The Government Class Book by Andrew W. Young

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Sec.9. The next clause authorizes congress "to dispose of and make all
needful rules and regulations respecting the territory and other
property of the United States." If the general government has power to
acquire territory, it must have the right to exercise authority over it.
This express grant establishes beyond doubt a power which had been
questioned under the confederation. In pursuance of the power here
granted, congress has made rules and regulations for governing the
people of different portions of such territory previously to their
admission as states into the union.

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

Chapter XLV.

Provision for Amendments; Assumption of Public Debts; Supremacy of the
Constitution, &c.; Oaths and Tests; Ratification of the Constitution.

Sec.1. The 5th article provides for amending the constitution. It
prescribes two different modes for proposing amendments, and two modes
of ratifying them. Amendments may be proposed by two-thirds of both
houses of congress; or, on the application or request of two-thirds of
the states, congress shall call a convention for proposing amendments.
Proposed in either of these modes, amendments, to become valid as parts
of the constitution, must be ratified by the legislatures of
three-fourths of the states, or by conventions in three-fourths of them;
the mode of ratification, whether by the legislatures or by conventions,
to be proposed by congress.

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

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

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

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

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

Sec.7. The 7th and last article declares: "The ratification of the
conventions of nine states shall be sufficient for the establishment of
this constitution between the states so ratifying the same." The
immediate ratification of the constitution by all the states was hardly
to be expected; a unanimous ratification, therefore, was not required.
But a union of less than nine states was deemed inexpedient. The framers
concluded their labors on the 17th of September, 1787; and in July,
1788, the ratification of New Hampshire, the ninth state, was received
by congress.

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

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

Chapter XLVI.

Amendments to the Constitution.

Sec.1. It is remarkable that, during a period of seventy years, the
constitution has received so few alterations. Although twelve articles
of amendment, so called, have been adopted, only two, (the 11th and
12th,) have in any manner or degree changed any of its original
provisions. Most of them, it will be seen, are merely declaratory and
restrictive. As the principles which they declare were so generally
acknowledged, and as the general government was a government of limited
powers, having such only as were expressly authorized by the
constitution, the framers deemed these declarations and restrictions
unnecessary. But as several of the state conventions had, at the time of
adopting the constitution, expressed a desire that declarations and
guaranties of certain rights should be added, in order to prevent
misconstruction and abuse, the first congress, at its first session,
proposed twelve amendments, ten of which were ratified by the requisite
number of states. Virginia, the last state necessary to make up such
number, ratified December 15, 1791.

Sec.2. Freedom in matters of religion, freedom of speech and of the press,
and the right to petition the government for the redress of grievances,
guarantied in the first article, are rights so essential to civil
liberty, and so evidently just, that it can hardly be presumed that
congress would ever have passed laws directly violating these rights,
even though such laws had not been prohibited.

Sec.3. The second article guaranties "the right of people to bear arms."
Without this right, ambitious men might, by the aid of the regular army,
overthrow the liberties of the people, and usurp the powers of
government.

Sec.4. The third article declares, that "no soldier shall, in time of
peace, be quartered in any house without the consent of the owner, nor
in time of war, but in a manner to be prescribed by law." It is a
principle of the common law, that "a man's house is his own castle."
Among the grievances enumerated in the Declaration of Independence, was
one "for quartering large bodies of armed troops" among the people of
the colonies. To secure the people against intrusions of this kind, is
the object of this prohibition.

Sec.5. The fourth article guaranties "the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures." But there could be no such security, if every
man could, on mere pretense or suspicion of injury, obtain a warrant for
arresting his neighbor or searching his premises and seizing his
property. Innocent men would often be subjected to much trouble and
perplexity; and unjust suspicions would be thrown upon their characters.
It is proper, therefore, that a magistrate shall not issue a warrant,
unless it shall be made to appear, by the oath of the applicant or of
some other person that there is probable cause.

Sec.6. The rights guarantied by the fifth article are common law rights,
and founded upon just principles. We have elsewhere stated the object of
grand juries, and noticed the opinion of some, that this object is
sufficiently secured by the examination before the magistrate; and,
consequently, that grand juries are unnecessary. (See Chap. XIX, Sec.8-10.)
But while this article continues to be a part of the constitution, grand
juries in courts of the United States can not be dispensed with. It is
quite proper, as is provided in this article, that, after a fair and
impartial trial and an acquittal, a person should not be tried a second
time. The provisions of the next article (6th) are also necessary to
secure the same object--the rights of liberty and life to every citizen.

Sec.7. The seventh article of amendment secures, in courts of the United
States, "in suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury." By suits at common
law are meant those tried in the ordinary courts, as distinguished from
those tried in courts of equity and courts of admiralty. This article
further declares, that "no fact tried by a jury shall be otherwise
reexamined in any court of the United States, than according to the
rules of the common law." That is, if a fact tried by a jury in a lower
court, is carried up to a higher court for reexamination, such
reexamination or new trial shall also be by jury.

Sec.8. "Excessive bail shall not be required, nor excessive fines imposed,
nor unusual punishments inflicted." Amend. art. 8. The object of bail
and the manner in which it is given, have been stated. (Chap. XVIII.)
Without the above restriction, the sum might be fixed so high as to
prevent persons accused of crime from procuring the necessary sureties;
whereby innocent persons might be subjected to long imprisonment before
the time of trial. It is therefore properly left to the court to fix the
sum, which should correspond to the aggravation of the offense. Courts
have the same discretion as to the measure of punishment to be inflicted
in each particular case of crime.

Sec.9. The ninth amendment is, "The enumeration in the constitution of
certain rights, shall not be construed to deny or disparage others
retained by the people." There were persons who feared that, because the
constitution mentioned certain rights as belonging to the people, those
not mentioned might be considered as having been surrendered to the
general government. This article was therefore inserted to prevent such
a misconstruction of the constitution.

Sec.10. The tenth amendment is similar to the preceding. "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." In other words the powers which the constitution has not given
to the general government, nor prohibited the states from exercising,
the states or the people have reserved to themselves. So clear is it,
that they retain all power which they have not in words parted with,
that it seems strange to many that the insertion of such a provision
should ever have been thought necessary.

Sec.11. The eleventh amendment was proposed at the first session of the
third congress, March 5, 1794, and its ratification by the
constitutional number of states was announced to congress by the
president in a message dated January 8, 1798. This article prohibits a
court of the United States from trying "any suit in law or equity
commenced or prosecuted against one of the states by citizens of another
state, or by citizens or subjects of any foreign state." This is
intended to prevent a state from being sued in an original suit, by a
private person, the citizen of another state.

Sec.12. The twelfth and last amendment effects a change in the mode of
electing the president and vice-president, and has been considered.
(Chap. XXXIX, Sec.4.) This amendment was proposed at the first session of
the eighth congress, December 12, 1803, and was adopted by the requisite
number of states in 1804, according to a public notice by the secretary
of state, dated the 25th of September of the same year.

Common and Statutory Law.

Chapter XLVII.

Rights of Persons. Personal Security; Personal Liberty; Religious
Liberty; Liberty of Speech, and of the Press; Right of Property.

Sec.1. Having taken a general view of the state governments and the
government of the United States, and seen how wisely they are adapted to
promote the general welfare and secure the blessings of liberty; we
proceed to give a digest of the laws which more particularly define the
rights and prescribe the duties of citizens, or by which their social
and civil intercourse is to be regulated. These laws, it will be
recollected, we have elsewhere called the _municipal_ or _civil_ laws,
as distinguished from the _political_ or _fundamental_ law of the state.
(Chap. III, Sec.6.)

Sec.2. These laws are of two kinds, the written or statute law, and the
unwritten or common law. _Statute laws_ are those which are enacted by
the legislature, and recorded in writing, and are usually collected and
published in books. The word _statute_ is from the Latin _statuo_, to
set, fix, or establish.

Sec.3. The _common law_ is not a code of written laws enacted by a
legislature, but consists of rules of action which have become binding
from long usage and established custom. It is said to be founded in
reason and the principles of justice. The common law of England was
brought over by our ancestors, and established here before the
revolution. Some of the states, in their constitutions, adopted after
the revolution, declared it to be the law of their respective states;
and it has continued to be law in all the states, and is still so
considered, except such parts as have been altered or repealed by
constitutional or legislative enactments, or by usage.

Sec.4. The most valuable rights protected by law are the rights of personal
security and personal liberty. The right of _personal security_ is the
right to be secure from injury to our persons or good names. By
_personal liberty_ is meant the freedom of our bodies or persons from
restraint or confinement. Provisions guarantying these rights have been
incorporated into our national constitution, and the constitutions of
the several states.

Sec.5. The right of personal security is also protected by the law, by
which a man, on showing reasonable cause of danger of personal injury,
may require his adversary to be bound with sureties to keep the peace.
And for violence committed, the offender may be prosecuted in behalf of
the state and punished, and is liable also to the party aggrieved in a
civil suit for damages.

Sec.6. This right is further protected by the law which permits a man to
exercise the natural right of self-defense. In defending his person in
case of a felonious assault, he may lawfully take the life of his
assailant. This is by law pronounced justifiable homicide, and is
allowed also in defense of one's property against felonious and violent
injury. But homicide (man-killing) is not justifiable in case of a
private injury, nor upon the pretense of necessity when the party is not
free from fault in bringing that necessity upon himself.

Sec.7. The right to be secure in our good names, which is included in the
right of personal security, is protected by the law against slander and
libel. A _slander_ is a false and malicious report or statement tending
to injure another in his reputation or business, and which, if true,
would render him unworthy of confidence or employment; or it is the
maliciously charging of another with anything by which he sustains
special injury. The slander of a person by words spoken, is a civil
injury, that is, an injury for which redress is to be obtained in a
civil suit for damages.

Sec.8. A slander written or printed, is called _libel_. A libel is a
malicious publication in print or writing, signs or pictures, tending to
expose a person to public hatred, contempt, or ridicule. And it is
considered in law a publication of such defamatory writing, though
communicated to a single person. A slander written or printed is likely
to have a wider circulation, to make a deeper impression, and to become
more injurious. A person may therefore be liable in damages for words in
print or writing, for which he would not be liable if merely spoken. In
case of libel, a person is not only liable to a private suit for
damages, but may be indicted and tried as for other public offenses.

Sec.9. It is a principle of English common law, that in a criminal action
for libel it is immaterial whether the matter of it is true or false;
and a person prosecuted for libel is not allowed, in justification, to
prove to the jury the truth of his statement, since the provocation, not
the falsity, is to be punished. And, whether true or false, the libelous
publication is equally dangerous to the public peace, and is presumed to
have been made with malicious intent.

Sec.10. It is held--and perhaps it is the prevailing opinion--that in a
civil action for damages, a libel must be false as well as scandalous,
and, consequently, that the truth may be pleaded in justification. This
point, however, is not fully settled. The reason for this distinction
between cases of public and private prosecution, it is not easy to
perceive. If it is just to inquire into the good or bad intentions of
the publisher in one case, it would seem to be equally so in the other.

Sec.11. But the common law has been materially modified and relaxed in this
country. In most of the states it is provided by their constitutions or
by law, that the truth may be given in evidence, and if it shall appear
to the jury "that the matter charged as libelous is true, and was
published with good motives and for justifiable ends, the party shall be
acquitted." As it may sometimes be proper to speak or publish an
unfavorable truth concerning others, the principle of the above
provision would seem to be founded in justice. In the state of Vermont,
and perhaps in a few other states, if the party prosecuted proves the
truth of his statement in any case, he is acquitted.

Sec.12. The right of _personal liberty_ is secured by express provision of
the national constitution, which guaranties to every citizen "the
privilege of the writ of _habeas corpus_." (Cons. U.S. art. 1, sec. 9.)
The nature of this writ has been explained. (Chap. XXXVI, Sec.4.) The same
provision has been inserted in the state constitutions. This was a
common law privilege, independently of any constitutional enactment. The
principal object of the provision seems to be to take from congress and
the state legislatures the power to abolish this privilege, or even to
suspend it for any time, or in any case, except the particular cases
mentioned.

Sec.13. Freedom of religious opinion and worship, or liberty of
conscience, is a valuable personal right, included in the term, personal
liberty, and is effectually secured in this country. In England, the
country of our ancestors, there is a church established and supported by
the government. This is sometimes called "union of church and state."
The American people, from their love of religious freedom, have, in
their constitutions, expressly prohibited congress from making laws
"respecting the establishment of religion, or prohibiting the free
exercise thereof." (Amend. art. 1.) And the state constitutions have
adopted similar provisions.

Sec.14. Another important personal right comprehended in the term personal
liberty, and guarantied in the same article of the national
constitution, and in the state constitutions, is the liberty of speech
and of the press. Some of the monarchical governments of Europe
prohibited the people from speaking against the sovereign or his
government. Books and papers could not be published until they had been
examined and approved. The persons authorized to examine the
manuscripts, were called _censors_. Hence the expression sometimes
heard, "censorship of the press." To secure the liberty of speaking and
publishing their sentiments freely up on all subjects, the people of
this country have made express provision in their constitutions; which,
however, while they properly guaranty this right, leave men "responsible
for its abuse," and liable to prosecution for slander or libel. (Sec.7, 8.)

Sec.15. The _right of property_ is the right to acquire property, and to be
free in the use and enjoyment of it. To protect men in the enjoyment of
this right, is one of the principal objects of constitutions and laws.
The rights of property will constitute the subject matter of several
subsequent chapters of this digest of "common and statutory law." (Chap.
L, and onward.)

Chapter XLVIII.

Domestic Relations. Husband and Wife.

Sec.1. To render a marriage contract lawful, the parties must be of
sufficient age, called the age of consent; which, by the common law of
the land, is fourteen years in males, and twelve in females. In some
states the age of consent has been altered by statute. In Ohio, Indiana,
and Michigan, it has been raised to eighteen years in males, and
fourteen in females; in Illinois to seventeen and fourteen; in
Wisconsin, to eighteen and fifteen.

Sec.2. The parties must also have sufficient understanding to transact the
ordinary business of life. Idiots and lunatics cannot legally contract
marriage. Persons must also act freely. If the consent of either party
has been obtained by force or fraud, the marriage may be declared void.
The parties must not be nearly related. The degrees of relationship at
which they are forbidden to marry are in some states fixed by law; but
the laws of these states on the subject are not uniform. Some states
have forbidden marriages which come within what is called the Levitical
degrees; but these degrees have received different interpretations.
According to the interpretation of some, the relation of uncle and niece
and aunt and nephew, come within this rule.

Sec.3. No person can lawfully remarry who has a wife or husband living.
Such second marriage is, by the common law, null and void. In some of
the states, perhaps in most of them, it is declared _polygamy_, and a
state prison offense, except in certain cases; as when the husband or
wife of the party who remarries has been long absent, and the party
re-marrying does not know the other to have been living within the time;
or when the former husband or wife of the party remarrying has been
sentenced to imprisonment for life; or when the former marriage has been
lawfully annulled or dissolved. If, however, a marriage has been
annulled or dissolved for the cause of adultery, the criminal party is,
in some states at least, not allowed to remarry.

Sec.4. In some of the cases excepted in the preceding section, the second
marriage is merely excusable. Although the party to such marriage is
exempt from the _penalty_, yet if the former wife or husband is living,
though the fact is unknown, and no divorce has been duly announced, or
the first marriage has not been duly annulled; the second marriage is
void. Where there is no statute regulation, the common law governs,
which is, that nothing but death, or a decree of a competent court, can
dissolve the marriage tie.

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