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fair construction of its implied powers, has made suitable provisions to enable the states to protect the health of their inhabitants, although in some lights it may be considered as partaking of the exclusive power to regulate commerce.

An important clause with which this section commences, is partly of a commercial, and partly of a political and moral kind. It was foreseen, that the general power to regulate commerce would include a traffic now justly reprobated by most Christian nations, but some interests and opinions were to be respected, and while the power to abolish the slave trade entirely was indirectly conceded, the exercise of it till the year 1808, otherwise than by laying a tax or duty of ten dollars on each person imported, was prohibited. Congress did not fail to avail itself of the power, as soon as it became lawful to execute it.

The restrictions in regard to taxation and public monies have already been mentioned.

Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the constitution, as extending to the states as well as to the United States, but the nature of the writof habeas corpus seems peculiarly to call for this construction. It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment, it is the mode by which the judicial power speedily and effectually protects his personal liberty, and repels the injustice of unconstitutional laws or despotic governors. After erecting the distinct government which we are considering, and after declaring what should constitute the supreme law in every state in the Union, fearful minds might entertain jealousies of this great and all-controlling power, if some protection against its energies when misdirected was not provided by itself.

The code in which the writ of habeas corpus was originally found, is not expressly or directly incorporated into the constitution.

The existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief. But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity, and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress. The constitution seems to have secured this benefit to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not be suspended unless when in case of rebellion or invasion the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity, the constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. But it is at any rate certain, that congress which has authorized

the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to imprisonment, professed to be under the authority of the United States. But the state courts and judges possess the right of determining on the legality of imprisonment under either authority. (48)

No bill of attainder nor ex post facto law shall be passed.

Bills of attainder are those by which a person without a judicial trial, is declared by the legislature to be guilty of some particular crime. The statement alone shows the atrocity of the act. Such laws are never passed but in times of wild commotion or arbitrary misrule.

Ex post facto laws are often supposed to signify all laws having a retrospective operation, but the technical meaning of them is more confined. An ex post facto law is when an action is declared to be a crime, which at the time it was done was innocent, or when it aggravates a crime, and declares it to be greater than it was when committed, or when it increases the punishment, or directs that different or less evidence shall be sufficient to convict the offender; but if it softens the rigour of the ancient law, it is not within the prohibition. (49) The constitution does not prevent congress from passing retrospective laws in civil cases. Why this was omitted when the states in the same instrument are restrained from passing laws impairing the obligations of contracts, will be hereafter explained.

No title of nobility shall be granted by the United

(48) See among other instances, the case of Commonwealth v. Smith, before Chief Justice Tilghman, 1809.

(49) 3 Dallas, 386. Calder v. Bull.

States, or by any individual state. Of this there could have been but little danger. The independent spirit of republicans leads them to contemn the vanity of hereditary distinctions, but the residue of the clause is more important, no person holding any office of trust or profit under the United States shall, without the consent of congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.

There cannot be too much jealousy in respect to foreign influence. The treasures of Persia were successfully distributed in Athens, and it is now known that in England a profligate prince and many of his venal courtiers were bribed into measures injurious to the nation by the gold of Louis XIV. (50)

A salutary amendment, extending the prohibition to all citizens of the United States, and disfranchising those who infringe it, has been adopted by some of the states, but not yet by a sufficient number; the clause in the text is defective in not providing a specific penalty for a breach of it.

Of the amendments already adopted, the eight first in order fall within the class of restrictions on the legislature, some of which might be implied, some are original, and the whole are highly valuable.

No notice had been taken in the text of the rights of conscience, of the freedom of the press, and of the right to assemble and petition government for a redress of grievances.

The first amendment prohibits congress from passing any law respecting an establishment of religion, or preventing the free exercise of it. It would be difficult to conceive on what possible construction of the constitu

(50) See Dalrymple’s Memoirs, vol. 2.

tion such a power could ever be claimed by congress. The time has long passed by when enlightened men in this country entertained the opinion that the “gene“ral welfare” of a nation could be promoted by religious intolerance, and under no other clause could a pretence for it be found. Individual states whose legislatures are not restrained by their own constitutions, have been occasionally found to make some distinctions, but when we advert to those parts of the constitution of the United States, which so strongly enforce the equality of all our citizens, we may reasonably doubt whe. ther the denial of the smallest civic right under this pretence can be reconciled to it. In most of the governments of Europe, some one religious system enjoys a preference, enforced with more or less severity, according to circumstances. Opinions and modes of worship differing from those which form the established religion, are sometimes expressly forbidden, sometimes panished, and in the mildest cases, only tolerated without patronage or encouragement. Thus a human government interposes between the Creator and his creature, intercepts the devotion of the latter, or condescends to permit it only under political regulations. From injustice so gross, and impiety so manifest, multitudes sought an asylum in America, and hence she ought to be the hospitable and benign receiver of every variety of religious opinion. It is true, that in her early provincial stage, the equality of those rights does not seem to have been universally admitted. Those who claimed religious freedom for themselves, did not immediately perceive that others were also entitled to it; but the history of the stern exclusion or reluctant admission of other sects in several of the provinces, would be an improper digression in this work. In tracing the annals of some of the provinces, it is pleasing to ob

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