A BRIEF VIEW
Addressed to the Law Academy of Philadelphia
by Peter S. Du Ponceau, L.L.D.
Provost of the
PUBLISHED BY AND FOR THE ACADEMY.
E. G. DORSEY, PRINTER,
Entered according to Act of Congress, in the year 1834, by J. R. TYSON,
JOHN CADWALADER and PETER M'CALL, Vice-Provosts of the Law Academy of
Philadelphia, in trust for the said Academy, in the Clerk's Office of the
District Court of the Eastern District of Pennsylvania.
PREFACE ....... xi
State of the colonies before and during the Revolution ...1
Their rights, privileges and disabilities under the British government
Causes of the Revolution and Declaration of Independence ...... 3
First Congress .... 5
Second Congress .... 5
Adoption of the Articles of Confederation 7
Of the Articles of Confederation and Perpetual Union 8
Their nature and object .... ib.
Of the Congress their powers and disabilities ib.
Restrictions of the States .... 10
Adoption of the Constitution ... 12
General View of the Constitution.
Title of the instrument ..... 13
Its national character .... 14
The rights of sovereignty conferred by it ... 15
Distribution of powers ... 17
Organization of the Government.
Of the legislative department .... 19
Division into two branches ... ib.
Of the senate and election of members ... ib.
Of the House of Representatives and election of members .....
Of the time, places and manner of election 30
Requisite qualifications of senators and representatives ...
Meetings and adjournments of congress ... ib.
Power of each house over its members ... 21
Persons disqualified from becoming a member of either house ...
Privileges of members ... ib.
Of the Executive Department..... 22
Of the president his council and responsibility ...
Of the president's veto ... ib.
Of the vice-president .... 23
Term of office of president and vice-president ... ib.
Manner of electing president and vice-president ib.
Manner of filling vacancies in the presidential office ... 25
Qualifications for president and vice-president ... ib.
Their removal from office ... 26
Of the Judiciary Department .... ib.
Appointment of judges and their term of office ... ib.
Supreme, circuit and district courts .... 26
Courts martial and court for the trial of impeachments 27
Appointment of officers and salaries ... ib.
Manner of appointing officers and filling vacancies ib.
Of the salaries ..... 28
Of the Powers, Rights and Duties of the General and State
Foreign relations War, Peace, Treaties ... 30
Power of declaring and making war vested in congress ib.
Power of making peace and treaties vested in the president and senate
When congress interfere in treaties ... ib.
The president represents the majesty of the nation with foreign powers
Finance ....... 32
The power of taxation vested in congress ib.
Objects of these powers .... ib.
Of the treasury coining of money and its regulation
bills of revenue ... 33
Commerce, ...... ib.
Regulation of Commerce ... ib.
Establishment of a national bank ib
System of bankrupt laws ... 31
General and penal Legislation ... 35
General and special powers of congress to make penal laws ..... 35
Treason and attainder of treason .. 36
Manner of trying crimes ... ib.
Of the pardoning power ... ib.
Of impeachments .... ib.
Of the supreme law of the land ... ib.
Judicial Power ...... 37
Extent of the judicial power .. ib.
Original and appellate jurisdiction .. 38
Of the auxiliary system between the general government and the states
New States........ 39
Of the admission of new states into the Union ib.
New states admitted .... ib.
Local Jurisdiction of Congress ... ib.
Places over which congress have exclusive legislation ib.
Of the territory and other properly of the United States 10
Miscellaneous powers of Congress.... ib.
Special powers of congress .. ib.
Naturalization of foreigners.... 41
Protection of the States and guarantee of Republican government ..... 42
Definition of the term republican form of government ib.
Protection of the states against invasion and domestic violence ....
Restrictions on State and Federal Power ... 43
Restrictions on the states ... ib.
Restrictions on congress ... 44
Of the bill of rights .... ib.
Difference between the constitution and confederation in the reserved
powers ... ib.
Public Law between the States ... 45
Mutual rights of citizens ... ib.
Fugitives from justice and personal service to be delivered up on demand
The acts, records and proceedings of each state to have full faith and
credit in every other state ib.
Mode of amending the constitution ... 46
Manner of proposing amendments . ib.
Ratification of these amendments . ib.
Amendments which have been made . ib.
Beauty and harmony of the system of government under the constitution
Balance between the two principles of national and state sovereignty
Distribution of powers between the federal and state governments ......
No. I. Declaration of Independence ... 51
No. II. Articles of Confederation and Perpetual Union ... 58
No. III. Constitution of the United States, with its amendments ......
No. IV Washington's Farewell Letter ... 86
Addenda ...... 105
List of Contributors .... 107
THIS little work has no
pretensions, save that of brevity and clearness. It is intended for the benefit
of youth, of the general reader, and of foreigners. I believe that no attempt
of the kind has yet been made; I mean on so limited a scale. I have endeavoured
by a method of my own, to compress in plain and popular language, the prominent
features of our excellent constitution in as small a space as possible, and at
the same time to avoid obscurity. Whether I have succeeded or not, it is for
the reader to determine.
I have addressed this essay (for it claims no higher title) to the
Law Academy of Philadelphia. For more than fourteen years I have had the
honour of being at the head of that useful institution, who, during that time
have been zealously pursuing their steady course, and whose members have
enriched the legal profession with several valuable works. It is not so much
for their instruction that I have presented them with this result of my
studies, as that they might see in it a tribute of friendship and a testimony
of my constant attachment, and of the pleasure that I feel in being connected
with them. Yet I have thought that this brief view of our constitution might
not be useless to their younger members, as an introduction to the more
elaborate works which they will be called upon to study. It will smooth their
way to a more profound investigation of the rules and principles of our
admirable form of government.
The method which I have followed to attain the object which I had in
view, is, I believe, entirely new. I do not by any means pretend that it is
preferable to that which has been adopted by other writers; I only can say that
I found it better suited to my purpose, which I have already explained. Had I
written with other and more ambitious views, I would, of course, have
endeavoured to adapt my method to them, as our great writers on the
constitution have very properly and successfully done.
I have treated separately and in the first place, of the
organization of the government, by which I mean its great division into
legislative, executive and judicial departments; its consequent subdivisions;
its subordinate officers; the various modes of election and appointment to
office; the periods of service; the modes of action of those different
authorities, and a variety of matter of detail, constituting together what
might be called the mechanical part of the government. In the text of
the constitution those matters are mixed with other provisions; I have thought
best to present them in a separate view.
These being disposed of, I have proceeded to the enumeration and
distribution of powers, rights and duties between the general government and
the states, reddendo singula singulis, and so as to give a clear view
not only of the division of power between the union and the individual states,
but of its distribution between the different branches which compose the
aggregate authority of the former. I have classed these under general heads,
with reference to the different subjects on which power is or may be exercised;
in which division or classification I have followed no precedent, because I
found none which, in my opinion, could so well answer my purpose as the
arrangement which I have adopted. By this means I have been enabled to condense
a great deal more matter in a small space than I could otherwise have done. I
have even been able to introduce a few occasional reflections, and to deduce a
few corollaries from the text of the constitution, which do not appear on the
face of the instrument. But of these I have been very sparing; and the reader
will recollect that it is not an abstract, but a view of the
constitution that I here present to the public, and consequently, that where
the text, in consequence of different opinions having been entertained about
its meaning, appeared to require some explanation, it behoved me to give that
which appeared to me to be most consonant to its spirit.
I have prefaced the whole work with two preliminary chapters, in one of
which I have endeavoured to give a clear view of the political state of this
country under the colonial government and under the confederation, with which
in the other chapter I have compared our present constitution, in order to
facilitate its intelligence, by pointing out the objects that its framers had
in view. In an appendix, I have given the text of the Constitution, with its
amendments, and the Articles of Confederation and Perpetual Union, which
preceded it. To these I have added the Declaration of Independence, and the
Farewell Address of our immortal Washington, considering them as indispensable
documents to the student of our constitution, and of our constitutional
I have not included in this short sketch much of what is called
constitutional law. It is a separate science, depending on acts of
legislation, which may be altered from day to day. Even the decisions of the
supreme court of the United States, on constitutional points, have been
questioned, after being acquiesced in for many years. I have, in a few
instances, touched on some of those questions; the whole subject, however, I
have not considered to be within my plan. A brief view of the
constitution could not admit of it.
I have considered the constitution and its amendments us one instrument,
and therefore I have not generally distinguished the provisions of the former
from those of the latter. A reference to the text will show the sources whence
my positions are derived. The student should make himself familiar with it.
This work is only intended to facilitate its study, and to give a general view
of it to those who do not wish to go farther. I believe that the text and the
works of its able commentators, will be studied with more ease after reading
this little tract than they would be without it.
I have, as much as possible, used the words and phraseology of the
constitution in stating its contents; but the reader will easily perceive that
it was not always in my power so to do consistently with the arrangement which
I have adopted. But I have never knowingly, at least, varied from the exact
Such is the plan I have pursued, and which I submit to the candour and
indulgence of my readers.
Having thus explained the design of this essay, and the method which I
have followed, I hope I shall be excused, if I subjoin a few reflections, which
an attentive study of our constitution and forty-five years' experience under
it, have suggested to me. It will be remembered that I write principally for
youth, that they may be enabled, when they grow up to manhood, to avoid the
errors which experience has shown us to be the most dangerous to the permanency
of our Union. The duration of empires has been considered by statesmen
and patriots in all countries and in all ages, as the most important object to
which the policy of nations should be directed. Esto perpetua, was the
last fervent wish of the excellent Father Paul, on behalf of his beloved
Venice. It was also the last wish of our illustrious Washington. It breathes
through every line of his admirable Farewell Address to the people of the
United States. Therefore, the first and last wish of every good citizen, is or
ought to be the perpetuity of our Union. It has not yet lasted half a
century; and during that short period, it has sustained many shocks that
have endangered its existence. Those dangers have been surmounted by the good
sense and the virtue of the people; but the political, like the natural body,
is not immortal, and it will sink at last, if efficient means are not taken to
prevent the recurrence of those disorders, which gradually weaken it, and must
at last operate its dissolution.
The cause of those disorders is chiefly to be traced to the too great
prevalence of party spirit. I admit that parties, when kept within moderate
bounds, are a wholesome ingredient in a free community; but they are a deadly
poison, when carried to excess; particularly when they are not so much founded
on the difference of political opinions, as on a blind attachment to popular
leaders. The Roman republic was near her fall, when parties came to be
distinguished by the names of Sylla and Marius, and of Cζsar and Pompey.
Those leaders usurped all the power, and were followed by a succession of
tyrants. In the bright days of our commonwealth, we never heard of
Washington-men, nor of Adams, Jefferson or Madison-men. The true republican
citizen is neither of Paul nor of Apollos;* he is no man's man; he is his
country's man and his own man. No man, however great or illustrious should be
identified with virtues or with principles. It leads in religion to idolatry,
and in politics to submission to despotism.
* 1 Cor. 1. xii.
Among the evil consequences which follow from party spirit carried to
excess, is a lamentable fluctuation in the maxims and policy of the government.
These suddenly change, as one party obtains the ascendancy over the other, and
foreigners, as well as citizens, do not know any more what to rely on. The
decrees of legislative assemblies, the decisions of supreme tribunals, a long
acquiescence in those decrees and decisions; all those things are set at nought
to serve the views of party leaders. The country must be again agitated with
questions which were believed to be at rest, to be agitated again when the
opposite party shall have acquired the supremacy. It is impossible, that amidst
such frequent changes, a country should long continue to be happy at home and
The mischievous effects of a mutable policy in a republic, are well
depicted in the 62d number of the Federalist. "Those," says the eloquent
writer, "would fill a volume. It forfeits the respect and confidence of other
nations, lays us open to their intrigues, and make us a prey to those who have
an interest in speculating on our fluctuating councils and embarrassed affairs.
At home it destroys confidence in our government, kills the spirit of
enterprise, which no longer knows on what to rely; and what is most deplorable
is that diminution of reverence and attachment which steals into the hearts of
the people, towards a political system which betrays so many marks of
infirmity, and disappoints so many of their flattering hopes. No government,
any more than an individual, will be long respected, without being truly
respectable, nor be truly respectable without order and stability."
I have abridged this admirable passage, and recommend to the reader to
turn to the original, which will well repay his trouble. I regret to be obliged
to say that we have experienced more than once this fluctuation of policy, and
that at this moment we are again in danger of suffering from its baneful
effects. Questions have been and are still agitated that make us tremble for
the stability of our institutions.
Standing as I do, unconnected with any party, I have not hesitated, when
occasion has offered, to express my opinion freely on some of those points. On
one particularly, the renewed discussion of which, after a long acquiescence,
agitates the country from one end to the other, I have thought it my duty, as a
constitutional writer, to be clear and explicit. I allude to the subject of a
National Bank. Its constitutionality I have long considered as settled by the
competent authorities, and acquiesced in by the people at large; of its
expediency I am fully convinced. I consider it necessary under our form of
government not only to regulate the currency, chiefly consisting of bills of
credit, issued under the authority of twenty-four different states, but also to
preserve a due equality among those states. As the subject, to my knowledge,
has not yet been present in in this last point of view, I hope I shall be
excused if I explain myself somewhat more at large upon it.
One of the objects of our constitution is to maintain equality among the
states, as that of the state constitutions is to preserve it among the
individuals that compose them. With this view, no doubt, the senate has been
established, and republican forms of government are mutually guaranteed. The
principle of equality which these imply is not less necessary among United or
confederated states than among individual citizens. These United States are
advancing in power and riches to an astonishing, but not in an equal degree.
The constitution was intended to be so organized that no single state and no
combination of states should acquire an undue ascendancy over the rest. There
is a tendency to that effect in all confederated states. It is well known that,
in former times, Holland possessed such an ascendancy in the confederation of
the United Netherlands, and the Canton of Berne in that of Switzerland. At this
day Austria predominates in confederated Germany, and her will is the law of
the less powerful states; the struggles of Athens and Sparta for the supremacy
over the republics of Greece, and the bloody wars to which they gave rise, can
never be forgotten. The same danger threatens us unless ambitious states are
prevented from rising above the others. Our states are, with few exceptions
nearly equal in territory; but there is a great difference in their means of
acquiring riches, and that difference arises from certain natural advantages..
Riches give influence and influence leads to power. The means by which it may
be acquired are sufficiently obvious. Money is the great engine by which such a
purpose is usually effected, and there is no knowing what might not be done by
a monied institution, with a large capital, wielded by a great, rich and
ambitious state. The bank of Amsterdam did not contribute a little to the
ascendancy of Holland over the states of the Dutch Union. A State Bank may
produce the same effect among us, unless it be checked by the financial power
of the nation. In what form, or under what modifications and restrictions a
National Bank should be established to prevent its becoming dangerous to the
creating power or to the country, it is not my business to consider. A wise and
prudent legislation is all that is required for that purpose.
I have, in like manner, ventured to express my opinion on some minor
points, and have abstained from the consideration of others. I have said
nothing on the questions which have been lately stirred, and which happily
appear now to be at rest. I have not inquired whether a state can secede from
the Union, or of its own authority declare an act of congress null and void. I
feared lest the shade of Washington should frown upon me.*
* See Washington's Farewell Address in the Appendix.
Neither have I said anything respecting the question so often agitated,
whether the constitution should be construed strictly or liberally? All I have
to say on this subject is that I think it should be construed fairly and
honestly, always keeping in view the objects for which it was made.
On a general view of the instrument and a retrospection of the events
that have taken place since it has been in operation, I have come to the
conclusion, that there is no danger of our Union's degenerating into a
consolidated government over this extensive country, and consequently of its
destroying the existence of the states, as independent communities within the
limits to them prescribed; there is much more danger, on the contrary, of a
dissolution of that admirable Union, the pride of our land and the envy of all
the world besides. The organization of the general government, and the powers
which the states have reserved to themselves, are not only sufficient to secure
the independent existence of the latter, but recent events have shown that they
are even possessed of the means to make themselves formidable to those who
might attempt to encroach upon their constitutional rights. What has been done
by a single state, when nothing more than a doubtful local interest was in
question, shows what might be done by a combination of states, if more serious
disturbances should take place.
I have shown in this essay, that the general government cannot be
conveniently administered in all its details, without the aid of the state
authorities. This I have called the auxiliary system, which is one of
the foundations on which our Union rests. Take that foundation away, and the
whole machine will be disorganized. An attempt on the part of congress to
exercise all its powers by means of its own officers, spread like locusts in
swarms through our land, would unavoidably fail. Its security depends on its
being formidable abroad, strong and respected at home, but felt as little as
possible by the individual citizens. The moment it shall attempt to grasp at
more, a dissolution of the Union will be at hand. It is, no doubt, under this
impression that congress have confided to the state courts the power of
naturalization and other judicial powers, that they have avoided laying direct
taxes, except in cases of great necessity, and in collecting them the state
assessments have been generally adopted as a basis of computation. An excise
law once produced an insurrection in Pennsylvania; the like has not been
attempted ever since. These powers, undoubtedly, are vested in the national
government; but not to be rashly or wantonly used. Upon the whole, a mutual
dependence exists between the Union and the states, without which the former
cannot be preserved. When differences have arisen between the general and the
state governments, conciliation has been found the most effectual means of
settling them. The constitution itself is the result of compromise, and is best
preserved by the same means by which it has been obtained. May heaven avert for
many ages, the fatal period when our differences shall have to be settled by
brutal force! Between powers so nicely balanced, a collision is ever to be
An intelligent foreigner, after perusing these sheets, made the
following remark: "Your constitution was made for a virtuous people; but
it will not suit any other." Let us, then, continue to be virtuous, and we may
hope to be long united, happy and free.
With these few observations, I submit this little work to the impartial
public. I have endeavoured to give a view of the constitution as I understand
it, without regard to party opinions, and much less to party interests: these
are transient; but truth and reason are eternal. I have written for the rising
generation; I have spoken to them the language which I firmly believe they or
their descendants will one day hear from posterity.
Constitution of the United States.
SECTION 1. State of the Colonies before and during the
BEFORE the revolution the British colonies in America were independent
of each other, but separately dependent on the king, and in some measure on the
parliament of Great Britain. The extent of that dependence was not accurately
defined; its general principles were, however, sufficiently understood, so
that, at least ever since the final expulsion of the Stuarts from the throne of
Great Britain, in 1688, the mother country and the colonies went on
harmoniously together, without any but trifling differences, which did not
interrupt their union. It was understood that in return for the protection
which the former afforded to the latter, particularly against their neighbours,
the French, who, until a few years before the revolution, were in possession of
Canada, and also against the Indians in alliance with them, she had a right to
monopolize their commerce, and with that view, to restrict it by laws and
regulations. The crown also interfered in various ways in their internal
government, which was, in general, modelled upon that of Great Britain, though
the forms differed in several particulars, which did not, however, affect the
substantial principles of the British constitution, to which they all clung
with enthusiastic affection; and, of course, their governments, though
differing in some details, were all founded on the representative combined with
the monarchical principle. Trial by jury, in civil as well as in criminal
cases, the writ of habeas corpus, and the liberty of the press, were among the
privileges which they most cherished, and were incorporated in all their codes.
Thus they enjoyed as much civil and political liberty as could come to the
share of dependent states; and, above all, the precious right of not being
obliged to part with their money, but by their free will and consent; without
which, colour it as you will, every form of government, however free or
republican in its outward appearance, is but slavery in disguise. Otherwise,
the crown of England possessed great power and influence in their separate
governments. In most of the colonies, the executive branch was dependent upon
it; the governors being appointed by the king; and the judges as well as many
other officers, held their offices mediately or immediately under him. The
crown, moreover, had a negative on all the laws passed by the colonial
legislature, which it exercised through its governors or through the council of
state. So that, on the whole, the mother country possessed powers sufficient to
enforce her colonial system, and keep her American possessions in check, while
these were left at liberty to regulate their internal affairs in the manner
best suited to their peculiar situation, and to promote among themselves all
the arts, that did not interfere with the interests or policy of Great
In this situation the British colonies prospered beyond any other of the
European settlements in America. They were happy and contented. They were proud
of being constituent parts of a great empire; they gloried in the name of
English subjects, and never would have thought (at least for a long time) of
changing their condition, if the parliament of Great Britain, in an evil hour,
had not formed and avowed the project of reducing them to an absolute
subjection to their power.
We have said above that no freedom can exist, where the people can be
compelled to part with their money, without their consent, or that of their
representatives. The people of the colonies were not represented in the British
parliament; therefore, it was evident that that body had no right to impose
upon them taxes of any kind, unless they were absolutely necessary for the
regulation of their commerce. The practice had been, when the mother country
wanted funds for some objects in which the colonies were interested, to apply
for aid to their respective legislatures, which they, in general, freely
granted. But scarcely had Great Britain, with the assistance of those colonies,
made the conquest of Canada, and compelled France and Spain to submit to
humiliating treaties, that there were no bounds to her ambition; and she began
to look on her colonies as sources from whence she might draw money at her
pleasure. Intoxicated with success, she not only claimed the right of taxing
them without any limitation; but, as if that were not sufficient, she also
claimed that of binding them by her statutes in all cases whatsoever.
This was slavery without disguise. Yet the colonies might have suffered the
parent state to enjoy her theories, if she had not attempted to carry them into
practice, and to enforce their execution by her arms. The means that the took
for that purpose, and the resistance that was made, are within the province of
history. Suffice if to say, that in consequence of these, serious differences
arose, and a civil war, at last, was kindled between the colonies and the
mother country, which resulted in the separation of thirteen of those colonies,
and their declaring themselves free and independent states.
This declaration, as every one knows, took place on the memorable 4th of
July, 1776. At that moment, and by virtue of that solemn act, each of these
colonies became a free, sovereign, and independent state; each became free to
act as it should think proper; sovereign within its limits, and independent of
the whole world besides.
A union, however, subsisted between them at the time of this
declaration. A congress had been assembled at Philadelphia, towards the end of
the year 1774, consisting of delegates from the different colonies, who had no
powers given, to them, but to consult and advise on the best means of obtaining
the redress of their grievances from Great Britain, and restoring harmony with
the mother country. When this plan was adopted, hopes of a reconciliation were
still entertained. Consequently the first congress confined themselves to
sending humble petitions to the British king and parliament, and spirited
addresses to their fellow-subjects in the various parts of the empire. To these
and some recommendations to the people of the colonies, which were punctually
obeyed, the proceedings of this congress were confined; and after a short
session, they separated.
A second congress was convened to meet at the same place on the 10th of
May, 1775, invested with no greater powers than the former. When this new
assembly met, the face of affairs had considerably changed.
Hostilities had begun between the mother country and the colonies. The
battle of Lexington had been fought on the 19th of April preceding, and every
thing announced an impending war between the two countries. Great Britain
declared her intention to compel the colonies to submit by force of arms, and
that determination soon brought on actual war. Congress, supported by the
confidence of the people, but without any express powers, undertook to direct
the storm, and were seconded by the people and by the colonial authorities.
They issued paper money, raised troops by requisitions, appointed officers,
settled their pay and emoluments, directed military operations, and in little
more than a year after their meeting, they proclaimed independence, without
making any other change in the state of things. It was not until the 15th of
November 1777, that they presented to the new states for their acceptance
articles of confederation and perpetual union, which were not adopted by all
until the year 1781, when Maryland was the last that ratified them.
In the mean time congress went on as if they had been invested with the
most explicit powers; they went even so far as to bind the nation by treaties
with France, by one of which they guaranteed all the possessions of that
kingdom in the West Indies. It was not, as far as we know, even thought
necessary that those treaties should be ratified by the state legislatures. No
one, at that time, denied the constitutionality of those powers, which
congress exercised for the defence of the country, and the general welfare,
though they had no other authority to show for them than the tacit consent of
the people; and it is remarkable that in none of the constitutions that were
made in the years 1776 and 1777, after the Declaration of Independence, and
before the articles of confederation were submitted to the states, among which
constitutions may be mentioned those of New York, Pennsylvania, Maryland, and
North Carolina, nothing was said of the treaty-making power, or of that of
declaring war and making peace, so well was it understood that those powers did
not belong to the individual states, but to the United States, under
whatever form their general government might thereafter be constituted. The
union was deeply rooted, and had its most solid foundations in the hearts
of the people, who gloried in being not a cluster of independent communities,
but a great, respectable, and powerful nation.
This undefined state of things ceased on the 12th of February, 1781,
which by the accession of Maryland, the articles of confederation and perpetual
union became the national law of the whole thirteen states. They were very
inadequate to what the critical situation of the country required; but the
people's minds were not yet prepared for a more comprehensive and more
efficient form of government.
SECT. 2 Of the Articles of Confederation and Perpetual
This celebrated compact began with a declaration that each state
retained its sovereignty, freedom and independence, and every power,
jurisdiction and right, which the confederation did not expressly delegate to
the United States in congress assembled. It proceeded to define the
confederation itself to be a league of friendship between the states for their
common defence, the security of their liberties, and their mutual and general
welfare; and lastly the states bound themselves, in their sovereign and
independent capacities, to assist each other against all external force. To
promote good neighbourhood between the confederates, the free inhabitants of
each state, (paupers and vagabonds only excepted,) were to be entitled to the
privileges of citizens in all the others; fugitives from justice were to be
mutually delivered up, and full faith and credit were to be given in each of
the states, to the records, acts, and judicial proceedings of the others. It is
not a little remarkable that no provision was made for the delivering up of
fugitive slaves, which seems to have been left entirely to the good faith of
The formation of the congress was established on the principle of the
sovereignty and independence of the states. Its members were in fact no more
than ambassadors, under the name of delegates, (legati,) from the
states which sent them. Each state was to send a number of such delegates, not
less than two, nor more than seven; to maintain them at its own expense, and to
recall them at pleasure, even within the year for which they were
To this congress was given a splendid array of powers, which in
appearance placed them on a line with the most potent sovereigns of the earth;
but it was in appearance only, for the substance was denied them, the states
having reserved to themselves all the means of carrying those powers into
execution. Thus congress might declare and carry on war, make treaties of
peace, alliance and commerce, decree the raising of land forces and the quotas
of each state, build and fit out ships of war, borrow money and issue bills of
credit on the faith of the nation; but none of those powers could be exercised
without the co-operation of the individual states if an army was to be raised,
all that congress could do, was to make requisitions to the states for their
respective quotas of men in arms: and it was the same when money was wanted, as
congress had no power to raise it directly or indirectly in the shape of taxes.
The states, it is true, were expressly bound by the articles of confederation
to furnish those quotas when required; the mode of assessment was also fixed by
that instrument; it was in proportion to the value of all land within each
state granted to or surveyed for any person, with the buildings and
improvements thereon, as the same should be estimated in such manner as
congress might from time to time prescribe. But congress had no power to compel
the states to fulfil those engagements; the moral bond was all they had to rely
upon, and every one knows how weak is that tie upon states as well as upon
individuals, if not strengthened by a power, which they cannot resist, and
which they are forced to obey. To increase the difficulty, congress could not
exercise the powers which we have enumerated without the concurrence of the
delegates of more than two-thirds of the states, that is to say, of nine out of
thirteen. The votes were taken by states, represented by their delegates. If
the members of a delegation were equally divided in opinion on a particular
point, it followed that the state that they represented, was so far deprived of
a voice, which still increased the difficulty of obtaining the required
The states, it is true, were prohibited from separately exercising the
powers which they had conferred on the congress; they could not, without the
consent of that body, send or receive embassies, or make treaties with foreign
governments; neither could they, without such consent, engage in war, unless in
case of actual invasion, or of imminent danger of being attacked by the
Indians. They could not grant commissions to ships of war, or issue letters of
rnarque or reprisal, except after a declaration of war by congress, or in case
of their being infested by pirates, and then only until congress should
determine otherwise; nor could they keep on foot any body of forces in time of
peace, except such as congress should think necessary for garrisoning their
forts; and in order to prevent their confederating with each other, to the
detriment of the union, no two or more states were to enter into any treaty,
confederation or alliance whatever with each other, without the consent of the
United States in congress assembled. But those prohibitions, while they
paralyzed the action of the states, added no strength to that of the union,
which still was dependent on the precarious compliance of each individual state
with the requisitions of the federal head.
As congress had no power to levy taxes or imposts of any kind, the
regulation of commerce remained entirely with the individual states. Each state
might act in that respect as it thought proper; and therefore the nation, as
such, could not countervail the fiscal regulations of foreign powers, however
much they might tend to the detriment of the agriculture, commerce or
manufactures of the country; while, on the other hand, it was lawful for the
states to carry on a war of commercial regulations against each other, which
would inevitably have resulted in a dissolution of the union, and perhaps at
last in bloody hostilities between its members.
Such were the most prominent features of that confederation, which, as
it were by a miracle, carried the United States through the "war of
independence." A few years of peace made its imperfections manifest to all; and
in the year 1787, a convention of delegates from all the states met at
Philadelphia, in order to remedy its defects. The result of their labours was
the present constitution of the United States.
GENERAL VIEW OF THE CONSTITUTION.
THE title of this instrument at once points out the difference between
it and the confederation that existed before. It bears on its face the
stamp of a national government; and it was, no doubt, the view of the framers
to give that character to the new compact that was about to be entered into,
without, however, infringing on the sovereignty of the states more than was
absolutely necessary to attain the objects declared in the instrument, and
those were expressed to be "to form a more perfect union; to establish justice,
insure domestic tranquillity, provide for the common defence, promote the
general welfare, and secure for ever the blessings of liberty."
This was a most difficult task to be accomplished. A confederation, in
the strict sense of the word, had been attempted and had failed; a
consolidation of the states under one general government, of which they should
be mere subordinate districts or provinces, was not even thought of, it being
well understood that such a government could not exist over such a widely
extended country under republican forms, and that it would inevitably lead to a
monarchy, and perhaps to despotism. A form of government therefore was resolved
upon, which should be compounded of both, in such a manner as not to deprive
the states of more of their sovereignty and independence, than was necessary to
insure the permanency of the union and the welfare and safety of the whole.
To designate this new form of government, the word constitution
was substituted to that of confederation, while on the other hand the
denomination of United States was retained, the former being expressive
of a national, the latter of a federal system. The purely federal
clauses by which, in the articles of confederation, the states are said to
retain their "sovereignly, freedom and independence," "to be bound to each
other in a firm league of friendship, and to bind themselves to assist each
other against foreign aggression," were left out of the new compact, as
inconsistent with its spirit, and what remained of sovereignty in the states
after the concessions made to the government of the union, was left, as a
matter of inference, to be gathered from the context of the whole instrument,
in which the word "sovereignty" is not once used, as applied to the states. And
in order to stamp the national character upon it from the very outset, the
preamble begins with these remarkable words. "We, the people of the
United States ....... do ordain and establish this constitution for the
United States of America." Thus excluding the idea of a mere confederation of
independent communities, by making the people at large a party to this compact,
and binding not only each state, but every individual to each other, and to the
government of their creation. In these terms the constitution was afterwards
ratified by the people of the states, assembled in conventions for that
purpose. After its adoption, however, it received some amendments, made in one
of the forms which the constitution prescribes. By one of those amendments, it
is provided, that "the enumeration, in the constitution, of certain rights,
shall not be construed to deny or disparage others, retained by the people;"
and by another, that "the powers not delegated to the United States by the
constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people." This last clause was borrowed from the
articles of confederation; but is less strongly expressed.
That there are strong federal features in this instrument is not to be
denied; but upon the whole, the national character is predominant, as will be
seen from the distribution of the powers mutually conceded and reserved.
Among the powers with which the rulers of mankind are or may be
invested, are those which writers on public law have denominated, by way of
preeminence, jura summi imperii, that is to say, the rights of sove-
reignty in the highest degree." Such are principally the rights or powers to
make war and conclude peace, to enter into treaties of alliance and commerce,
to send and receive ambassadors, to coin money, fix the standard of weights and
measures, raise and equip fleets and armies, borrow money on the credit of the
nation, and others of a similar nature.
Most of these powers were conferred, by the articles of confederation,
on the congress of the United States; but it was in the power of any one of the
states to withhold its share of the means for carrying them into execution. The
congress therefore possessed the pageantry, the mere name of sovereignty, not
sovereignty itself. It was the agent of thirteen sovereigns that might at any
time defeat its measures, by refusing or neglecting to comply with its
The framers of the present constitution found, of course, no difficulty
in conferring on the new government the same powers that had been given, by the
articles of confederation, to the congress of the United States, and they
freely granted them in the same exclusive manner; but it was necessary, at the
same time, to grant the means to execute them independently of the governments
of the states; and that could not be done without putting into the hands of the
national authorities the two great engines of national sovereignty, the
purse and the sword. The convention magnanimously agreed to this
surrender. The congress was empowered to lay taxes, and to raise and maintain
fleets and armies, with their own means, under trifling restrictions, which
will be mentioned in their proper places.
It was not enough to give to the general government the use and the
direction of the military sword, it was necessary also to place in their
hands the sword of justice, at least as far as was necessary to enable
them by its means, to give effect to the laws that they are authorized to make,
and this was done in the manner that we shall presently show.
Thus far we have seen how the framers of our constitution, at the same
time that they continued in the general government the jura summi
imperii, which had been vested in the old congress, furnished it with ample
means to carry those powers into execution. But this valuable instrument
contains many important details, which may, in a great measure, be considered
as corollaries of the great principle on which the convention acted, and of
which we have shown the most prominent features.
It cannot have escaped the observation of the reader, that the powers
now vested in the general government, could not be confided to a single body,
such as was the former congress; here was no longer a confederation, but a
national government, acting, within certain limits, independently of the
states, upon all and every one of the individuals of which they were composed,
and armed with compulsory means to enforce obedience to its decrees; it was
therefore indispensably necessary to divide those ample powers, so as to guard
in the best possible manner against their abuse. Therefore the new government
was established on the model of those of the states, with legislative,
executive, and judicial departments, distinct and separate from each other. We
shall now give a succinct view of its organization, and of the distribution of
the powers granted among the several branches of the national government,
showing at the same time, what powers are reserved to the states in their
separate; capacity, and upon the whole in what manner the state and the
national authorities are balanced and made to harmonize with each other.
ORGANIZATION OF THE GOVERNMENT.
SECTION 1. Of the Legislative Department.
THE legislature is composed of two branches, a senate and a house of
The senate represents the states in their federative capacities. Its
members are elected for six years by the state legislatures; one-third of them
go out every second year. Each state has two senators. When assembled, however,
they vote individually and not by states; so that a state that has but one
senator present, has in fact but half a vote.
The representatives are elected in each state by the people at large.
Their numbers are in proportion to the population of the state which sends
them; in states where there are slaves, three-fifths of them are included in
the computation of their population; Indians, not taxed, are excluded every
where. The number of representatives is not to exceed one for every thirty
thousand; but each state is at least to have one. The representatives are
elected for two years. Every ten years a census, or enumeration of the
inhabitants, is to be made; upon which congress determine by a law the number
of representatives that each state is to send. The first of these enumerations
was made in 1700, the last in 1830.
The times, places, and manner of holding elections for senators and
representatives are prescribed by the legislature of each state; but congress
may by law make or alter such regulations, except as to places for choosing
senators. This, however, they have not yet done, but left it to the states, who
elect senators by joint or separate ballots of the two houses of their
legislatures, and representatives by popular election. The electors of the
latter must be qualified to elect members of the most numerous branch of the
legislature of their state.
The requisite qualifications for a senator are, to be 30 years of age,
to have been nine years a citizen of the United States; to be a representative
requires only 25 years of age, and seven years citizenship. Both senators and
representatives must, at the time of their election, be inhabitants of the
state for which they are chosen. The time of their previous residence is fixed
by the constitutions or laws of the states themselves.
The vice-president of the United States presides over the senate, but
has no vote in it, unless they be equally divided. The house of representatives
elects its own speaker. The congress meet every second year, on the first
Monday of December; in the interval, they may adjourn to such time as they
please, so that they meet at least once in each year. But neither house can
adjourn for more than three days without the consent of the other; if they
disagree, the president fixes the time of adjournment. This, however, has never
yet happened. The congress expires on the third of March in every second year.
The president may call a special meeting of congress when he thinks it
The president does not initiate laws; they are presented, in the form of
bills, sometimes by individual members, with permission of the house in which
they originate; but most generally by committees to whom the subject has been
referred. There are standing committees for each of the principal subjects of
legislation, as finance, foreign affairs, the judiciary, &c. and
special committees, appointed for particular subjects. A committee of the whole
house is only a preparatory mode of discussion, in which a greater latitude of
debate is allowed, under the presidency of a member chosen for that purpose:
after the discussion has been gone through, the speaker of the house of
representatives, or the president of the senate, resumes the chair, the
chairman of the committee makes his report, on which the subject is debated
again in a more formal manner, and the bill or report is either adopted,
amended or rejected.
But though the president does not originate laws, he is required by the
constitution to give to congress from time to time, information of the state of
the union, and to recommend to their consideration such measures as he may
judge necessary and expedient. Thus, in 1812, he recommended to them the
expediency of declaring war against Great Britain, which was followed by a
declaration in the form of a law, to that effect.
Each house of congress is the judge of the elections, returns and
qualifications of its own members; it may compel their attendance, punish them
for disorderly behaviour, and with the concurrence of two-thirds, expel a
No person holding an office under the United States can be a member of
either house during his continuance in office; nor can a senator, or
representative, during the time for which he was elected, be appointed to any
civil oflicc under the United States, created, or the emoluments of which have
been increased, during that time. State officers may be elected to congress,
when not disabled by the constitution or laws of their own states. In general,
state and federal offices are held to be incompatible.
The members of both houses are privileged from arrest, (except for
treason, felony, or breach of the peace,) during their attendance at the
sessions of their respective houses, and in going and returning from the same.
They are not to be questioned, out of congress, for their speeches and debates
SECT. 2 Of the Executive Department.
The executive power is vested in a single magistrate, called the
President of the United States. The constitution does not assign to him any
council; but he frequently consults the heads of departments, who are officers
recognised by the constitution, whom he appoints with the consent of the
senate, and whom he may remove at pleasure. The legislature fixes their number
and their functions. They are at present four: the secretary of state, whose
official duties embrace the foreign and the home department, and those of the
treasury, of war, and of the navy. These, with the attorney-general, and of
late the postmaster-general, form what is called a cabinet council; which the
constitution, however, does not recognise, though it does not forbid. The
president is responsible for his acts, and may be impeached for treason,
bribery, or other high crimes and misdemeanors.
The president has a qualified negative on the acts of the legislature,
and therefore may be considered as a branch of it, though the constitution does
not say so in terms; but on the contrary, declares in the first section of its
first article, that "all legislative powers therein granted shall be
vested in a congress of the United States, which shall consist of a senate and
house of representatives." But by the seventh section of the same article the
president's approbation and signature are required to give effect to any bill,
resolution or vote passed by the two houses; and if he objects, the bill,
resolution or vote does not take effect, or become a law, unless reconsidered
and passed by two-thirds of the senate and of the house of representatives.
There is also a vice-president, who is president of the senate by virtue
of his office, and is to exercise the duties of president in case of a vacancy
of that office by the death, removal, resignation, or inability of the chief
The president and vice-president hold their offices during a term of
four years; but may be re-elected as often as the people choose. There is,
however, no example of a president or vice-president having served more than
two terms; the first president, Washington, having declined a third election,
his example has been followed by his successors; and it is now become a popular
maxim that a president or vice-president can only be elected for two successive
The election of president and vice-president is made by ballot, by
electors in each state, at the same time, but by different tickets, designating
the votes for the respective offices.
The electors are appointed or chosen in each state in such manner as the
state legislature directs. In some states the legislatures appoint them
themselves by joint or concurrent votes of the two houses; in others, they are
elected by the people. Their number is to be equal to the aggregate number of
the senators and representatives of each state in the congress of the United
States. No member of congress, whether senator or representative, nor any
person holding an office of trust or profit under the United States, can be an
The electors, thus chosen, meet in their respective states, and vote by
ballot for a president and vice-president, as above mentioned, one of whom, at
least, is not to be an inhabitant of the state in which he is chosen. They then
transmit their votes, sealed, to the president of the senate, who, on a day
appointed by law, (the second Wednesday in February succeeding the meeting of
the electors,) opens all the certificates in the presence of both houses of
congress, and declares the persons who have the majority of votes, and who are
of course elected. If, however, no one should have a majority of votes, the
house of representatives shall immediately, if for a president, and the senate
if for a vice-president, proceed to choose the former out of the three, and the
latter out of the two highest in votes; in which choice the representatives
shall vote by states, and the senators individually. If the house do not choose
a president before the fourth of March next following, the vice-president shall
act as president, as in other cases of vacancy of the president's office.
The congress determines the time of choosing the electors, and the day
on which they are to give their votes, which is to be the same throughout the
United States. By the existing law, the electors are to meet and vote on the
first Wednesday in December, in every fourth year succeeding the last election,
and are to be chosen or appointed within thirty-four days preceding the day of
On failure of the president by death or otherwise, his duties devolve on
the vice-president; and congress may declare by law who shall perform those
duties, in case of the failure of both, during the vacancy. The congress have
declared by a law that it should be the president pro tempore of the senate;
and if there should be none, then the speaker of the house of
No person, except a natural born citizen, or one who was a citizen of
the United States at the time of the adoption of the Constitution, can be
elected to the office of president, nor can one be so elected who shall not
have attained the age of thirty-five years, and been fourteen years a resident
within the United States; and no person constitutionally ineligible to the
office of president, can be elected to that of vice-president.
The president is a responsible officer. He is sworn faithfully to
execute his office, and to the best of his ability to preserve, protect and
defend the constitution, He, as well as the vice-president and all civil
officers of the United States, shall be removed on impeachment for and
conviction of, treason, bribery, or other high misdemeanors.
SECT. 3. Of the Judiciary Department.
The judiciary power of the United States is vested in a supreme court
and such inferior courts as congress from time to time may establish. The
judges are appointed by the president, with the advice and consent of the
senate. They hold their offices during good behaviour.
The supreme court at present consists of one chief justice and six
associate judges, and holds its sittings once a year at the scat of government.
There is in each state one, and in some two, district courts, consisting of a
single judge, who holds regular sittings four times in the year, and special
sessions, whenever occasion requires. Above those tribunals and inferior to the
supreme court, there is a circuit court composed of one of the judges of the
supreme court, who repairs twice a year to the districts allotted to him, and
there sits with the district judge, who, with him, constitutes the circuit
court. The states or districts are for that purpose divided into circuits, one
of which is allotted to each judge of the supreme court, including the chief
justice. A few of the states are without a circuit court, and the district
judge performs its functions. Measures are in contemplation to remedy this
During the presidency of the first Adams, a law was passed, in virtue of
which three judges were appointed in and for each circuit, who, together,
without the district judge, composed the circuit court. On a change of
administration, that excellent system was abolished.
Courts martial and the senate, sitting as a court for the trial of
impeachments, are not considered as within the ordinary judicial order. They
are exceptions to the general system.
SECTION 4. Appointment of Officers and Salaries.
The president nominates, and, with the advice and consent of the senate,
appoints ambassadors, other public ministers and consuls, judges of the supreme
court and all other officers of the United States, whose appointment are not
otherwise provided for by the constitution, and all which shall be established
by law; but the congress may also 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 may also fill up all vacancies happening during the recess
of the senate, by granting commissions, which shall expire at the end of their
next session. If they should so expire in consequence of the president's
neglecting to send nominations to the senate in a reasonable time, or of their
disagreement, the constitution does not seem to have provided for filling the
In statutes creating new offices, congress have inserted, in several
instances, a clause authorizing the president in case the appointments should
not be made during their session, to make such appointments in the recess of
the senate, by granting commissions which should expire at the end of their
next session; otherwise the vacancies not happening during the recess, the
appointments could not have been made before congress met again.
The president, vice-president, senators, representatives and judges have
their salaries fixed by law. Those of the judges cannot be diminished during
their continuance in office. That of the president can neither be increased nor
diminished; and he shall not receive any other emolument from the United States
or any of them. The nation, however, has provided a house for his residence,
and furnishes it from time to time. The house and furniture are national
Such is the organization of the general government of the United States.
We shall now enumerate the powers that are vested in them, and show in what
manner those powers are distributed, first laying down, as a general rule, that
all the legislative powers granted by the constitution are vested in the
congress, subject to the qualified negative of the president, as
above-mentioned, which must always be understood when we speak of the powers
vested in congress. That negative power, or veto, as it is called, is
not intended to be frequently used. It is but seldom that a president can have
just cause to differ in opinion from the representatives of the people and
those of the states.
OF THE POWERS, RIGHTS AND DUTIES OF THE GENERAL AND STATE
SECTION 1. Foreign Relations, War, Peace, Treaties.
CONGRESS have the power of declaring war, and of doing all that may be
necessary to carry that declaration into effect, which the constitution thus
enumerates: to grant letters of marque and reprisal; to raise and support
armies and provide and maintain a navy; to make rules for the government and
regulation of the land and naval forces, and concerning captures by land and
water; to provide for calling forth the militia, when necessary to execute the
laws of the Union, suppress insurrections and repel invasions, and for
organizing, arming and disciplining the same, and governing such parts thereof
as may be employed in the service of the United States, reserving to the states
the appointment of the officers and the authority of training the militia,
according to the discipline prescribed by congress; to erect forts, magazines,
arsenals, dock-yards and other needful buildings, on sites to be by them
purchased, with the consent of the legislatures of the states in which they may
But, although congress have the power of declaring, and, as we have
seen, of making war, that of making peace is not confided to them. The
president is the organ of the nation with foreign governments; to him belongs
the power of negotiating all treaties, whether of peace, alliance, commerce,
neutrality, or of whatever other description. Therefore, the putting an end to
a war depends, in the first instance, on his discretion; but no treaty can be
valid, unless it receives the concurrent approbation of the senate, by a
majority of two-thirds of the members present; and if an appropriation of
money, or some act of legislation is necessary to give it effect, then congress
must pass a law for such purposes; in every other respect, treaties signed by
the president and ratified by the senate, are, after being made known by a
proclamation of the president, to be executed as the supreme law of the
land. A cession of territory, however, would seem to require the consent of the
state in which it is situated.
The president of the United States, as the chief executive magistrate of
the Union, is, by virtue of his office, commander-in-chief of the army and
navy, and also of the militia, when called into the national service: he, with
the advice and consent of the senate, sends, and, without such consent,
receives ambassadors, ministers of inferior grade, consuls and consular agents,
and generally represents, in the view of foreign powers, the majesty of the
nation. With him alone, or with his secretary of state, foreign sovereigns
and their ministers are allowed to communicate in their public capacities, nor
can they appeal from his decisions to any other authority in the land; but they
may apply to the judiciary in matters in which that branch of government is
competent to decide, complying with the forms which the law requires.
SECTION 2. Finance.
The congress are authorized to borrow money on the credit of the United
States; to lay and collect taxes, duties, imposts and excises, without any
limitation but that they are to be equal throughout the United States, and that
no duties are to be laid upon articles exported from any state. All direct
taxes are to be in proportion to the population, as in the election of
representatives. The objects, for which those powers of taxation are given, are
declared to be "to pay the debts and provide for the common defence and
general welfare of the United States, which includes every subject of
general interest. It is now a settled doctrine that the money thus
raised may be applied by congress to the making of roads, canals and other
public improvements, provided they be of a national, not of a
local character, and this doctrine has been acted upon in numerous
instances. The protection of agriculture, commerce and manufactures against the
legislative enactments or fiscal regulations of foreign nations, seems to be a
legitimate object for the exercise of the powers of taxation vested in
congress. What would become of our nation, if the government established for
the common defence, could not protect the interests of the
citizens against foreign powers, by its legislation as well as by force of
The supreme power over the treasury belongs to the legislature, and
therefore no money can be drawn from it but in consequence of appropriations
made by law. The congress have moreover the power to coin money and regulate
the value thereof, and of foreign coin. All bills for raising revenue must
originate in the house of representatives; but the senate may propose or concur
with amendments, as in other bills.
SECTION 3. Commerce.
Congress have the power to regulate commerce with foreign nations, among
the several states, and with the Indian tribes, and to fix the standard of
weights and measures. This last power, however, they have not yet exercised.
They are also empowered to make uniform laws on the subject of bankruptcy
throughout the United States.
In execution of the power to regulate trade, and also of that to
regulate the value of money, the congress have established a national bank,
which has fully answered the object in view. The right of the national
legislature to create such an institution has often been, and is still
questioned by men whose opinions are entitled to respect; but experience has
shown that the value of money cannot be effectually regulated by any other
means, through so extensive a country as ours, while each state retains the
power of granting to individuals and monied associations the privilege of
issuing bills of credit, the value of which fluctuates and will
fluctuate still more, unless there is some superior power in or under the
authority of the national government to check their improvident issues.
On the 4th of April, 1800, an act was passed by congress for
establishing a uniform system of bankruptcy throughout the United States. That
act was limited to five years, but was not permitted to run through its course;
it was repealed on the 19th of December, 1803, wanting little more than one
year to expire by its own limitation. Since that time various efforts have been
made to revive it, or to obtain an act on similar principles, but all without
success; the measure has hitherto appeared to be unpopular with the majority of
the people of the United States. The laws of the same description made by the
legislatures of the individual states, have been adjudged by the supreme court
of the United States to be unconstitutional, (except under restrictions and
limitations that would make them beneficially impracticable,) principally on
the ground that they impair the obligation of contracts, which, as will
be seen hereafter, is prohibited to the states.
The want of laws adequate to the relief of bankrupts and their creditors
is severely felt throughout the United States, and there is but little hope of
a uniform system being adopted. As congress are not required by the
constitution to make a complete system, but merely uniform laws
on the subject of bankruptcy, it might be sufficient, perhaps, if they
were to enact some general rules and principles, leaving the details to the
wisdom of the state legislatures, to be suited by them to their peculiar
SECTION 4. General and Penal Legislation.
The congress, besides the special powers to them granted, are authorized
to make all laws that may be necessary and proper for carrying into execution
the powers vested in them or in the government of the United States or in any
department or office thereof.
This includes penal legislation for the purpose of enforcing obedience
to their statutes. Independent of this general power, the constitution gives
them a special authority in particular cases, as 1. To provide for the
punishment of counterfeiting the securities and current coin of the United
States; 2. To define and punish piracies and felonies committed on the high
seas, and offences against the law of nations. The crime of treason is defined
by the constitution itself, and is to consist only "in levying war against the
United States, or adhering to their enemies, giving them aid and comfort."
Congress have the power to declare the punishment of treason; but no
attainder shall work corruption of blood or forfeiture, except during the life
of the person attainted on attainder of treason. Attainder here must
mean conviction; as by a preceding section congress are prohibited from
passing bills of attainder. No one can be convicted of treason, but on the
testimony of two witnesses to the same overt act, or on confession in open
court. The trial of all crimes, (except in cases of impeachment and military
offences triable by courts martial) is to be by jury, in the state where the
crime has been committed; when out of a state, congress may fix the place of
The pardoning power is vested in the president, except in cases of
impeachment; these are tried by the senate. The house of representatives
impeaches, and the senate tries. No conviction can take place, unless
two-thirds of the members concur. The judgment does not extend further than
removal and disqualification from office; but the party may be further
prosecuted at law for the same offence.
The constitution, and the laws made in pursuance thereof, and all
treaties made under the authority of the United States are the supreme law
of the land, anything in the constitution or laws of any state to the
The president takes care that the laws be faithfully executed.
SECTION 5. Judicial Power.
The judicial power of the general government, extends to all cases in
law and equity arising under the constitution and laws of the United States,
and under treaties made by their authority; to 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 between 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.
This article, however, has been modified by an amendment to the
constitution, which declares that the judicial power of the United States shall
not be construed 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
foreigners. It has been held that this restriction does not extend to cases of
admiralty and maritime jurisdiction.
Except in cases affecting ambassadors, other public ministers and
consuls, and those to which a state shall be a party, the supreme court has
only appellate jurisdiction, with such exceptions and under such regulations as
congress may make. The original jurisdiction is vested by law partly in the
circuit and partly in the district courts; the former having an appellate
jurisdiction over the district courts in matters within the cognizance of the
latter. The manner in which the powers are distributed between these tribunals
is too complicated to be explained here. Some of these powers are exercised
concurrently with, and others exclusively from the courts of the individual
In various instances congress have availed themselves of the aid of the
state courts and magistrates to carry their laws or some parts of them into
execution. This auxiliary system is calculated not only to promote
harmony between the general and the state governments, but also to prevent the
consolidation of the Union; for were the state authorities to refuse their
assistance, congress would be compelled to fill the land with their inferior
officers and magistrates, which could not be long tolerated by the people; and
a dissolution of the Union might be the fatal consequence.
SECTION 6. New States.
New states may be admitted by congress into the Union; but no new state
shall be formed or erected within the jurisdiction of any other state, nor by
the junction of two or more states or parts of states, without the consent of
the legislatures of those states as well as of congress.
Under this power, congress has purchased Louisiana from France, and
Florida from Spain, and erected new states out of the former territory. Under
the same power the state of Maine has been erected, with the consent of the
legislature of Massachusetts, to which it formerly belonged. Vermont and
Kentucky have in like manner been erected into states with the consent of those
that had or claimed jurisdiction over them.
SECTION 7. Local Jurisdiction of Congress.
The congress is empowered to exercise exclusive legislation in all cases
whatsoever, over the district, not more than ten miles square, where the seat
of government may be established, in virtue of a cession of territory by
particular states. This jurisdiction is now exercised over the District of
Columbia, which was formerly part of the states of Virginia and Maryland, but
has been ceded by those states to the United States. The congress exercises the
same jurisdiction over all places purchased from the states for the erection of
forts, magazines, dock-yards and other public buildings.
The congress also may make all necessary rules and regulations
respecting the territory or other property belonging to the United States. What
is called the territory of the United States, consists of, 1st. the District of
Columbia, abovementioned; 2. The forts, arsenals, dock-yards, &c. also
abovementioned; 3. Those lands which have been ceded to the United States by
Great Britain, by the treaty of peace; by the states, after the conclusion of
the said treaty; and by France and Spain under the treaties of cession of
Louisiana and Florida, and which not having yet been erected into states, are
governed under the authority of the United States, until they shall be admitted
into the Union. There are now three territories, each of which is entitled to a
delegate in congress, who may join in debates, but not vote. They are Michigan,
Arkansas and Florida. The remainder of the lands of the United States to the
west and north-west, and beyond the Rocky Mountains are yet wild and
uncultivated. A few military posts and some scattered habitations only exist
SECTION 8. Miscellaneous Powers of Congress.
Independent of the powers mentioned in the foregoing articles, congress
have some special ones, which cannot be classed under a general head; such as
that of establishing post-offices and post-roads, granting exclusive privileges
to authors and inventors for their writings and discoveries and prohibiting the
importation of slaves, which last power they have only exercised since the year
1808, the constitution having prohibited them from doing it before that time.
The power to make a uniform bankrupt law might have been classed among these;
but we have thought that it came more properly under the head of "Commerce."
Congress are also empowered to establish a uniform rule for the naturalization
of foreigners. This power has been considered as vested in the general
government exclusively of the states, which the required uniformity
appears necessarily to imply. By the existing law, five years residence in the
United States are required, before an alien can be naturalized, and he must
have declared, two years before, his intention to become a citizen. He must
also be proved to be a person of good moral character, and take an oath to
support the constitution of the United States, coupled with an express
renunciation of his former allegiance. Naturalization may be obtained in the
state courts, as well as in those of federal jurisdiction; but it can only be
done in execution of a Jaw of congress. There are states where aliens cannot
hold real property, which often makes it necessary for them to be naturalized,
as by that means they become entitled to all the privileges and rights of
natural born citizens, except that they cannot be elected to the offices of
president and vice-president. This relic of the feudal system, however, has
been abolished in some states, and mitigated in others, and will probably soon
entirely disappear from our codes.
SECTION 9. Protection of the States and Guarantee of
The United States guarantee to every state in the Union, a republican
form of government. By this expression wo would understand a government
"securing civil liberty and equal rights, and founded on the
representative, to the exclusion of the hereditary principle."
This, at least, is what we conceive to have been the meaning of the framers of
our constitution, with respect to this country, to which alone the words are to
be applied. We do not think that the states have a right to require more from
each other. The principle of representation necessarily involves those of the
sovereignty of the people, and the responsibility of public officers. Every
thing else is matter of detail, which may well be left to the wisdom of the
The United States are further bound to protect each of the states
against invasion, and if required by the legislature of any of them, or by the
executive (when the legislature cannot be convened,) against domestic
SECTION 10. Restrictions on State and Federal Power.
No state can enter into any treaty, alliance or confederation; this
prohibition is general and unconditional, and a subsequent clause prohibits the
states from making, without the consent of congress, any agreement or compact
with each other; nor can they, without such consent, engage in war or keep
troops or ships of war in time of peace, unless in case of invasion or imminent
danger, which admits of no delay. They cannot grant letters of marque and
reprisal, coin money, emit bills of credit, make any thing but gold and silver
a tender in payment of debts, nor pass any law, impairing the obligation of
contracts. These last mentioned prohibitions are absolute and
The states cannot, without the consent of congress, lay any duty on
tonnage, nor on imports or exports, unless that may be absolutely necessary for
executing their inspection laws, which are laws for ascertaining the
merchantable quality of produce, previous to exportation, and which the states
are authorized to make. The net proceeds of all imposts and duties laid by any
state on imports or exports are to be for the use of the treasury of the United
States; and all such laws are to be subject to the revision and control of
No such imposts or duties have been yet laid by any of the states; it
has not been found necessary for the execution of their inspection laws.
Neither the United States nor the states individually can pass bills of
attainder, or ex post facto laws, nor can they grant titles of nobility. No
person holding any office of profit or trust under the United States, can,
without the consent of congress, accept any present, emolument, office or title
of any kind whatever from any king, prince or foreign state.
Congress can make no law respecting an establishment of religion or
prohibiting the free exercise thereof, or abridging 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.
Besides the above restrictions, there are numerous articles, as well in
the constitution as in the amendments to it, in the nature of a bill of rights,
and the object of which is to secure the liberty of the citizen, particularly
as respects the benefit of the writ of habeas corpus, of trial by jury in civil
and criminal cases; the inviolability of domicile, and security from illegal
searches and from the obligation of quartering soldiers in time of peace, and
other like provisions, by which civil liberty is fully guaranteed.
The enumeration in the constitution of certain rights, is not to be
constructed to deny or disparage others retained by the people; and the powers
not delegated to the United States by the constitution, nor prohibited by it to
the states, are reserved to the states respectively or to the people. This
article differs from a similar one in the confederation in this, that the word
expressly is here left out, which leaves room for implied powers,
without the admission of which the constitution could not be carried into
SECTION 11. Public Law between the States.
This is what Tacitus calls humanitatis commercia, and what has
been still more elegantly called fdera generis humani. Our
constitution says but little on this important subject. What it says, however,
is susceptible of much developement, and, it is hoped, will receive it. These
are the principal features of what it declares:
The citizens of each state are entitled to all the privileges and
immunities of citizens in the several states. Fugitives from justice and from
personal service or labour, are to be delivered up on being demanded in the
manner prescribed by the constitution and the laws made in pursuance thereof.
Full faith and credit are to be given in each state to the public acts,
records and judicial proceedings of every other state; and congress may
prescribe by law the manner in which such records and proceedings shall be
proved, and the effect thereof. Congress have passed a few laws to carry this
last clause into execution; but have not yet, by any means, done all that could
be done to attain the object that it has in view the convenience of the
SECTION 12. Mode of amending the Constitution.
It is the duty of congress to propose amendments to the constitution,
whenever two-thirds of both houses deem it necessary; and on the application of
the legislatures of the several states, they are bound to call a convention for
proposing amendments. In either case, when the amendments proposed are ratified
by the legislatures of three-fourths of the several states, or by conventions
in three-fourths thereof, as the one or the other mode may be proposed by
congress, they become parts of the constitution. No state, however, without its
consent, can be deprived of its equal suffrage in the senate.
Fourteen amendments have already been made to the constitution on the
proposition of congress in pursuance of these powers, which in the above sketch
have been considered as a part of the original instrument, and, therefore, are
not otherwise separately noticed. They now form a part of the constitution
quite as much as if they had been originally inserted in it.
THUS we have presented to our readers a brief view of the constitution
of the United States, which, on cool and mature reflection, we cannot help
considering as the most perfect system of government that has ever existed
among mankind. It has, as far as it has gone, solved the problem of the
possibility of the existence of a republic in a widely extended country, and
the means, never thought of before, has been found to effect that which was
considered as next to impossible, the combination of the federal and national
systems of government, so nicely and so skilfully balanced, that one does not
seem to preponderate over the other. It was a bold thought of the framers of
this instrument to vest the dreaded powers of the purse and the
sword in the hands of the national congress, which far from producing
the mischiefs that were anticipated by some, has given strength and power to
the United States, and left the states of which the Union is composed,
possessed of as much freedom, sovereignty and independence as is necessary for
their happiness and welfare, and the preservation of their liberties.
If we consider the constitution in respect to its organization, we shall
find the most perfect balance between the two apparently opposite principles of
national and state sovereignty. The senate, from its equality of votes and the
mode of election of its members, in the natural guardian of the sovereignty of
the states, while the popular branch of the national legislature, naturally
hostile to the encroachments of power, will watch over the rights and liberties
of the people. Doth are the offspring of the states, to which at short
intervals they must return.
Nor is the distribution of powers between the federal and the state
governments less worthy of admiration. At first view, it might appear, as if
these powers were most unequally distributed. The supreme rights of empire,
jura summi imperii, as they are called, with the purse and the sword, as
the means for carrying them into execution, have a formidable aspect; and it
would seem as if the national government could easily swallow up the
sovereignty of the states. Hut the danger, if any there be, seems rather to be
on the other side. The independent organization of the state governments with
their legislatures, governors, militia, judiciary and ministerial officers,
with uncontrolled jurisdiction within their constitutional limits; the very
name of that sovereignty and independence, which they possess in a great
degree, and of which they are excessively jealous; the means they have in their
power of collecting and combining their force without the appearance of
illegality; all these things form a strong counterpoise to the authority of the
general government, which with all its ample powers, operates but little on the
individual citizens, whereas the state officers are constantly in contact with
them, and have greater means of securing their attachment. The national
government, as \vc have before observed, is frequently obliged to require the
aid of the state authorities to carry its laws into effect; and on the
continuance of this auxiliary system, as we have already observed,
depends in a great measure the preservation of the Union, as it now exists.
This Union has already experienced severe trials, but has come off
victorious from them all. Nor is there any real danger to be apprehended, while
the people remain virtuous, and true to themselves. What ambition and luxury
and the increasing spirit of party may produce in a series of years, it is
impossible to foretell. All that the patriot can do, is to wish that the period
of the dissolution of this happy Union may be protracted to the end of
LIST OF THE CONTRIBUTORS TO THE PUBLICATION OF THIS WORK.
James S. Smith.
John K. Kane.
William Rawle, jr.
Joseph P. Norris.
Edward S. Burd.
David Paul Brown.
J. R. Tyson.
James C. Biddle.
W. B. Reed.
C. W. Sharpless.
R. Hare, jr.
George A. Graham.
John L. Newbold.
Sidney G. Fisher.
J. G. Clarkson.
Daniel J. Desmond.
Joseph M. Doran.
John S. Riddle.
Library of Congress Cataloging in Publication Data
Du Ponceau, Peter Stephen, 1760-1844.
A brief view of the Constitution of the United States, addressed to the
Law Academy of Philadelphia.
(Da Capo Press reprints in American constitutional and legal history)
Reprint of the ed. published by E. G. Dorsey, Philadelphia.
1. United States - Constitutional law. I. Title. KF4550.Z9D87 1974
This Da Capo Press edition of A Brief View of the Constitution of the
United States is an unabridged republication of the 1834 edition published
in Philadelphia. It is reprinted with permission from a copy in the Columbia
Published by Da Capo Press, Inc.
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Manufactured in the United States of America