CHAPTER XXXIII.

PROHIBITIONS ON THE STATES.

§ 1353. THE tenth section of the first article, to which we are now to proceed, contains the prohibitions and restrictions upon the authority of the States. Some of these, and especially those which regard the power of taxation and the regulation of commerce, have already passed under consideration; and will, therefore, be here omitted. The others will be examined in the order of the text of the Constitution.

§ 1354. The first clause is, "No State shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, (a) ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."1

§ 1355. The prohibition against treaties, alliances, and confederations, constituted a part of the articles of confederation,2 and was from thence transferred in substance into the Constitution. The sound policy, nay, the necessity of it, for the preservation of any national government, is so obvious, as to strike the most careless mind. If every State were at liberty to enter into any treaties, alliances, or confederacies, with any foreign state, it would become utterly subversive of the power confided to the national government on the same subject. Engagements

1 In the original draft of the Constitution, some of these prohibitory clauses were not inserted, and particularly the last clause, prohibiting a State to pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. The former part was inserted by a vote of seven States against three. The latter was inserted in the revised draft of the Constitution, and adopted at the close of the convention, whether with or without opposition does not appear. Journal of Convention, 277, 302, 359, 377, 379. It was probably suggested by the clause in the ordinance of 1787 (Art. 2), which declared, "that no law ought to be made, etc. that shall interfere with or affect private contracts, or engagements, bona fide, and without fraud, previously formed."

2 Art. 6.

(a) See Pierce v. Carskadon, 16 Wall. 234; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, Id. 333; ante, pp. 218, 219.

VOL. II. - 15

might be entered into by different States, utterly hostile to the interests of neighboring or distant States; and thus the internal peace and harmony of the Union might be destroyed, or put in jeopardy. A foundation might thus be laid for preferences and retaliatory systems, which would render the power of taxation, and the regulation of commerce, by the national government, utterly futile. Besides, the intimate dangers to the Union ought not to be overlooked, by thus nourishing within its own bosom a perpetual source of foreign corrupt influence, which, in times of political excitement and war, might be wielded to the destruction of the independence of the country. This, indeed, was deemed, by the authors of the Federalist, too clear to require any illustration.1 (a) The corresponding clauses in the confederation were still more strong, direct, and exact, in their language and import.

§ 1356. The prohibition to grant letters of marque and reprisal stands upon the same general ground; for otherwise it would be in the power of a single State to involve the whole Union in war at its pleasure. It is true, that the granting of letters of marque and reprisal is not always a preliminary to war, or necessarily designed to provoke it. But in its essence it is a hostile measure for unredressed grievances, real or supposed; and therefore is most generally the precursor of an appeal to arms by general hostilities. The security, as has been justly, observed, of the whole Union ought not to be suffered to depend upon the petulance or precipitation of a single State. Under the confederation there was a like prohibition in a more limited form. According to that instrument, no State could grant letters of marque and reprisal until after a declaration of war by the Congress of the United States. 3 In times of peace the power was exclusively confided to the general government. The Constitution has wisely, both in peace and war, confided the whole subject to the general government. Uniformity is thus secured in all operations which relate to foreign powers; and an immediate responsibility to the nation on the part of those for whose conduct the nation is itself responsible.4

1 The Federalist, No. 44.

21 Tuck. Black. Comm. App. 310, 311.

8 Article 6.

♦ The Federalist, No. 44; Rawle on Constitution, ch. 10, p. 136.

(a) See note to § 1402, post.

We have al

§ 1357. The next prohibition is to coin money. ready seen that the power to coin money, and regulate the value thereof, is confided to the general government. Under the confederation, a concurrent power was left in the States, with a restriction, that Congress should have the exclusive power to regulate the alloy and value of the coin struck by the States.1 In this, as in many other cases, the Constitution has made a great improvement upon the existing system. Whilst the alloy and value depended on the general government, a right of coinage in the several States could have no other effect than to multiply expensive mints, and diversify the forms and weights of the circulating coins. The latter inconvenience would defeat one main purpose for which the power is given to the general government, viz., uniformity of the currency; and the former might be as well accomplished by local mints established by the national government, if it should ever be found inconvenient to send bullion or old coin for re-coinage to the central mint.2 Such an event could scarcely occur, since the common course of commerce throughout the United States is so rapid and so free, that bullion can with a very slight expense be transported from one extremity of the Union to another. A single mint only has been established, which has hitherto been found quite adequate to all our wants. The truth is, that the prohibition had a higher motive, the danger of the circulation of base and spurious coin connived at for local purposes, or easily accomplished by the ingenuity of artificers, where the coins are very various in value and denomination, and issued from so many independent and unaccountable authorities. This subject has, however, been already enlarged on in another place.3

§ 1358. The prohibition to "emit bills of credit" cannot, perhaps, be more forcibly vindicated than by quoting the glowing language of the Federalist, a language justified by that of almost every contemporary writer, and attested in its truth by facts from which the mind involuntarily turns away at once with disgust and indignation. "This prohibition," says the Federalist, "must give pleasure to every citizen in proportion to his love of justice, and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace from the pesti2 The Federalist, No. 44.

1 Article 9.

1 Tuck. Black. Comm. App. 311, 312; Id. 261. Ante, §§ 1116–1123.

lent effects of paper-money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people; and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated not otherwise than by a voluntary sacrifice on the altar of justice of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium instead of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States; and thus the intercourse among them would be impeded. Retrospective alterations in its value might be made; and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause; and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper-money, than to coin gold or silver." 1

§ 1359. The evils attendant upon the issue of paper-money by the States after the peace of 1783, here spoken of, are equally applicable, and perhaps apply with even increased force to the paper issues of the States and the Union during the revolutionary war. Public, as well as private credit, was utterly prostrated.2 The fortunes of many individuals were destroyed; and those of all persons were greatly impaired by the rapid and unparalleled depreciation of the paper currency during this period. In truth, the history of the paper currency, which during the revolution was issued by Congress alone, is full of melancholy instruction. It is at once humiliating to our pride, and disreputable to our national justice. Congress at an early period (November, 1775) directed an emission of bills of credit to the amount of three mil

1 The Federalist, No. 44; 2 Elliot's Debates, 83. See in Mr. Webster's Speeches on the Bank of the United States, in Senate, 25th and 28th of May, 1832, some cogent remarks on the same subject. See also Mr. Madison's Letter to Mr. C. J. Ingersoll, 2d of February, 1811.

2 See Sturgis v. Crowninshield, 4 Wheat. R. 204, 205.

lions of dollars; and declared on the face of them, that "this bill entitles the bearer to receive — Spanish milled dollars, or the value thereof in gold or silver, according to a resolution of Congress, passed at Philadelphia, November 29th, 1775." And they apportioned a tax of three millions on the States, in order to pay these bills, to be raised by the States according to their quotas at future designated periods. The bills were directed to be receivable in payment of the taxes; and the thirteen colonies were pledged for their redemption. Other emissions were subsequently made. The depreciation was a natural, and indeed a necessary consequence of the fact, that there was no fund to redeem them. Congress endeavored to give them additional credit by declaring, that they ought to be a tender in payment of all private and public debts; and that a refusal to receive the tender ought to be an extinguishment of the debt, and recommending the States to pass such tender laws. They went even further, and thought proper to declare, that whoever should refuse to receive this paper in exchange for any property, as gold and silver, should be deemed "an enemy to the liberties of these United States." 2 This course of violence and terror, so far from aiding the circulation of the paper, led on to still further depreciation. New issues continued to be made, until, in September, 1779, the whole emission exceeded one hundred and sixty millions of dollars. At this time Congress thought it necessary to declare, that the issues on no account should exceed two hundred millions; and still held out to the public the delusive hope of an ultimate redemption of the whole at par. They indignantly repelled the idea, in a circular address, that there could be any violation of the public. faith, pledged for their redemption; or that there did not exist. ample funds to redeem them. They indulged in still more extraordinary delusions, and ventured to recommend paper-money, as of peculiar value. "Let it be remembered," said they, "that paper-money is the only kind of money which cannot make to itself wings and fly away.

§ 1360. The States still continued to fail in complying with

1 1 Journal of Congress, 1775, pp. 186, 280, 304.

2 Journal of Congress, 11th January, 1776, p. 21; 14th January, 1777; 3 Journal

of Congress, pp. 19, 20; 2 Pitk. Hist. ch. 16, pp. 155, 156.

3 See 4 Journal of Congress, 9th Dec. 1778, p. 742, and 5 Journal of Congress, 13th Sept. 1779, pp. 341 to 353; 2 Pitk. Hist. ch. 16, pp. 156, 157.