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. [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 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. Jeffer § 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 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 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.2 son from the usurpations of rulers, Mr. Hamilton from the insubordination of the multitude.] 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. § 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. II., ch. 14, 15. 2 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. 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. It 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.2 It ought to be considered, as a great point gained in favor of humanity, that a period of twenty years might forever 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 foreign countries; and it might even be totally abolished by the concurrence of a few States. "Happy,' it was then added by The Federalist, " would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren. Let it be remembered that, at this period, this horrible traffic was carried on with the encouragement and support of every civilized nation of Europe; and by none with more eagerness and enterprise than by the parent country. America stood forth alone, uncheered and unaided, in stamping ignominy upon this traffic on the very face of her constitution of government, although there were strong temptations of interest to draw her aside from the performance of this great moral duty. § 1335. Yet attempts were made to pervert this clause into an objection against the Constitution, by representing it on one side, as a criminal toleration of an illicit practice; and on another, as calculated to prevent voluntary and beneficial emigrations to 1 See 2 Elliot's Debates, 335; 1 Secret Journal of Congress, 378, 379. 2 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 Correspondence, 146, in the fac-simile of the original. 3 The Federalist, No. 42. 4 Id. No. 42. America.1 Nothing, perhaps, can better exemplify the spirit and manner, in which the opposition to the Constitution was conducted, than this fact. It was notorious, that the postponement of an immediate abolition was indispensable to secure the adoption of the Constitution. It was a necessary sacrifice to the prejudices and interests of a portion of the Southern States.2 The glory of the achievement is scarcely lessened by its having been gradual, and by steps silent, but irresistible. § 1336. Congress lost no time in interdicting the traffic, as far as their power extended, by a prohibition of American citizens. carrying it on between foreign countries. And as soon as the stipulated period of twenty years had expired, Congress, by prospective legislation to meet the exigency, abolished the whole traffic in every direction to citizens and residents. Mild and moderate laws were, however, found insufficient for the purpose of putting an end to the practice; and at length Congress found it necessary to declare the slave-trade to be a piracy, and to punish it with death.3 Thus it has been elevated in the catalogue of crimes to this "bad eminence" of guilt; and has now annexed to it the infamy, as well as the retributive justice, which belongs to an offence equally against the laws of God and man, the dictates of humanity, and the solemn precepts of religion. Other civilized nations are now alive to this great duty; and by the noble exertions of the British government, there is now every reason to believe, that the African slave-trade will soon become extinct; and thus another triumph of virtue would be obtained over brutal violence and unfeeling cruelty.4 § 1337. This clause of the Constitution, respecting the importation of slaves, is manifestly an exception from the power of regulating commerce. Migration seems appropriately to apply to voluntary arrivals, as importation does to involuntary arrivals; and, so far as an exception from a power proves its existence, this proves, that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who 1 The Federalist, No. 42; 2 Elliot's Debates, 335, 336; 3 Elliot's Debates, 250, 251. 2 2 Elliot's Debates, 335, 336; 1 Lloyd's Debates, 305 to 313; Elliot's Debates, 97 ; Id. 250, 251; 1 Elliot's Debates, 60; 1 Tuck. Black. Comm. App. 290. 3 Act of 1820, ch. 113. * See 1 Kent's Comm. Lect. 9, p. 179 to 187. |