"Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes or the punishment of offences.''

Hampshire Constitution of 1784.)

"No ex post facto law shall be passed [by Congress].

(New

"No state shall pass any ex post facto law." (The Constitution.)

39. TITLES OF NOBILITY, OFFICES OF PROFIT, AND

PRESENTS.

"That no title of nobility or hereditary honors ought to be granted in this State, nor ought any person, in public trust, to receive any present from any foreign prince or state, or from the United States, or any of them, without the approbation of this State." (Maryland Declaration of Rights of 1776.)

"That no hereditary emoluments, privileges, or honors ought to be granted or conferred in this State." (North Carolina Declaration of Rights of 1776.)

"Nor shall any person holding any office of profit or trust under the United States accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States in Congress assembled grant any title of nobility." (Articles of Confederation of 1778.)

"Nor shall any person, holding any office under the United States, accept of any present, emolument, office, or title from any king or foreign state, without being thereby absolutely rendered forever incapable of any public trust under the United States."' (Drayton's Articles of Confederation of 1778.)

"The United States shall not grant any title of nobility." (Pinckney's Plan, 1787.)

"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.

No state shall grant any title of nobility." (The Constitution.)

40. MARTIAL LAW AND HABEAS CORPUS.

The exercise of martial law and the suspension of the privilege of the writ of habeas corpus are somewhat alike, because both interrupt the process of civil government and destroy for a time the liberty of the citizen.

Martial law is the right which a military commander assumes to suspend civil rights and the remedies founded on them when he thinks himself justified by the necessities of the situation. If he makes a mistake in judgment, and it is afterwards decided that the necessities of the time did not justify him, his acts are all unwarranted and void. This has been the law from time immemorial. But the framers of the colonial charters seem to have thought that the power to exercise martial law should be expressly given in their documents, probably for the reason that its use might often be very necessary in a wild country, and no question should be allowed to arise as to the right.

They usually confined its use to cases of actual war, invasion, or rebellion. The constitutions of 1776, however, omitted any mention of it, except the Massachusetts constitution of 1780 and the New Hampshire constitution of 1784. In fact, it is not usually found in modern constitutions at all, because there is no need of it. It is in any event a mere question of necessity in the desperate straits of an invasion or a rebellion, and the time and the occasion are the only tests by which the right to use it can be decided. The conditions which may have justified such a right as a part of the colonial charters have long since disappeared.

But the Massachusetts constitution of 1780 and the

New Hampshire constitution of 1784, which mentioned it for the last time, introduced a new power,-namely, the right to suspend the privilege of the writ of habeas corpus; and it was confined, as martial law had been confined, to the most urgent occasions.

We find a similar clause in the National Constitution, with the suspension limited to "cases of rebellion or invasion," when "the public safety may require it." But, unfortunately, the framers of the Constitution failed to say which department of the government should have the power to suspend ; and it became a serious question in the civil war whether the President or Congress had the power. In the Massachusetts constitution of 1780 it had been given expressly to the legislature.

The governor allowed to exercise martial law in rebellion or mutiny. (Virginia Charter of 1609.)

Lord Baltimore allowed to exercise martial law in rebellion or mutiny. (Maryland Charter of 1632.)

The above provision from the Maryland charter of 1632 is substantially repeated in the Grant of Maine of 1639.

The governor allowed to exercise martial law only as occasion shall require. (Connecticut Charter of 1662.)

The governor allowed to exercise martial law only as occasion shall require. (Rhode Island Charter of 1663.)

The Carolina charters of 1663 and 1665 copy the provision given above from the Maryland charter of 1632.

The governor allowed to exercise martial law in time of actual war or rebellion as occasion shall necessarily require, but cannot grant commissions for exercising it except by consent of his council. (Massachusetts Charter of 1691.)

The corporation allowed to exercise martial law in time of actual war or rebellion where by law it may be used. (Georgia Charter of 1732.)

The governor to exercise martial law over the army and navy

in war and invasion, and in rebellion declared by the legislature to exist, as occasion shall necessarily require; and the privilege of habeas corpus not to be suspended by the legislature except upon the most urgent occasions, and then for a time not exceeding twelve months. (Massachusetts Constitution of 1780.)

The above provisions from the Massachusetts constitution of 1780, relating to both martial law and habeas corpus, are repeated in the New Hampshire constitution of 1784, except that the time during which the writ of habeas corpus may be suspended is limited to three months.

The privilege of habeas corpus to be suspended only in rebellion or invasion. (Pinckney's Plan, 1787.)

The privilege of habeas corpus to be suspended only in rebellion or invasion, when the public safety may require it. (The Constitution.)

41. EMINENT DOMAIN.

"That private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man's property is taken for the use of the public, the owner ought to receive an equivalent in money." (Vermont Constitution of 1777.)

"And whenever the public exigencies require that the property of an individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." (Massachusetts Constitution of 1780.)

That private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man's property is taken for the use of the public, the owner ought to receive an equivalent in money." (Vermont Constitution of 1786.)

"Nor shall private property be taken for public use without just compensation." (Fifth Amendment to the Constitution.)

CHAPTER VI.

THE EVOLUTION OF FEDERALISM.

(1643 to 1787.)

WHEN We examine our present National Constitution, it is easy to see that it consists of two classes of provisions. One class is concerned with the forms and departments of administration,—the house of representatives, the senate, the president, the judiciary, and their relations to one another; and these provisions, as we have shown, were gradually evolved by two hundred years' experience with the local governments under the colonial charters and constitutions and under the constitutions of 1776.

The other class of provisions is concerned with the relations of the states to the general government, and limits the powers of the general government and restricts also the powers of the states. This federalism, as it is

called, we have not yet touched upon, because there was nothing relating to it in the colonial charters or in the constitutions of 1776. It belongs to another line of development.

There were thus two lines of development. One started in the forms of the old charters for governing each individual, colony, and g grew through subsequent charters, constitutions, and the constitutions of 1776, producing, as we have shown, the administrative pro