The Government Class Book by Andrew W. Young

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Sec.6. An _ex post facto_ law is literally a law made after an act is done,
or which has effect upon an act after it is done. But it here means a
law that makes punishable as a _crime_, an act which was not criminal
when done. A law is also an _ex post facto_ law that increases the
punishment of a crime after it has been committed. If, for example, a
law should be passed by which a person, having previously killed another
in lawfully defending his own life, should be made to suffer death, it
would be an _ex post facto_ law, because killing in self-defense, before
the passage of the law, was not punishable as a crime. Such also would
be a law that should require all persons now charged with stealing, to
be imprisoned for life, if found guilty; because the crime, when
committed, was punishable by a shorter imprisonment.

Sec.7. The next prohibition is, "No capitation or other direct tax shall be
laid, unless in proportion to the census or enumeration herein before
directed to be taken." The words _capitation_ and _capital_ are from the
Latin _caput_, the head, or poll. Hence a _capitation-tax_ or a
_poll-tax_, is a tax upon each head or person. (Chap. VII. Sec.4.) The
above clause means, that poll-taxes, if laid, must be laid in conformity
to article 1st, section 2d, clause 3d, of the constitution, which
requires three-fifths of the slaves to be counted in apportioning taxes
among the states according to population.

Sec.8. The next prohibition is, "No tax or duty shall be laid on articles
exported from any state." Probably no law for taxing exports could be
devised which would operate equally upon the interests of the different
states. Or some states the principal product is cotton, rice, or
tobacco; of others, grain; and of others, manufactures; and some of
these products might not bear the same rates of duties as others. But
though it were possible to devise a plan which would be equal in its
operation, a majority of the representatives might be opposed to it. The
representatives of the grain producing, and those of the planting
states, might combine in imposing excessive taxes upon the productions
of the manufacturing states. Or the manufacturing and the grain
producing states might, with the same intent, combine against the
planting states.

Sec.9. As it was the purpose of the framers of the constitution to make
taxation, as nearly as possible, equal in the different states, by
uniform duties; and as every necessary object of indirect taxation may
be attained by duties on imports; duties on exports are properly
prohibited. And to secure to all the states freedom and equality in
trade, it is expressly provided in the same clause, that "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."

Sec.10. The next clause provides that "no money shall be drawn from the
treasury, but in consequence of appropriations made by law." 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. In pursuance of this provision, congress, at every session,
passes laws specifying the objects for which money is to be
appropriated. The latter part of the clause requires, that "a regular
statement and account of the receipts and expenditures of all public
money shall be published from time to time." And it is by law made the
duty of the secretary of the treasury to make to congress annually such
statement, which is published by order of congress; so that the people
may know for what purposes the public money is expended.

Sec.11. It is next declared, that "no title of nobility shall be granted by
the United States." Although the bare titles of lord, duke, &c., which
are conferred upon citizens in monarchical governments, could not add to
the political power of any person under our constitution; yet, as it is
desirable that there should be equality of rank as well as of political
rights, it is proper that congress should be prohibited from creating
titles of nobility. And to guard public officers against being corrupted
by foreign influence, they are forbidden to "accept of any present,
emolument, office, or title of any kind whatever, from any king, prince,
or foreign state."

Chapter XXXVIII.

Prohibitions on the States.

Sec.1. The next section contains restrictions on the powers of the states.
"No state shall enter into any treaty, alliance, or confederation." [For
the definition of _treaty_ and the manner in which a treaty is made, see
Chapter XL: Sec.3-5.] An _alliance_ is a union between two or more nations,
by a treaty, or contract, for their mutual benefit. _Confederation_ and
_alliance_, have nearly the same meaning. If the states, separately,
were allowed to make treaties or form alliances with foreign powers, the
rights and interests of one state might be injured by the treaties made
by another state. As the states united constitute but one nation, it is
obvious that the power to treat with other nations properly belongs to
the general government. If the states also had the power, they might
counteract the policy of the national government.

Sec.2. Nor may a state "grant letters of marque and reprisal." If, as has
been shown, this power is properly given to congress, it could not be
safely intrusted to the states. (Chap. XXXVI, Sec.5.)

Sec.3. The power to "coin money" is also prohibited to the states. It was
given to the general government to secure a uniform currency. (Chap.
XXXIV, Sec.7.) But this object would not be likely to be attained, if the
power to coin money were exercised by the states.

Sec.4. A state may not "emit bills of credit." _Bills of credit_, to a vast
amount, were issued by the states during the war, and for some time
thereafter. They were in the nature of promissory notes, issued by the
authority of the state, and on the credit of the state, and put in
circulation by the continental congress and the states as money. This
paper money, having no funds set apart to redeem it, became almost
worthless. Bank bills issued upon the credit of private individuals, do
not come under the prohibition. It is also held that the prohibition
does not apply to the notes or bills of a _state_ bank, drawn on the
credit of a particular fund set apart for that purpose.

Sec.5. No state shall "make any thing but gold and silver coin a tender in
payment of debts." _Tender_ signifies an offer, or to offer. In law, it
is an offer of something in payment of a debt, or the thing itself which
is offered in payment. 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
inconvenience and loss. But although no person is obliged to take in
payment any thing but coin, bank bills are by common consent taken in
the course of business and in payment of debts, because they may be
converted into specie by presenting them at the bank by which they are
issued.

Sec.6. Nor may a state "pass any bill of attainder, ex post facto law, or
law impairing the obligation of contracts." Bills of attainder and ex
post laws have been defined and considered. (Chap. XXXVII, Sec.5.) If these
laws are in their nature wrong, the states as well as congress should be
prohibited from passing them. Not less unjust are laws impairing the
obligation of contracts. Laws that should weaken the force of contracts,
or that would release men from their obligations, would be contrary to
the principles of justice, and destroy all security to the rights of
property.

Sec.7. As bankrupt laws release debtors from the payment of their debts,
and consequently impair the obligation of contracts, the question has
arisen whether the states have power to pass insolvent or bankrupt laws.
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.

Sec.8. The last thing prohibited in this clause, is, "to grant any title of
nobility." This is forbidden to the states for the same reason as it is
prohibited to congress. (Chap. XXXVII, Sec.11.)

Sec.9. The first prohibition to the states in the next clause is to "lay
any imposts or duties on imports or exports, except what may be
absolutely necessary for executing their inspection laws." The
objections to the power of the states to lay duties have been
considered. They are founded upon the same reasons as have been given
for intrusting congress with this power; one of which is to secure
uniformity throughout the United States. (Chap. XXXII, Sec.6.) And as
congress is properly prohibited from laying duties on exports, (Chap.
XXXVI, Sec.8, 9,) there can be no good reason for allowing it to be done
by the states.

Sec.10. 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 commodities in commercial cities, to ascertain their
quality and quantity, and to be marked accordingly. By this means the
states are enabled to improve the quality of articles produced by the
labor of the country, and the articles are better fitted for sale, as
the purchaser is thereby 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."

Sec.11. The last restrictions upon the power of the states contained in
this section, are: "No state shall, without the consent of congress, lay
any duty of tunnage; keep troops or ships of war in time of peace; enter
into any agreement or compact with any other state, or with a foreign
power; or engage in war, unless actually invaded, or in such imminent
danger as will not admit of delay." Some of the prohibitions here
enumerated have been noticed in this and preceding chapters; and the
reasons of the others are so obvious as to render any remarks upon them
unnecessary.

Chapter XXXIX.

Executive Department. President and Vice-President; their Election,
Qualifications, &c.

Sec.1. The second article of the constitution relates to the executive
department. Of the necessity of a separate and distinct power to execute
the laws, we have already spoken. (Chap. VIII, Sec.7.) Under the
confederation, as will be recollected, there was no national executive.
This defect has been supplied by the constitution. "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." (Art.
2, Sec.1.)

Sec.2. In regard to the organization and powers of the executive
department, there was a great diversity of opinion. 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. Unity being deemed
favorable to energetic and prompt action, the chief executive power of
the nation was given to a single person.

Sec.3. Secondly, as to the duration of the office. Much of what has been
said in relation to the term of office of senators, will apply to that
of president. (Chap. XXX, Sec.4-6.) His term of office should not be so
short as to induce him to act more with a view to his re-election than
to the public good; yet it should be short enough to make him feel his
responsibility. And it should be long enough to insure a due degree of
independence, and to enable him to carry out his system of public
policy. The term of four years was accordingly adopted.

Sec.4. Thirdly, the mode of election. Among the various modes proposed, the
one adopted was that of electing the president by electors chosen in the
several states for that purpose; the number of the electors chosen in
each state to be equal to the number of its senators and representatives
in congress. A material alteration in the mode of election has been made
since the adoption of the constitution, as will be seen by examining the
two modes. (Art. 2, Sec.1; and Art. 12 of Amendments.) This amendment does
not change the manner of choosing the electors, but the manner of
choosing the president by the electors.

Sec.5. The constitution does not prescribe the manner in which the
electors shall be appointed or chosen; it only declares that each state
shall appoint them "in such manner as the legislature thereof shall
direct." No uniform mode was adopted by the different states. In some
states the electors were appointed by the legislature; in others, by the
people. At present the latter mode prevails in all the states except
South Carolina, where presidential electors are still chosen by the
legislature.

Sec.6. The electors are, by the laws of the several states, chosen by
_general ticket_. The names of two men, corresponding to the number of
senators to which a state is entitled in congress, together with the
names of as many others as there are representatives of the state in the
lower house of congress, one to reside in each congressional district,
are all placed on the same ballot; so that every voter votes for the
whole number of presidential electors to be chosen in the state. And, by
a law of congress, the electors are required to be chosen in all the
states on the same day, which is the Tuesday next after the first Monday
of November.

Sec.7. The electors so chosen are required by a law of congress, to meet in
their respective states on the first Wednesday of December, and vote for
president and vice-president; and to make and sign three certificates of
all the votes given by them, and seal up the same. One of these is to be
sent by a person duly appointed by them, to the president of the senate
at the seat of government, before the first of January next ensuing;
another is to be forwarded by mail, also directed to the president of
the senate; and the third is to be delivered to the United States judge
of the district in which the electors are assembled.

Sec.8. On the second Wednesday of February, the president of the senate, in
presence of all the senators and representatives, opens the certificates
from all the states, and the votes are counted. The person having a
majority of all the electoral votes for president is elected. If no
person has a majority of all the electoral votes, the house of
representatives must choose the president from those candidates, not
exceeding three, who had the highest numbers of the electoral votes. But
in so doing, the members do not all vote together; but those of each
state vote by themselves; and the candidate who receives the votes of a
majority of the representatives of a state, has but one presidential
vote for such majority; and the person who receives the votes of a
majority of the states, is elected. Thus in the election of president by
the house of representatives, voting is done _by states_, as was done in
passing laws by the old congress. (Chap. XXVIII, Sec.5.)

Sec.9. There have been two elections by the house of representatives. The
second was 1825. The votes of the electoral colleges (assemblies) had in
December, 1824, been divided upon four candidates. Andrew Jackson had
received 99 electoral votes; John Quincy Adams, 84; William H. Crawford,
41; and Henry Clay, 37. Neither having received a majority of all the
electoral votes, the election devolved upon the house of
representatives. Of the three candidates who had received the highest
numbers of the electoral votes, Mr. Adams received in the house of
representatives the votes of thirteen states; Gen. Jackson, the votes of
seven states; and Mr. Crawford, the votes of four states. Mr. Adams
having received the votes of a majority of all the states, he was
elected.

Sec.10. By the 12th article of amendments, if there is no election of
vice-president by a majority of the electors, then, from the two highest
numbers on the list, the senate shall choose the vice-president.
Two-thirds of the whole number of senators shall constitute a quorum for
such election; and a majority of the whole number shall be necessary to
a choice.

Sec.11. To be eligible to the office of president or vice-president, a
person must be a natural born citizen of the United States, thirty-five
years of age, and must have been fourteen years a resident within the
United States. The reasons for requiring long terms of citizenship and
residence, and mature age and experience, in the case of senators, apply
with equal force in the case of president.

Sec.12. In case of a vacancy in the office of president, the vice-president
becomes the president. The power of making further provision for
supplying vacancies is, by the constitution, given to congress. (Art. 2,
Sec.1.) Congress has accordingly enacted, that, when there is neither
president nor vice-president, the president _pro tempore_ shall act as
president; and if there should be none, the speaker of the house of
representatives would assume the duties of the office.

Sec.13. The same section declares that the salary of the president shall
neither be increased nor diminished during the time for which he shall
have been elected. It would be improper to allow congress to reduce his
salary at pleasure. This would make the executive dependent upon the
legislature for his support. On the other hand, if his compensation
could be increased during his official term, he might be tempted to use
undue influence to procure a needless increase of his salary.

Sec.14. The presidential term commences the 4th of March next after the
election, and ends the 3d day of March four years thereafter. Each
successive congress also commences and ends its term every two years, on
the same days of that month; and it is called a new congress, although
only one-third of the senators go out of office when a congress is said
to expire, and are succeeded by new ones when the next congress is said
to commence its official term.

Chapter XL.

Powers and Duties of the President; Treaties; Public Ministers;
Appointments and Removals.

Sec.1. The powers and duties of the president are next given. "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." (Art. 2, Sec.2.) Some of the reasons
for giving to the executive the command of the public forces, have been
given. (Chap. XXV, Sec.2, 5.) It has also been observed, that a prompt and
effectual execution of the laws is best secured by intrusting this power
to a single individual. (Chap. XXXVIII, Sec.2.) The constitution, (Art. I,
Sec.8, clauses 12-16,) give congress power over the army, navy, and
militia, and "to provide for calling forth the militia to execute the
laws of the union, suppress insurrections, and repel invasions." As this
power is to be exercised upon sudden emergencies, congress has by law
authorized the president to call out the militia for these purposes. And
as the direction of the public forces is a power of an executive nature,
it is intrusted to the executive.

Sec.2. The president has also "power to grant reprieves and pardons for
offenses against the United States, except in cases of impeachment." The
same power is exercised by the governors of the several states. (Chap.
XII, Sec.4.) Through partial or false testimony, or the mistakes of judges
or juries, an innocent person may be convicted of crime; or facts may
subsequently come to light showing the offense to be one of less
aggravation than appeared on the trial. There should therefore be
somewhere a power to remit the punishment, or to mitigate the sentence,
or postpone its execution, as the case may seem to require; and by no
other person or persons, it is presumed, would this power be more
judiciously exercised than by the executive.

Sec.3. The president has "power, by and with the advice and consent of the
senate, to make treaties, to appoint embassadors, other public ministers
and consuls, judges of the supreme court," and other officers, "provided
two-thirds of the senators concur." A _treaty_ is an agreement or
contract between two or more nations, for regulating trade, or for
restoring or preserving peace. This power ought therefore to be in the
national government. In monarchical governments it belongs to the king.
To confide so important a trust to the president alone, would be
imprudent. To associate the house of representatives with the president
and senate, as in making laws, would render it impossible to act with
the decision, secrecy, and dispatch, which are sometimes necessary in
making treaties.

Sec.4. As the treaty-making power appears to be in its nature neither
wholly executive nor wholly legislative, but to partake of the nature of
both, a _part_ of the legislature is properly associated with the
president. As the senate, being less numerous than the house, is capable
of acting more promptly as well as more easily convened and at less
expense, that body is more properly united with the executive in the
exercise of this power. And it is equally proper that the power to
appoint embassadors and others by whom treaties are negotiated, should
be placed in the same hands.

Sec.5. 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
approved and confirmed, or, as it is usually expressed, to be
_ratified_. Both governments must ratify, or the treaty fails. Treaties
are ratified, on the part of our government, by the president and
senate. This is what is meant by their making treaties. The persons by
whom treaties are negotiated are sometimes appointed by their
governments for that special purpose; but the business is perhaps more
frequently done by the permanent representatives or ministers of the
respective governments.

Sec.6. Each of the principal civilized nations has some officer at home
who acts as agent in negotiating treaties and transacting business with
foreign governments, and has also a representative at the seat of each
foreign government for this purpose, and for keeping his government,
apprised of what is done abroad. Our government has a minister in Great
Britain, one in Russia, one in France, one in Spain, and one in each of
the other principal commercial nations; and each of these nations has a
minister residing at the city of Washington, the seat of government of
the United States. The officer of our government who corresponds with
foreign ministers here, and with our ministers abroad, is the secretary
of state. The negotiation of treaties at home with the ministers of
foreign governments residing here, is done by him.

Sec.7. Representatives at foreign courts have different names or titles:
embassadors, envoys, ministers, and charges des affaires. An embassador
who is intrusted with the ordinary business of a minister at a foreign
court, is called an _embassador in ordinary_. An _embassador
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. An ordinary embassador or minister resides abroad, and acts in
obedience to instructions sent him from time to time.

Sec.8. Agents or representatives sent by our government to reside at
foreign courts, are called _ministers_. Formerly those sent to the less
important countries, were called _charges des affaires_, who are
ministers of a lower grade. The name, usually written charges
d'affaires, is French, and is pronounced _shar-zha-daf-fair_, accented
on the first and last syllables. It means a person having charge of the
affairs of his nation. It is not at present applied to any of our
representatives abroad, all being called by the common name of minister.

Sec.9. _Consuls_ are agents of inferior grade. They reside in foreign
seaports. 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
merchants. They also dispose of the personal estate of citizens of their
own nation who die within their consulates, leaving no representative or
partner in trade to take care of their effects.

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