USA > New York > New York City > History of the New Netherlands, province of New York, and state of New York : to the adoption of the federal Constitution. Vol. II > Part 27
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The members of the senate are divided into three classes : the seats of one class are vacated every second year : thus one third are chosen every two years. The classes whose term of service was in the first instance so reduced as to be only two or four instead of eix years, were determined at the commencement of the govern- ment by lot. The vice-president of the United States is president of the senate ; but has no vote unless on an equal division of the house .. (It is now established that he shall decide every question of order without debate, subject to an appeal to the senate.) Every senator is elected for six years, and must be thirty years of age, and nine years a citizen of the United States, being an inhabitant at the time of his election of the state for which he is chosen. The English policy is in my opinion much wiser, that no alien born can become a member of parliament.
The house of representatives is composed of members chosen every second year by the people of the several states who are qualified electors of the most numerous branch of the legislature of that state. He must be twenty-five years of age, and have been seven years a citizen of the United States, being an inhabitant at the time of his election, of the state in which he is chosen. In this case, as in that of the senator, he should be a native .*
. At this period (time has produced the result) no other than a native citizen can be elected president of the United States. By the new constitution of this suite ( 1-21) the governour must be a native of the United States. The old con- stitution (1777) did not require that qualitication. The necessity of such limita- Cons had not then been felt
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The constitution of the state of New York in 1777, required the electors of the senate to be freeholders, and of the assembly to be either freeholders, or to have rented a tenement of the value of forty shillings, and actually paid taxes. By the constitution of 1821, the qualifications of electors for both branchies of the legis- lature were placed on the same footing, and were reduced almost to a shadow. It contained a provision for an almost unchecked license of alteration, (styled amendment.) The consequence has been, that by a so-called amendment, the principle of universal suffrage has been introduced, nearly, if not quite, to its full extent.
All the constitutions for states formed since 1800, have omit- ted to require any proper qualifications in an elector. Unless the people improve very rapidly, we shall feel the ill consequences of too much freedom, and too great indulgence to foreigners.
The constitution of the United States directs, that the repre- sentatives in the lower house of congress be apportioned among the states according to numbers; which is determined by adding to the number of free persons, including those bound to service for a number of years, and exclusive of Indians not taxed, three fifths of all other persons. The number of representatives is limit- ed to one for every thirty thousand : but each state is entitled to at least one. The census to be taken every ten years, and the representatives to be apportioned accordingly : but the ratio is altered according to the relative increase of the population. The first number fixed was sixty-five : the fifth census, which made (1831) the population of the United States 12,856,000 persons, enlarged the ratio of population for representation, to one repre- sentative for every 47,700, and enlarged the house of representa- tives to 240 members.
By the constitutional rule of appointment, three fifths of the slaves in the southern states are computed in establishing the appor- tionment of the representation in the lower house, which is supposed to be delegated by the free citizens of the United States. This is considered as a necessary consequence of the previously existing state of domestick slavery in that portion of our country. The evil is supposed to be without remedy. If so, it is certainly an increas- ing evil. The allowing this constitutional approval of slavery, and permitting slaves to form a part in the representation of a nation of freemen, is supposed to have been a necessary compro- mise in forming the federal union, and to be in some measure balanced by the rule which extends direct taxes according to the apportionment of representation, as the slaves of the southern states, while thus those states have an increased number of representatives, contribute when direct taxation is resorted to, equally to increase the measure of their contributions. But the effect on representa-
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tion is constant and certain ; direct taxation is contingent and probably never to be resorted to .*
Each house of congress is the sole judge of the election returns of its members and of their qualifications. A majority of each house constitutes a quorum to do business ; but a smaller number may adjourn from day to day, and compel the attendance of members. Each house determines the rules of its proceedings, and can punish its members for disorderly behaviour ; and two thirds can expel a member. Each is bound to keep a journal of its proceedings, and to publish such parts as do not require secrecy, and to enter the yeas and nays on the journal on any question, when desired by one fifth of the members present. Members of both houses are exempt from arrest during attendance, and in going to and returning `from congress, except for treason, felony, or breach of the peace, and no member can be questioned out of the house for any speech or debate therein. It has been decided that the house can punish others than their own members, for contempt, as being necessary to self-preservation ; and that members of congress should be ex- empt from impeachment and punishment for acts done in their con- gressional capacity.
The house of representatives has the exclusive right of originating
: all bills for raising revenue : the bills are amendable by the senate in its discretion. The two houses are a check so entire upon each other, that one of them cannot even adjourn, during the session of congress, for more than three days, without the consent of the other, nor to any other place than that in which both are sitting.
"The powers of congress are generally to provide for the common defence and general welfare : they are therefore authorized to lay and collect taxes, duties, imposts, and excises, to borrow money on the credit of the United States, to regulate commerce with foreign nations and among the Indian tribes, to declare war, and to define and punish offences against the laws of nations, to raise, maintain and govern armies and a navy, to organize, arm and discipline the militia, and to give full efficacy to all the powers contained in the constitution.
The house of representatives choose their own speaker : whereas, as we have seen, the president of the senate is chosen by the people, being the vice-president of the United States, and gives the casting vote on an equal division. The proceedings and discussions
. By Section 9 of Article 1 of the Constitution, congress was precluded from prohibiting " the migration of such persons as any of the states now existing shall think proper to admit" prior to 180s. Of course the importation of slaves from abroad is meant, which was abolished by Act of Congress of January 1st, 1508, and had previously been prohibited by most or all of the states within their respective limits. South Carolina was the last to renounce the humane and gainful traffick.
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in both houses are publick. Secrecy is not congenial with repub- licanism.
In the passage of laws. one day's notice is required for leave to bring in a bill. Every bill must be read three times on different days before it can be passed ; and no bill can be committed or amended until after the second reading. Bills having been twice read in the house of representatives, are taken up by a committee of the whole house. When the speaker leaves the chair, and the ' chairman is appointed, the speaker takes part in debate. When passed through one liouse, a bill is transmitted to the other, and goes through similar forms ; though in the senate a bill is fre- quently referred to a select committee appointed by ballot. If altered or amended in the house to which a bill is transmitted, it is returned to the house in which it originated, and if the two houses cannot agree, they appoint committees to confer on the subject. When a bill is engrossed and has passed both houses, it is trans- mitted to the president for his approbation. If he signs it, it is a law ; if he does not, he returns it with his objections to the house in which it originated: the objections are entered on the journals of that house, and a reconsideration takes place. If two thirds of that house adhere to the bill, it is sent to the other house, where, if approved by two thirds, it becomes a law. In all such cases, the votes of both houses are determined by yeas and nays : the names being entered on the journals. The president is entitled to ten days for the consideration of a bill, and it must be returned by him within that time or it becomes a law without his signature, unless con- gress by adjournment prevents its return. The sending of bills to the president within the last ten days of the session, either shortens the time necessary for perusal and reflection, or gives him the absolute power of rejecting the bill, which he can do by merely retaining it, without assigning any reason. The qualified negative of the pre- sident is intended to give the executive a constitutional defence against the transcendent power of making laws. The head of the executive department is secured a requisite share of independence by this qualified veto ; and the judiciary power resting on a still more permanent basis, has the right of determining upon the con- stitutionality of laws.
In the English government the king has an absolute negative, which has not been exercised since the reign of William III. In- deed, the king or queen of that country is a mere phantom with the privilege of sensual gratification, while the power of the nation is wielded by an aristocracy which bows the knee in mockery of the pageant, whose only qualification necessary for enthronement is hereditary descent. Yet it is blasphemously said, the sovereign can do no wrong, by those who appear to worship and really govern.
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The nominal kingdom is a real aristocracy which is daily encroach- ed upon by the people.
The haughty dynasty of the Tudors were real monarchs, served on the bended knee with Asiatic servility. The Stuarts followed, and in succeeding to the throne, thought they grasped the same prerogatives ; but the people were awakening, and the second tyrant of the Scottish line was brought to the block for struggling to retain that which he had been taught was his right. The peo- ple governed, and overthrew aristocracy, hierarchy, and monar- chy, but had not attained the knowledge requisite to self-govern- ment, and consequently lost it. The Stuarts returned and pre- rogative was asserted again ; until after a struggle of centuries, in 16SS, a mingled monarchy and aristocracy governed, which has changed to the present aristocracy, daily yielding to the people, who still worship the sovereign and the lord, although the first is reduced to a pageant, and the second is so intimately blended with themselves as scarcely to retain any of the sacredness derived from blood. Yet it is this government so complicated in structure, so guarded by its laws and judiciary, that it is the best known in Europe. In 1831, it is asserted, that out of 65S members of which the English house of commons consisted, the number of 457 were elected by 144 peers and 123 commoners. Reform has since advanced, and popular elections have become somewhat more real.
To return home. The powers of congress as determined by the judiciary are, priority of payment over other creditors in cases of insolvency, or preference given to debts due to the United States. The power to create a bank. The right of pre-emption to all Indian lands lying within the territory of the United States. The title is in the United States by the treaty of peace with Great Britain and by subsequent cessions from France and Spain, and from the individual states. Leaving to the Indians only the right of occupancy, the United States having an absolute and exclusive right to extinguish that title of occupancy either by conquest or pur- chase. " The title of the European nations," says Chancellor Kent, " which passed to the United States to this immense territo- rial empire, was founded on discovery and conquest," and prior discovery gave this title to the soil subject to the possessory right of the natives. The United States succeeding to the European conquerors and discoverers adinit no other than the right of occu- pancy to the Indians ; to be protected while in peace in the posses- sion of their lands, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country. Have they been protected in the possession of their lands ?
The constitution gave to congress the power to dispose of and to make all needful rules and regulations respecting the territory or
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other property belonging to the United States, and to admit new states into the Union. Cessions were made of territory by Vir- ginia, Massachusetts, Connecticut, and New York. Before the adoption of the constitution, North and South Carolina and Geor- gia made similar cessions. The immense territories of Louisiana and Florida were obtained by purchase.
Power was vested in congress to prescribe the manner in which the publick acts, records, and proceedings of cvery state should be proved, and the effect thereof in every other statc.
Congress have power for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, and to provide for the organizing, arming, and disciplining the militia, the states reserving the appointment of officers and the authority of training the militia according to the discipline prescribed by congress, who have government over such part as may be employed in the service of the United States, the president being their com- mander-in-chief. When called out, the militia are subject to the rules of war: court-martials to be composed of militia officers only, but to be considered as governed by the articles of war.
The authority of congress to appropriate moneys for internal im- provements has not been decided by the judiciary.
The executive powers of the government of the United States are by the constitution vested in the president. The object of this department is the best possible execution of the law. The law once promulgated, no discretion is left to the executive officer. Promp- titude, decision, and force are required, and these are most likely to exist in a single person. Unity increases both the efficacy and responsibility of the executive. 4
The constitution requires the president should be a natural-born citizen of the United States, or a citizen at the time of its adoption. Hemust be thirty-five years of age, and a resident of the country four- teen years. His appointment was to be made by electors not con- sisting of the body of the people, but appointed in each state under the direction of the legislature -- congress determining the time of choosing the electors, the day on which they shall vote, and that the day of election shall be the same in every state. A subsequent act of congress directs the electors to be appointed in each state within thirty-four days of the day of election of president. Constitu- tionally, the number of electors must be equal to the whole num- ber of senators and representatives which the state is entitled to send to congress: and it is provided that no person holding an office of profit or honour under the United States, shall be an elec- tor. These electors are to meet in their respective states at a place. appointed by the legislature thereof, on the first Wednesday in De- cember, in every fourth year, and vote by ballot for the president and vice-president-one of whom, at least, shall not be an inhabi-
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tant of the same state with the electors. It was subsequently to the formation of the constitution thought necessary to make it a rule, that the person voted for as president, and the one intended as vice- president, should be designated on separate ballots. The electors send signed and certified lists, sealed, to the seat of government, of all persons voted for as president and vice-president, and of the number of votes for each. These lists are directed to the president of the senate of the United States, who counts the votes in the pre- sence of the members of the two houses and declares the result. If no choice is made by the electors, the house of representatives are to choose the person immediately : but the votes shall be taken. by states-the representatives from each state having one vote. Two thirds of the states make a quorum, and the majority of all the states is necessary to a choice. If the house of representatives shall not choose a president, when the right of choice rests with them, before the 4th of March next following, then the vice-presi- dent shall act as president-as in the case of the death or other constitutional disability of the president. When the president is elected by the electors as is intended in the first place, it is in this manner decided : the person having the greatest number of votes of the electors for president, is president, if such number be a ma- jority of the whole number of electors appointed ; but if no person have such majority, then, from the persons having the highest num- ber, not exceeding three, on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president.
It is a most wise provision that the president shall be chosen by electors, and that they failing, the choice shall devolve upon the house of representatives. Individual rights and state sovereign- ties are protected. There is a tendency towards throwing elections into the hands of the populace, the majority of the people, who inust of necessity be the most ignorant of the nation, and is at pre- sent composed to a great extent of foreigners. Our inhabitants are in more danger from the admission of unqualified electors to the polls, than from any other source in existence, or to be devised.
As now regulated the vice-president is chosen in the same man- ner as the president. If the number for any individual on the list, be a majority of the whole number of electors appointed, he is vice-president : otherwise, the senate shall choose the vice-presi- dent from the two highest numbers; two thirds forming a quorum, and a majority of the whole being necessary to a choice. No per- son ineligible to the office of president, can be vice-president. The term of office, in both cases is for four years, commencing on the 4th of March next following the election. If the duties of president devolve constitutionally on the vice-president, he acts as such during the remainder of the term, unless the disability of the
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president be removed. If both these offices are vacant, congress are authorized by law, to declare what officer shall act as president ; and they have prescribed that the president of the senate, in the first instance, and in the next, the speaker of the house shall act as president until the vacancy is supplied. The constitution says, that each state is to appoint electors, in such manner as the legisla- ture may direct. In New York they are now chosen by the people in general ballot. At first they were appointed by the legislature.
Four years are a reasonable term for the office of president, espe- cially as he is eligible to re-election. In short, we may say, that the mode of election to this high office, has avoided the evils which the advocates of hereditary monarchy predicted, and has proved the absurdity of such a mode of establishing a chief magistrate, over any nation or people, as has enslaved the minds both of the wise and simple in the old world. The constitution provides, that the pre- sident shall receive at stated times for his services a compensation, that shall neither be increased nor diminished during the term for which he is elected: and that he shall not receive during that time any other emoluments from the United States, or any of the states. He is commander-in-chief of the army and navy of the United States, and of the militia of the several states when called into the service of the union. He has the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He has the power, by and with the advice and consent of the senate to make treaties, two thirds of that house con- curring. He has efficient power to appoint the officers of govern- ment : he is to nominate, and with the advice and consent of the senate, to appoint ambassadors, other publick ministers and consuls, the judges of the supreme court, and officers whose appointments are not otherwise provided for in the constitution. Congress may vest the appointment of inferiour officers in the president alone, in the courts of law, or in the heads of departments. The president is required to give information to congress of the state of the union, and to recommend to their consideration, such measures as he shall judge necessary and expedient. He is to convene both houses of. congress, or either of them on extraordinary occasions, and he may adjourn them in case of disagreement. He is to fill up all vacan- cies that happen during the recess of the senate, by granting com- missions, which shall expire at the end of their next session. He is to receive ambassadors and publick ministers, commission all the officers of the United States, and take care that the laws be faithfully executed. 'The power to receive foreign ministers, in- cludes the power to dismiss them, for he is accountable to the peo- ple for the competent qualifications and conduct of foreign agents. The constitution renders the president directly amenable by law for all mal-administration. As well as other officers of the United
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States, he may be impeached by the house of representatives for treason, bribery, and other high crimes and misdemeanours, and upon conviction by the senate, removed from office.
Other nations have solemnly said, that their first magistrate can do no wrong, yet have expelled him from his country. They have said, and say, he never dies, and take away his life on the scaffold. Such absurdities are here unknown. If the president violates the law, the house of representatives can arrest him in his career, and the senate punish his guilt and folly.
. The judiciary department of our government, is if possible, more interesting to us, than the branches I have considered. The con- stitution declares, that " the judicial power of the United States, . shall be vested in one supreme court ; and such inferiour courts as congress, may from time to time, ordain and establish." In this case, congress have no discretion. The constitution is mandatory. The origin and title of the judiciary is equal with the other powers of the government, and is as exclusively vested in the courts created by the constitution, as the legislative power is vested in congress, or the executive in the president. The judges both of the supreme and inferiour courts, are rendered by the constitution - independent both of the government and the people ; they are to hold their offices during good behaviour, and their compensation for services cannot be diminished during their continuance in office. The judges are bound to consider the constitution as the supreme law, and consequently are a check upon the laws of congress, which may contravene it. But though the judges are thus inde- pendent, they are by the constitution amenable for any corrupt violation of their trust. The house of representatives having the power of impeachment, the judges may by that process be held to answer before the senate, and if convicted, they may be removed from office. The judicial power extends to all cases in law or equity arising under the constitution, the laws and treaties of the 'union ; to all cases affecting ambassadors, public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; all controversaries to which the United States shall be a party ; to con- troversies between two states; to controversies between a state when plaintiff and citizens of another state, or foreign nations or subjects ; to controversies between citizens of different states, and between citizens of the same state, claiming lands under grants of different states ; and between a state, or citizens thereof, and for- eign states ; and between citizens and foreigners. The judicial department of the United States is thus the final expositor of the constitution as to all questions of a judicial nature.
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