provisions of the constitution. But they will most properly come under consideration in a 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 to foreign hostilities, and 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 § 1324. 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 became 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 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. change an indorser, upon the dishonour of the bill, as a private holder would be. 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. CHAPTER XXXII. PROHIBITIONS ON THE UNITED STATES. 1325. HAVING finished this review of the powers of congress, the order of the subject next conducts us to the prohibitions andlimitations 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 66 66 § 1326. 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." § 1327. 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 hun 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. II, ch. 14, 15. dred 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.1 It § 1328. It is to the honour 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 crown, and that prohibitory laws were negatived. was doubtless to have been wished, that the power of prohibiting the importation of slaves had been allowed to be put into immediate operation, and had not been postponed for twenty years. But it is not difficult to account, either for this restriction, or for the manner, in which it is expressed. It ought to be considered, as a great point gained in favour of humanity, that a period of twenty years might for ever terminate, within the United States, a traffic, which has so long, and so loudly upbraided the barbarism of modern policy. Even within this period, it might receive a very considerable discouragement, by curtailing the traffic between for 1 Journ. of Convention, p. 222, 275, 276, 285, 291, 292, 358, 378; 2 Pitk. Hist. ch. 20, p. 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. 2 See 2 Elliot's Debates, 335; 1 Secret Journal of Congress, 378, 379. 3 See 3 Elliot's Debates, 98, 250, 251; 3 Elliot's Debates, 335 to 338. -In the original draft of the Declaration of Independence by Mr. Jefferson, there is a very strong paragraph on this subject, in which the slave-trade is denounced, " as a piratical warfare, the opprobrium of infidel powers, and the warfare of the Christian king of Great Britain, determined to keep open a market, where men should be bought and sold;" and it is added, that "he has prostituted his negative for suppressing every legislative attempt to prohibit, or restrain this execrable commerce." 1 Jefferson's Corresp. 146, in the fac simile of the original. |