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States, owing service therein, may be reclaimed. Such is a brief outline of this most important ordinance, the effects of which upon the destinies of the country have already been abundantly demonstrated in the Territory, by an almost unexampled prosperity and rapidity of population, by the formation of republican governments, and by an enlightened system of jurisprudence. Already five States, composing a part of that Territory, have been admitted into the Union ; and others are fast advancing towards the same grade of political dignity.

§ 219. The proviso, reserving the claims of the Union, as well as of the several States, was adopted from abundant caution, to quiet public jealousies upon the subject of the contested titles, which were then asserted by some of the States to some parts of the Western Territory. Happily, these sources of alarm and irritation have long since been dried up.

§ 220. And here is closed our Review of the express powers conferred upon Congress. There are other incidental and implied powers, resulting from other provisions of the Constitution, which will naturally present themselves to the mind in our future examination of those provisions. At present, it may suffice to say, that, with reference to due energy in the General Governinent, to due protection of the national interests, and to due security to the Union, fewer powers could scarcely have been granted, without jeoparding the existence of the whole system. Without the power to lay and collect taxes, to provide for the common defence, and promote the general welfare, the whole system would have been vain and illusory. Without the power to borrow money upon sudden or unexpected emergencies, the National Government might have been embarrassed, and sometimes have been incapable of performing its own proper functions and duties. Without the power to declare war and raise armies, and provide a navy, the whole country would have been placed at the mercy of foreign nations, or of invading foes, who should trample upon our rights and liberties. Without the power exclusively to regulate commerce, the intercourse between the States would have been liable to constant jealousies, rivalries, and dissensions ; and the intercourse with foreign nations would have been liable to mischievous interruptions, from secret hostilities, or open retaliatory restrictions. The other powers are principally auxiliary to these ; and are dictated by an enlightened policy, a devotion to justice, and a regard to the permanence of the Union. The wish of every patriot must be, that the system thus formed may be perpetual, and that the powers thus conferred may be constantly used for the purposes, for which they were originally given, for the promotion of the true interests of all the States, and not for the gratification of party spirit, or the aggrandizement of rulers at the expense of the people.

CHAPTER XXVI.

Prohibitions on the United States.

$ 221. We next come to the consideration of the prohibitions and limitations upon the powers of Congress, which are contained in the ninth section of the first article, passing by such, as have been already incidentally discussed.

§ 222. The first clause is, “ The migration or importation of such persons, as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress, prior to the year eighteen hundred and eight. But a tax or duty may be imposed upon such importation, not exceeding ten dollars for each person."

$ 223. This clause, as is manifest from its language, was designed solely to reserve to the Southern States, for a limited period, the right to import slaves. It is to the honor of America, that she should have set the first example of interdicting and abolishing the slave trade, in modern times. It is well known, that it constituted a grievance, of which some of the Colonies complained, before the Revolution, that the introduction of slaves was encouraged by the parent country, and that the prohibitory laws, passed by the Colonies, were negatived by the Crown. It was, doubtless, desirable, that the importation of slaves should have been at once interdicted throughout the Union. But it was indispensable to yield something to the prejudices, the wishes, and the supposed interests of the South. And it ought to be considered as a great point gained, in favor of humanity, that a period of twenty years should enable Congress to terminate, in America, (as Congress in fact have terminated the African slave trade,) a traffic, which has so long and so loudly upbraided the morals and justice of modern nations.

§ 224. The next clause is, “ The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” In order to understand the exact meaning of the terms here used, recourse must be had to the common law. The writ of habeas corpus, here spoken of, is a writ known to the common law, and used in all cases of confinement, or imprisonment of any party, in order to ascertain whether it is lawful or not. The writ commands the person, who detains the party, to produce his body, with the day and cause of his detention, before the Court or Judge, who issues the writ, to do, submit to, and receive, whatever the Court or Judge shall direct at the hearing. It is hence called the writ of habeas corpus ad subjiciendum, from the effective words of the writ, (when it was issued, as it originally was, in the Latin language) that you (the person, detaining the party,) have the body (habeas corpus) to submit (ad subjiciendum) to the order of the Court or Judge. And if the cause of detention is found to be insufficient, or illegal, the party is immediately set at liberty by the order of the Court or Judge. It is justly, therefore, esteemed the great bulwark of personal liberty, and is grantable, as a matter of right, to the party imprisoned. But as it had often, for frivolous reasons of state, been suspended or denied in the parent country, to the grievous oppression of the subject, it is made a matter of constitutional right in all cases, except when the public safety may, in cases of rebellion or invasion, require it. The exception is reasonable, since cases of great urgency may arise, in which the suspension may be indispensable for the preservation of the liberties of the country against traitors and rebels.

$ 225. The next clause is, “ No bill of attainder, or ex post facto law, shall be passed.” A bill of attainder, in its technical sense, is an act passed by the legislature, convicting a person of some crime, for which it inflicts upon him, without any trial, the punishment of death. If it inflicts a milder punishment, it is usually called a bill of pains and penalties. Such acts are in the highest degree objectionable, and tyrannical, since they deprive the party of any regular trial by jury, and deprive him of his life, liberty, and property, without any legal proof of his guilt. In a republican government, such a proceeding is utterly inconsistent with first principles. It would be despotism in its worst form, by arning a popular Legislature with the power to destroy, at its will, the most virtuous and valuable citizens of the state.

$ 226. To the same class, belong ex post facto laws, that is, (in a literal interpretation of the phrase,) laws made after the act is done. In a general sense, all ret rospective laws are ex post facto ; but the phrase is here used to designate laws to punish, as public offences, acts, which, at the time when they were done, were lawful, or were not public crimes, or, if crimes, which were not liable to so severe a punishment. It requires no reasoning to establish the wisdom of a prohibition, which puts a fixed restraint upon such harsh legislation. In truth, the existence of such a power in a legislature is utterly incompatible with all just notions of the true ends and objects of a republican government.

$ 227. The next clause (not already commented on) is, “No money shall be drawn from the treasury, but in consequence of appropriations made by law. And a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” The object of this clause is, to secure regularity, punctuality, fidelity, and responsibility, in the keeping and disbursement of the public money. No money can be drawn from the treasury by any officer, unless

under appropriations made by some act of Congress. As all the taxes raised from the people, as well as the revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that Congress should possess the power to decide, how and when any money should be applied for these purposes. If it were otherwise, the Executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure. The power to control and direct the appropriations, constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. In arbitrary governments, the prince levies what money he pleases from his subjects, disposes of it, as he thinks proper, and is beyond responsibility or reproof. It is wise, in a republic, to interpose every restraint, by which the public treasure, the common fund of all, should be applied, with unshrinking honesty, to such objects, as legitimately belong to the common defence, and the general welfare. Congress is made the guardian of this treasure ; and, to make their responsibility complete and perfect, a regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.

$ 228. The next clause is, “No title of nobility shall be granted by the United States ; and no person, holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” A perfect equality of rights, privileges, and rank, being contemplated by the Constitution among all citizens, there is a manifest propriety in prohibiting Congress from creating any titles of nobility. The other prohibition, as to presents, emoluments, offices, and titles from foreign governments, besides aiding the same general object, subserves a more important policy, founded on the just jealousy of foreign corruption and undue influence exerted upon our national officers. It

XIII.

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