a policy creep into our government, and the sales of the public lands, instead of being appropriated to the discharge of the public debt, be converted to a treasure in a bank, those, who at any time can command it, may be tempted to apply it to the most nefarious purposes. The improvident alienation of the crown lands in England has been considered as a circumstance extremely favorable to the liberty of the nation, by rendering the government less independent of the people. The same reason will apply to other governments whether monarchical or republican.1

§ 1327. What a strange representation is this of a republican government, created by, and responsible to, the people in all its departments! What possible analogy can there be between the possession of large revenues in the hands of a monarch and large revenues in the possession of a government whose administration is confided to the chosen agents of the people for a short period, and may be dismissed almost at pleasure? If the doctrine be true, which is here inculcated, a republican government is little more than a dream, however its administration may be organized; and the people are not worthy of being trusted with large public revenues, since they cannot provide against corruption, and abuses of them. Poverty alone, it seems, gives a security for fidelity; and the liberties of the people are safe, only when they are pressed into vigilance by the power of taxation. In the view of this doctrine, what is to be thought of the recent purchases of Louisiana and Florida? If there was danger before, how mightily must it be increased by the accession of such a vast extent of territory, and such a vast increase of resources? Hitherto the experience of the country has justified no alarms on this subject from such a source. On the other hand, the public lands hold out, after the discharge of the national debt, ample revenues to be devoted to the cause of education and sound learning, and to internal improvements, without trenching upon the property, or embarrassing the pursuits of the people by burdensome taxation. The constitutional objection to the appropriation of the other revenues of the government to such objects, has not been supposed to apply to an appropriation of the proceeds of the public lands. The cessions of that territory were expressly made for the common benefit of the United States; and, therefore, constitute a fund,

1 1 Tuck. Black. Comm. App. 284.

which may be properly devoted to any objects which are for the common benefit of the Union.1

§ 1328. The power of Congress over the public territory is clearly exclusive and universal; and their legislation is subject to no control, but is absolute and unlimited, unless so far as it is affected by stipulations in the cessions, or by the ordinance of 1787, under which any part of it has been settled.2 (a) But the power of Congress to regulate the other national property (unless it has acquired by cession of the States exclusive jurisdiction) is not necessarily exclusive in all cases. If the national government own a fort, arsenal, hospital, or light-house establishment, not so ceded, the general jurisdiction of the State is not excluded in regard to the site, but, subject to the rightful exercise of the powers of the national government, it remains in full force.3

§ 1329. There are some other incidental powers given to Congress, to carry into effect certain other provisions of the Constitution. But they will most properly come under consideration in a

1 1 Kent's Comm. Lect. 12, pp. 242, 243; Id. Lect. 17, p. 359.

2 Rawle on Const. ch. 27, p. 237; 1 Kent's Comm. Lect. 12, p. 243; Id. Lect. 17, pp. 359, 360.

8 Rawle on Const. ch. 27, p. 240; The People v. Godfrey, 17 Johns. R. 225; Commonwealth v. Young, 1 Hall's Journal of Jurisp. 47; Sergeant on Const. ch. 31 [ch. 33]. Whether the general doctrine in the case of Commonwealth v. Young (1 Hall's Journal, 47) can be maintained, in its application to that case, is quite a different question.

(a) This point became at length the subject of serious and dangerous dispute between political parties, in consequence of the effect it might have upon slavery, and its extension into the territories. One party insisted that slavery was recog nized by the Constitution; that masters of slaves had a right to remove with them into the new territories, and be protected in their right thereto, not only by the courts, but, if need be, by express legisla tion of Congress also. Another party, deeming slavery an evil, and asserting for Congress full control over the subject in the territories, demanded legislation which should preclude its extension into them. A third party denied to Congress the power to legislate on the domestic concerns of the people of the territories; asserted their right to regulate them in

their own discretion, and at the proper time to be admitted to the Union with a constitution of their adoption, with or without slavery as they might choose.

These parties were severally represented in the presidential election of 1860, by Mr. Breckenridge, Mr. Lincoln, and Mr. Douglass; but the recent extinction of slavery having removed the chief occasion for questioning the power of Congress as asserted by the author, it has since been exercised without much question, except on the part of the people of Utah, who have not readily acquiesced in the legislation against polygamy. For some judicial discussion of the right of Congress over the territories, see further, American Ins. Co. v. Canter, 1 Pet. 542; United States v. Gratiot, 14 Pet. 537; Cross v. Harrison, 16 How. 164.

future part of these Commentaries. At present it may suffice to say, that, with reference to due energy in the government, due protection of the national interests, and due security to the Union, fewer powers could scarcely have been granted without jeoparding the whole system. Without the power of the purse, the power to declare war or to promote the common defence or general welfare, would have been wholly vain and illusory. Without the power exclusively to regulate commerce, the intercourse between the States would have been constantly liable to domestic dissensions, jealousies, and rivalries, and the intercourse with foreign nations would have been liable to mischievous interruptions from secret hostilities or retaliatory restrictions. The other powers are principally auxiliary to these; and are dictated at once by an enlightened policy, a devotion to justice, and a regard to the permanence (may it ripen into a perpetuity!) of the Union.1

1 Among the extraordinary opinions of Mr. Jefferson, in regard to government in general, and especially to the government of the United States, none strikes the calm observer with more force than the cool and calculating manner in which he surveys the probable occurrence of domestic rebellions. "I am," he says, "not a friend to a very energetic government. It is always oppressive. It places the governors, indeed, more at their ease at the expense of the people. The late rebellion in Massachusetts [in 1787] has given more alarm than I think it should have done. Calculate, that one rebellion in thirteen States, in the course of eleven years, is but one for each State in a century and a half. No country should be so long without one. Nor will any degree of power in the hands of government prevent insurrections." Letter to Mr. Madison, in 1787; 2 Jefferson's Corresp. 276. Is it not surprising that any statesman should have overlooked the horrible evils and immense expenses which are attendant upon every rebellion? The loss of life, the summary exercise of military power, the desolations of the country, and the inordinate expenditures to which every rebellion must give rise? Is not the great object of every good government to preserve and perpetuate domestic peace and the security of property, and the reasonable enjoyment of private rights and personal liberty? If a State is to be torn into factions and civil wars every eleven years, is not the whole Union to become a common sufferer? How and when are such wars to terminate? Are the insurgents to meet victory or defeat? Has not history established the melancholy truth, that constant wars lead to military dictatorship and despotism, and are inconsistent with the free spirit of republican governments? If the tranquillity of the Union is to be disturbed every eleventh year by a civil war, what repose can there be for the citizens in their ordinary pursuits? Will they not soon become tired of a republican government which invites to such eternal contests, ending in blood, and murder, and rapine? One cannot but feel far more sympathy with the opinion of Mr. Jefferson in the same letter, in which he expounds the great political maxim, "Educate and inform the whole mass of the people." 2 Jefferson's Corresp. 276. (a)

(a) If Mr. Jefferson was willing to witness rebellion as a check upon power, Mr. Hamilton, it might be said, was disposed

to look with complacency upon war as a means of strengthening the government.

"He trusted," says Mr. Gouveneur

§ 1330. As there are incidental powers belonging to the United States, in their sovereign capacity, so there are incidental rights, obligations, and duties. It may be asked how these are to be ascertained. In the first place, as to duties and obligations of a public nature, they are to be ascertained by the law of nations, to which, on asserting our independence, we necessarily become subject. In regard to municipal rights and obligations, whatever differences of opinion may arise in regard to the extent to which the common law attaches to the national government, no one can doubt that it must and ought to be resorted to, in order to ascertain many of its rights and obligations. Thus, when a contract is entered into by the United States, we naturally and necessarily resort to the common law, to interpret its terms and ascertain its obligations. The same general rights, duties, and limitations, which the common law attaches to contracts of a similar character between private individuals, are applied to the contracts of the government. Thus, if the United States become the holder of a bill of exchange, they are bound to the same diligence, as to giving notice, in order to charge an indorser, upon the dishonor of the bill, as a private holder would be.1 In like manner, when a bond is entered into by a surety for the faithful discharge of the duties of an office by his principal, the nature and extent of the obligation created by the instrument are constantly ascertained by reference to the common law; though the bond is given to the government in its sovereign capacity.

1 United States v. Barker, 12 Wheat. R. 559.

2 See, among other cases, United States v. Kirkpatrick, 9 Wheat. R. 720; Farrar v. United States, 5 Peters's R. 373; Smith v. United States, 5 Peters's R. 294; United States v. Tingey, 5 Peters's R. 115; United States v. Buford, 3 Peters's R. 12, 30.

Morris, Life II. 361, "that in the changes and chances of time we should be involved in some war which might strengthen our Union and nerve the executive." It is but just to these eminent statesmen to bear in mind, when considering such language, especially when employed unguardedly in private correspondence or

conversation, that while each was ardently devoted to the liberties of the country, they respectively apprehended danger to those liberties from opposite quarters; Mr. Jefferson from the usurpations of rulers, Mr. Hamilton from the insubordination of the multitude. C.

CHAPTER XXXII.

PROHIBITIONS ON THE UNITED STATES.

§ 1331. HAVING finished this review of the powers of Congress, the order of the subject next conducts us to the prohibitions and limitations upon these powers which are contained in the ninth section of the first article. Some of these have already been under discussion, and therefore will be pretermitted.1

§ 1332. The first clause is as follows: "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 one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

§ 1333. The corresponding clause of the first draft of the Constitution was in these words: "No tax or duty shall be laid, &c., on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited." In this form it is obvious that the migration and importation of slaves, which was the sole object of the clause, was, in effect, perpetuated, so long as any State should choose to allow the traffic. The subject was afterwards referred to a committee, who reported the clause substantially in its present shape; except that the limitation was the year one thousand eight hundred, instead of one thousand eight hundred and eight. The latter amendment was substituted by the vote of seven States against four; and, as thus amended, the clause was adopted by the like vote of the same States.2

§ 1334. It is to the honor of America, that she should have set

1 Those which respect taxation and the regulation of commerce have been considered under former heads, to which the learned reader is referred. Ante, Vol. I., ch. 14, 15.

2 Journ. of Convention, pp. 222, 275, 276, 285, 291, 292, 358, 378; 2 Pitk. Hist. eh. 20, pp. 261, 262. It is well known, as an historical fact, that South Carolina and Georgia insisted upon this limitation as a condition of the union. See 2 Elliot's Deb. 335, 336; 3 Elliot's Deb. 97.

VOL. II. 14