formerly suffered who had been condemned to death for treason or other crime. A hill of attainder is an act (i.e., a law) of a legislature inflicting this punishment upon some par- ticular person and condemning him to death, without a regular trial in court. Such laws are inconsistent with the principles of republican government, and are therefore proper] v prohibited to Congress (46, 71). 5. Ex post facto Law — This is a law that makes punishable as a crime an act which was not criminal when done, or that increases the punishment of a crime after it has been committed.* Such laws are unjust, and therefore wholly forbidden to Congress (46). 6. Direct Tax — What a direct tax or capitation tax is, has been already described (see Chap. XV., sees. 1 and 11). A prior clause has given the rule of appor- tionment of direct taxes (5). For greater security it was provided that no direct tax should be laid except * If, for example, one should commit murder -while the penalty was imprisonment for life, and the legislature should then pass a law, and apply it to his case, making the penalty death. 11 162 NATIONAL G0VERN3IENT in that way, counting three-fifths of the slaves (47). But now if direct taxes were laid they would be in proportion to true population. 7. Export Duties — These are entirely forbidden to Congress (48). The reasons have been given before (see page 142, sec. 5). This clause forms an exception to the one in sec. 8 (26) which gives the right to lay duties. 8. Equality in Trade — It was the aim of the Con- stitution to secure to each State freedom and equality in trade. For this reason any preference of the ports of one State over those of another is forbidden (48).* 9. Appropriations — An appropriation is a law pro- viding that a certain sum of money in the treasury shall be paid out for a certain purpose. The Consti- tution provides that no money shall be drawn out except when so appropriated by Congress (49). This places the public money beyond the reach or control of the Executive or any other officer, and secures it in the hands of the representatives of the people. Even the President cannot draw his salary unless Congress makes the appropriation. In pursuance of this provi- * The last part of that clause, referring to entry, etc., may not be easily understood. It does not mean that vessels going from one State to another shall not be obliged to enter, clear or pay duties (as it might be literally construed). There are laws of Congress enforc- ing these things in certain cases. It means only that when a vessel is bound from a certain State it shall be obliged to clear only in that State, and when bound to a certain State it shall be obliged to enter or pay duties only in that State. The purpose was to prevent ves- sels from being compelled to enter, clear or pay duties at ports from which they did not come or to which they were not bound. This very hardship had been imposed upon American commerce before the Revolution by England, who compelled American vessels sailing to a foreign port to first go to England. LEGISLATIVE DEPART3IENT 1^3 sion, Congress, at every session, passes laws specifying the objects for which money is to be appropriated. 10. Statements — The clause requiring statements of the receipts and expenditures to be published makes Congress responsible to the people. Such statements are published annually, and short abstracts are pub- lished monthly (49). 11. Titles of Nobility* — Congress is entirely pro- hibited from granting these (50). They would tend to introduce the distinctions of rank here that exist in many other countries, which the Constitution desires to prevent. As the Declaration of Independence says, " all men are created equal." 12. Relations of Officers with Foreign Sovereigns — Officers of the United States Government are for- bidden to receive any present, office, or title from any foreign state, unless with the consent of Congress (50). This is to guard them against foreign influence. OHAPTEE XXXIII PROHIBITIONS ON THE STATES 1. Treaties — Section 10 of Article I. enumerates cer- tain things which each State is forbidden to do. The first one is, to make any treaty, alliance, or confedera- ationf (51). Another clause forbids a State to make any kind of agreement with another State or with a foreign power without the consent of Congress (52). * See page 20, sec. 6. f For the meaning of treaty see page 172. An alliance is a union for some common object. A confederation is a broader word, signi- fying a closer union. 164 NATIONAL G0VERN3IENT If the States, separately, were allowed to make trea- ties or form alliances with foreign powers, the rights and interests of one State might be injured by the treaties made by another. As the States united con- stitute but one Nation, it is obvious that the power to treat with other nations properly belongs to the Gen- eral Government. 2. Letters of Marque — The States are forbidden to issue these, as by doing so one State might, for local reasons, direct the enmity of a foreign nation against the whole Nation, and perhaps involve the whole country in war. 3. Coinage — This is forbidden to each State. One object in giving this power to Congress was that the, coinage might be uniform (see page 1 50), but if each State had the power also, this object might not be attained. 4. Bills of Credit — The States are forbidden to emit them. Bills of credit are promises to pay cer- tain amounts of money, issued for the purpose of be- ing used as money. The purpose of the clause was to prevent the future occurrence of the evils they had already caused.* The United States Treasury notes are bills of credit. Bank bills issued by State or national banks are not within the prohibition. 5. Legal Tender — The States are forbidden to make anything but gold and silver coin a tender in payment of debts. Tender, or, as it is usually called, legal tender, means that with which a debt may be * Bills of credit, to a vast amount, were issued by the States dur- ing the Revolution, and for some time thereafter. This paper money, having no funds set apart to redeem it, became almost worth- less. LEGISLATIVE DEPARTMENT 165 paid, by law.* Some of the States had declared their irredeemable paper money a lawful tender. But paper money and property of all kinds are continually liable to fluctuation in value, and might subject those who should be compelled to receive it to great inconven- ience and loss. Gold and silver are considered more stable in their value. 6. Bill of Attainder— This is forbidden to the State legislatures for the same reason that it is forbid- den to Congress (see page 161, sec. 4). 7. Ex post facto Law — The States are forbidden to pass such laws, as they are unjust (see page 161, sec. 5). 8. Law Impairing- the Obligation of Contracts — The passage of such a law by any State legislature is forbidden. Laws that would release men from their obligations would be contrary to the principles of jus- tice, and destroy all security for the rights of property. f 9. Titles of Nobility— The granting of these by any State is forbidden, for the same reasons as in the case of Congress (see page 163, sec. 11). 10. Duties — States are forbidden to lay duties on * Not all money is legal tender. The legal tender in this country now is gold, silver, and U. S. notes (see page 150). The creditor may take what he chooses in payment of the debt, but he cannot be compelled to take anything but legal tender. fAs bankrupt laws release debtors from the payment of their debts, and consequently impair the obligation of contracts, the ques- tion has arisen whether the States have power to pass them. From decisions of the Supreme Court of the United States, which is the highest judicial authority, it appears that a State may not pass a bankrupt law discharging a debtor from the obligation of a contract made before such law was passed. But it was not to be considered a law impairing the obligation of a contract, if it existed before the contract was made ; because the parties, who are presumed to know that such law exists, may guard themselves against loss. 166 NATIONAL GOVERNMENT imports or exports (52). The reason that import duties are not allowed is that they may be uniform throughout the country. This has been explained before (page 142). Export duties are generally con- sidered impolitic, as tending to discourage the indus- tries of a country. 11. Inspection Duties — The exception allowing a State to lay duties necessary to execute its inspection laws was deemed proper. Laws are passed by the States for the inspection or examination of flour and meat in barrels, leather, and sundry other commodi- ties in commercial cities, to ascertain their quality and quantity, that they may be marked accordingly. By this means the States are enabled to improve the quality of articles produced by the labor of the coun- try, and the articles are better fitted for sale, as the purchaser is therefore guarded against deception. A small tax is laid upon the goods inspected, to pay for their inspection. But, lest the States should carry this power so far as to injure other States, these " laws are to be subject to the revision and control of Congress." 12. Tonnage Duties — These are duties laid upon vessels; so much per ton.* They are forbidden to States (unless with the consent of Congress), as they are a means of regulating commerce, which is a sub- ject given entirely to Congress. 13. War — We have seen that war is another subject of which Congress is to have complete control (Chap- ter XXXL). For this reason the States are forbid- den to keep troops or ships of war in time of peace, or to engage in war, without the consent of Congress. * A vessel's tonnage is not what she weighs, but the number of tons of freight she can carry. LEGISLATIVE DEPARTMENT 167 PKOIIIBITIONS [In Art. I., sees. 9 and 10.] I. ON THE UNITED STATES I. On Congress ; as to r I. Taxes ; { 1. Export Duties, ( 2. Direct taxes, not in proportion to census. " II. Commerce ; ^ 1. Abolition of Slave-Trade prior to 1808, ( 2. Preference of Ports. III. Other Laws ; fl. Suspension of Habeas Corpus, I 2. Bill of Attainder, 1 3. Ex post facto Law, [4. Titles of Nobility. II. On U. S. Officers ; j 1. Paying Money without Appropriation, { 2. Receiving from Foreign State, any fl. Present, I 2. Emolument, 1 3. Office, or (4. Title. II. ON THE STATES ; AS TO I. Taxes ; ( 1. Import Duties, - 2. Export Duties, ( 3. Tonnage Duties. II. Agreements with other States or Nations ; \ 1. Treaty, etc., ( 2. Any Agreement. III. War; ( 1. Letters of Marque, -! 2. Troops, or War- vessels, ( 3. Engaging in War. IV. Money ; ( 1. Coinage, - 2. Bills of Credit, / 3. Legal Tender. . V. Other Laws ; f 1 . Bill of Attainder, 2. Ex post facto Law, 3. Law impairing Contract, 4. Title of Nobility. 168 NATIONAL GOVERNMENT SECTION III.— EXECUTIVE DEPARTMENT CHAPTER XXXIV PRESIDENT AND VICE-PRESIDENT '. ELECTION, QUALIFICA- TIONS, ETC. 1. Executive — One of the strongest distinctions be- tween the present Union and the Confederation is that now we have a fnll and strong executive department, while under the Confederation there was none (see page 98). 2. Number — In regard to the organization and powers of the executive department there was great diversity of opinion in the Constitutional Convention. The three principal points discussed were (1) whether it should consist of one person as chief, or more ; (2) the term; and (3) the mode of election. First : ought the chief executive power to be vested in one person, or a number of persons ? Laws should be executed with promptness and energy. This is more likely to be done by one man than by a number. If several were associated in the exercise of this power, disagreement and discord would be likely to happen, and to cause frequent and injurious delays. For this reason it was decided to have one President (53). 3. Term— Second : as to the term. It was argued that the term should not be so short as to induce him to act more with a view to his re-election than to the public good, nor so short that he would not feel some independence of the people, and could not carry out his system of public policy ; nor so long that he would EXECUTIVE DEPARTMENT 169 feel too independent of the people. The term of four years was decided upon as the most likely to avoid all the objections (53). It commences March 4th next after the election. A new Congress is elected and begins its term at the same time as each successive Presidential term. 4. Mode of Election — Third : as to the manner of electing the President. Several modes were proposed in the Convention, among them these : by Congress, by the State legislatures, by the people directly, and by Electors chosen for the purpose in some way. The last was the one adopted (54). The object was two- fold : (1) to keep the legislative and executive depart- ments distinct, - and (2) to make certain of such a man being elected as would be worthy of the high position. If Congress elected him, it would be practically com- bining the two departments ; and on the other hand, if the people elected him directly, it was thought that they might be led into error through popular enthu- siasm or misconception, and that at the time of an election there would be great excitement ; but if he was elected by a body of select men, they would act with more deliberation and their judgment would be probably correct. And if they were selected for that one purpose it Avas thought they would be better fitted for it than the State legislatures would be. 5. Election of Electors — The Constitution does not prescribe the manner in which the Electors shall be appointed or chosen ; this is left to the States. At first no uniform mode was adopted by the different States, but at present in all the States they are * For this reason no Member of Congress nor civil officer can be an Elector. 170 NATIONAL GOVERNMENT selected directly by the people, usually, by general ticket* By a law of Congress, the Electors are re- quired to be chosen in all the States on the same day, which is the Tuesday next after the first Monday of November. 6. Proceedings of Electors — On the second Mon- day of January the Electors meet in their respective States and vote for President and Vice-President. What follows is amply described in the Constitution itself (Amend. XIL). In 1804 a change was made in the mode of electing the Vice-President. f 7. Election by the House — On the second Wednes- day in February after the election the Electoral votes are counted, and if no one has obtained a majority, the House and Senate elect the President and Vice-Presi- dent respectively. This is described in the Constitu- tion and need not be repeated here (95)4 8. Present Practice — When the Constitution was framed it was intended that the Presidential Electors should exercise their own personal judgment, and that thus the President should be selected by the calm wis- dom of a body of men selected for their fitness to perform such a duty. But the existence of political parties and their action has nullified the plan. Now the nominating conventions put forward the candi- dates for the Presidency, and the Electors are after- ward nominated and voted for entirely with reference to those candidates, it being known beforehand which * That is, every voter votes for as many men as the State is entitled to have Electors. f The Constitution itself shows what this was (55, 95). \ The President has been elected by the House twice ; Jefferson in 1801, and John Quincy Adams in 1825. EXECUTIVE DEPARTMENT 171 one of the candidates they will vote for ; and they never exercise their judgment, but simply record the vote of the people. It is unfortunate that the original plan could not have succeeded, for the present practice is open to the objections of an election directly by the people, which it is in effect. 9. Qualifications — These the Constitution specifies (57). It will be noted that they are higher than those required for a Senator, because the office is so much more important. No length of residence here by a foreigner will qualify him. 10. Vacancy — In case of a vacancy in the office of President, the Vice-President becomes the President.* Under the provision of the Constitution (58), Congress has enacted that, when there is neither President nor Vice-President, a member of the Cabinet shall, in the following order, act as President : The Secretary of State, Secretary of the Treasury, Secretary of War, Attorney-General, Postmaster-General, Secretary of the Navy, Secretary of the Interior. 11. Salary — The President has a salary, its amount being fixed by Congress. Congress may increase or diminish it, but not so as to affect the President in office at the time (59). If Congress could reduce his salary at pleasure, he could never afford to be inde- pendent of them. On the other hand, if it could be increased during his official term, he might be tempted to use undue influence to procure a needless increase. * The Vice-President has no duties to perform as Executive of the Nation. He merely presides in the Senate. In dignity the office of President is much higher. 1Y2 NATIONAL GOVERNMENT OHAPTEE XXXV POWERS AND DUTIES OF THE PRESIDENT 1. Commander-in-Chief — The President is com- mander-in-chief of the entire military force of the Nation (61). This power must be given into the hands of one man. If there were more (even two) there might be no firmness or promptitude, qualities absolutely necessary to render any army useful. The President is the proper person, for he is the Executive of the Nation. But the President does not take the field himself. The actual operations are conducted by his generals under his supervision. 2. Reprieves and Pardons * — These may be granted by the President, but only in cases of convictions by the United States courts (61). Over State offences he has no jurisdiction. Peculiar cases may arise where, although a person is adjudged guilty of a crime, he does not deserve the punishment the law provides ; as if, for instance, new evidence should arise showing him to be innocent. But the pardoning power may be greatly abused, and some claim that it would be better to take it away altogether. 3. Treaties — A treaty is an agreement between nations, and it may be upon any subject : for peace, for war against some third power, concerning com- merce, the mail, the return of escaped criminals, or any other subject. The power to make them for the United States rests with the President. But this is so * See page 48, see. 7. EXECUTIVE DEPARTMENT 173 important a duty that it is not intrusted to him alone, but two-thirds of the Senate must concur (62).* 4. Ministers — These are officers sent to a foreign nation to represent their own nation there. In this country they are appointed by the President, with the advice and consent of the Senate. Some are now called ambassadors. Our government sends a minister to each of the civilized and semi-civilized nations of the world. They reside abroad and transact any business that our government may have with the government of the country where they are. They often negotiate treaties, f 5. Consuls — These the President appoints in the same way. Consuls are agents of inferior grade. They reside in foreign cities. Their business is to aid their respective governments in their commercial transactions with the countries in which they reside, and to protect the rights, commerce, merchants, and seamen of their own nation. Hence much of their business is with masters of vessels and with mer- chants. * Treaties are negotiated ; that is, the provisions or terms are arranged and agreed upon, by the agents of the two governments ; and a copy of the articles of agreement is sent to each government to be ratified. Both governments must ratify, or the treaty fails. Treaties are ratified, on the part of our government, by the Presi- dent and Senate. This is what is meant by their making treaties. f Until recently we have rarely sent ambassadors, but ministers plenipotentiary. An ambassador who is intrusted with the ordinary business of a minister at a foreign court, and who lives there, is called an ambassador in ordinary. An ambassador extraordinary is a person sent on a particular occasion, who returns as soon as the business on which he was sent is done. He is sometimes called envoy ; and when he has power to act as he may deem expedient, he is called envoy plenipotentiary ; the latter word signifying full power. 174 NATIONAL GOVERNMENT 6. Judges — The President and Senate appoint also the judges of the Supreme Court, and of the Circuit and District courts. 7. Other Appointments — Thus we see that the President has very important powers of appointment. Nor is he under the control of the Senate always, for under the Constitution (62) Congress has vested the appointment of very many inferior officers in him alone, or in the Heads of Departments, who are ap- pointed by him and more or less under his influence. The advantage is that a President is thus better able to carry out his own policy if he has the selection of those who shall aid him. But the danger is that if we should obtain an ambitious or unprincipled President he might use the power of appointment simply to re- ward those who would advance his own interests, and greatly to the injury of the people.* 8. Vacancies — But in those cases where the Senate must concur in appointments, vacancies will often oc- cur while the Senate is not in session. In such cases the President may alone make temporary appoint- ments (63). Without such a power somewhere, the public interests would often suffer serious injury. When the Senate acts on appointments it is said to go into executive session. * For some time past the two political parties have used this power to advance their own interests, and when a new party has come into power very many of the civil officers have been removed without cause in order that members of that party might be appointed in their stead. The aim of Civil Service Reform is to establish the cus- tom of retaining officers, at least of inferior rank, as long as they do their duty, and of appointing those best fitted for the office, no mat- ter to which party they belong. This is the policy of England, and ought to be of our country. EXECUTIVE DEPARTMENT 175 9. Removals — Most of the officers, clerks, etc., in the Civil Service * of the United States are appointed for no particular term, but hold office until the ap- pointing authority removes them. Those appointed by the President, or any other officer alone, can be removed by him or such officer at any time. With regard to those whose appointments the Senate must concur in, it was urged at first by many that the con- sent of the Senate must also be obtained to the re- moval, but this has not been the practice. Up to 1867 the President exercised the power of removal alone in all cases. In that year the " tenure of office act " was passed, requiring the consent of the Senate to the removal of those officers whose appointment they must concur in. This, however, was repealed March, 1887. 10. Message — At every session the President sends to Congress a message, containing recommendations of the passage of such measures as he judges expedient (64). This, of course, gives little information, but it serves to fix the responsibility upon them. 11. Convening- Congress — Besides the regular ses- sions each year, Congress may be convened by the President when he thinks an extraordinary occasion has arisen such as to render it necessary, but at such times they only act upon the subjects he lays before them. 12. Reception of Foreign Ministers — This is de- volved upon the President as the proper person to repre- * The " Civil Service " means the body of persons employed by the United States, from the Cabinet down to the lowest clerks in the Post-Office, except the army and navy. It includes now perhaps 100,000 persons. 176 NATIONAL GOVERNMENT sent the Nation. It is usually a merely formal matter, but may be one of great importance. In case a revolu- tion has occurred in some foreign country and a new minister is sent here, the President in deciding whom he will receive must decide whether to recognize the new or the old government, and this might involve us in Avar. 13. Execution of the Laws — This is the most im- portant and most comprehensive duty devolved upon the President. It calls upon him to see that above all things obedience is rendered to all the laws of the Union. It is for this purpose that he is made com- mander of the army and navy. In 1861 President Lincoln would have disregarded this high obligation had he refused to take every means to subdue those States which had openly revolted from the authority of the Nation. By comparing this chapter with Chapter XI. it will be seen how similar the powers and duties of the Pres- ident are to those of a State governor ; but those of the former are as much more important in their exer- cise than those of the latter, as the Nation is greater than any State. The State constitutions generally have been modelled on the United States Constitution. CHAPTER XXXVI AUXILIARY EXECUTIVE DEPARTMENTS 1. Departments — The great amount and variety of the executive business of the Nation require the di- vision of the executive department into several subor- dinate departments, and the distribution among them EXECUTIVE DEPARTMENT 177 of the different kinds of public business. These de- partments are nine in number, named as follows: (1) Department of State, (2) Department of the Treas- ury, (3) Department of the Interior, (4) Department of War, (5) Department of the Navy, (6) Department of Justice, (7) Post-Office Department, (8) Department of Agriculture, and (9) Department of Labor. 2. Cabinet— At the head of each of these Depart- ments is a chief officer. These chief officers, some- times called Heads of Departments, are named re- spectively the Secretaries of State, of the Treasury, of the Interior, of War, and of the Navy, the Attorney- General, Postmaster-General, Secretary of Agricult- ure, and Commissioner of Labor, and are appointed by the President with the consent of the Senate. The first eight of these form the Cabinet, and act as a coun- cil of advice to the President. Owing to this close relation between a President and his Cabinet it is usual for the Senate to confirm whomever the Presi- dent selects for Cabinet officers. 3. Department of State — This department has charge of all the business of the Nation with foreign nations. The Secretary of State conducts all our dip- lomatic* correspondence, being the official organ of communication with the ministers of foreign govern- ments sent to this country, and with our ministers abroad. He is also the custodian of the seal, the laws, and other official documents of the Nation. 4. Department of the Treasury — To this belongs the charge of the finances of the Nation. It collects the revenue from customs and excises, pays the debts * Diplomacy is the science of conducting negotiations between nations. 12 178 NATIONAL GOVERNMENT of the Nation, coins the money, and takes charge of all money paid to the government. The vast amount of business in this department requires a great number of assistants. All the custom-houses, mints, and sub- treasuries form part of it. The building devoted to its business in Washington is one of the largest there. 5. Department of the Interior — The chief subjects of which this department has charge are the taking of the census every ten years (5), the management and sale of the public lands, the management of the Indi- ans, the payment of pensions * the granting of patents, and education. 6. Department of War — This department has charge of the procuring of supplies and equipment and other matters relating to the army. Its duties are of course far more important in time of war than in peace. The coast signal service belongs to this department. 7. Department of the Navy — This department has charge of the navy, the procuring of supplies and equipment of vessels of war, etc. 8. Department of Justice — The duties of the At- torney-General and his assistants are to attend to all suits in the United States courts in which the United States is interested, and to give their opinions in writ- ing on legal questions when requested by the President or Heads of Departments. 9. Post-Office Department — This has charge of the * A pension is a yearly allowance to a person by the government for past services. In this country pensions are granted to those who are disabled in war. If a soldier is killed a pension is granted to his widow or children. The amount of pensions now paid in this coun- try is very large. EXECUTIVE DEPARTMENT 179 mail. All post-offices form a part of it. The Post- master-General establishes post-offices, provides for carrying the mail, and has general charge of all matters connected with it. 10. Department of Agriculture — Here are investi- gated matters pertaining to the agricultural interests of the country, such as the destruction of injurious insects, the eradication of diseases of live-stock, the best kinds of seed, of manures, etc., etc. Its publica- tions are widely distributed among the farmers, as are also large quantities of seeds of the best varieties. 11. Department of Labor — This is a purely statis- tical bureau, and is engaged in the collection and pub- lication of facts relating to strikes, cost of production, wages, industrial depressions, and other matters bear- ing upon labor and industry. 12. Other Executive Branches — In addition to the departments mentioned, various other bureaus and commissions have been established, among which are the following : (1) The Interstate Commerce Commission, devoted to the regulation of railway rates ; (2) the Civil Service Commission, devoted to the examination of those en- tering the public service, for whom educational tests are imposed ; (3) the Fish Commission, engaged in all matters pertaining to the improvement of fisheries in the United States; (4) the National Museum, Smith- sonian Institution and Bureau of Ethnology, for the maintenance of a museum of natural history at Wash- ington, and the study of North American anthro- pology ; and (5) the Government Printing Office, wherein are printed the annual reports required of each Department, the " Congressional Record," or ver- 180 NATIONAL GOVERNMENT batim reports of the proceedings of Congress, and all other statistical and educational reports issued by the various branches of the government service. SECTION IV.— JUDICIAL DEPARTMENT CHAPTER XXXVII NATIONAL COURTS AND THEIR JURISDICTION a. Courts 1. Necessity for National Judiciary — We now come to the third article of the Constitution, provid- ing a national judicial department. The Confedera- tion had none, and was thus dependent on the States. The chief reason why a national judiciary is necessary in addition to the State systems is that the State judges might be biased in favor of their own State. Laws of Congress often bear with greater hardship on some States than on others, and public opinion in those States upon whom the burden lay might be so strong in opposition that no judge elected and sup- ported by those people would sustain it. But if the judge belonged to a national system, and thus repre- sented and was supported by the whole Nation, he would have nothing to fear, and thus his decision would be more impartial. The experience of the Con- federation taught this. 2. Courts — The judiciary consists of three grades of courts : the Supreme Court, the Circuit Courts of Ap- peals, and the District Courts. The Supreme Court is the highest court in the land, and was established by JUDICIAL DEPARTMENT 181 the Constitution itself (66). The others were estab- lished by Congress. The Supreme Court consists of nine judges, and its jurisdiction is almost wholly ap- pellate ; that is, cases are not tried in it, but it only hears appeals from the other courts, and that only in the most important cases. It has original jurisdiction in a few cases. Of the Circuit Courts there are nine in the country. They are next lower in grade to the Supreme Court, to which appeals are taken from them. There are fifty-eight District Courts, and they are the lowest in grade. They hear the smaller cases, and appeals are taken from them to the Circuit Courts. The jurisdiction of all the courts is both civil and criminal.* 3. Court of Claims — No one has any right to sue a government. Such a right is inconsistent with sov- ereignty. So, in this country, no one has a right to sue the people (they are the government), for it is the people from whom he gets any right, even the right to his own property or his life, and to admit that any one had a right to force anything from them would be ad- mitting that they were not sovereign. For this rea- son no one has a right to sue the United States, or any State (94). But Congress has established a court called the Court of Claims, in which those having claims which they think ought to be paid by the United States may bring a suit in the ordinary way, in form against the United States, and the court de- cides whether they should be paid. If it is decided in the claimant's favor it is so reported to Congress, and Congress generally will make an appropriation. But *For explanation of the terms used in this section see page 79. 182 NATIONAL GOVERNMENT Congress is free to do as it chooses, and there is no way to compel payment. Some States have estab- lished similar conrts of claims, but though proceeding in legal methods, they perform rather the functions of legislative committees than courts. 4. Tenure of Office — By the Constitution the judges hold office during good behavior (66). This means until removed on impeachment for bad behavior, and thus in most cases it means for life. In no other department of the general government are offices held for so long a term. The purpose is to insure a correct and impartial administration of justice by making them independent. If they could be displaced at the pleasure of the appointing power, or by frequent elec- tions, they might be tempted to conform their opin- ions and decisions to the wishes of those on whom they were dependent for continuance in office. The object of the framers of the Constitution was to remove them as far as possible from party influence. 5. Salary — As with the President, so here, Congress, though it fixes the salaries of the judges, cannot dimin- ish them while in office. 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. h. Jurisdiction 6. In General — The jurisdiction of the United States courts does not extend to all kinds of cases, but only to such as the Constitution specifies, just as Congress has power to pass only such laws as the Constitution allows it to. The cases enumerated in the Constitution (67) in which the national courts have jurisdiction may be JUDICIAL DEPARTMENT 183 divided into three general classes : (1) those arising under the Constitution, the laws of Congress, and treaties ; (2) those affecting foreigners ; and (3) those betAveen different States or the citizens of different States.* 7. Cases arising under United States Laws — Cases which arise under the Constitution, laws, or treaties of the United States may be those where a person is given a right by the Constitution, laws, or treaties which he does not have by the laws of his State (as, for instance, a right to sue an infringer of a patent granted to him), or where he violates a law of Con- gress, or treaty (as counterfeiting coin, or doing any- thing forbidden by a treaty), or where any question arises as to the meaning of the Constitution, laws, or treaties of the United States, or as to whether a law of Congress is constitutional f or not. In these cases it makes no difference whether the parties are citizens of the same State or not. The jurisdiction is given to the national judiciary for two reasons : (1) in order that in the interpretation and enforcement of its own laws it may not be dependent on the States, and (2) in order that the interpretation may be uniform throughout the country. Were it left to the State courts, some States * It will be seen, therefore, that the great majority of cases between citizens of the same State must be brought in the State courts. So also the great majority of criminal cases are tried in the State courts. f A law of Congress is unconstitutional (and wholly void) unless the Constitution has given Congress the right to pass it (see page 140). If, for instance, Congress should pass a usury law (that is, a law reg- ulating the interest of money), or a law abolishing capital punish- ment, it would be void, because it has not been given these powers by the Constitution. 184: NATIONAL GOVERNMENT might decide that a law meant one thing, and other States that it meant another. 8. Cases affecting- Foreigners - — The decision of these properly belongs to the national courts, for the reason that if a foreigner is injured here, the Nation, and not the State, is responsible to the foreigners government : therefore the Nation, and not the State, should redress the injury. And where the foreigner is an ambassador, or other minister, the Supreme Court has original jurisdiction of the case (68). This is in order to provide as certainly as possible against the danger of injustice being done, for it might involve the country in a dispute, or even war, with his coun- try. All public ministers are treated with the highest respect, for this reason. Admiralty jurisdiction* is also given to the national courts, for the reason that many admiralty cases affect foreigners. Another rea- son is that admiralty is a part of the regulation of commerce, which we have seen is a subject taken away from the States and given entirely to the United States. 9. Cases affecting Different States, or their Citi- zens — The third class of cases in which the national courts have jurisdiction is where the parties on the two sides, plaintiff and defendant, are either two different States, or citizens of different States. The reason for this jurisdiction is to prevent dissension among the States. If the decision of a question which * Admiralty jurisdiction is jurisdiction of cases arising on the sea, or connected with vessels ; as, for instance, cases of piracy, of col- lision on the sea, or claims for repairing a vessel, or contracts to carry freight or passengers. No State has any jurisdiction over the ocean. JUDICIAL DEPARTMENT 185 affected two States were left to the courts of either, the controversy instead of being closed would be inten- sified. The history of the small German States and of the States under the Confederation illustrates this. But now, there being an impartial arbiter, the United States, the States submit to the decision.* CHAPTER XXXVIII TREASON 1. Why Defmed.-^-Treason is one of the highest crimes that man can commit. Yet, such deep resent- ment and alarm does it create among the people, for it is an attempt to overthrow the established govern- ment, that the tendency always is to see it in acts which may be innocent, and which at least do not have such a purpose. For this reason the Constitution itself says what shall be considered treason, and what proof shall be necessary to establish it (70). It must * It will be noticed that the jurisdiction in the cases mentioned in this and the preceding section depends upon the character of the persons suing or sued, while in those mentioned in section 7 it de- pends upon the character of the case. When the case is such as to give the national courts jurisdiction it makes no difference whether the parties are citizens of different States or not, and when they are citizens of different States, or one is a foreigner, those courts have jurisdiction whether the case is one of those mentioned in section 7 or not, Not all the cases enumerated in sec. 2 of Art. III. (67) have been spoken of separately in the text. It will be a useful exercise for the pupil to write down each separate case mentioned there, and tell to which one of the three classes described above it belongs, and why. But he will be apt to make a mistake as to suits by citizens against States, unless he consults Amendment XI. (seepage 198). A State cannot be sued except by another State. 186 NATIONAL GOVERNMENT be either making war against the United States, or adhering to its enemies. And it is not sufficient that there is an intention or even a conspiracy to do these things, though they are highly reprehensible. There must be some overt (i.e., open) act, before it is treason. 2. Proof — The proof required is more than in the case of most crimes. Generally one may be convicted, even of murder, upon the testimony of one witness directly to the commission of the crime, or even with- out any direct testimony upon its commission, pro- vided the other circumstances proven point toward it. But in treason against the United States, no matter what circumstances point toward it, there must be two witnesses to the same act. 3. Punishment — Under the authority given by the Constitution (71) Congress has declared the punish- ment of treason to be death, or, at the discretion of the court, imprisonment and fine ; the imprisonment to be for not less than five years and the fine not less than $10,000. An attainder of treason means here judgment by a court. In England formerly, when one was adjudged guilty of treason all his property was forfeited to the king, and he could neither inherit nor transmit property to heirs. This is what is meant by corruption of Hood. Thus for a man's treason his innocent relatives were punished with him. But that is not so here. A law of Congress provides that no conviction (of any crime against the United States) shall work corruption of blood or any forfeiture of estate. 4. The Civil War — In this country there were no prosecutions for treason after the War, even of the leaders. They were, however, laid under certain polit- MISCELLANEOUS PROVISIONS 187 ical disabilities, but even these have now (1894) been almost entirely removed. 5. Other Crimes — The great majority of crimes, such as murder, forgery, theft, etc., lie generally within the jurisdiction of the State. The State laws describe them, and the State courts punish them. The other subjects, beside treason, upon which Congress has au- thority to define offences and establish their punish- ment, and of which the national courts have criminal jurisdiction, are chiefly as follows : All crimes com- mitted on the sea, piracy, murder, theft, etc. ; perjury and other judicial crimes when committed m the national courts ; counterfeiting United States notes or coin ; forgery of patents or other United States papers ; robbery of the mail, or other crimes connected with the postal service ; extortion by a United States officer ; the holding of slaves ; and preventing any one from exercising his civil rights, by intimidation or other means. SECTION V.— MISCELLANEOUS PROVISIONS CHAPTER XXXIX RELATIONS OF STATES 1. Records — Article IV. of the Constitution contains a number of important provisions, most of which affect the relations of the States to each other and to the General Government. The first one is in regard to the effect which the laws, records, and judgments of one State shall have in another, and the provision is that they shall have full effect everywhere (72). 188 NATIONAL GOVERNMENT For instance, if a person is sued in New York and there is a decision on the merits against him, it is decided, once for all, and it may be enforced against him wherever he goes. Were it not for this clause States might provide that no matter how many times a question had been tried, it must be tried over again with all the evidence before they would enforce it. Congress has prescribed the manner in which public acts and records may be proved, and when proven they are conclusive as to the things stated in them. 2. Privileges of Citizens — No State can grant priv- ileges to its own citizens, from which the citizens of other States are excluded (73). The purpose is to put all on an equality everywhere. Without such a pro- vision, any State might deny to citizens of other States the right to buy and hold real estate, or to become voters after living in the State the prescribed time, or to enjoy equal privileges in trade or business. 3. Fugitive Criminals — The officials of one State have no power in another State as officials. For instance, the police or sheriff of New York City have no power to arrest a murderer in Jersey City. But the Constitution provides against the escape of crimi- nals in this way (74). 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 first State. This re- quisition is usually complied with, and yet cases have occurred in which a Governor has refused to deliver up an accused person, and there is no way provided to compel him. This seems to have been an oversight on the part of the framers of the Constitution. 4. Fugitive Slaves — By the common law, a slave MISCELLANEOUS PROVISIONS 189 escaping into a non-slaveholding State became free. As it was presumed at the time the Constitution was framed that other Northern States would follow Mas- sachusetts in abolishing slavery, the Southern States wanted some provision to enable them to reclaim their fugitive slaves. The Northern States, though opposed to this, yielded for the sake of unity (75). Escaped slaves were, under this provision, returned to the South up to 1861. The clause is of course obsolete now.* 5. New States — The provision (76) with regard to the admission of new States into the Union 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. South of the Ohio River also was a large tract, prin- cipally unsettled, within the chartered limits of Vir- ginia, North Carolina, and Georgia, extending west to the Mississippi. These two tracts it Avas presumed would soon become so thickly populated as to require separate governments. Since that time vast tracts have been acquired from France, Spain, Texas, and Mexico. From all these tracts thirty-one new States have been formed and admitted into the Union. When formed from the territory of the United States the consent of Congress only is required, but when formed from the territory of another State the consent of that State must also be obtained. + The case of West Vir- ginia was exceptional. * The words " slave " does not appear in the original Constitution, f After the late war Congress declared the Southern States to have 190 NATIONAL GOVERNMENT 6. United States Territory — Congress has complete power over the territory not organized into States (77). It establishes territorial governments, and these carry on all the ordinary governmental duties, but they are subject to the control of Congress. The clause with regard to the claims of States has no effect at the present day. 7. Protection by United States — The United States must always see to it that the State governments are republican in form (78). The object is to perpetuate republican institutions. If some large State should establish a monarchy, it might in time engulf smaller ones, and in the end destroy the Constitution. Its policy would be in opposition to all republican institu- tions. So, if a State is in danger from invasion, or insurrection, it may call on the Nation for assistance. CHAPTER XL AMENDMENT : DEBT : SUPREMACY '. OATH : TEST : RATIFICATION 1. Reason for Amendment — Article V. describes the manner in which the Constitution may be amended (79). 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 constitution should contain some provision for its amendment. 2. Mode of Amendment — This is described in the no lawful governments, and placed them under temporary military governments. In time they adopted new constitutions, and were readmitted to the Union by Congress. MISCELLANEOUS PROVISIONS 191 Constitution (79). If amendments could be made whenever desired by a bare majority of the States, the strength and efficiency of the Constitution might be greatly impaired by frequent alterations. It is therefore wisely provided that a mere proposition to amend cannot be made except by a majority of at least two-thirds of Congress, or of the legislatures of at least 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. 3. Public Debt — The clause (80) which adopts the prior debts of the country was intended to allay the fears of public creditors, who apprehended that a change in the government would release the Nation from its obligations. But their fears were probably groundless, for one purpose in changing the govern- ment was to provide a way to pay those debts. 4. Supremacy — The next clause (81) declares that the Constitution, the treaties and the laws of Congress shall prevail over any State law or constitution. This is the clause giving efficacy to the whole Constitution. If any State could nullify the national law, nothing would be gained by the Union. Now, when a State law or State Constitution is passed contrary to the law of the Nation every one must consider it void, and the State judges must declare it so. 5. Oath of Allegiance — All members of all State and national, legislative, executive, and judicial depart- ments are required on taking office to take the oath of allegiance, i.e., to support the Constitution of the United States (82). Binding the conscience of public officers 192 NATIONAL GOVERNMENT 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 Constitution, but also to discharge the duties of their offices to the best of their ability. 6. Test Oatli — In the same clause, test (often called test oath) 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 transub- stantiation, and to assent to the doctrines and conform to the rules of the established church. The object of forbidding it here was to secure to every citizen the full enjoyment of religious liberty. But this clause does not bind the States. They can provide tests, but usually they have similar clauses in their constitutions. 7. Ratification — By the Constitution (83) nine States were to ratify it before it had binding effect in any. The immediate ratification of the Constitution by all the States was hardly to be expected ; a unanimous ratifica- tion, 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. Commencement of Government — Thus in July, 1788, the government had begun. During 1788 and the * The Constitution could not become binding on any State except by its own ratification, for the State was sovereign. But with amend- ments it is different. When accepted by three-fourths they are bind- ing on all. They have given up their sovereignty to this extent. By accepting the Constitution at first each State agreed that amendments might be made binding in that way, even against their consent. MISCELLANEOUS PRO VISIONS 193 early part of 1789, Senators, Representatives, and Presidential Electors were chosen by the States. \n February, 1789, General Washington was elected President by the Electors, and was inaugurated April 30th following, when the 1st Constitutional Congress assembled. CHAPTER XLI THE FIRST TWELVE AMENDMENTS 1. In General — It is remarkable that during so long a period the Constitution has received so few changes. Up to 1865, though twelve amendments had been added, only the last two of them had made any altera- tion in the original provisions. This proves the wisdom and skill of the patriots who framed it, to whom we should be ever duly grateful for having furnished our country with so admirable a bulwark of liberty. 2. Bill of Rights — This is a name given to the first ten amendments, because they contain a list of the rights deemed most important to the liberty of the people. These amendments do not change any original provision of the Constitution. They act merely as restrictions and limitations upon the powers of Con- gress, and were deemed unnecessary by those avIio framed the Constitution, for the reason that those rights were so generally acknowledged, and that the powers of Congress were limited to those expressly granted to it. But as several of the State conventions iad, at the time of adopting the Constitution, expressed a desire that declarations and guaranties of certain rights should be added, in order to prevent miscon- struction and abuse, the first Congress, at its first ses- 13 194 NATIONAL GOVERNMENT sion, proposed twelve amendments, ten of which were ratified by the requisite number of States. 3. Its Purpose — As long as popular liberty lasted sufficient to maintain any part of the Constitution it is not probable that any of these rights would have been violated, even had they remained unexpressed. And yet it was of value to express them. They are thus kept in the mind of all, serving as reminders, both to the ambitious man who in his power grows neglectful of the people's rights, and to the people themselves, who sometimes, through excitement and sudden indignation, are inclined to forget the rights they have guaranteed to every one. It is important to remember that the first twelve amendments affect only Congress and the national courts, not the State legislatures. For this reason similar provisions are often inserted in State constitutions, to bind the State legislatures and courts. We will refer briefly to these amendments in their order. 4. Religious Freedom— The object of the 1st Amendment was to prevent the National Government from abridging religious freedom in any degree (84, 82). In England, though all were free to worship as they chose, yet there was an established church, supported by the government. Here it was thought best not only to have perfect liberty in religion, but also to have the Church and State entirely separate. 5. Freedom of Speech and of the Press — These have been before defined (page 16). Congress is for- bidden to pass any kw abridging them (84). The object of this provision was not to allow one to go unpunished who uttered slander or published libel. It was intended to prevent all use of those means which MISCELLANEOUS PROVISIONS 195 in former times had been used to repress the people, by forbidding them to speak or write on certain sub- jects unless licensed by the government beforehand. At one time it was the law in certain countries that even the Bible should not be printed except in a cer- tain language, which the people did not understand. So, also, governments would require all books to be licensed before they could be printed, and would forbid the utterance of any criticism, no matter how just or honest, against them or their officers. 6. Right to Assemble — So, too, Congress is for- bidden to pass any law abridging the right of the people to assemble and present petitions to the govern- ment (84). Under pretence of preventing insurrecti( m governments have at times denied the people this right. 7. Right to Keep Arms — This means the right of every one to own and use, in a peaceful manner, war- like weapons; Congress is forbidden to pass any law infringing the right (85). It was thought that with- out it, ambitious men might, by the aid of the regular army, overthrow the liberties of the people and usurp the powers of government. 8. Quartering' of Soldiers in Private Houses — The 3d Amendment arose from a remembrance of past experience (86). Among the grievances enumerated in the Declaration of Independence was one " for quartering large bodies of armed troops " among the people of the Colonies. 9. Searches and Seizures — A search-warrant is a paper issued by a court directing a person's premises to be searched, because it is suspected there is stolen property there or property subject to duty. A seizure is the taking of such property, or the arrest of the 196 NATIONAL GOVERNMENT person, by the officer. In the early times of English history these had been converted into instruments of tyranny. Search-warrants had been sometimes granted when no accusation had been made, and in blank, so that by filling out the blank the officer could search any house he chose. The 4th Amendment forbids Congress to pass any law authorizing warrants to issue, except when good cause is shown, and supported by oath (87). 10. Criminal Proceedings — The object of most of the provisions of the 5th and 6th Amendments is the protection of one accused of crime, Popular opinion is generally hasty in cases of crime, and the rights named in these amendments, most of which are easily understood,* are such as had been found necessary in the history of justice in England to save innocent per- sons from punishment. By them Congress is forbidden to pass any law infringing these rights (88, 89). So important was the trial by jury in criminal cases con- sidered, that it had been inserted in the body of the Constitution (69). 11. Private Property — Every government of un- limited powers has the right to take the private prop- erty of any person, for some public use, and it may be done even without compensation. This is called the right of eminent domain. But even in those cases where Congress has this right, the 5th Amendment forbids its exercise without just compensation being paid the private owner (88). 12. Trial by Jury in Civil Cases — We have seen that the jury trial is secured in criminal cases (69). * In the 5th Amendment "twice put in jeopardy" means tried ac'ain after having been once acquitted. MISCELLANEOUS PROVISIONS 197 The 7th Amendment requires it in civil cases * also (90). Both these provisions refer only to cases in United States courts. The 7th Amendment also pro- vides what the effect of a jury's verdict shall be. By the rules of the common law, when the jury had rendered a decision upon a question of fact upon which some witnesses had testified in one way and others in another, that question could not be re-exam- ined in a higher court. After the passage of the Con- stitution it was thought that the clause which gives the Supreme Court appellate jurisdiction both as to law and fact (68) might give it power to overthrow the verdict of a jury, and therefore this amendment was added. Thus we see how carefully the Constitu- tion protects the security, liberty, and property of the people. 13. Excessive Bail — Bail has been described (page 88). But it will be seen that the amount of the bond might be fixed so high as to prevent persons accused of crime from procuring the necessary sureties ; whereby innocent persons might be subjected to long imprisonment before the time of trial. To prevent this in the United States courts is the object of the 8th Amendment. So, also, the degree of punishment is often left to the discretion of the court, as in the case of treason, where any amount of fine over $10,000 may be imposed. This amendment serves as a safe- guard against excess (01). 14. Rights of People — There were those who * The amendment says " suits at common law." These are dis- tinguished from suits in equity or admiralty. It is unnecessary to give the meanings of these terms here. " Common law suits" include a large majority of all civil cases. 198 NATIONAL GOVERNMENT feared that because the Constitution mentioned certain rights as belonging to the people, those not mentioned might be considered as having been surrendered to the General Government, or as having never existed. To prevent such possible misconstruction was the ob- ject of the 9th Amendment (92). 15. Powers not Delegated — So, also, the 10th Amendment was strictly unnecessary, for it is self- evident that what one has and does not give away he still retains (see page 140). But many were fearful that the central government might absorb the powers rightfully belonging to the States, and this was in- serted to prevent such abuse (93). 16. Suits against States — No State court can enter- tain any suit against a State. The 11th Amendment forbids the United States courts to entertain them (except by one State against another) (94). During the devolution the States had issued bills of credit which had not been paid. After the adoption of the Constitution suits were brought against some of the States by private persons to enforce payment of these bills of credit, and the Supreme Court decided that under the judicial clause (67) this could be done. It was in consequence of this decision that the amend- ment was passed. Now there is no way for a private person to sue a State in any court. It is thought best to leave a State free to settle its obligations in its own way and in its own time. 17. Election of President — This is the subject of the 12th amendment (95, 96), and has been else- where treated (page 168). This amendment was adopted in 1804. Under the plan first adopted the chief opponent of the President became the Yice- MISCELLANEOUS PROVISIONS 100 President, and as the country had become divided into two great opposing parties, they would naturally belong each to one of those. Now the Vice-President will usually belong to the same party as the President. Many have doubted the wisdom of this change. CHAPTER XLII THE 13th, 14th, and 15th amendments 1. Iii General — These three amendments were the logical political result of the Civil War. Its ultimate cause was negro slavery ; its final result, the raising of the negro to an equality before the law with the white man. These amendments differ from the others in this respect, that they are binding on the States as well as on the National Government. The States are named in them. 2. Slavery — In 1863 President Lincoln had issued the Emancipation Proclamation. Whether this had any legal effect or not, the adoption of the 13th Amendment in 1865 did abolish slavery throughout the country (98). 3. Civil Bights — But it is evident that a person, though not a slave, may not have all the civil rights of others, as the right to acquire, hold, or sell prop- erty, to engage in trade, to live where he pleases, etc. The slaves, emerging from slavery, had no civil rights. But by the 14th Amendment they are made citizens and all civil rights bestowed upon them (99). This was the second step in the elevation of the negro. 4. Apportionment of Representatives — Thus 4,000,000 people were added to the number of citizens 200 NATIONAL GOVERNMENT in the United States, and they should be represented in the House. Therefore the total population was made the basis of representation. But it was antici- pated that the Southern States might not give the negro the right to vote, and thus he would be deprived of his representation in the House, while the white population of the South would derive all the gain from the increased representation, and therefore it was provided that whenever any State denied the suf- frage to any male citizens of the United States, its Eepresentatives should be proportionately decreased in number (100). 5. Political Disabilities — We have seen that all officers of any State or the United States were re- quired (82) to take an oath to support the Constitu- tion. The North considered that engaging in war against the National Government was attempting to subvert the Constitution, and therefore a breach of that oath. Therefore it was thought best to deprive such as had taken the oath and afterward engaged in war against the Union, of the right to hold office (101). But Congress was allowed to remove the dis- ability, and has clone so in case of all but a very few. 6. National Debt — The 14th Amendment also rec- ognizes and declares the validity of the national debt, but forbids the payment of any debt incurred in aid of rebellion, or any claim for the emancipation of the slaves (102). The South had incurred a large debt in the war, which was thus made void. 7. Right of Suffrage — But though the colored race had all the civil rights, it had not as yet the right to vote. We have seen that the qualifications of voters is a matter belonging to the State (pages 26, 148, note). REVIEW QUESTIONS 201 But by the 15th Amendment the State is forbidden to deny the right of suffrage to any one on account of his "race, color, or previous condition of servitude" (103). Thus the third and final step was taken in the constitutional changes, by which the black man was raised to a political equality with his fellow-man. 8. Final — We have now completed our review of the National Government. The system established by the Constitution is peculiar, and is not necessarily suited to other countries. But as we study the Con- stitution our admiration for it should grow. The marvellous prosperity of the country, commercial and political, up to 1860, proved how well suited it was to our necessities, and the history of the years since the Civil War has shown how well grounded it is in the love of the people. REVIEW QUESTIONS The National Government Origin and Nature 1. How was this country governed prior to the Revolution ? 2. State the causes of the Revolution. 3. State the political effect upon the Colonies of the Declaration of Independence. 4. When was the Confederation formed ? How long did it last ? State its principal defects. 5. State when the Union was formed. Its fundamental difference from the Confederation. The chief differences in detail. 6. What is the difference between a Confederacy and a Nation ? 7. Give some instances showing the partial retention of the federa- tive principle in the National Government. Legislative Department 8. Name the six objects of the Constitution stated in the preamble. 9. How many members are there in the House of Representatives ? By whom elected ? For what term ? How apportioned 202 REVIEW QUESTIONS among the States at first ? How apportioned now ? Qualifi- cations ? 10. Answer the same questions as to the Senate. 11. What is the object of two legislative houses ? 12. Is the Senate or House of the higher dignity ? Why ? 13. How often does Congress meet ? When ? Define " A Congress." 14. By whom is impeachment made ? By whom tried ? 15. State the powers of each House as to its members, officers, quorum, adjournment, rules, journal, yeas and nays. 16. What privilege have members of Congress as to arrest ? Why ? As to liberty of speech ? Why ? 17. What bills may originate in the House ? In the Senate ? 18. State the reason for the provision as to revenue bills. 19. Name all the ways in which a bill, having passed both Houses, may become a law. 20. State the fundamental difference between Congress and a State legislature as to the origin and extent of their powers. 21. Name the subjects on which Congress may legislate. 22. What taxes may Congress lay ? For what purposes ? 23. From what source does most of the national revenue now come ? 24. Why has Congress the power to regulate commerce ? In what ways is it exercised ? Explain retaliation duties. 25. What is Protection ? Free Trade ? State the chief argument for each. Which is the policy of the United States ? 26. What is Registry of vessels ? Clearance and Entry ? 27. What is a citizen ? An alien ? Naturalization ? 28. What is a bankrupt law ? The power, why given to Congress ? 29. State the powers of Congress as to coinage ; as to weights and measures ; as to the Post-Office. Why given ? 30. What is a copyright ? A patent ? What are their objects ? 31. What powers has Congress as to piracy ? as to offences under international law ? Why given ? 32. Over what parts of the United States has Congress exclusive authority ? 33. Name some of the implied powers of Congress. 34. Who has the power to declare war ? Why ? 35. What are letters of marque ? What is prize ? 36. How is an army raised ? How does Congress control it ? 37. By whom may the militia be called out ? When ? 38. Name the prohibitions upon the United States. 39. What is habeas corpus ? A -bill of attainder ? An ex post facto law ? An appropriation by Congress ? 40. State the reason for the prohibitions as to titles of nobility. 41. Name the prohibitions upon the States. 42. State the difference between money and legal tender. 43. What is legal tender in the United States now ? Executive Department 44. What is the advantage of having but one President ? 45. By whom is he elected ? For what term ? REVIEW QUESTIONS 203 46. What other modes were proposed ? State the objections to them. What was the purpose of the present one ? Was its purpose accomplished ? Why ? 47. Are Presidential Electors elected or appointed ? By whom ? State their proceedings. 48. When does the House elect the President ? How does it vote ? 49. What are the President's cpialifieations ? Salary ? 50. What are the duties of the Vice-President ? 51. State the President's powers as to the army and navy, reprieves and pardons, treaties, and appointments. 52. What is the danger connected with this power of appointment ? 53. What is the purpose of the President's message ? 54. What is the most comprehensive duty of the President ? 55. Name the auxiliary executive departments, and their duties. Jud ic ial Depa rtment 56. Explain the necessity for a national judiciary. 57. Name the national courts. 58. Can the United States be sued ? Why ? 59. What is the Court of Claims ? How are its judgments enforced ? 60. Are the judges appointed or elected ? By whom ? For what term ? 61. State the three classes of cases in which the United States courts have jurisdiction, with the reason in each case. 62. What is treason ? What proof necessary ? Its punishment. 63. Name the crimes which the United States may punish. 3Iiscellcmeous Pro visions 64. State the provision of the Constitution as to the rights of citizens of one State in another. 65. How are fugitive criminals returned ? 66. What protection must the United States extend to the States ? 67. How may the Constitution be amended ? 68. When a law of Congress and a State law are antagonistic, which must prevail ? A law of Congress and a State constitution ? 69. What persons are obliged to take the oath to support the Con- stitution ? 70. How did the Constitution originally become binding on a State ? How does an amendment to it ? 71. How many Amendments are there ? What is the Bill of Rights ? Its purpose ? 72. State the substance of each amendment, when it was passed, and its purpose. 73. Can a State be sued by a State in a State court ? In a national court ? 74. Can a State be sued by a private person in a State court ? In a national court ? Why ? PART IT Principles of Law division I Municipal Law * SECTION 1— CIVIL RIGHTS IN GENERAL CHAPTER XLIII ABSOLUTE CIVIL EIGHTS f 1 . Introductory — In this Division, under the heading Municipal Law, it is our purpose to give a general idea of the ordinary civil rights secured to persons in the United States, and the principles of law by which they are protected. This is a subject which, being local, belongs in most part to the different States, and not to the National Government, but the principles are substantially the same in all the States. 2. Common Law — There are two sources of law in this country, the common htm and statute lair ; or the * By this term is meant the body of laws governing the ordinary e very-day actions of men, and their different rights in relation to each other ; particularly as distinguished from international law. It might be used to mean law concerning cities, villages, etc., but that is not its meaning here (see page 16). f See pages 15, 18. 206 MUNICIPAL LAW unwritten and written law. The Common Law of England is the basis of law in all the States except Louisiana. It is not a code of written laws enacted by a legislature, but consists of rules of action which have become binding from long usage and established cus- tom. It is said to be founded in reason and the prin- ciples of justice. It was brought over from England by our ancestors, and established here before the Revolution ; and is now the law in all particulars wherein the constitutions or legislatures have not changed it. 3. Statute Law — But in each State the legislature is free to change the common law, and to legislate upon subjects which the common law does not touch. These laws enacted by the legislature are called statutes ; from the Latin statuo, to fix or establish. For this reason the law on some subjects will differ in different States. Yet, as we have said before, the principles are the same. 4. Rights of Persons — These have been before de- scribed as the three great rights of personal security, personal liberty, and private property (see page 15). We have seen what provisions are often contained in constitutions for their protection (Chap. XLL). These are the fundamental rights of men, and most of the subordinate rights are but forms of one or another of these three. 5. Personal Security — The right of personal security is also protected by the law which permits a person to exercise the natural right of self-defence. When as- saulted so that one has reason to fear that he is in dan- ger of his life or of some serious injury to body or limb, he may use all the force necessary in defence and may RIGHTS IN GENERAL 207 lawfully take the life of his assailant. It is lawful to take the life of a burglar found in a house at night, for he is presumed to be ready to commit murder. If the assault is not so violent as to cause one to fear serious injury, it is lawful to use only sufficient force to prevent the injury. But in all cases the offender may be sued for damages by the party injured. An assault is also punishable criminally. The right is further protected by the law, by which a man, on showing reasonable cause of danger of personal injury, may require his adversary to be bound with sureties to keep the peace. O. Slander— The right of personal security includes the right to be secure in our good names, and is pro- tected by the law against slander and libel. A slcmder is a false statement about another which injures him in his reputation or business ; such as, a charge that he has been guilty of a crime, or has a malignant dis- ease, or any falsehood which he can prove has injured him. For uttering such falsehood the slanderer may be compelled to pay heavy damages to the injured per- son. And he is liable whether he originated the state- ment or merely repeated it. There is, however, no criminal punishment for slander. 7. Libel — A libel is a false publication in print or writing, signs or pictures, tending to injure a person in his reputation or business, or to expose him to pub- lic hatred, contempt, or ridicule. And it is considered in law a publication of such defamatory writing, though communicated to a single person. A slander written or printed is likely to have a wider circulation, to make a deeper impression, and to become more in- jurious. Libel is therefore broader than slander, and a person may be liable in damages for words in print 208 MUNICIPAL LAW or writing for which he would not be liable if merely spoken. In case of libel, also, a person is not only liable to a private suit for damages, but may be indicted and tried as for other public offences, and it makes no difference whether he originates or merely repeats the statement.* 8. Personal Liberty — Every person has the right to go wherever he pleases, free from restraint on the part of others. If any one restrains him of his liberty even for a very short period or without violence, as by locking him in a room, he may recover damages. This is one of our most valued rights, and is forfeited only by crime. In children, lunatics, and others unable to care for themselves, it is limited in some degree, for their own good and that of the community. Before our late war the slaves had not this right, but now all are equal. The writ of Habeas Corpus has been referred to as one of the most efficient means of secur- ing this right against false accusations of crime (page 88). Freedom of speech, of the press, and of religion are included in the term personal liberty. But it is a universal rule that one must not use his own rights so as to injure those of another. Thus one may not use his right of personal liberty in speaking of another so as to violate that other's right of personal securit\ r — i.e., by injuring his reputation. 9. Private Property — Every person has the right to * It was formerly the law that in the criminal action for libel it made no difference whether the statement was true or false. The reason was that the People were injured by the malicious statement, because, whether true or false, it excited the other party to commit some personal violence, and so commit a breach of the peace. But this is now changed in many States, and if the publication be true and published for a good purpose it is not a libel. RIGHTS IN GENERAL 209 acquire, to use as his own, in any way he sees fit, and to dispose of, any amount of property. No one, not even the government, can deprive him of his property without his consent ; though sometimes the govern- ment may take his property, when necessary for public use, by paying for it (page 73). This right of private property is fundamental, but it, too, is limited by the rule that one must use his own rights so as not to injure those of others. The purpose of law is to give to each one as much liberty as is consistent with the liberty of others. Sections II. and III. of this division will contain a sketch of the system of law regulating and balancing the rights of property of all. CHAPTER XLIV RELATIVE CIVIL RIGHTS a. Public 1. Public Relative Civil Rights have been described before (page 15). Every person has the right to de- mand protection by the government. This protection is afforded by its police and other civil officers. So, also, if these are not sufficient the governor is bound to call out the militia, to protect even a single person. Another means of protection is the system of courts, in which every person is at liberty to sue in order to enforce his rights. In return for this protection the government is entitled to the obedience of the citizen. This is enforced in different ways. It may imprison, fine, or even kill one avIio disobeys its laws (Chap. LXL). 14 210 MUNICIPAL LAW b. Private* 2. Duties of Parent — Parents, as the natural pro- tectors of their children, are obliged to provide for their support and education during their minority, or while they are under twenty-one years of age. The father, or, if there is no father, the mother, is bound to support the minor children. Even if they have prop- erty of their own, the father is so bound, but the mother is not.- If a parent neglects to provide neces- saries for his child, others may do so and sue the parent for their value. 3. Rights of Parent — The parent has the right to the custody of his child, and, being deprived of it, may recover it again. f It is lawful for a parent to punish his child for good cause, but not cruelly. Being bound to provide for his children, the father has a right to their labor or service ; and he may recover their wages from any person employing them without his consent. Children who are able are in general bound to support indigent parents. 4. Property of Child — Yery often a child has prop- erty of his own. As he is unable to take the manage- ment of it, a guardian is appointed for him for that purpose. The guardian may use the property for the support and education of the child (called his ward) during its minority. He may sell the personal prop- erty, but the real estate cannot be sold without per- mission from the court. At twenty-one the guardian * The rights arising from the relation of husband and wife are treated of under Sec. II., Contracts, because marriage, the basis, is a contract (Chap. XLVI.). f See page 88, note. RIGHTS IN GENERAL 211 must transfer all the property to his ward, and render an account of all his transactions. He is responsible for any loss caused by his wrong or negligence. If there is no parent, the guardian takes the place of parent to some extent, and has a right to the custody of his ward, and may administer proper punishment. If there is a father or mother, he or she is generally the one appointed guardian. 5. Apprenticeship — This is a relation established by a written agreement, bv which a male or female minor, with the consent of his or her parents, agrees to serve as an apprentice, or servant, to some one in a certain trade or employment, until twenty-one years of age, or for a less period. In return for these services the mas- ter is to teach the minor the trade. This is an exception to the rule of an infant's inability to contract (page 213), for the master can compel the apprentice to fulfil his agreement. To a certain extent he acts as a parent, may punish his apprentice, and is liable for his sup- port. The officers having charge of the poor may bind out pauper children in this way. Formerly apprentice- ships were common, but now in this country they are little used, and the subject is an unimportant one in the law. 6. Master and Servant — This relation can hardly be said to exist at present in this country. Formerly certain rights and duties flowed from it, such as the right of the master to administer corporal punishment, or the duty of the servant to protect his master against assailants. But, as a result of the democratic equality of all persons here, it has come to be merely a contract relation. The employer agrees to pay a certain sum for certain services which the employed agrees to ren- 212 MUNICIPAL LAW der ; and each must fulfil the contract (Chap. XLY.). With regard to how far an employer is answerable to other parties for the acts of the employed, the rela- tion is one of principal and agent, and the principal is responsible just so far as the agent had a right to act for him (Chap. XLVIL). SECTION II.— CONTRACTS CHAPTER XLV CONTRACTS IN GENERAL 1. Definition— A contract is an agreement or a promise by one person with another to do or not to do a particular thing. Contracts may be written or oral. Certain contracts, like those for the sale of land, must be in writing (see page 217) ; but most of the con- tracts of daily life are oral. They may be also express or implied. The former is an agreement expressed orally or in writing ; the latter is one by which a per- son does certain things which in law imply an agree- ment, as, where a person employs one to do anything for him, or buys certain things, a promise is implied to * pay what the labor or the things bought are worth.* This subject of contracts is very broad in law, for most * Another distinction between contracts is that they may be ex- ecutory or executed. An executory contract is one where the agree- ment is to do something at some future time ; an executed contract is one where nothing remains to be done afterward, but the agree- ment is immediately carried out. For instance : where one agrees to sell real estate at some future time the contract is executory ; the deed itself is an executed contract. CONTRACTS 213 of our daily actions are but the fulfilment of contracts, and we may contract to do almost anything. 2. Rule — The fundamental rule of law and justice with regard to contracts is this : that a person must do what he or she has agreed to do. This is the rule, but the exceptions to it — also founded in justice — are quite numerous, and the principal ones will form the subjects of the following sections of this chapter. 3. Capacity of Parties — It would be unjust to com- pel a person to fulfil his contracts if he were incapable of contracting ; i.e., if his powers of thought were not strong enough to enable him to judge what was for his best advantage. For this reason infants (i.e., minors), lunatics, idiots, and some others, cannot be compelled to fulfil any contracts they may make. Otherwise great advantage might be taken of them by unscrupu- lous persons. But when one does contract with such a person, he cannot refuse to fulfil his share of the bar- gain, if the minor or other such person Avishes to uphold it. Nor can the person incapable to contract, if he or she has received anything under the contract, refuse to fulfil it without restoring what has been received. 4. Infancy — An infant in legal language is a person, boy or girl, under twenty-one years of age. The rea- son why they may not make contracts which may be enforced against them is that they have not had, as a rule, sufficient experience to prevent others from gain- ing the advantage in their contracts. Therefore an infant while he may receive property cannot sell any, and if he does, can regain it. But if after becoming of age he ratifies the contract, then it is as if he had made it when of age. There is one exception to an infant's incapacity to contract. lie may contract for 214 MUNICIPAL LAW necessaries when he has no parent or guardian who supplies them ; i.e., such things as food, clothing, lodg- ing, and education, and when he obtains them may be made to pay for them. Otherwise he could not obtain them, for no one would trust him. 5. Lunacy — Lunatics and idiots are protected in the same way, because they are unable to protect them- selves. An agreement is an act of the mind, and there- fore one who has no mind cannot, in reality, agree. A person while intoxicated has lost the use of his faculties for the time, and therefore any contract that he makes during that time he may refuse to fulfil; but, if he adopts it on becoming sober, he cannot afterward ques- tion it. 6. Married Women, by the common law, could not make contracts, and they cannot now in many par- ticulars. This was not because of their supposed incapacity, but because the husband and wife were considered as one person. But the common law has been changed in many States by statute, and they may make some contracts ; such as, any contract necessary in the management of their separate property, even to sell or buy it, and any contract made in connection with a business which they may be carrying on. 7. Assent — Another requisite to a contract is the mutual assent of the parties. A mere offer by one party, not assented to or accepted by the other, con- stitutes no contract. This is implied in the word agreement, for it takes two to " agree." In case the parties are distant from each other, if the proposition is sent by mail, and a letter of acceptance is written and put in the mail, the contract is complete, unless, before mailing the letter of acceptance, a second letter CONTRACTS 215 has been received containing a retraction of the pro- posal. 8. Consideration — Every contract must have a con- sideration to be enforceable.* The consideration of a contract is what is given, done, or promised, as the cause or reason for which a person enters into the agreement. Thus, the money given or promised, for which a man agrees to perform certain labor, is the consideration of the agreement. So the money or other thing for which a promissory note is given, is the consideration. Mutual promises are sufficient con- siderations to make a contract binding ; but they must be made at the same time. Such promises support each other. The promise of one party constitutes a sufficient consideration for a promise by the other party. But the law will not enforce a contract on the part of one where the other party has not given, done, or promised something on his part. The pur- pose of the law is to remedy some injury done, but a party is not considered as injured when another refuses to fulfil a promise to him, unless he has done some- thing on his part to balance such promise. Therefore promises wholly gratuitous are void, such as a promise to give one money or property as a gift.f 9. Gratuitous Services — So, also, services rendered which have not been requested afford no ground for a claim for payment. This is a case not of a lack of con- * Promissory notes and bills, transferred before they are due to a person who does not know whether they are without consideration or not, are an exception to this rule. (See page 236.) f The moral law may require the fulfilment of such a promise, but the municipal law cannot. This is an instance where human law is not so broad as the moral law. (See page 17.) 216 MUNICIPAL LAW sideration, but of absence of contract. There is even no implied promise to pay for the services, for they were not requested. Had they been requested, there would have been an implied promise to pay for them. And it makes no difference how valuable the services are, as the saving of property from fire, or the secur- ing of cattle found astray, or of property lost. This seems unjust, but the injustice would be greater were it the other way ; for then any one might force any service upon us which we did not want, and compel us to pay for it. 10. Fraud and Force — We have seen that assent is necessary to a contract. But it must also be given freely and with full knowledge. If it is obtained by means of force, as through threats of any kind, or by fraud, as by representing facts that were not true, or concealing facts that the other had a right to know, the party upon whom the force or fraud is practised can claim there is no contract if he wishes to. The other one cannot, for it is a rule in law that one can- not take advantage of his own wrong-doing. 11. Impossible Contracts — No man can bind him- self to do what is not in the power of man to do. But it is otherwise, if the thing to be done is only at the time impossible in fact, but not impossible in its nature, and this impossibility might have been anticipated. Hence, inability from sickness to fulfil an agreement, or the impossibility of procuring an article which a person has agreed to deliver, would not exempt him from liability in damages for the non-performance of his contract. 12. Illegal Contracts — An agreement to do a thing that the law makes unlawful, such as to commit a CONTRACTS 217 crime, cannot be enforced, nor any promise made in consideration of snch a contract. For this reason bets cannot be enforced in law, for betting and gaming are forbidden. But if a forbidden contract has been car- ried out, the law will not set it aside : it will not aid one wrong-doer as against another. 13. Written Contracts — Any agreement is a con- tract and may be put in writing. * But there are certain agreements to which a person cannot be held against his will unless they are in writing and signed by him. The two principal classes are, a contract for the sale of real estate or any interest therein (deeds? leases,t etc.), and a contract for the sale of any per- sonal property over a certain amount in value (pages 229, 249). Others are, an agreement to pay the debt of another, an agreement of an executor to pay the debt of an estate out of his own property, and any contract not to be performed within one year. Such transactions are important ones usually, and the evi- dence of them should be something less open to mis- take than spoken words. 14. Limitations — But though a contract might conform to all the requirements, it nevertheless could not be enforced unless an action were brought for the purpose within a particular time after it was made. This time varies, according to the nature of the action brought, from five or six years, as in the ordinary cases of debt, to twenty or thirty years, as in the case * When a contract is in writing neither party is allowed to prove that the real intention was different. The parties have put it in writing in order that it might be the best evidence of what the inten- tion was. f Except iu many States certain short leases (page 255). 218 MUNICIPAL LAW of land. Different States, too, have different periods for the same thing. 15. Remedies — Where a contract is broken by one of the parties, the preventive remedies which the law gives to the other party are of two kinds : in cases where the wrong is not a single act but continuous, the court may order the wrong-doer to stop, as where one has agreed not to build a house on a particular spot but commences to do so ; in certain kinds of cases the court may order one to fulfil his contract, or im- prison him if he will not, as to sign a deed that he has agreed to give. But the compensatory remedy applies in nearly all cases, even in those where the others also apply. This remedy is to compel the party in the wrong to pay the party wronged so much money, called damages. CHAPTER XLVI MARRIAGE 1. Its Nature — Marriage is a contract. But it is also more than a contract or agreement : it is a per- manent change of status, of condition. The rights of the parties toward each other are radically changed by marriage. This change was still greater in former generations than it now is. Being so important an act, the law does not allow it when either party is under a certain age, called the age of consent, because the person under that age is presumed to be too young to know what it really is that he or she is consenting to. Consent without knowledge of what is consented to is not real consent. In this chapter we are con- sidering solely the contract of marriage, that is, mar- CONTRACTS 211) riage itself, which must not be confounded with the contract to marry at some future time, commonly called engagement. 2. Relationship — Marriages between parties nearly related are forbidden, and if contracted are, in gen- eral, void. The laws of the States differ as to the degree of relationship at which persons may not marry. The most common rule is that first cousins may, but any more nearly related may not. Thus a marriage between uncle and niece is void. 3. Lunacy : Force : Fraud — As in all other con- tracts, to make a marriage binding the parties must act freely, and must have sufficient intelligence to know what they are doing. If one is forced to marry by threats or other means, the marriage may be de- clared void if the party forced so desires. So the lunatic or idiot, or some one representing him or her, may have the marriage declared void. In those cases the other party cannot complain, and the marriage is binding if the forced or incapable person desires it to be.* But if one is deceived into marrying a lunatic, that is fraud, and it entitles him to have the marriage annulled. So, also, if a party marries one, thinking it is another. In all these cases there is no real consent, and hence no contract. 4. Ceremony — There is usually no definite form which must be followed in the performance of mar- riage, and no particular words which the parties must use. The only essential part is that they acknowledge, in seriousness and in some appropriate manner, that they marry each other. It is always prudent, if not necessary, that this should be done in the presence of * See page 216, sec. 10. 220 MUNICIPAL LAW a number of witnesses, for otherwise there might be no one to prove the marriage. The laws of many States provide that the ceremony must be performed by a clergyman, or some judicial or other officer. Any one who saw a marriage performed may prove it in court. 5. Bigamy — This is marriage with a second, while still possessing a first, husband or wife. Not only is it a crime for which one may be punished, but such second marriage is null and void. It has no effect on the first marriage. Polygamy is marriage with more than two. In such case all marriages but the first are void. The polygamy practised by the Mormons in Utah is contrary to the laws of the United States. 6. The Wife's Property — By the common law the property which a woman owned became her husband's on marriage. Her personal property became his abso- lutely, and he might use and dispose of it as he pleased. Her real estate he could not dispose of, but had the right to use it while they both lived. It will be seen how dependent on her husband she became. This was the rule once, but one part of it after another has been changed, until at present in most States the wife re- tains the use and right of disposal of all her property, both real and personal, as though she were single. 7. Dower — Such were the rights he gained in her property. But by the common law she obtained a certain right in his property, but only his real estate. This right, called dower, is the right of the wife upon the death of her husband to have set apart, for her own use during her life, one third part of all the real estate which the husband possessed at any time during During his life she could not claim it, but CONTRACTS 221 might on his death, though he had sold the land. This right still exists in most of the States. This is the reason why a wife must join with her husband in signing a deed (see page 250). Its object is to prevent a husband leaving his wife destitute. 8. Support — The husband is bound to maintain his wife, and is liable for debts which she may contract for necessaries, but for nothing more. If he refuses to provide for her wants, or if, through other ill-treat- ment or fault on his part, they become separate, he is liable to fulfil her contracts for necessaries, even though he has forbidden persons to trust her. If she leaves him by her own fault, or if they part by con- sent, and he secures to her a separate maintenance, and pays it according to agreement, he is not liable even for necessaries. i). Divorce — No length of separation while both parties live, nor any consent, can dissolve the marriage contract. The only way to dissolve it is by a decree of a court granting a divorce. The most common cause for which this may be obtained is adultery, but some States allow it for other causes, such as desertion, cruelty, drunkenness. After the divorce the innocent party is at liberty to marry again. The guilty party may not by the laws of some States.* * Limited divorces are also granted sometimes, but these do not permit either party to marry again. A divorce proper must be distinguished from that judgment of a court which annuls a marriage on the ground of force, fraud, incapa- city, or want of age. The latter kind of decree, though often called a divorce, decides that there never was any legal marriage, for some cause existing prior to the supposed marriage ; a divorce proper dis- solves a binding legal marriage for some cause arising after it. 222 MUNICIPAL LAW CHAPTER XLVII PRINCIPAL AND AGENT 1. Nature of Agency — An agent is a person author- ized to act with third parties on behalf of and in the name of another, who is called the principal. This is one of the most common and necessary relations of life, and exists with regard to all kinds of subjects. Every clerk, employe, or laborer is the agent of the person or corporation that employs him, so far as what he does is in connection with third parties. All bro- kers and officers of corporations act almost wholly as agents in their business. So, also, do lawyers, auction- eers, masters of ships, etc. 2. Act of Agent — The fundamental rule of agency is that a principal is bound by the acts of his agent, as if they were his own acts, so long as the agent keeps within the authority granted him. If that authority is exceeded the principal is not bound, unless he after- ward ratify the act.* 3. Wrong* Committed by Agent — This power of an agent to bind his principal extends not only to the making of contracts or other business acts, but even to the committing of personal injuries, if they are committed in connection with the business : thus, if the engineer of a railroad train through negligence injures any person or property, the company is respon- * If in any case an agent appears to have a general authority, which is really limited by private instructions, the principal is re- sponsible for any act which comes within the apparent authority, though it may not be within the real authority. CONTRA CTS 223 sible. But the wrong must have been committed in connection with the business in which the agent is em- ployed. If there is no connection between the act and the employment, it is only the personal act of the agent, and he alone is liable. 4. Duty to Principal — The relation between the agent and principal alone is one of contract, the agree- ment being on the agent's part that he will act as the principal directs, with care, skill, and diligence. There- fore an agent is bound, in general, to observe the in- structions of his principal, even though an act contrary to such instructions should be intended, and really be, for the benefit of the principal. The agent must bear, personally, all losses growing out of a non-compliance with his orders; and the profit accruing therefrom goes to the benefit of the principal. When an agent receives no instructions, he must conform to the usage of trade or to the custom applicable to the particular agency. 5. Liability to Third Parties — When an agent is duly authorized to do an act— not unlawful in itself, such as a crime or misdemeanor — he is not responsible to third parties (i.e., those with whom he deals) for that act. The principal alone is bound, for he is the one who derives the benefit. But there are three prin- cipal cases in which an agent acting for another makes himself liable: (1) where he exceeds his authority;* (2) where he professes to act as agent, but does not disclose his principal ; and (3) where he is really acting as agent, but professes to be acting for himself. The rule is general that if an agent fails to bind his princi- * But if the third party knows .that the agent has no authority, the agent is not bound. No one is. 224 MUNICIPAL LAW pal he binds himself. In the second and third cases, where the principal is not known, the agent is bound, because otherwise the party with whom he deals might have no one that he could hold responsible to him : but in such cases he may hold the principal also, if he is discovered, for one cannot take the benefit of an act without being bound by it. 6. Commission Merchants — This class of agents is quite large in cities. A commission merchant is one who sells for another the goods manufactured or raised by the latter, for a compensation, usually a percentage on the price (called a commission). Very often they sell without disclosing the name of their principals. All the appropriate rules of agency apply to them, as to personal liability or non-liability, care, skill, etc. 7. Lien — Though the goods which a commission merchant sells belong to some one else, he has a lien upon them for any advances he has made to the owner, * and for his expenses and commissions. A lien on personal property is a right to hold it against the owner ; that is, the owner cannot take the goods away without refunding the money received and pay- ing any charge due. Even though the owner should order him not to sell, the commission merchant may sell in order to satisfy his claim, paying over the sur- plus, if any, to the owner. There are also other kinds of liens on property (see pages 229, 242, 245). 8. Brokers — These form another common class of agents. A broker is an agent employed chiefly to negotiate sales between parties. His business may * It is very common for the commission merchant to advance a portion of the price to the owner, before sale. COXTRACTS 225 consist in negotiating exchanges ; or in buying and selling stocks, goods, ships, or cargoes ; or in procur- ing insurances and settling losses, etc. ; and as he con- fines himself to one or the other of these branches, he is called an exchange broker, stock broker, insur- ance broker, etc. A broker differs from a commission merchant in that the former has not the custody of the goods of his principal. He is merely empowered to effect the contract of sale ; and when this is done his agency ends. As to his principal he must carry out his agreement ; i.e., must do what he agrees with skill, care, and promptness. As to others he is sub- ject to all the rules of agency. CHAPTER XLVIII PARTNERSHIP 1. Definition — A partnership is an association formed by contract between two or more persons for joining their money, labor, or skill, in lawful business, the profits to be divided and the loss to be borne by the partners in certain proportions. It is a partner- ship if one furnishes the funds and the other performs the labor ; or if, when no money is necessary, each agrees to do his share of the labor. A partnership is often denominated a firm, or house, It is very often formed by written articles of partnership, but it may be formed by an oral agreement. 2. Act of One Partner — The great rule of partner- ship is that the act of one partner binds all. In mat- ters pertaining to the business of the firm, each part- ner is the agent of the firm ; so that if one buys or 15 226 MUNICIPAL LAW sells for the firm, all are bound. Not only the prop- erty owned by the firm and used in the business, but also the private property of each partner, is liable for the debts of the firm. But this authority of each partner to act for the partnership extends only to the business in which they are engaged ; if one acts in the name of the firm in any other matter, he is an agent without authority, and therefore binds only himself (page 223, sec. 5). 3. Secret Partner — One who should conceal his name so as not to be known as a partner when the debt is contracted, may be sued when discovered to be such. This is the case of an undisclosed principal (page 223). 4. Transfer of Interest — A partner cannot sell his interest to another person, who is to take his place in the partnership, without the consent of all the part- ners. The power of a partner is so great that each one ought to have the right in the beginning to say who shall exercise this right for him. Whenever a new member is taken in, or an old member retires, it is really the formation of a new firm. 5. Duration — The contract of partnership may be for any specified time, or no particular time may be specified. In the former case it cannot be dissolved before the time expires, except by a court for some misconduct on the part of one partner, or for his insanity or other inability. In the latter case, where no time is fixed, any partner may at will dissolve the partnership. The death of one partner dissolves it. 6. Notice of Dissolution — When a partnership is dissolved by the withdrawal of any of the partners, notice of dissolution must be given, for a firm may be CONTRACTS 227 bound by a contract made by one partner, in the usual course of business and in the name of the firm, with the person who contracted on the faith of the partner- ship, and who had no notice of the dissolution.* The same notice is necessary to protect a retiring partner from continued responsibility. And even if due notice is given, yet, if he willingly suffers his name to con- tinue in the firm or in the title of the firm over the door of the shop or store, he may in certain cases be liable. 7. Limited Partnership — In some of the States, a partnership may be formed by a number of persons, some of whom are to be responsible only to a limited amount ; and their names are not to be used in the firm. Before a partnership of this kind can do busi- ness, a writing and certificate signed by the parties stating the terms of partnership and the amount for which the special partners (as they are called) are to be responsible must be recorded. The terms of part- nership must also be published in a newspaper. In these limited partnerships, as they are termed, the special partners are liable only to the amount stated in the terms of partnership. The other partners, called general partners, whose names only are used, and w^ho transact the business, are liable for all the debts con- tracted, as in ordinary partnerships. 8. Rights as to Each Other — So far we have treated only of the rights of partners as to third parties. As to each other they have just such rights as they may agree upon. It is wholly a matter of contract. Thus * Actual notice must be given to those dealing regularly with the firm, but as to the rest of the world a publication in some newspaper is sufficient. 228 MUNICIPAL LAW a partner may sell an article to a third person when he has not the right to do it as to his partners, because he has agreed with them not to do so. In partner- ships containing more than two, a majority usually has the right to decide all questions. CHAPTER XLIX SALES OF PERSONAL PROPERTY 1. Definition of Sale — A sale is a contract by which the ownership (called the title) of certain prop- erty is transferred from one person to another for a certain price : the exchange of a commodity for its equivalent in money. The exchange of one commod- ity for another is barter. The same general principles of law which apply to contracts in general are appli- cable to contracts of sale ; viz., the competency of the parties to contract ; the assent of the parties ; the ab- sence of fraud ; the sufficiency of the consideration ; its possibility and legality. 2. Existence of Property — A thing cannot be sold unless it exists. Thus, if A sells a horse or certain goods to B, and if, at the time of the sale, the horse is dead or the goods are destroyed, the sale is void.* 3. Agreement to Sell — But a person may agree to sell at some future time an article not now in exist- ence or which he does not own, for he may manufac- ture or buy it. Such an agreement is subject to all * But one may sell that which is the expected product or increase of something to which the seller has a present right. Thus, a man may sell the wool that may grow on his sheep, the fruit that may grow on his trees, or the future increase of his cattle. CONTRACTS 229 the ordinary rules of contracts. It is an executory contract ; while a sale is an executed contract. 4. Delivery — To constitute a valid sale, as between the seller and buyer, it is not necessary that the arti- cles should be delivered. By the contract alone— if it is valid in other respects, such as being without fraud, or in writing if necessary— they become the buyer's property, and it is his loss if they are destroyed before delivery. Sale and delivery are thus two separate acts. In case of barter, however, the delivery must be made before the ownership will change. 5. Written Contract — In certain cases some mem- orandum in writing of the terms of the sale must be signed by the party to be charged, or his authorized agent, or he can repudiate the sale. These cases are any sales of personal property over a certain amount in value, varying in the different States from $30 to $200. No writing is necessary when the goods are under the fixed amount in value ; and even when over that amount it is not necessary if there is (1) a delivery and acceptance by the buyer of some part of the goods sold, or (2) a payment of any part of the price. 6. Lien— When nothing is said at the sale as to the time of delivery or the time of payment, the buyer is entitled to the goods on payment or tender of the price, and not otherwise ; for though he acquires the right of property by the contract of sale, he does not acquire the right of possession until he pays or ten- ders the price. This right of the seller to hold the goods until paid is called his lien. But if the seller delivers the goods absolutely, and without fraudulent contrivance on the part of the buyer, he loses his lien. All he then has is the right to sue the buyer for the 230 MUNICIPAL LAW price. But when goods are sold on credit and nothing is said as to the time of delivery, the buyer is imme- diately entitled to the possession. 7. Sale without Title — Where one professes to sell what he does not own, no ownership passes, even though he has it in possession and the buyer has no suspicion that it is not his. The true owner can claim the property at any time. This is so whether the article was lost or stolen from him. 8. Exception — Money and what is called negotiable paper * form an exception to this rule. If they are sold or transferred, even by a thief, to one who gives good consideration for them, and has no reason to sus- pect they do not belong to the one professing to own them, they belong to the buyer, and the true owner loses them. 9. Warranty of Title — In the sale of personal prop- erty, if the seller has possession of the article and sells it as his own, he is understood to warrant the title • that is, he in effect agrees to reimburse the buyer if some third person proves the article to be his. This agreement is implied whether anything is said about it or not. But if the possession is at the time in another, and there is no express covenant or warranty of title, the party buys at his peril, and cannot look to the seller for reimbursement. If, however, the seller affirms that the property is his own, he warrants the title, though it is not in his possession. * "Negotiable paper" includes bank-bills, bonds of the National or State Governments, of cities, railroads, etc., when payable to bearer, stock certificates with blank powers of attorney attached, promissory notes and bills indorsed in blank or payable to bearer, and some other securities. CONTRACTS 231 10. Quality — With regard to the quality of the thing, the seller is not bound to make good any defi- ciency, unless he expressly warranted the goods to be of a certain quality, or unless he made a fraudulent representation or concealment concerning them. The rule is, if there is no express warranty by the seller, nor fraud on his part, and if the article is equally open to the inspection of both parties, the buyer who examines the article for himself must abide by all losses arising from its not being what he wanted or expected. CHAPTER L GIFTS : FRAUDULENT TRANSFERS 1. Gifts— In general a person may, if he wishes, give away any or all of his property to any one, with- out receiving anything in return. But delivery is necessary to a gift. When delivered, the gift cannot be revoked by the giver, but a mere promise to give cannot, we have seen, be enforced (page 215). There is one exception to this rule : a gift made in anticipation of the death of the giver may be revoked by him at any time before death. 2. Creditors' Rights — But if a man is insolvent, or is in such embarrassed circumstances that he is likely soon to become insolvent, he is not allowed to give away any of his property. His creditors have a right to have it applied to the payment of their debts. If the creditors do not complain, the gift remains irrev- ocable. 3. Delivery of Personal Property — We have seen that delivery is not necessary to a valid sale as between 232 MUNICIPAL LAW / the buyer and seller (page 229). But when it is not deliv- ered, this gives the seller an opportunity to defraud by selling it over again, or to deceive his creditors by pre- tending he has sold or mortgaged it when he really has not. For this reason, the law in some States provides that a sale or mortgage of personal property without delivery shall be void as against creditors and subse- quent purchasers ; that is, the creditor or second pur- chaser can take it in spite of the first sale. 4. Chattel Mortgages *— Persons very often wish to borrow money, and mortgage some personal prop- erty for its payment and yet retain and use the prop- erty. This, however, would be impossible if the rule given in section 3 were absolute. Provision is there- fore made in many States by which these mortgages may be recorded in the town or county clerk's office, and when so recorded the mortgage is valid against any one, though the property is left with the owner. 5. Transfers to Creditors — A debtor may transfer his property to a creditor in payment of his debt, even though it leaves other debts unpaid. It is also a very common occurrence for a person in failing circum- stances to assign all his property, in trust, to one or more persons, who are to dispose of it, and to apply the avails to the payment of his creditors, or a part of them. He may in such assignment direct that certain ones shall be paid first. But such an assignment does not release the debtor from his debts, unless the prop- erty is sufficient to pay them in full. 6. Releases — It is also common for creditors to release their debtor on payment of a part of the debt. Such release is valid if signed and sealed. When * Chattel means personal property. CONTRACTS 233 a debtor agrees to pay his creditors a certain propor- tion of their claims in consideration of a discharge of their demands, if he privately agrees to give a better or further security to one than to othjers, the contract is void as to all ; because the condition upon which they agree to discharge the debtor is that they shall share equally. CHAPTER LI PROMISSORY NOTES AND BILLS OF EXCHANGE a. Notes 1. A Promissory Note is a written promise to pay a specified sum of money at a certain time, to a person named, or to his order, or to the bearer. The follow- ing is a common form : $100. New York, May 28, 1895. Three months after date, I promise to pay to James Smith & Co., or order, one hundred dollars, value received. John Brown. In such a note, Brown is the maker, and Smith & Co. the payees. The words " value received " have generally little legal force. h. Bills 2. A Bill of Exchange * (called also a draft) is a written order or request by one person to another to pay a third person a certain sum of money. The fol- lowing is a common form : * In this chapter we shall call it a Mil. 234 MUNICIPAL LAW $1,000. New York, May 28, 18P5. Twenty days after date (or at sight, or tec clays after sight), pay to the order of James Smith & Co. one thousand dollars, value received ; and charge the same to account of Thomas Jones. To John Brown, New Orleans, La. In such a bill, Jones is the drawer, Smith & Co. the payees, and Brown the drawee. After acceptance, the drawee is called the acceptor. 3. Use of Bills — Bills are of very great convenience in commerce. Suppose Jones, of New York, owes Smith & Co., of New Orleans, $1,000; and that Brown, of New Orleans, owes Jones $1,000. If Jones sends Smith & Co. an order upon Brown to pay $1,000 to them, both debts are cancelled, and the trouble and danger of sending the money is avoided. Smith & Co. may transfer the bill to any one before payment, in which case they become indorsers (see section 7). 4. Acceptance — The bill is presented to the drawee before it becomes due. If, when presented, he agrees to pay it when due, he is said to accept the bill, and writes his acceptance upon it. An acceptance may, however, be oral. A drawee is under no obligation to the payee to accept, but, having accepted, he becomes the principal debtor ; and the drawer becomes a surety ; that is, he agrees to pay if the acceptor does not. The acceptor is bound, though he accepted without consid- eration and for the sole accommodation of the drawer. 5. Non- Acceptance — If the drawee refuses to ac- cept, the indorsers become liable to the holder and to each other in their order for the amount of the bill, as CONTRACTS 235 described in section 14, provided notice of the non- acceptance is sent them, as described in section 16. So, also, if the bill is not paid when due they become liable in the same way, if notice is sent. 6. Check — A check upon a bank is a bill of ex- change, and is subject to all the appropriate rules. It is usually payable on demand, and has no days of grace. c. Rules applicable to both 7. Indorsement — A note or bill payable to bearer may be transferred by delivery without any writing ; but when payable to the order of any one, it is usually transferred by the one to whose order it is made writ- ing his name at the time of delivery across the back. This is called indorsement. The indorsement is con- sidered as the order of the payee to the maker or ac- ceptor to pay it to some other person. A bill may be indorsed before or after acceptance. Where the name simply is written across the back it is called a blank indorsement, and it may thereafter be transferred from one to another by delivery, the game as one payable to bearer. Or the payee may order it paid to any par- ticular person. Such person may in turn make it pay- able to bearer by indorsing in blank, or may make it payable to any particular person. He thus becomes the second indorser, the payee being the first. In case of a bill the drawer is a surety to both. The person in whose hands it is when due collects it.* *The advantage of making notes, checks, and bills payable to order is that no one but the one to whose order they are payable can collect, and if lost the owner suffers no loss. It is otherwise with those payable to bearer or indorsed in blank (see sec. 9). 236 MUNICIPAL LAW 8. Notes and Bills are Contracts, and therefore as between the original parties (in a note the maker and payee, in a bill the acceptor and payee) they must con- form to all the rules governing contracts, as to con- sideration, legality, etc. (Chap. XLV.). Thus if — in above note — Brown had received nothing for it from Smith & Co., but he had given it to them in order that they might sell it to some one else and thus raise money, they could not sue him upon it.* So, also, if he had any claim against them, he could offset it against the note. But as soon as Smith & Co. indorse the note or bill and sell it to some one else, it is no longer subject to those rules, as will be explained in the following section. 9. Negotiability: — When a note or bill has been thus transferred, before it is due, to some one who gives money or other consideration for it, and who has no knowledge of how it originated, such an owner may collect it from the maker or acceptor, although the payee could not. Thus the maker or acceptor can- not plead that he received no consideration for it, nor that it has been paid, though those matters should be true. He cannot offset against it any demand he has against one who did own it. In case of a note or bill payable to bearer or indorsed in blank, even though it had been stolen from an owner, a person receiving it in good faith could collect it, and the real owner could not. This is an exception to the rule that the true owner of stolen property is entitled to it wherever he finds it (see page 230). Hence, notes and bills are called negotiable paper. But if the holder has knowl- Such notes are quite common, called accommodation ?wtes. CONTRACTS 237 edge of any of these defects, or if he has reason to suspect their existence, he cannot sue the maker or acceptor on it. 10. Reason for It— The reason for this difference between negotiable paper and other contracts is its common use, and the facility with which it passes from one to another. Its use in commercial transac- tions is of great public convenience, one note some- times passing through five or six hands; and it is proper that, for the sake of trade, protection should be given to the holder of such paper who receives it fairly in the way of business. But it could not be so used if each holder had to take the risk of there beino- some defence to it of which he could know nothino\ But it is also proper to refuse aid to one who takes it with knowledge of its defects. 11. Transfer after Maturity— After falling due a note or bill is no longer negotiable. If transferred after maturity, the maker or acceptor may make any defence to it he could have made as against the person who owned it at maturity. For instance : in case of a note, if the payee owned it when due and there was no consideration for it originally, the maker need not pay it. But if the one who owns it when due can col- lect it, any one to whom he transfers it can also. The general rule is that one can always convey the rights he has. A transfer of negotiable paper before matu- rity is peculiar, in that it may convey rights that the person transferring did not have. 12. Time of Payment : Interest— Notes and bills payable on demand, or in which no time of payment is mentioned, are due immediately, and no demand of payment is necessary. But a note payable at sight, 238 MUNICIPAL LAW or at a specified time after sight, must be presented for payment before it can be sued. If the words " with interest " are omitted, interest commences at the time the note or bill becomes due. If payable on demand, it will draw interest from the time when payment is demanded. 13. Days of Grace — Notes and bills payable by their terms on a certain day are not really due until the third day thereafter. Those three days are called days of grace. If the last day of grace falls on Sun- day or a legal holiday, it is due the day before. 14. Indorsee's Liability — Indorsement is a contract. Whenever a person to whom a note or bill is made payable, or one to whom it has been indorsed, writes his name on the back and transfers it to another, he contracts with that other and with all future holders that if the maker or acceptor does not pay it when due, he will. Therefore the holder of an unpaid note may sue not only the maker or acceptor, but every indorser whose name is on the back when he takes it. In case of an accepted bill the holder may sue the acceptor, the indorsers, and drawer. In case of a non- accepted bill he may sue the indorsers and drawer. If an indorser pays it, he may sue any indorser prior to him, besides the maker, and in case of a bill the acceptor and drawer. One who transfers a note or bill, payable to bearer or indorsed in blank, is not liable to any one on it. 15. Demand of Payment — The maker of a note or acceptor of a bill may be sued at any time after matu- rity, whether payment was demanded or not. But to hold the indorsers of a note, or the indorsers and drawer of an accepted bill, responsible, payment must CONTRACTS 239 be demanded of the maker or acceptor on the last day of grace. 16. Notice to Indorser — If the maker or acceptor does not pay on that day, notice of that fact must be given to the indorsers and drawer to hold them ; and the whole of the next day is allowed in which to send the notice. But the holder need only notify such as he chooses to hold liable to him, in which case if the indorser notified wishes to hold prior ones liable to him, he must himself send them notices, which he has another day to do. If the holder notifies all (the usual course), they are liable in their order to each other.* It is not necessary that the notice should reach the party for whom it is intended, but simply that it should be left at his residence if the parties live in the same town, or sent by mail if they do not. 17. Forged Paper — If a note or bill is forged, no one can gain any right upon it against the one whose name is forged. So if an indorsement is forged, it conveys no right, or if the amount is raised by forgery. This is so, although a person should buy it in good faith believing it genuine. Negotiability only applies to true instruments. On the same principle, in those States where a usurious contract is wholly void, a usurious note or bill is void in the hands of every one. * The object of the notice is to give the indorser the earliest op- portunity to secure himself against loss. 240 MUNICIPAL LAW CHAPTER LII SERVICES 1. Kinds of Service — A very common class of con- tracts is that where one party undertakes to perform some labor or service for another. The services of doctors, lawyers, editors, the different kinds of manu- facturers and mechanics, such as carpenters, painters, tailors, etc., belong to this class. Very often there is no express agreement to pay ? but a request for the labor is sufficient, and a contract to pay a reasonable price for it is implied. 2. Ordinary Skill— By undertaking to render such services a person represents that he has the ordinary skill and knowledge necessary in the trade or profes- sion, and if he has not he can recover nothing for his labor, and is liable for all damage done. Thus a doc- tor who injures one through neglect or want of skill or knowledge is answerable for all damage. 3. Care of Property — -When the property of one person comes into the hands of another, for safe-keep- ing, repair, or other purpose, he must take such care of it as an ordinarily careful man does of his own property. The degree of care must be in proportion to the advantage he is to derive from it. Thus a bor- rower, who pays nothing for its use, must exercise the greatest care ; ordinary care is required of one who expends labor on it and receives an equivalent, or of a hirer, or of one who takes it as a pledge for debt ; slight care is sufficient when the party having it de- rives no advantage. In all these cases, if the property CONTRACTS 241 is lost or injured, but through no fault of the person having it, it is the owner's loss. 4. Hotel-Keepers are obliged to take all who apply to them for lodging or board and offer to pay their regular price. They are in general responsible for all injuries to the goods and baggage of their guests, even for thefts. But for loss caused by unavoidable acci- dent, or by superior force, as robbery, they are not liable. They have a lien upon the baggage of their guests for the payment of their charges. 5. Common Carriers are those who transport goods for hire as a common business, whether by land or by water. All railroad, steamboat, express, and stage companies are common carriers. They are bound to receive, from any person paying or tendering the freight charges, such goods as they are accustomed to carry and as are offered for the place to which they carry. But they may refuse to receive them if full, or if they are dangerous to be carried. 6. The Responsibility of common carriers is greater than that of others who receive property not their own for some purpose, such as mechanics, manufacturers, depositaries, etc. The latter we have seen are not responsible for the loss or injury of the property, except when it occurs through some degree of neglect on their part ; but the common carrier is responsible in all cases, Avhether negligent or not. lie is, in effect, an insurer of the goods against any loss or injury. But if it occurs through some great event which could not have been anticipated, like an inundation, war, etc., he is not liable, 7. As to Passengers the responsibility of common carriers is not so great. They are only liable for 16 242 MUNICIPAL LAW injuries which occur through the want of skill, knowl- edge, or care, of themselves or their agents. 8. Lien — Where the personal property of one comes into the hands of another, for the performance of some labor in connection with it, the latter has a lien upon it for his services ; that is, he may retain it until paid. Thus a carriage-maker has a lien upon the carriage he has repaired ; a blacksmith upon the horse he has shod ; and a common carrier upon the goods he has trans- ported. They have also the right to enforce the con- tract by suit. But if they allow the property to go out of their possession they lose the lien. CHAPTER LIII INSURANCE 1. Kinds — Contracts of insurance are of three kinds, fire, marine, and life insurance, and are usually in writ- ing. They are called policies, and are generally issued by an incorporated company, in return for a fixed yearly payment, called a premium. Being merely con- tracts, they are subject to all the ordinary rules gov- erning contracts. As a rule, the premium must be paid on the day when due, or the insurance ceases. We will refer only to a few points in which they are peculiar. 2. Fire — A contract of fire insurance is an agree- ment to pay for the loss or injury by fire of certain property, real or personal, during a certain period. This includes all damage done to the property not only by the fire itself, but also in consequence of a fire. Thus, if it be injured by water used to put out CONTRACTS 243 the fire, even though it is not in the same building, the insurers are liable. The policy usually names a certain amount, and the company is liable for all damage up to that amount. But the owner must do all he can to save the property. 3. Marine — A contract of marine insurance is an agreement to pay for the loss or injury of a vessel, or the goods carried in it, through shipwreck, fire, piracy, or other peril of the sea. Sometimes the property insured is named as of a certain value, in which case neither party, in case of loss, can prove it to be other- wise. Marine is different from fire insurance in this particular, that if the vessel or cargo is damaged to at least one-half its value, the owner may give up what remains to the company and claim a total loss. This is called abandonment. In fire insurance this cannot be done except by special agreement. 4. Life — A contract of life insurance is an agree- ment to pay a certain person a certain sum of money at the death of another, or when the latter reaches a certain age. Very often a husband is said to insure his life by a policy payable to his wife, but in reality in such case the contract is between the company and the wife. So one may insure his life in his own favor, in which case the policy is payable to his legal repre- sentatives. 5. Interest — The person with whom the company contracts must have some ownership or interest in the subject of insurance. Thus, in fire and marine insur- ance, if any one but an owner, mortgagee, or other person having claim upon the property makes such a contract, it is void, being merely a wager, and all wag- ering contracts being illegal. So, in life insurance, 244 MUNICIPAL LAW the person to whom the money is to be paid mnst be dependent in some way for support upon the one at whose death it is to be paid, or must be a creditor, in order to have an insurable interest. 6. Several Policies are often issued by different com- panies covering the same property. In fire insurance they usually bear only a ratable proportion of the loss. In marine insurance it is often provided in the policy that the company shall only be liable for such portion of the loss as prior insurance does not satisfy. 7. Representations made at the time the insurance is taken, if known to be false, make the contract void. This is a general rule of contracts, but is unusually important in insurance. In marine insurance there is always a warranty, implied if not expressed, that the vessel insured, or on which the insured goods are shipped, is seaworthy ; that is, able to withstand the ordinary dangers of the sea. CHAPTER LIV SHIPPING 1. In General — The rules of law applicable to ship- ping are in many respects the same as those governing other subjects ; namely, the ordinary rules of contracts, sales, agency, etc. But the property and the situation in which it is placed are often peculiar, from which peculiar rules arise. A few of these we will speak of. 2. Loss of Goods — The responsibility of carriers by sea for loss or injury of the goods is not so great as that of inland common carriers. They are not liable when it is caused by some extraordinary peril of the CONTRACTS 245 sea, as a violent storm, fire, piracy, etc. ; but if caused by the unseaworthiness of the vessel, want of equip- ment, or through some fault of those navigating it, they are liable. 3. Lien — This is a common right in connection with a vessel. The carrier has a lien on the goods he trans- ports for his freight ; the owner of the goods has a lien upon the vessel for any claim he has for breach of the contract, loss of the goods, etc. ; the seamen have a lien on the vessel for their wages ; and any person who furnishes work or materials in the repairing or equip- ment of a foreign vessel has a lien upon it for what is due. This lien is a right to have the vessel sold, if necessary, to satisfy the claim. It is not like the common law lien, which is a right to retain property (page 242). 4. A Bill of Lading- is a document delivered by the master (or owners) of a vessel to one shipping goods upon it, acknowledging their receipt for transporta- tion. The person shipping the goods sends this to the one to whom they are sent. The latter may transfer it to another, indorsing it either in blank or to some particular person, as in notes and bills (page 235). This transfers the ownership of the goods ; and the final holder of the bill of lading may demand the goods when they arrive. 5. General Average — Whenever any portion of a vessel or its cargo is voluntarily destroyed or thrown overboard at sea by the master, in a case of necessity, in order to save the rest, and the rest is saved thereby, all the owners of the vessel and the cargo must bear a portion of the loss in proportion to the value of their property there. This is called general average. Its 246 MUNICIPAL LAW reason is evident, that all obtain the benefit. It is very common for part of a cargo to be thrown over- board to lighten a ship, but it Avould be unjust to make the owner of that portion bear all the loss, when otherwise both vessel and cargo would have been lost. 6. Salvage— If one vessel finds another vessel or goods upon the sea, deserted or in great danger, and saves them, a large proportion of the property, or its value, is distributed among the owner, master, and crew of the saving vessel. This proportion is often one-third to one-half. It is called salvage, and its object is to encourage the rendering of such services. 7. Master's Authority — The master of a vessel has complete authority over the crew and passengers when at sea. He may use force to compel obedience in the management of the vessel, and may even take life when necessary. When necessary for the safety of the ves- sel or cargo, he may sell or mortgage both. CHAPTER LV INTEREST 1. Definition — Interest is a premium paid for the use of money lent. To be interest it must be a return for money lent, and not a profit on money invested. Thus dividends upon railroad or other stock, or the profits of a business, are not interest. 2. Rate — Each State declares by law what shall be its legal rate of interest. This varies in the different States from six to ten per cent, per annum, being six in most. 3. Usury — The taking by the creditor of a rate of REAL ESTATE 24T interest beyond that which is established by law is usury. Parties may freely contract to take less than the legal rate ; but when more is contracted for, not only can no more be collected on the contract or obli- gation than the legal rate, but in most of the States there is some additional forfeiture. In a few the obli- gation is void, and the payment of no part of the debt can be enforced by law ; in others, twice or thrice the excess above the lawful interest is forfeited ; and in some only the excess paid can be recovered. SECTION III.— REAL ESTATE CHAPTER LVI ESTATES IN REAL PROPERTY 1. Estate, in legal language, means not the property itself, but the kind of interest which a person has in certain real property, whether the absolute ownership, a qualified ownership, or only the right to use it for a time.* 2. Estate in Fee — One is said to have an estate in fee, or an estate in fee-simple, in certain real property, when he has the unqualified ownership of it ; the right to use it forever, and to sell it or transmit it to his heirs. Most of the land in the country is owned in this way. Two or more persons may own the same land together in fee-simple, and in such case are called joint owners. 3. Estate for Life — A person has an estate for life, * The term real estate, however, means the land itself. Estate is also sometimes used to mean particular real property, or even all the property, belonging to a particular person. 248 MUNICIPAL LAW or a life estate in certain real property, when he has the right to use it during his own life or the life of some other person. At present life estates are seldom created to depend on the life of any person except the one to whom the life estate is given, who is called the life tenant. A widow's right of dower has been mentioned (page 220) ; this is a life estate. A life ten- ant cannot sell or mortgage the land, or destroy houses, trees, etc., upon it ; neither can his creditors take it. This is therefore a method often used by parents to provide for their spendthrift children. The life estate — i.e., the right to use* the land — may itself be sold or mortgaged the same as other property. 4. Future Estate — This is a legal term, meaning the interest which a person has in certain land to whom it is to go upon the death of a life tenant, or upon some other contingency. Thus the heirs of the husband have a future estate in land set apart to a widow for her dower. If land is given to A, and on his death to go to B, the interest which B has during A's life is a future estate. 5. Estate for Years — This is a right to possess and use certain real estate for a definite period of time. The time may be any period — one, a hundred, a thous- and years, or even less than a single year. The in- strument creating this kind of estate is called a lease. Leases and the rights of the parties under them will form the subject of a later chapter (page 255). 6. Trusts — Sometimes it is desired to grant to one the benefit or income arising from certain property, but not the management or disposal of it, on account * Use in this connection includes the right to rent the land to others. REAL ESTATE 249 of his or her youth, lack of judgment, or other reason. This is done by means of a trust, which is a grant of property to one person (called the trustee) to hold for the benefit of another. The powers and duties of the trustee are different in different cases. Sometimes he is merely to distribute the property ; in other cases he is to control and manage the property, collect the rent or other income, and pay it over to designated persons ; in others, he even has power to sell the land. These powers are governed by the deed or will creating the trust.* CHAPTEK LVII DEEDS AND MORTGAGES 1. A Deed of land is a written instrument by which the ownership of the land is transferred to a purchaser.^ A deed is a contract, and we have seen that such con- tracts must be in writing (page 217). 2. A Mortgage of land is in form a deed, made as security for the payment of a debt, and to become void on its payment. It does not, however, really convey the ownership, and usually the owner keeps possession of the property. It also must be in writing. 3. Contents — A deed or mortgage of land must, in general, (1) name the person who is to take, (2) describe the property, (3) name the interest that is conveyed,:); * Personal property is often held in trust in the same way. So, also, there may be a life interest, or future interest, in personal prop- erty ; but they are not common. It is, however, often rented, like land. f If it conveys any estate greater than an estate for years it is a deed; otherwise it is a lease (Chap. LVL). \ Whether full ownership, life estate, etc. 250 MUNICIPAL LAW (4) be signed by the person conveying, (5) be sealed, and (6) be delivered. Other things are often included in a deed, but without these it is without effect. The wife of the owner also must sign, or otherwise she will be entitled at his death, if she outlive him, to a life estate in one-third of the property (page 220). 4. Delivery — It is important to remember that deliv- ery to the other party, or to some one in his behalf, is necessary to any deed or mortgage, as it is to every contract. It is the act which gives efficacy to all the rest. 5. Recording- — After delivery the purchaser should have his deed or mortgage recorded in the office of the recorder of the county (or town) * in which the land lies. This is not necessary as to the grantor (the per- son conveying). An unrecorded deed is good as against his claim, or that of his heirs, to the land. But if the grantor after giving a deed to one should fraudulently give another (or a mortgage) of the same land to a sec- ond person, who should have no notice of the first, and who should get his deed or mortgage on record first, the second person would have a prior claim to the land. 6. Acknowledgment — A recorder or register may not record a conveyance of land without proof that it was executed by the person named in it as the maker or grantor ; and if he does, the record is a nullity. This proof consists, usually, in a certificate of a proper officer, on the back or at the end of the deed, stating that the person so named appeared before him and acknowledged that he was the person who had executed the deed. In general, judges of courts and justices of the peace, mayors and aldermen of cities, notaries * See page 54. REAL ESTATE 251 public, and commissioners of deeds appointed for that special purpose, may take acknowledgments. In New York and some other States the acknowledgment may be dispensed with, and the execution of the deed may be proved by an affidavit of a subscribing witness. Deeds duly acknowledged or proved are, with the acknowledgments or proofs, copied by the recorder, word for word, in books provided for that purpose. But the acknowledgment is not necessary as against the grantor. 7. Covenants — A purchaser of any kind of prop- erty, real or personal, obtains only such title as the seller had. If it turns out to belong to another, that other has a right to it. We have seen that in personal property a seller impliedly warrants that he has good title, and if he has not the purchaser may sue him for the damage (page 230). There is no such implied war- ranty in real estate. Therefore it is usual for a seller to put in the deed an express warranty to the same effect. There are often other covenants in a deed, such as that there are no taxes, mortgages, or other incumbrances standing against it. These do not give the purchaser any better right to keep the land than a deed without them does, but only a right to call upon the seller for reimbursement. 8. Foreclosure — This is a proceeding, generally a suit in a court, by which the claim of a person holding a mortgage upon land is enforced. The land either becomes his property or it is sold, and the claims or liens upon it are paid in the order of their priority. 252 MUNICIPAL LAW CHAPTER LVIII APPURTENANCES 1. Appurtenances are minor rights, or property, connected with real estate, which pass to the successive owners with the land. Thus a transfer of land carries with it all houses, trees, and everything standing or growing upon it, and all mines and quarries beneath the surface. The transfer of a house carries with it the doors, blinds, keys, etc., although they may be at the time temporarily detached, and not upon the prop- erty. Nor is it necessary to name these things in the deed. 2. Rights over Highway — The owners of land adjoining highways own the land to the centre of the road : the public have only a right of passage while the road is continued. The owners of the soil may maintain a suit against any person who encroaches upon the road, or digs up the soil, or cuts down trees growing on the side of the road. They may carry water in pipes under it, and have every use of it that does not interfere with the rights of the public. 3. Rights over Streams — Every proprietor of lands through which a stream flows has naturally a right to the use of the water that flows in the stream. Each may use the water while it runs upon his own land, for a mill or other purpose ; but he cannot diminish its vol- ume or give it another direction ; and he must return it to its ordinary channel when it leaves his land. He cannot, by dams or any obstruction, cause the water injuriously to overflow the land of the neighbor above REAL ESTATE 253 him, nor so use or apply it as materially to injure his neighbor below him. If a stream flows between the lands of two, each owns the land to the centre of the stream, but they must use the whole stream together as joint owners. * 4. Another kind of appurtenance is where the owner of certain land acquires an additional right over land belonging to another, such as the right of passing over that land for himself and whomever he permits, the right to take water or earth from it, to pasture cattle upon it, to lay pipes through it, etc. Such rights once acquired do not generally belong to the person acquiring them personally, but as the owner of the land they benefit. When he transfers the land they pass with it to the purchaser without being named. Thus we come to say they are appurtenant to the land. 5. Rig-ht of Way — This is the right which the owner of certain land has to pass over the land of another. It may be a right to pass with a team, or only to pass on foot. Without it no person has a right even to step upon another's land or enter his house without his permission. But a right of way is something more than a permission which may be re- voked at any time. It is an interest in the land itself, and cannot be revoked. When a highway is out of repair or obstructed by snow, a flood, or in any way, the public has a temporary right of way upon the adjoining land. A right of way must be used for no other purpose than passage. * The rule as to navigable rivers is different. They belong to the State, and the landowners have no rights in them beyond those of other persons. 254 MUNICIPAL LAW 6. Party "Walls — In cities houses are often built having their side walls in common. The wall stands half upon one lot and half upon the other, and each owner has the right to insert the timbers of his house into it. Neither has the right to take down his half of the wall without the consent of the owner of the other lot. In other words, each lot has the right over the other lot to have the whole wall stand. Without such right an owner can do as he pleases with what stands on his own land. Such walls are called party walls. 7. Acquisition of Right — There are two common ways by which such rights as rights of way, party walls, and other rights which one estate enjoys over another, may be acquired: (1) by grant, and (2) by long use. The grant of such a right must be by some written document, as it is a contract for the sale of an interest in land (page 217). But such right may also be obtained by its enjoyment for twenty years with- out disturbance, though it was not originally granted.* Thus if the owners of a piece of land have for twenty years passed over that belonging to another, claiming a right to do so, at the end of that time they obtain the right. The enjoyment is deemed to have been uninterrupted, whether it has been continued from ancestor to heir and from seller to buyer, or whether the use has been enjoyed during the entire period by one person. * This is merely one application of the general rule, that a person who wishes to enforce his rights must begin his suit within a certain period (page 217). In the same way, if a person allows another, who claims to be owner, to occupy his land for twenty years, the true owner loses his land. REAL ESTATE 255 8. Loss of Right — As these rights may be obtained by grant and by use, so they may be lost in two ways : by being conveyed back to the one from whom they came, and by not being used for twenty years. CHAPTER LIX LANDLORD AND TENANT 1. Lease — The relation of landlord and tenant arises where one person occupies land owned by another, under an agreement between them. Usually the ten- ant is to pay for its use. It is therefore a contract relation, and subject to all the rules of contracts (Chap. XLV.). The contract creating the relation is called a lease. A lease if for more than a year must be in writing and signed, if for only a year or less it may be oral.* Sealing is not necessary. Sometimes the tenancy is for no definite period (sec. 9). 2. Rent is a return made by the tenant to the land- lord for the use of the land. Usually it is in money, periodically paid, but may be in services, profits, or anything else. The parties may make any agreement as to the amount of rent, and when it shall be due. If there is no agreement as to amount, the tenant must pay Avhat the use of the property is reasonably worth. As to the time of payment, where there is no special agreement to the contrary, rent is due yearly, half- yearly, or quarterly, according to the usage of the country. Where there is no particular usage, the rent is due at the end of the year. If the landlord does * In some States a lease for three years or less may be oral. 256 MUNICIPAL LAW anything wrongfully to render any part of the prem- ises useless to the tenant, the latter may leave, and no rent is due. 3. Destruction of Property — Where there is an express agreement to pay rent, the tenant cannot avoid payment even if the premises are destroyed by fire or flood, even without any fault on his part.* Hence, if land should be leased with a flock of sheep, and the sheep should die, the full rent must be paid. But neither the landlord nor tenant is bound to rebuild houses destroyed by an accidental fire. 4. Eviction is the depriving one of lands of which he is in possession. A landlord has the right to evict his tenant either when the latter fails to pay any por- tion of the rent due or in any way injures the property. He may also do it for any cause, for which he reserves the right in the lease. But this eviction is a process of law. A suit is brought, and the sheriff puts the land- lord in possession. No landlord has a right to take possession of his premises personally, without the ten- ant's consent. 5. Sale of Property — "When property has been rented and is afterward sold or in any way trans- ferred by the landlord to another person, such trans- action does not in any way affect the tenant's rights or liabilities. He retains the property, and must pay the rent to the new landlord, who is substituted to all the rights of the original landlord. But if the land should be recovered from the tenant by a person hav- ing a better title than that derived from his landlord, * In some States this rule is changed so as to relieve a tenant from paying rent when the premises are destroyed without his fault, and he surrenders them. REAL ESTATE 257 he is not liable for rent after his use of the land has ceased. 6. Repairs — A landlord is under no obligation to his tenant to make repairs to the property, unless he has made a special agreement to that effect. But the tenant must deliver up the premises in as good a con- dition as that in which they were when he took them, except that he will not be liable for the ordinary wear and tear. He will therefore be obliged to make ordi- nary repairs, such as the keeping of fences in order, replacing broken doors or windows, etc. But extraor- dinary repairs, such as the supplying of a new roof or repairs necessitated by an accidental fire, the tenant will not be obliged to make. 7. Crops — A tenant has of course the right to take all crops reaped during his tenancy. A tenant for a definite time, whose lease expires after the land is sown or planted, and before harvest, is not entitled to the crop ; for, knowing that his lease would expire before harvest time, he might have avoided the loss of his labor. But if the lease is for an indefinite time, or depends upon an uncertain event, and is terminated before harvest, the tenant is entitled to the crop. 8. Assignment by Tenant — A tenant may assign his whole interest to another, unless restrained by agreement not to assign without leave of the land- lord. And he may underlet for any less number of years than he himself holds, or any portion of the land that he holds. The difference between an assign- ment and a sub-lease is that in the former the whole interest is conveyed, in the latter only a portion. They are very different in their effect. In an assignment the person who takes the lease becomes liable for the 17 258 MUNICIPAL LAW rent to the landlord, though the original tenant is not thereby released. In a sub-lease the under-tenants are not liable for rent to the landlord, but merely to their landlord, the tenant. The landlord, however, retains all the rights he has against the tenant, and may evict him and all the under-tenants, if the original lease be not complied with. To save themselves from dispos- session the under-tenants may pay their rent to the original landlord. 9. Notice to Quit — This is a notice by the landlord to the tenant to leave the premises. In ordinary ten- ancies for a definite period, a month, a year, etc., no notice to quit is necessary. If the tenant does not leave at the expiration of the time, the landlord may immediately take legal proceedings to evict him. But where the period is uncertain, as where the tenancy is to continue at the pleasure of the landlord, this notice must be given before eviction can be had. The time of the notice is generally at least as long as a month, and in some cases six months. The purpose is to pro- tect the tenant from being suddenly turned out of his home. CHAPTER LX DISTRIBUTION OF PROPERTY UPON DEATH a. Wills 1. Will — It is a general rule that a person may dis- pose of all his property upon his death in any way he wishes, even to disinheriting his own children.* This * In some States this is subject to exception, so that children may not be wholly disinherited, or a wife left unprovided for. REAL ESTATE 259 he does by means of a document called a will. The person making it is called the testator. If no will is left the property is distributed among certain relatives. In such case the person is said to die intestate. 2. Who May Make — The rule is that every person of full age and sound mind may make a will. An exception is that in some States married women may not. In many of the States personal estate may be willed at an earlier age. If upon the probate of a will (page 81) it is shown that the testator Avas of unsound mind, or made it under undue influence from any one, it will be declared void. 3. Formalities — A will must be made in the mode prescribed by the law, or it is void. In the first place, it must, in general, be written. * It must be signed by at least two, in some States three, attending wit- nesses, in whose presence the testator must sign the will, or acknowledge that he signed it, and declare it to be his last will and testament. 4. Revocation — A will has no effect until after death. Before death the testator may revoke or alter it in any particular. Kevocation may be made in two ways : (1) by burning, tearing, or otherwise purposely destroying it, and (2) by making a new will with the same formalities expressly revoking the prior will. If a will is accidentally destroyed, and there is no intent to revoke it, it still legally exists. If a second will is made and does not expressly revoke the former, both stand as far as they do not contradict each other ; but as far as they are antagonistic the later one prevails, as where both dispose of the same property but in dif- * Oral wills can only be made by soldiers in active service, or sailors at sea. 260 MUNICIPAL LAW ferent ways. If particular property is disposed of in a will, but is sold by the testator before his death, the will is in that respect void.* 5. A Codicil is an addition or a supplement to a will, and must be executed with the same formalities. It is no revocation of the will, except in the precise degree in which they are inconsistent. b. Intestacy. 6. Distribution of Property — The order and pro- portion iu which the relatives of a deceased person, who leaves no will, share in his property, are regulated by the statutes of the several States, which are not uniform. But it is a general rule that all brothers and sisters, when entitled, share alike ; i.e., there is no preference of the first-born over the others, nor of the male over the female, f 7. As to Real Estate, if there are children they take it all, or if any are dead their children take their parents' shares. If there are no direct descendants, in some States the father or mother of the intestate will be entitled, in others the brothers and sisters. In some the husband or wife is entitled to a portion, whether there are children or not. There is no proceeding before the probate court as to real estate. The person or persons inheriting are entitled to the immediate possession. * In some States marriage or the birth of a child will revoke a will, so that the wife or husband or child will not remain unpro- vided for. fAn heir is one entitled to the real estate of another who dies intestate. Neither one who receives personal property in that way, nor one who receives any kind of property under a will, is properly called an heir. CRIMINAL LAW 2f)l 8. As to Personal Property the rules of distribution are in general about the same as in case of real estate ; though in some States they differ somewhat. Those entitled do not take possession immediately on death. An administrator is appointed by the court, and he takes possession of it all. After a certain time he dis- tributes it among those entitled (page 81). SECTION IV.— CRIMINAL LAW CHAPTER LXI CRIMES 1. A Crime is an offence against the public, the whole body of the people, because it tends to disturb the public peace and to overturn the body of laws which the public has established for the security of life and property of each person. The purpose of the penalty inflicted is not expiation, but simply to protect the community against its future commission. Almost every crime is also the violation of some private right for which the private individual has his remedy (page 83, note); but usually the public penalty is so great that the former is lost sight of, and very often is not enforced.* 2. The Laws of each State define the crimes of which it takes cognizance, and prescribe the punish- ments. The definitions given in this chapter agree substantially with those of similar crimes in every State in the Union. The punishment for the same * Ignorance of the law excuses no one. If it did, no law could be enforced. 262 MUNICIPAL LAW crime is not the same in all the States, nor is there in any State an equal measure of punishment inflicted in all cases for the same offence. The laws usually declare the longest and the shortest term of imprison- ment, and the highest and lowest fine for each offence, leaving the exact measure of punishment, except for crimes punishable by death, to the discretion of the judges to be fixed according to the aggravation of the offence. 3. Capital Punishment is punishment by death, and the crimes for which it is inflicted are called capital crimes. These are uoav very few, in many States only treason and murder. In a few States capital punish- ment has been abolished. For other crimes the pun- ishment ranges from imprisonment for life in case of the most heinous crimes, to imprisonment for a few days in case of the slightest misdemeanors. 4. Treason is levying war in any State against the people of the State; or adhering to enemies of the State while it is engaged in war with them, and giv- ing them aid and comfort." 5. Murder is the killing of a human being deliber- ately and maliciously, and with intent to effect death ; or killing a person in committing some other crime, though not with a design to effect death. The less aggravated cases of murder are in some States distin- guished as murder in the second degree, and punished by imprisonment for a long term, or for life. 6. Manslaughter is killing a person either upon a sudden quarrel, or unintentionally while committing some unlawful act not a crime. The difference be- * This is treason against a State. Treason against the United States is another crime (page 185). CRIMINAL LAW 263 tween murder and manslaughter is in the premedi- tated malice of the former.* 7. Arson is maliciously burning any dwelling-house, shop, barn, or any other building, the property of another. Arson in the first degree, which is burning an inhabited dwelling in the night-time, is in some States punishable with death. 8. Burglary is forcibly breaking into and entering in the night-time the dwelling-house of another with intent to commit a crime. 9. Robbery is the taking of personal property from another in his presence and against his will, by vio- lence, or by putting him in fear of immediate injury to his person. 10. Larceny, popularly called theft or stealing, is the wrongful taking of another's personal property, with the intent to deprive him of it permanently. In some States the stealing of property above a certain amount in value is called grand larceny, and is a State- prison offence. If the value of the property stolen is of less amount the offence is called petit larceny, and is punished by fine or imprisonment in jail or both. 11. Embezzlement is fraudulently taking with intent to apply to one's own use what is intrusted to him by another. To buy or receive property knowing it to have been embezzled, is to be guilty of the same offence. Embezzlement is usually punishable in the same manner as larceny of the same amount. * Homicide means mankilling in general. When a crime it is either murder or manslaughter. Homicide is lawful when com- mitted (1) by an officer when necessary in the execution of his duty to take or prevent the escape of a prisoner, (2) by a private person in self-defence or in preventing any atrocious crime, (3) by any one through unavoidable accident without fault on his part. 264 MUNICIPAL LAW 12. Forgery consists in falsely making, counterfeit- ing, or altering any instrument in writing with intent to defraud. The word counterfeiting is generally applied to making false coin or paper money, or in passing them ; but it is a kind of forgery. 13. Perjury is wilfully swearing or affirming falsely to any material matter, upon an oath legally adminis- tered. Subornation of perjury is instigating another to swear falsely ; it is punishable as perjury. 14. Bribery is the offering money or other reward to a public officer to influence his vote or judgment, or its acceptance by the officer for such purpose. 15. Bigamy is the crime of having two or more wives, and is also called polygamy. These words, in law, are applied also to women having two or more husbands (page 220). 16. Other Crimes — Besides those already named there are many other acts made crimes in most States. The following are some of them : Intentionally maim- ing another by disabling any member or limb ; invei- gling or kidnapping / decoying and taking away chil- dren ; exposing children in the street to abandon them ; opening a grave and removing a dead body for any unlawful purpose, or purchasing such body knowing it to have been unlawfully disinterred ; aiding a prisoner to escape ; duelling ** assault and battery ; imprison- ment without authority ; libel • rioting. There are also numerous smaller misdemeanors and immoralities such as willful trespasses and injuries to property, drunkenness, gambling, indecent exposure, etc. 17. Attempts to commit a crime, though unsuccess- * If either party be killed it is in many States murder. REVIEW QUESTIONS 2C>5 ful, are also criminal, but the punishment is usually lighter. 18. Accessories are those concerned in the commis- sion of crimes though not actually committing them themselves. He who advises, procures, or commands another to commit a felony, is called an accessory before the fact, and is punished in the same manner as the principal. One who conceals the offender knowing that an offence has been committed, or gives him any aid to prevent his being brought to punishment, is an accessory after the fact, and also subject to punishment. 19. Arrests may and should be made by any one, though a private person, in whose presence a heinous crime or breach of the peace is committed. When no one witnesses the commission, arrest can only be made by an officer provided with a warrant against the offender. REVIEW QUESTIONS Municipal Law Civil Rights in General 1. What is municipal law ? Is it regulated by State or Nation ? 2. What is common law ? Statute law ? 3. Name and describe the three fundamental rights of persons. 4. What is slander ? Libel ? How is each punished ? 5. Name the public relative civil rights. How enforced ? 6. Describe the duties and rights of a parent toward his child. 7. What is a guardian ? His duties and rights ? An apprent ice ? Contracts 8. What is a contract ? Describe the different kinds. 9. What is the fundamental rule of contracts ? 10. What persons need not fulfil their contracts ? Why ? 11. If an offer is made and accepted by mail, at what moment is the contract complete ? 266 REVIEW QUESTIONS 12. What is the consideration of a contract ? State the rule as to consideration. 13. In case of fraud or force, may the party upon whom it is prac- tised enforce the contract ? May the other ? Why ? 14. What contracts must be in writing ? Why ? 15. How long may one delay to sue ? 16. Name the three kinds of remedy for breach of contract. 17. At what age is marriage lawful ? What relatives may marry ? 18. Is a ceremony of marriage necessary ? 19. State the former rule as to the effect of marriage upon the wife's property. The present rule. 20. What is dower ? Does it exist now ? 21. What is divorce ? For what causes granted ? 22. What is an agent ? Name some classes. 23. State the fundamental rule of agency. 24. When is an agent himself liable to third parties ? 25. What is partnership ? State its fundamental rule. 26. May a partner sell his interest to any one ? 27. State how partnerships may be dissolved. 28. What is a sale ? Barter ? 29. If goods are sold, but destroyed without fault before delivery, who must bear the loss ? 30. When must a contract of sale of goods be written ? When not ? 31. If property is stolen and sold to one who is ignorant of that fact, to whom does it belong ? State the exception. 32. When does a seller of goods warrant the title ? When the quality ? 33. May one give away all his property ? Who may complain ? 34. State the effect of non-delivery in a gift. In a sale. In a barter. 35. Define a promissory note. A bill of exchange. A maker. A payee. A drawer. A drawee. An acceptor. 36. Describe acceptance. Indorsement. Blank indorsement. 37. When may a note be indorsed ? A bill ? 38. What is an accommodation note ? May the payee of such a note sue the maker ? Who may ? 39. Explain negotiability, and its reason. 40. What are days of grace ? 41. To whom is an indorser liable ? Who are liable to him ? 42. What two things are necessary to make an indorser liable ? 43. State the rule as to skill and care, in services rendered. In the use of property of another. 44. What is a common carrier ? Describe his liability as to goods. As to passengers. 45. Name and describe the different kinds of lien. 46. Define the three kinds of insurance. 47. What is abandonment in marine insurance ? 48. Who may insure property ? Who may insure life ? 49. When are ship-owners liable for the loss of goods ? 50. What is a bill of lading ? Describe its use. 51. What is general average ? Salvage 'i 52. What is usury ? Its effect ? REVIEW QUESTIONS 267 Real Estate 53. What is an estate in fee ? Estate for life ? Future estate ? Estate for years ? Trust ? 54. May a life tenant sell the land ? May he mortgage it ? 55. What is a deed ? A mortgage ? May they be oral ? 56. State the necessary contents of a deed or mortgage. Is delivery necessary ? 57. What is the purpose and effect of recording ? Of acknowledg- ment ? 58. What is a covenant of warranty in a deed ? Its effect ? 59. What are appurtenances ? Name some common ones. 60. What is a lease ? What leases may be oral ? 61 . When may a landlord evict his tenant ? In what way ? 62. What effect has a sale of the property upon a prior lease ? 63. Who must repair leased property ? 64. State the difference between an assignment of a lease and a sub- lease. To whom must the new tenants pay rent in each case ? 65. When is notice to quit necessary ? 60. Who may make wills ? 67. May children be disinherited by will ? 68. How is a will made ? How revoked ? 60. Who receives the property of one dying without will ? What is an heir ? Criminal Laiv 70. What is the object in punishing crime ? 71. What are capital crimes ? 72. What is treason ? Murder ? Manslaughter ? Arson ? Burglary ? Robbery ? Larceny ? Embezzlement ? Forgery ? Counter- feiting ? Perjury ? Bribery ? Bigamy ? 73. What are accessories ? How punished V 74. By whom may arrests be made ? DIVISION II International Law SECTION I.— PEACEFUL RELATIONS OF NATIONS CHAPTER LXII NATURE AND AUTHORITY OF INTERNATIONAL LAW 1. Definition of Nation — A nation — also called a state* — is a body of persons living within a certain territory under a sovereign government organized for the purpose of administering universal justice. Thus a body of pirates, though having an organized govern- ment and laws, is not a nation and is not entitled to any of the rights of nations, for its purpose is not justice but plunder. So communities of savages do not come under international law. But there are very few countries appearing on the map which are not now considered entitled to protection. 2. Sovereignty is the chief attribute of a nation. This means the full power to govern its subjects with- out interference or direction from any other power, and the right to enter into relations with other states. * In this connection the two words mean the same. In the United States this word has a peculiar meaning, for none of our States are nations. Through this division they will be used as synonymous. The rules here stated apply only to the United States as a nation, for the States, as such, can have no relations with foreign nations. PEACEFUL RELATIONS 269 All states, no matter how small or how great in terri- tory or power, possess an equal degree of independent sovereignty. 3. Dependence — There is a sense, however, in which nations are dependent upon each other. Persons in the social state, as we have seen, are dependent upon each other for assistance (page 11). Such is, in a measure, the mutual dependence of nations. Although the people of every nation may have within themselves the means of maintaining their individual and national existence, their prosperity and happiness are greatly promoted by commerce with other nations; consequently there is more or less intercourse between them and their respective citizens. 4. International Law, called also the law of nations, is the system of rules regulating this intercourse be- tween nations and their respective subjects, as acknowl- edged by the civilized states of the world. Like the civil law, it is founded in the principles of natural jus- tice, but is not and cannot be so broad as the law of nature (page IT).* It is made necessary by the fact that nations, as well as individuals, have their rights which other nations must respect, the right of prop- erty, of reputation, the right to protect citizens against injury by foreigners ; just as municipal law is necessary to regulate the rights of men (page 12). . 5. Of Recent Origin — As a system the law of nations is of modern growth. It has existed but a few centuries. * It must be remembered that international law not only does not and cannot descend to all the details of justice made obligatory by the divine law, but also that in some cases it allows positive injus- tice; for it consists not of what most Christian nations ought to agree upon, but what they have agreed upon. 270 INTERNATIONAL LAW Nations, even beyond the middle of the Christian Era, were little governed by the principles of natural justice. Little respect was paid by one to the persons and prop- erty of the citizens of another. Kobbery on land and sea was not only tolerated, but esteemed honorable ; and prisoners of war were either put to death or reduced to slavery. By this rule commerce was destroyed, and perpetual enmity kept up between nations. 6. Cause of its Growth — The law of nations is the recognition of the fact that foreigners have claims upon us. It has always been, and is now to a great extent, a principle of action with all peoples, that foreigners are entitled to no consideration. The less that is known of them, the less are their rights regarded. Christian- ity, the spirit of chivalry, and the increasing intercourse of nations with each other, have been the agents which have caused the world to recognize the natural rights of foreigners, and which have built up the law of nations. 7. Enforcement — The strongest distinction between international and civil law is that while the latter has the power of a state to enforce it, with the former there is no means of enforcement, in case of dispute or disobedience. This follows from the sovereignty of each nation. There is no sovereign power above them all. It is and must remain a system of laws which the parties may or may not obey, as long as the world remains composed of separate nations. The only rem- edy is for the nation injured by any violation to appeal to the sense of justice of the other (generally a futile appeal), or to resort to war. 8. Arbitration is a proceeding which has been re- sorted to at times in the settlement of minor dis- PEACEFUL RELATIONS 271 putes; but there is no power to compel submission to arbitration, or obedience to the decision when made. 9. Treaties, as such, form no part of international law. They are binding only on those who make them, while the law of nations is binding on all nations. But they often contain agreements to do many things en- joined by the law of nations, and if most of the treaties between the powers contain the same stipulations, they thus become evidence of what the law is in those par- ticulars. 10. The Defects of international law are as follows : (1) There is no international legislature to declare what shall be law, and to make changes when neces- sary ; (2) there is no judiciary to apply it in cases of disputes between nations, and each nation must make the decision for itself ; (3) there is no supreme power to execute the law (sec. 7), and the injured nation must execute it by war, and if it cannot, must submit. For these reasons the law is uncertain, even at best, acknowledged by but a portion of the world, and very slow to improve. In case of dispute, neither disputant is likely to make a just judgment, and justice is virtu- ally denied to the weak power when against the inter- est of the strong. 11. Observance — Having thus the power in their own hands, nations do not always observe the law, even when it is clearly established. Even in the latest times it has been flagrantly violated by ambitious princes or misguided people. But comparing its com- mencement in the Middle Ages with its present position we can say that it has made much progress, and we may hope that in the future, as civilization 272 INTERNATIONAL LAW advances and the principles of justice become better known and more widely admitted, its progress will be still greater. CHAPTER LXIII ORDINARY RULES OF PEACE 1. Recognition — Every nation has a right to estab- lish such form of government as it shall see fit, and when established to have its government recognized as such by all others. Otherwise it would be giving one nation the right to interfere in the affairs of another (sec. 6). International law takes governments as they are, without questioning their legitimacy, and thus a usurping monarch is entitled to all its pro- tection. Any other rule would make continual war. 2. Jurisdiction — The exclusive jurisdiction of a state extends not only over the land within its bound- aries, but to all rivers flowing through it, the bays, harbors, etc., upon the coast, and a marine league of the contiguous ocean. The remainder of the ocean is free to all. All nations may use it for transit, fishing, or any other purpose. 3. Intercourse — International law has not yet ad- vanced so far that intercourse is a right which may be demanded in all cases. In the absence of treaty obligation, or the right accorded by custom, a nation may refuse to allow others to have commercial rela- tions with it, or may prevent immigration into it. It may shut out all mankind. This we believe to be con- trary to the true advantage of any state, but the right of sovereignty over its territory implies such a power. But when general intercourse has been once estab- PEACEFUL RELATIONS 273 lished, the deprivation of the privilege, except for some good reason, would be an injury and the viola- tion of a right, for the right is gained by usage. Free intercourse both for travellers and immigrants is now granted by all civilized nations, and it may perhaps be expected that, as the commerce of the world increases and travel becomes more and more general, it will in time become established as a strict right. As to emigration, every citizen now has the right to leave his country whenever he chooses. 4. Travellers while in a country are subject to its laws, and if they violate them, though ignorantly, may be punished by them. On the other hand, they are entitled to the full protection of its laws and its government. 5. Fugitive Criminals — A criminal must usually be tried in the country where the crime is committed and whose laws are violated. There is, however, no strict obligation upon a nation to return criminals escaping into it. This, too, may in time come to be a principle of international law, for it is now very common to have it provided for in treaties, and our government has extradition treaties^ as they are called, with several nations. 6. Non-interference — It is a general principle that no nation has the right to interfere in the affairs of another, either its internal affairs or its relation with other states. Interference would be a violation of sovereignty. Therefore no nation has the right to aid the colonies, or any portion of another, which are in revolt against their government, Avhile the two nations sustain peaceful relations. Such an act is unfriendly. When a revolt has progressed so far that 18 274 INTERNATIONAL LAW a new government has been established, and the old government has virtually surrendered the contest, though it may not in words have so declared, the new state, because it is a state, may demand recognition and non-interference from all (sec. 1). 7. Exception — There is an important exception to this rule of non-intervention. A state in Europe may interfere when the political policy of another, even though it be otherwise just and peaceful, threatens to endanger the security of the former. Thus if one state by uniting peacefully with another will grow so powerful as to threaten the independence of others, they may interfere to prevent the union. This is called preserving the balance of power, and applies only to the nations of Europe, which have ever been jealous of each other. Extreme cases of outrageous tyranny or cruelty on the part of a government toward its subjects will justify interference. 8. Treaties are Contracts — As with persons, so with nations, all have the right of making contracts with each other, and when made the parties are under obligation to carry them out. But treaties cannot be made which disregard the rights of others, or which bind to do unlawful acts. So, also, if obtained through force or fraud, they are void. 9. Ambassadors — These have been before described (page 173). They form an exception to the rule that foreigners always become subject to the laws of the country in which they are. Ambassadors, * their assist- ants, families and servants, are not subject to the laws of the countries in which they are. They cannot * We here mean foreign ministers of all kinds. PEACEFUL RELATIONS 275 be sued in civil suit nor prosecuted criminally ; in other words, their persons and property are inviolate. They are held answerable only to the laws of their own country when they shall return home. The reasons for this rule are, (1) the respect due them as the repre- sentatives of a nation, and (2) the necessity that they should be free from all interruption and danger in the discharge of their important duties. They are also entitled to the same privileges in the countries through which they pass in going to or returning from the country to which they are sent. Any dis- respect shown to them is disrespect to the nation they represent. lOc Consuls are not entitled to the privilege enjoyed by ministers, but are subject to the laws of the country in which they reside. As in the case of ministers, consuls carry a certificate of their appointment, and must be acknowledged as such -hy the government of the country in which they reside, before they can per- form any duties pertaining to their office. 1 1 . Reprisals have been before explained (page 155). They are sometimes used as a means of obtaining satisfaction without actual war. The property when taken is kept until all hope of satisfaction is gone, and then it is confiscated.* But now reprisals are seldom resorted to in time of peace. 12. Embargo is the detention for a time of all vessels in the ports of a country by its government. When directed against all vessels, national and foreign, for the purpose of protecting them, it is a civil embargo. When directed against foreign vessels in time of peace * To confiscate is to adjudge property to be forfeited, and to appropriate it to the use and benefit of the state. 276 INTERNATIONAL LAW it is called a hostile embargo, and is a species of reprisal. Embargo is lawful, but is falling into disuse, except as a measure of war. SECTION II.— RELATIONS OF NATIONS IN WAR CHAPTER LXIV CAUSES AND OBJECTS OF WAR 1. Rightf illness of War — A nation itself has rights, the right of sovereignty, independence, property, etc., and is under obligation to protect them, and also to protect the rights of its citizens. The purpose of gov- ernment is to protect these rights against all the world. But we have seen that when these rights are violated or threatened by a foreign nation or its subjects there is no supreme power to whom to look for redress or protection. Therefore each nation has in itself the two rights of redress and self-defence ; that is, it may use force to redress or to prevent the infliction of an injury upon itself or its subjects. War, therefore, though a great evil, is just when used as a means to prevent a greater evil ; and war in itself is not wholly an evil, for it has often been the means of bringing back the decaying virtue of a people. 2. Cause — But war is not lawful unless it has (1) a just cause, and (2) a proper and sufficient object ; that is, there must be some cause recognized as just by most nations, and the object to be attained by it must be sufficient to compensate the world for the injury it inflicts. A just cause is the violation of any of RELATIONS IN WAR 277 the rights of a nation or its subjects. Thus, interfer- ence by another with its sovereignty, or independence, seizure of its territory, unjust injury to the liberty, security, or property of its citizens, insults to its flag or its ambassadors, and violations of treaties, are just causes of war by the nation injured against the one injuring. 3. Object — A proper object of a just war may be, (1) to obtain redress for wrong committed, (2) as a punishment to prevent its repetition, and (3) in self- defence to prevent its present commission. Self- defence against unjust attack is always a sufficient object of war. But in many cases the injury com- mitted or threatened is so small as not to justify a war ; that is, the object is proper but not sufficient. Injuries to single individuals are often of this nature. And yet sometimes a small injustice to a single person may be done in such a manner as to imply contempt for his nation : in such case the interests of the whole nation compel it to resent the wrong. 4. Who Judges — And yet, as we have seen, the nation intending to resort to war is the only one authorized to decide whether its cause be just and its object proper and sufficient. Others have no right to interfere, even though they should think the war unjust. But if no pretext of right be offered, any or all nations may interfere, for there is no such thing as the right of conquest. 5. Arbitration — It may be said that in justice all peaceful measures to obtain redress ought to be taken before war is resorted to ; such as, demand of satisfac- tion, and offer to arbitrate. This is one of the cases in which international law has not yet reached its high- 278 INTERNATIONAL LAW est point, for such preliminaries, though frequently taken, are not necessary to a just war. Indeed, in some cases, as of an attack without warning, they are not possible. 6. Alliance for War — By treaty of alliance, nations sometimes agree to assist each other in case of war with a third power. But when the occasion arises each of the allies must decide for itself whether it will take part, for no treaty can bind one to wage an unjust war. CHAPTER LXV RIGHTS AND DUTIES OF BELLIGERENTS * 1. Declaration — When a nation has resolved on making war, it is usual to announce the fact by a pub- lic declaration. It was usual, formerly, to communi- cate a declaration of war to the enemy, but this is not now necessary. Any manifesto or paper from an offi- cial source, published in such a way as to give notice to its citizens, the enemy, and neutrals, is sufficient. Every one should be notified whose rights may be affected, so that he may protect them. The recalling of a minister has alone been regarded as a hostile act, and followed by war, without any other declaration, but such cases have not been frequent. 2. Effect upon Intercourse — The government of a state acts for and in behalf of all its citizens ; and its acts are binding upon all. Hence, when war is de- clared, all intercourse between the two countries at once ceases. All trade between the citizens, directly * Belligerents are those taking active part in a war ; neutrals are all others. RELATIONS IN WAR 271) or indirectly, is strictly forbidden ; and all contracts with the enemy made during the war are void. 3. Foreigners within the Country belonging to the hostile nation are, upon the declaration of war, either allowed to remain during good behavior, even through the Avar, or else a reasonable time is given them by public proclamation to depart with their property. 4. Private Acts — Formerly war made every citizen of one state the enemy of every citizen of the other, but now the accepted theory is that it is simply a con- test between the governments. Private persons have no right to engage in hostilities without authority from their government. Tf they do they are liable, if captured by the enemy, to be treated as murderers, robbers, and pirates, rather than as prisoners of war. 5. Combatants are the members of the army and navy actually engaged in prosecuting the war. They may be killed by the enemy. The right to use force implies the right to take the life of those who make resistance. There is little limit to the kinds of weap- ons that may be used for this purpose, though the use of poison is prohibited. So also stratagems and deceit are allowable, but not so far as to constitute a breach of faith. When an enemy surrenders or is captured the right to kill is gone. 6. Prisoners of War are members of the opposing army or navy captured in war. They may be con- fined, and even fettered, if there is reason to apprehend that they will rise against their captors or make their escape, but must be treated with humanity. Prisoners of war are detained to prevent their returning to join the enemy, or to obtain from their government a just satisfaction as the price of their liberty, and may be 280 INTERNATIONAL LAW kept till the end of the war. Deserters and spies, when captured, may be shot. 7. Non-Combatants are citizens of the belligerent nations who take no part directly in carrying on the war. Not only are they not subject to capture or any personal molestation, but their property on land is exempt from capture, as long as they take no active part in the war. Marauding and ravaging by an invading army is therefore unlawful.- This follows from the fact that the war is between the governments and not the subjects. But sometimes, when necessary for the support of an army, the inhabitants of an invaded country may be compelled to give up the property wanted at a fair value, or even in rare cases without compensation. 8. Siege— The treatment of a fortified town which has resisted and has been taken by the enemy is some- times far below humanity. The town may also be bombarded, and thus the property and lives of non- combatants destroyed. It is to be hoped that future wars will mark an improvement in this particular. 9. Civil War — The foregoing rules of war apply not only to war between separate nations, but also to civil war between portions of the same nation, and to war with savages. In the last case it is not justice to treat the savage with inhumanity because he so treats us. 10. At Sea the property rights of non-combatants are essentially different from those upon land. The * Even the public property of a nation may not be captured or destroyed by the enemy, unless used for war purposes ; but forts and other military buildings and stores may be. International law does not allow the interest of a hostile nation or its subjects in the public funds of its enemy to be confiscated. RELATIONS IN WAR 281 object of maritime war is to destroy the commerce and navigation of the enemy, with a view of weaken- ing his naval power. To this end, the capture or destruction of private property belonging to subjects of the hostile nation is necessary, and is justified by the law of nations. It may be that in time this rule will be modified, as there seems to be little justice in it. 11. Privateers — Besides national ships of war, there are armed vessels owned by private citizens, and called privateers. Their owners receive from the govern- ment a commission to go on the seas, and to capture any vessel of the enemy and its cargo, whether it is owned by the government or by private citizens, and whether it is armed or not. And to encourage priva- teering the government allows the owner and crew of a privateer to keep the property captured as their own (page 156). But privateering is little more than legal- ized piracy. Many nations have agreed to give it up. 12. Prize is property captured from an enemy at sea. In reality it belongs to the government, but is distributed as a reward among the captors. Whether captured by a national vessel or a privateer, it must first be brought into a port, where a court examines into the facts, and distributes it to those entitled. 13. Truce — This is an agreement to suspend hostil- ities temporarily. It ma}^ be for a few days, or for years, and for any purpose. A truce binds the con- tracting parties from the time it is made; but individuals of the nation are not responsible for its violation before they have had due notice of it. For all prizes taken after the time of its commencement the government is bound to make restitution. During the cessation of hostilities each party may, within his 282 INTERNATIONAL LAW own territories, continue his preparations for war without being charged with a breach of good faith. 14. Treaty of Peace — War is generally terminated, and peace secured, by treaties of peace. They leave the contracting parties no right to take up arms for the same cause. The parties to a treaty of peace are bound by it from the time it is made, and a govern- ment is bound to order and enforce the restitution of property captured subsequently to the conclusion of the treaty. But, as in the case of a truce, persons are not held responsible for any hostile acts committed before the treaty was known. CHAPTEE LXVI RIGHTS AND DUTIES OF NEUTRALS 1. Neutral Territory — A neutral nation may insist that neither belligerent shall carry on operations against the enemy upon its territory. It may even forbid the transportation of troops across it. No captures can be made within its jurisdiction on land or sea. 2. Neutrality — A neutral nation is bound to observe a strict impartiality toward the parties at war. If it aids one party it may be treated as an enemy by the other. A loan of money to one of the belligerents, allowing the enlistment of troops or equipment of war-vessels within the neutral territory, or supplying it with other means of carrying on a war, if done with the view of aiding it in the war, would be a violation of neutrality. 3. Aid by Subjects — But a neutral nation is not required to keep its subjects within such strict lines of RELATIONS IN WAR 283 neutrality as it is itself bound by. Private persons belonging to the neutral nation may lend money to either belligerent by buying its bonds, or may enlist in its armies, without involving their own nation. Such things are difficult to prevent. But it is a viola- tion of neutrality for a neutral nation to allow its subjects to equip private vessels for privateers and accept letters of marque in the interest of one of the belligerents. 4. Trade — In general, the rule is that a neutral nation may continue its customary trade with either belligerent during the war, although such trade may furnish it the means of carrying on the war.* Hence goods belonging to neutrals cannot be captured by either belligerent, even though they are in vessels belonging to subjects of one of the belligerent powers, though in such case the vessel may be captured ; and the goods belonging to the subjects of one bellig- erent nation may not be captured by the other when found in neutral vessels. In other words, the only property which may be captured by a belligerent is property belonging to the other belligerent or its sub- jects, when found at sea in vessels belonging to the latter nation or its subjects, and outside the jurisdiction of any neutral state. 5. Contraband of War — But there are certain arti- cles (called contraband of war) which neutrals have no right to supply to either belligerent, because they are directly useful in the prosecution of the war. What these articles are, it is impossible to say with precision, as some may in certain cases be lawfully carried, which * This is the rule. The cases of contraband goods (sec. 5) and blockade (sec. 7) are exceptions to it. 284 INTERNATIONAL LAW would be justly prohibited under other circumstances. The matter is very often regulated by treaty. Among the articles usually contraband are arms, cannon, am- munition, ships, horses, and sometimes materials for ship-building, naval stores, or even provisions. Con- traband goods intended for one belligerent may be seized and confiscated by the other, no matter to whom they belong, when captured outside of neutral territory. 6. Right of Search — To prevent the conveyance of contraband goods the law of nations gives a bellig- erent nation the right of search ; that is, the right, in time of war, to search neutral vessels to ascertain their character and what articles are on board. A neutral vessel refusing to be searched by a lawful cruiser would thereby render herself liable to condemnation as a prize. Private merchant vessels only are subject to search ; the right does not extend to neutral public ships of war. 7. Blockade — One of the rights of a belligerent nation which a neutral is bound to regard is the right of blockade. A war blockade is the closing of an enemy's ports, to prevent all vessels from coming out or going in. The object of a blockade is to hinder supplies of arms, ammunition, and provisions from entering, Avith a view to compel a surrender by hunger and want, without an attack. A neutral vessel at- tempting to enter or depart may be seized and con- fiscated. Towns and fortresses also may be shut up by posting troops at the avenues. 8. Paper Blockade — A simple decree or order declaring a certain coast or country in a state of block- ade does not constitute a blockade. A force must be REVIEW QUESTIONS 285 stationed there competent to maintain the blockade, and to make it dangerous to enter. Without such a force it is called a paper blockade. And it is necessary that the neutral should have due notice of the block- ade, to subject his property to condemnation and forfeiture. According to modern usage, if a place is blockaded by sea only, trade with it by a neutral nation may be carried on by inland communication. And a neutral vessel, loaded before the blockade was established, has a right to leave the port with her cargo. REVIEW QUESTIONS International Law Peaceful Relations of Nations 1. What is a nation ? Is New York State a nation ? Why ? 2. What is sovereignty ? 3. Define international law. How old is it ? 4. Name the chief causes of its growth. 5. How is it enforced ? Why ? 6. Are treaties a part of international law ? 7. Name its defects, and why they are such. 8. What is the right of recognition? Do usurpers have it ? 9. State the jurisdiction of a nation. 10. How far is commercial intercourse between nations a right ? May a state prevent immigration ? May it prevent emigra- tion ? 11. To what laws are foreigners travelling in a country subject ? State the exception to that rule, and its two reasons. 12. What is extradition ? Is it demandable as a right ? 13. State the rule of non-intervention. What is the balance of power ? 14. May provinces in revolt be aided by a foreign nation ? Why ? May a nation be aided in a war with its provinces ? 15. What are reprisals ? Embargo ? Their object ? Relations of Nations in War 16. What are belligerents ? Neutrals ? 17. Why is war right ? What two general rights does it rest upon ? 286 REVIEW QUESTION'S 18. What three things are necessary to a just war ? 19. Name some just causes of war. 20. Name the proper objects of war. 21. May a neutral nation prevent a war because it is unjust ? 22. Is there any obligation to arbitrate ? 23. To whom should notice of a state of war be given ? Why ? 24. What is the effect of war upon trade between the belligerents ? Between a belligerent and neutral ? Between neutrals ? 25. What is the effect of war upon foreigners within the hostile nation ? 26. May private individuals take part in the war ? 27. Who may be put to death in war ? What means may be used ? What deceit ? 28. May prisoners of war be put to death ? Deserters ? Spies ? 29. What are non-combatants ? May they be made prisoners ? Is their property subject to capture, on land ? At sea ? 30. What are privateers ? Prize ? 31. What is a truce ? A treaty of peace ? From what time do they bind individuals ? 32. What rights have nations at war over neutral territory ? 33. State the rule of neutrality. 34. What aid may neutral subjects render ? 35. State the rule as to neutral trade. Its two exceptions. 36. What property may be captured in war ? 37. Define contraband of war. What articles are contraband ? 38. What is the right of search ? 39. What is the right of blockade ? The penalty ? What is a paper blockade ? INDEX TAGE Accessory 265 Acknowledgment (of deed, etc.) 250 Action (at law). See Suit. Administrator 81 , 261 Admiralty 184 Agent. See Principal and Agent. Alderman 60 Alien 27, 147 Alliance 163, 278 Ambassador, appointment 173 exemptions 274 reception 175 Amendment (of Constitution I, national 190, 193-201 State 25 Answer (in suit at law ) 84 Appeal (in suit at law) 86 Appointment. See Governor, Pres- ident. Apprentice 211 Appropriation 162 Appurtenance 252-255 Arbitration (between nations). ..270, 277 Aristocracy 20 Arms, right to keep 195 Army 75, 156 Arraignment 89 Arrest 88 by whom made 265 Arson 263 Assault and battery 83, 264 Assessment (of taxes) 64 Assessments 66 Assessors 57 Assent (in contract) 214 Assignment (by debtor) 232 Asylum 72 Attainder 161, 165 Attempt (at crime) , 264 Attorney 84 Attorney-General, national 178 State 50 Auditor. See Comptroller. Bail 88 excessive 197 Balance of Power 274 Bankruptcy 149 Belligerent 278 Bigamy ... 220, 264 Bill (legislative) 43 Bill of Attainder. See Attainder. PACK Bill of Credit 164 Bill of Exchange 233-239 Bill of Lading 345 Bill of Rights 193 Blockade 284 Body Politic 24 Bribery .' 264 Broker 224 Burglary 2(13 Cabinet 177 Canal 72 Capital 39 Capital Punishment 262 Captures 156, 281 Census, National 131 State 37 Challenge (at election) 30 Charter 59 Chattel .'.'.' 232 Chattel Mortgage 232 Check 235 Child. See Parent and Child. Citizen, defined 147 privileges in different States. ... 188 City 59-62 Civd Law 16 Civil Service 175 Civil War, Rules of 280 Clearance (of vessels) 146, 162 Codicil 260 Coinage, by Nation 150 by State 164 Colonies, Government in 94 Colony, defined 93 Combatant (in war) 279 Commerce, regulation of 143 Commission Merchant 224 Committee, Legislative 42 Common Carrier 241 Common Council 60 Common Law 205 Complaint (in suit at law) 84 Comptroller 49 Confederacy 100 Confederation, The 97-100 Confiscation 275 Congress, Continental 96 (of IT. S.), adjournment 107, 115 composition 130 288 INDEX TAGE Congress (of U. S.), journal 107 meetings 138, 175 officers 137 quorum 107 rules 138 Congress, Members of, compensation 138 civil officer 108 election 107 privileges 138 Congress, Powers of .. .125, 127, 140- 157, 187-191, 198 Consideration (of contract) 215 Constable. , 57 Constitution, English 26 Constitution, State 23-25 Constitution, U. S„ adoption 100 text of 104-129 Consul 173, 275 Contraband of war 283 Contract 212-218 Contract, law impairing obligation of 165 Convention, Constitutional 100 Convention of 1786 99 Copyright 151 Coroner 54 Corporation, control by State 7'3 municipal 52, 62 Corruption of blood 186 Council, Executive 48 Counterfeiting 110, 264 County, importance 52 officers 53-56 origin 51 County Commissioners 53-56 Courts, National 180-182 jurisdiction 182-185 State 78-82 Covenant (in deed) 251 Creditors, rights of 231 Crimes, denned 261 punishable by Congress 152, 186 punishable by the State 261, 265 Crop, right of tenant to 257 Customs 141, 143 Days of Grace 238 Death, distribution of property upon 260 Debt, of Nation 200 of State 74 Declaration (in suit at law) 84 Declaration of Independence 96 Deed 249-251 Defendant 83 Delivery (of property) 229, 231 Democracy 21 Departments of Government 32-34 Departments (national) 176-180 Deposit Fund (of U.S.) 69 PAGE Deserter, punishment of 280 Despotism 20 Diplomacy ... 177 District Attorney 55 District of Columbia 153 Divorce 221 Dower 220, 248 Drunkards, contracts by 214 Duties, collection of 145 defined 141 laid by Nation 142, 143, 162 laid by State 165-166 Education 67-71 Election 29-32 Electors, qualifications of 26-28 Electors, Presidential 169-171 Embargo 275 Embezzlement 263 Emigration, right of 273 Eminent Domain 73 Entry (of vessels) 146, 162 Envoy 173 Estates 247-249 Eviction (from land) 256 Excise 67, 141 Execution (in suit at law) 86 Executor 81 Ex post facto law 161, 165 Fee-simple 247 Force (in contract) 216 Foreclosure 251 Forgery 239, 264 Franchise 27 Fraud (in contract) 216 Fraudulent transfer 232 Freedom of Speech 16. 194 Freedom of the Press 16, 194 Freeholder 131 Free Trade 145 Fugitive Criminals 188, 273 General Average , 245 Gift 231 promise of 215 Government, necessitv for 13 forms of 19-22 Governor 46^48 Guardian and Ward 15, 210 Habeas Corpus, described 8S suspension of 160 Heir 260 Highway, regulation of 57 rights of adjoining owners 252 Homicide 263 Hotel-keeper 241 Husband and Wife. See Marriage. Idiot, contract by 214 Immigration, right to prevent 272 Impeachment 79, 82, 138 INDEX 289 .141, Impost, laid by Nation laid by State Indians, commerce with Indictment Indorsement 235, Infant Inspectors of Elect ion Insurance -42- Insnrrection 76, Interest 246- Intestacy Joint Owner Judge, of national court. . of State court Judgment Jurisdiction, kinds of. Jury, grand jury trial by protected Justice of the Peace. . . 142 67 147 87 238 213 •J 1 .) 244 190 247 259 247 174 . 86 ro-82 Landlord and Tenant 255-258 Larceny 263 Laws, defined 12 classified 16, 17, 205 making of in Nation 138,139 in State 43-46 Lease 255-258 Legal Tender 164 Legislature, of Nation. See Congress. Legislature, of State, how constituted 35-38 meetings and organization . . . 38-41 Letters of Marque 155, 164 Libel 207 Liberty 16 Lien, kinds of 224. 229, 242, 245 Lieutenant-Governor 39, 48 Lunatic, contract by 214 Majority (in election) 31 Manslaughter 262 Marque." See Letters of Marque. Marriage 218-221 Master and Servant 16, 211, 212 Master (of vessel), authority of 246 Mayor .' 60 Measures, standard of 150 Message, of Governor .42 of President 175 Militia 75-77, 157 Minister. See Ambassador. Minor. See Infant. Monarchy 19 Money, what is 150 See Coinage. Mortgage 232, 249-251 Murder 262 Nation, charactei 19 ..93, 100. 20S PAGE National Guard 77 Naturalization 148 Navigation, regulation of 144, 146 Navy 156 Negotiable Paper 2S0, 236 Negro, rights of 28, 199-201 Neutrals, who are 278 rights and duties of 282 285 New States 189 Non-combatants (in wai ). on land 280 at sea 280 Note, promissory 233-239 Notice to Quit. '. 258 Oath of office 191 Ordinance (of city) 60 Overseers of the Poor 57 Paper Blockade 284 Pardon 48,172 Parent and Child 15. 210, 211 Partnership 225- 228 Party Wall 254 Patent 151, 178 Patriarchal Government 19 Pauper 28, 57 Pension 178 Perjury 264 Personal Property 63 Petition (legislative) 42 Petition, right of 195 Piracy 152 Plaintiff: (in suit at law) 83 Plea (in suit at law). 84 Pleading (in suit at law) 84 Plurality (in election) 31 Policy (of insurance) 244 Poll.". 29. (13 Polygamy. See Bigamy. Poor! See Pauper. Postmastcr-( teneral 17'8 Post-office 150 Preamble (of IT. S. Constitution. . . . 130 Premium (in insurance) 242 President (of U. S.), election 1P9. 198 powers and duties 112-176 qualifications 171 salary 171 term of office 168 Principal and Agent 222-225 Prison 74 Prisoner of War 279 Privateer 155, 281 Prize 281 Probate (of will) 80 Prohibitions, on the States 163, 166 on the United States 160-163 Property, basis of right of 12 Prosecuting Attorney 55 Protection 144-145 Quarantine. it; 290 INDEX PAGE Quorum, in National Legislature 107 in State Legislature 40 Railroad 73 Real Estate, denned 63, 247 Rebellion, denned 76 aid by foreign nation 273 Record (of deed, etc.) 250 Records, of one State in another. . . . 187 Recorder 54 Register 54 Registration (of voters) 30 Registry (of vessels) 146 Release, from debts 232 Religion, freedom of 194 Rent 255 Repairs (to rented property) 257 Representatives, House of, ' National 130-134, 199 State 35-38 Reprieve 48, 172 Reprisal 155, 275 Republic 21, 23 Revenue Bills 139 Revolution, Causes of the 94-96 Rights, defined 14 how forfeited 14 classified 14-18 Road. See Highway. Robbery 263 Sale 228-231 Salvage 246 Schools, Common 67-71 Schools, Normal 71 School Funds 68 Search, right of (in war) 284 Search-warrant 195 Seat of Government 39, 153 Secretary of Agriculture 179 of State 49, 177 of the Treasury 177 of the Interior 178 of War 178 of the Navy 178 Seizure 195 Selectmen (of town) 56 Senate, National 130, 134-137 State 35-38 Sergeant-at-arms 40 Servant. See Master and Servant. Services 215-216, 240-242 Sheriff 54 Shipping, law of 244-246 Siege 280 Slander 207 Slaves, fugitive 188 Slavery, abolition of 199 Slave-Trade 160 Soldiers, in private houses 195 PAGE Sovereign tv 268 Speaker , 39, 137 Spy, punishment of 280 State, admission of 189 suit against 198 not a nation 268 Statement (by civil officers) 163 State's Attorney 55 Statute 206 Stock, State 74 Stratagem (in war) 279 Stream, rights of adjoining owner... 252 Sub-lease 257 Subpoena 85 Suit, proceedings in, civil 83-87 criminal 87-90 Suffrage 26 Summons (in suit at law) 83 Supervisors 56 Supervisors, Board of . 53 Tariff 140 Tax, by Nation 140-143, 161 by State .63-67, 165 Tenant. See Landlord and Tenant. Tender. See Legal Tender. Territories, how governed 21, 190 represented in Congress 134 Test Oath 192 Theocracv 19 Title of Nobility 163, 165 Tonnage 166 Town Officers 56-58 Town Meeting 58 Township 56 Treason, against Nation 185, 186 against State 262 Treasurer, State 49 county 53 town 57 Treaty, denned 172 by whom made 172 State forbidden to make 163 as part of international law.. 271, 274 Treaty of Peace 282 Trial 82, 85,89 See also Jury. Truce 281 Trust 248-249 Usury 246-247 Vacancy, in State Legislature 38 in Congress 106 Verdict 86 Vessels. See Entry, Clearance, Registry, Shipping. INDEX 291 PAGE Veto, by Governor 45, 46 by President 139 Voters. See Electors. Village 00-62 War. power of Congress over 155-157 by States 166 by private persons 279 rightfulness of 276 just causes of 276 objects of 277 effect upon belligerents 278 War, effect upon neutrals 282 Ward. See Guardian and Ward. Warranty, of title 230, 251 of quality 230 Way, Right of 253 Weights, standard of 150 Wife, power to contract 214 property lights 220 right of support 221 See Marriage. Will 258-261