The next subject in the order of the report made by the committee of detail was that general clause now found at the close of the enumeration of the express powers of Congress, which authorizes them "to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Const.i.tution in the government of the United States, or in any department or officer thereof."[266] Nothing occurred in the proceedings on this provision which throws any particular light upon its meaning, excepting a proposition to include in it, expressly, the power to "establish all offices" necessary to execute the powers of the Const.i.tution; an addition which was not made, because it was considered to be already implied in the terms of the clause.[267]

The subjects of patents for useful inventions and of copyrights of authors appear to have been brought forward by Mr. Charles Pinckney.

They gave rise to no discussion in the Convention, but were considered in a grand committee, with other matters, and there is no account of the views which they took of this interesting branch of the powers of Congress. We know, however, historically, that these were powers not only possessed by all the States, but exercised by some of them, before the Const.i.tution of the United States was formed. Some of the States had general copyright laws, not unlike those which have since been enacted by Congress;[268] but patents for useful inventions were granted by special acts of legislation in each case. When the power to legislate on these subjects was surrendered by the States to the general government, it was surrendered as a power to legislate for the purpose of securing a natural right to the fruits of mental labor.

This was the view of it taken in the previous legislation of the States, by which the power conferred upon Congress must of course, to a large extent, be construed.

Such are the legislative powers of Congress, which are to be exercised within the States themselves;--and it is at once obvious, that they const.i.tute a government of limited authority. The question arises, then, whether that authority is anywhere full and complete, embracing all the powers of government and extending to all the objects of which it can take cognizance. It has already been seen, that, when provision was made for the future acquisition of a seat of government, exclusive legislation over the district that might be acquired for that purpose was conferred upon Congress.[269] In the same clause, the like authority was given over all places that might be purchased, with the consent of any State legislature, for the erection of forts, magazines, a.r.s.enals, dock-yards, and other needful buildings.[270] All the other places to which the authority of the United States can extend are included under the term "territories," which are out of the limits and jurisdiction of any State. As this is a subject which is intimately connected with the power to admit new States into the Union, we are now to consider the origin and history of the authority given to Congress for that purpose.

In examining the powers of Congress contained in the first article of the Const.i.tution, the reader will not find any power to admit new States into the Union; and while he will find there the full legislative authority to govern the District of Columbia and certain other places ceded to the United States for particular purposes, of which I have already spoken, he will find no such authority there conferred in relation to the territory which had become the property of the United States by the cession of certain of the States before and after the adoption of the Articles of Confederation. If this power of legislation exists as to the territories, it is to be looked for in another connection; and although it is not the special province of this work to discuss questions of construction, it is proper here to state the history of those portions of the Const.i.tution which relate to this branch of the authority of Congress.

In the first volume of this work, I have given an account of the origin of the Northwestern Territory, of its relations to the Union, and of the mode in which the federal Congress had dealt with it down to the time when the national Convention was a.s.sembled.[271] From the sources there referred to, and from others to which reference will now be made, it may be convenient to recapitulate what had been done or attempted by the Congress of the Confederation.

It appears that during the preparation of the Articles of Confederation an effort was made to include in them a grant of express power to the United States in Congress to ascertain and fix the western boundaries of the existing States, and to lay out the territory beyond the boundaries that were to be thus ascertained into new States. This effort totally failed. It was founded upon the idea that the land beyond the rightful boundaries of the old States was already, or would by the proposed grant of power to ascertain those boundaries become, the common property of the Union. But the States, which then claimed an uncertain extension westward from their actual settlements, were not prepared for such an admission, or such a grant; and accordingly the Articles of Confederation, which were issued in 1777 and took effect in 1781, contained no express power to deal with landed property of the United States, and no provision which could safely be construed into a power to form and admit new States out of then unoccupied lands anywhere upon the continent. Still, the Articles were successively ratified by some of the States, and finally became established, in the express contemplation that the United States should be made the proprietor of such lands, by the cession of the States which claimed to hold them. In order to procure such cessions, as the means of inducing a unanimous accession to the confederacy, the Congress in 1780 pa.s.sed a resolve, in which they promised to dispose of the lands for the common benefit of the United States, to settle and form them into distinct republican States, and to admit such States into the Union on an equal footing with its present members.[272] The great cession by Virginia, made in 1784, was immediately followed by another resolve, for the regulation of the territory thus acquired.[273]

This resolve, as originally reported by Mr. Jefferson, embraced a plan for the organization of temporary governments in certain States which it undertook to describe and lay out in the Western territory, and for the admission of those States into the Union. In one particular, also, it undertook, as it was first reported, to regulate the personal rights or relations of the settlers, by providing that, after the year 1800, slavery, or involuntary servitude except for crime, should not exist in any of the States to be formed in the territory. But this clause was stricken out before the resolve was pa.s.sed, and its removal left the measure a mere provision for the political organization of temporary and permanent governments of States, and for the admission of such States into the Union. So far as personal rights or relations were involved in it, the settlers were authorized to adopt, for a temporary government, the const.i.tution and laws of any one of the original States, but the laws were to be subject to alteration by their ordinary legislature. The conditions of their admission into the Union referred solely to their political relations to the United States, or to the rights of the latter as the proprietor of the ungranted lands.

In about a year from the pa.s.sage of this measure introduced by Mr.

Jefferson, and after he had gone on his mission to France, an effort was made by Mr. King to legislate on the subject of the immediate and perpetual exclusion of slavery from the States described in Mr.

Jefferson's resolve. Mr. King's proposition was referred to a committee, but it does not appear that it was ever acted upon.[274]

The cessions of Ma.s.sachusetts and Connecticut followed, in 1785 and 1786. Within two years from this period, such had been the rapidity of emigration and settlement, and so inconvenient had become the plan of 1784, that Congress felt obliged to legislate anew on the whole subject of the Northwestern Territory, and proceeded to frame and adopt the Ordinance of July 13, 1787. This instrument not only undertook to make political organizations, and to provide for the admission of new States into the Union, but it also dealt directly with the rights of individuals. Its exclusion of slavery from the territory is well known as one of its fundamental articles, not subject to alteration by the people of the territory, or their legislature.[275]

The power of Congress to deal with the admission of new States was not only denied at the time, but its alleged want of such power was one of the princ.i.p.al reasons which were said to require a revision of the federal system. It does not appear that the subject of legislation on the rights or condition of persons attracted particular attention; nor do we know, from anything that has come down to us, that the clause relating to slavery was stricken from Mr. Jefferson's resolve in 1784, upon the special ground of a want of const.i.tutional power to legislate on such a question. But Mr. Jefferson has himself informed us, that a majority of the States in Congress would not consent to construe the Articles of Confederation as if they had reserved to nine States in Congress power to admit new States into the Union from the territorial possessions of the United States; and that they so shaped his measure, as to leave the question of power and the rule for voting to be determined when a new State formed in the territory should apply for admission.[276] It seems, also, that although the power to frame territorial governments, to organize States and admit them into the Union, was a.s.sumed in the Ordinance of 1787, the Congress of the Confederation never acted upon the power so far as to admit a State.[277] Finally, we are told by Mr. Madison, in the Federalist, that all that had been done in the Ordinance by the Congress of the Confederation, including the sale of lands, the organization of governments, and the prescribing of conditions of admission into the Union, had been done "without the least color of const.i.tutional authority";[278]--an a.s.sertion which, whether justifiable or not, shows that the power of legislation was by some persons strenuously denied.[279]

With regard to the powers of Congress, under the Confederation, to erect new States in the Northwestern Territory, and to admit them into the Union, the truth seems to be this. There is no part of the Articles of Confederation which can be said to confer such a power; and, in fact, when the Articles were framed, the Union, although it then existed by an imperfect bond, not only possessed no such territory, but it did not then appear likely to become the proprietor of lands, claimed by certain of the States as the successors of the crown of Great Britain, and lying within what they regarded as their original chartered limits. The refusal of those States to allow the United States to determine their boundaries, made it unnecessary to provide for the exercise of authority over a public domain. But in the interval between the preparation of the Articles and their final ratification, a great change took place in the position of the Union.

It was found that certain of the smaller States would not become parties to the Confederation, if the great States were to persist in their refusal to cede to the Union their claims to the unoccupied Western lands; and although the States which thus held themselves back, for a long time, from the ratification of the Articles, finally adopted them, before the cessions of Western territory were made, they did so upon the most solemn a.s.sertion that they expected and confided in a future relinquishment of their claims by the other States. Those just expectations were fulfilled. By the acts of cession, and by the proceedings of Congress which invited them, the United States not only became the proprietors of a great public domain, but they received that domain upon the express trust that its lands should be disposed of for the common benefit, and that the country should be settled and formed into republican States, and that those States should be admitted into the Union. In these conveyances, made and accepted upon these trusts, there was a unanimous acquiescence by the States.

While, therefore, in the formal instrument under which the Congress was organized, and by which the United States became a corporate body, there was no article which looked to the admission of new States into that body, formed out of territory thus acquired, and no power was conferred to dispose of such lands or govern such territory, there were, outside of that instrument, and closely collateral to it, certain great compacts between the States, arising out of deeds of cession and the formal guaranties by which those cessions had been invited, and with which they had been received, which proceeded as if there were a competent authority in the United States in Congress to provide for the formation of the States contemplated, and for their admission into the Union. Strictly speaking, however, there was no such authority. It was to be gathered, if at all, from public acts and general acquiescence, and could not be found in the instrument that formed the charter and established the powers of the Congress. It was an authority, therefore, liable to be doubted and denied; it was one for the exercise of which the Congress was neither well fitted nor well situated; and it was moreover so delicate, so extensive, and so different from all the other powers and duties of the government, as to make it eminently necessary to have it expressly stated and conferred in the instrument under which all the other functions of the government were to be exercised.[280]

Such was the state of things at the period of the formation of the Const.i.tution; and as we are to look for the germ of every power embraced in that instrument in some stage of the proceedings which took place in the course of its preparation, it is important at once to resort to the first suggestion of any authority over these subjects. In doing so, we are to remember that the United States had accepted cessions of the Northwestern Territory, impressed with two distinct trusts: first, that the country should be settled and formed into distinct republican States, which should be admitted into the Union; secondly, that the lands should be disposed of for the common benefit of all the States.[281]

Accordingly, we find in the plan of government presented by Governor Randolph at the opening of the Convention, a resolution declaring "that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the national legislature less than the whole."[282] This resolution remained the same in phraseology and in purpose through all the stages to which the several propositions that formed the outline of the new government were subjected, down to the time when they were sent to the committee of detail for the purpose of having the Const.i.tution drawn out. Looking to the manifest want of power in the Confederation to admit new States into the Union; to the probability that Vermont, Kentucky, Tennessee (then called Franklin), and Maine,--none of which were embraced in any cessions that had then been made to the United States,--might become separate States; and to the prospective legislation of the Ordinance of 1787 concerning the admission of States that were to be formed in the territory northwest of the Ohio, which had been ceded to the Union;--it seems quite certain that the purpose of the resolution was to supply a power to admit new States, whether formed from the territory of one of the existing States, or from territory that had become the exclusive property of the United States. The resolution contained, however, no positive restriction, which would require the a.s.sent of any existing State to the separation of a part of its territory; but as the States to be admitted were to be those "lawfully arising," it is apparent that the original intention was that no present State should be dismembered without its consent. But in order to make this the more certain, the committee of detail, in the article in which they carried out the resolution, gave effect to its provisions in these words:--"New States lawfully const.i.tuted or established within the limits of the United States may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each house shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the legislature may make conditions with the new States concerning the public debt which shall be then subsisting."[283]

In the first draft of the Const.i.tution, therefore, there was contained a qualified power to admit new States, whether arising within the limits of any of the old States, or within the territory of the United States. But in this proposition there was a great omission; for although the States to be admitted were to be those lawfully arising, and such a State might be formed out of the territory of an existing State by the legislative power of the latter, yet it was not ascertained how a State was "lawfully to arise" in the territory of the United States. Nor was there, at present, any provision introduced into the Const.i.tution by which Congress could dispose of the soil of the national domain. These as well as other omissions at once attracted the attention of Mr. Madison, who, as we have seen, held the opinion that the entire legislation of the old Congress in reference to the Northwestern Territory was without const.i.tutional authority.

Before the article which embraced the admission of new States was reached, he moved the following among other powers:[284] "to dispose of the unappropriated lands of the United States"; and "to inst.i.tute temporary governments for new States arising therein." These propositions were referred to the committee of detail, but before any action upon them, the article previously reported by that committee was reached and taken up, and there ensued upon it a course of proceeding which resulted in the provisions that now stand in the third section of the fourth article of the Const.i.tution.[285]

The first alteration made in the article reported by the committee was to strike out the clause which declared that the new States should be admitted on an equal footing with the old ones. The reason a.s.signed for this change was, that the legislature ought not to be tied down to such an admission, as it might throw the balance of power into the Western States.[286] The next modification was to strike out the clause which required a vote of two thirds of the members present for the admission of a State.[287] This left the proposed article a mere grant of power to admit new States, requiring the consent of the legislature of any State that might be dismembered, as well as the consent of Congress. An earnest effort was then made, by some of the members from the smaller States, to remove this restriction, upon the ground that the United States, by the treaty of peace with England, had become the proprietor of the crown lands which were situated within the limits claimed by some of the States that would be likely to be divided; and it was urged, that to require the consent of Virginia, North Carolina, and Georgia to the separation of their Western settlements, might give those States an improper control over the t.i.tle of the United States to the vacant lands lying within the jurisdiction claimed by those States, and would enable them to retain the jurisdiction unjustly, against the wish of the settlers. But a large majority of the States refused to concede a power to dismember a State, without its consent, by taking away even its claims to jurisdiction. It was considered by them, that as to munic.i.p.al jurisdiction over settlements already made within limits claimed by Virginia, North Carolina, and Georgia, the Const.i.tution ought not to interfere, without the joint consent of the settlers and the State exercising such jurisdiction; that if the t.i.tle to lands unoccupied at the treaty of peace, lying within the originally chartered limits of any of the States, was in dispute between them and the United States, that controversy would be within the reach of the judicial power, as one between a State and the United States, or it might be terminated by a voluntary cession of the State claim to the Union.[288]

The next step taken in the settlement of this subject was to provide for the case of Vermont, which was then in the exercise of an independent sovereignty, although it was within the a.s.serted limits of New York. It was thought proper, in this particular case, not to make the State of Vermont, already formed, dependent for her admission into the Union on the consent of New York. For this reason, the words "hereafter formed" were inserted in the article under consideration, and the word "jurisdiction" was subst.i.tuted for "limits."[289] Thus modified, the article stood as follows:--

"New States may be admitted by the legislature into the Union; but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the legislature of such State, as well as of the general legislature."

This provision was quite unsatisfactory to the minority. They wished to have the Const.i.tution a.s.sert a distinct power in Congress to erect new States within, as well as without, the territory claimed by any of the States, and to admit such new States into the Union; and they also wished for a saving clause to protect the t.i.tle of the United States to vacant lands ceded by the treaty of peace. Luther Martin accordingly moved a subst.i.tute article, embracing these two objects, but it was rejected.[290] A clause was then added to the article pending, which declared that no State should be formed by the junction of two or more States, or parts of States, without the consent of the States concerned, as well as the consent of Congress. This completed the substance of what is now the first clause of the third section of the fourth article of the Const.i.tution.[291]

Mr. Carroll thereupon renewed the effort to introduce a clause saving the rights of the United States to vacant lands; and after some modification, he finally submitted it in these words: "Nothing in this Const.i.tution shall be construed to alter the claims of the United States, or of the individual States, to the Western territory; but all such claims shall be examined into, and decided upon, by the Supreme Court of the United States." Before any vote was taken upon this proposition, however, Gouverneur Morris moved to postpone it, and brought forward as a subst.i.tute the very provision which now forms the second clause of the third section of article fourth, which he presented as follows: "The legislature shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this Const.i.tution contained shall be so construed as to prejudice any claims, either of the United States or of any particular State." This provision was adopted, without any other dissenting vote than that of the State of Maryland.[292]

The purpose of this provision, as it existed at the time in the minds of the framers of the Const.i.tution, must be gathered from the whole course of their proceedings with respect to it, and from the surrounding facts, which exhibit what was then, and what was afterwards likely to become, the situation of the United States in reference to the acquisition of territory and the admission of new States. There were, then, at the time when this provision was made, four cla.s.ses of cases in the contemplation of the Convention. The first consisted of the Northwestern Territory, in which the t.i.tle to the soil and the political jurisdiction were already vested in the United States. The second embraced the case of Vermont, which was then exercising an independent jurisdiction adversely to the State of New York, and the case of Kentucky, then a district under the jurisdiction of Virginia; in both of which the United States neither claimed nor sought to acquire either the t.i.tle to the vacant lands or the rights of political sovereignty, but which would both require to be received as new and separate States, the former without the consent of New York, the latter with the consent of Virginia. The third cla.s.s comprehended the cessions which the United States in Congress were then endeavoring to obtain from the States of North Carolina, South Carolina, and Georgia, and in which were afterwards established the States of Tennessee, Mississippi, and Alabama.[293] These cessions, as it then appeared, might or might not all be made. If made, the t.i.tle of the United States to the unoccupied lands would be complete, resting both upon the cessions and upon the treaty of peace with England; and the political jurisdiction over the existing settlements, as well as over the whole territory, would be transferred with the cessions, subject to any conditions which the ceding States might annex to their grants. If the cessions should not be made, the claims of the United States to the unoccupied lands would stand upon the treaty of peace, and would require to be saved by some clause in the Const.i.tution which should signify that they were not surrendered; while the claims of the respective States would require to be protected in like manner.

The reader will now be prepared to understand the following explanation of the third section of the fourth article of the Const.i.tution. First, with reference to the Northwestern Territory, the soil and jurisdiction of which was already completely vested in the United States, it was necessary that the Const.i.tution should confer upon Congress power to exercise the political jurisdiction of the United States, power to dispose of the soil, and power to admit new States that might be formed there into the Union. Secondly, with reference to such cases as that of Vermont, it was necessary that there should be a power to admit new States into the Union without requiring the a.s.sent of any other State, when such new States were not formed within the actual jurisdiction of any other State. Thirdly, with reference to such cases as that of Kentucky, which would be formed within the actual jurisdiction of another State, it was necessary that the power to admit should be qualified by the condition of the consent of that State. Fourthly, with reference to such cessions as were expected to be made by North Carolina, South Carolina, and Georgia, it was necessary to provide the power of political government, the power to admit into the Union, and the power to dispose of the soil, if the cessions should be made; and at the same time to save the claims of the United States and of the respective States as they then stood, if the cessions antic.i.p.ated should not be made. None of these cases, however, were specifically mentioned in the Const.i.tution, but general provisions were made, which were adapted to meet the several aspects of these cases. From the generality of these provisions, it is held by some that the clause which relates to "the territory or other property of the United States," was intended to be applied to all cessions of territory that might ever be made to the United States, as well as to those which had been made, or which were then specially antic.i.p.ated; while others give to the clause a much narrower application.[294]

There now remain to be considered the restraints imposed upon the exercise of the powers of Congress, both within the States and in all other places; both where the authority of the United States is limited to certain special objects, and where it is unlimited and universal, excepting so far as it is narrowed by these const.i.tutional restraints.

Some of them I have already described, in tracing the manner in which they were introduced into the Const.i.tution. We have seen how far the commercial and revenue powers became limited in respect to the slave-trade, to taxes on exports, to preferences between the ports of different States, and to the levying of capitation or other direct taxes. These restrictions were applicable to these special powers. But others were introduced, which apply to the exercise of all the powers of Congress, and are in the nature of limitations upon its general authority as a government.

One of these is embraced in the provision, "that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."[295] The common law of England, which recognizes the right to the writ of habeas corpus for the purpose of delivery from illegal imprisonment or restraint, was the law of each of the American States; and it appears from the proceedings of the Convention to have been the purpose of this provision to recognize this right, in the relations of the people of the States to the general government, and to secure and regulate it. The choice lay between a declaration of the existence of the right, making it inviolable and absolute, under all circ.u.mstances, and a recognition of its existence by a provision which would admit of its being suspended in certain emergencies. The latter course was adopted, although three of the States recorded their votes against the exception of cases of rebellion or invasion.[296]

The prohibition upon Congress to pa.s.s bills of attainder, or _ex post facto_ laws, came into the Const.i.tution at a late period, and while the first draft of it was under consideration. Bills of attainder, in the jurisprudence of the common law, are acts of legislation inflicting punishment without a judicial trial. The proposal to prohibit them was received in the Convention with unanimous a.s.sent.

With regard to the other cla.s.s of legislative acts, described as "_ex post facto_ laws," there was some difference of opinion, in consequence probably of different views of the extent of the term. In the common law, this expression included only, then and since, laws which punish as crimes acts which were not punishable as crimes when they were committed. Laws of a civil nature, retrospective in their operation upon the civil rights and relations of parties, were not embraced by this term, according to the definition of English jurists.

But it is manifest from what was said by different members, that, at the time when the vote was taken which introduced this clause into the Const.i.tution, the expression "_ex post facto_ laws" was taken in its widest sense, embracing all laws retrospective in their operation. It was objected, therefore, that the prohibition was unnecessary, since, upon the first principles of legislation, such laws are void of themselves, without any const.i.tutional declaration that they are so.

But experience had proved that, whatever might be the principles of civilians respecting such laws, the State legislatures had pa.s.sed them, and they had been acted on. A large majority of the Convention determined, therefore, to place this restraint upon the national legislature, and at the time of the vote I think it evident that all retrospective laws, civil as well as criminal, were understood to be included.[297] But when the same restraint came afterwards to be imposed upon the State legislatures, the attention of the a.s.sembly was drawn to the distinction between criminal laws and laws relating to civil interests. In order to reach and control retrospective laws operating upon the civil rights of parties, when pa.s.sed by a State, a special description was employed to designate them, as "laws impairing the obligation of contracts," and the term "_ex post facto_ laws" was thus confined to laws creating and punishing criminal offences after the acts had been committed.[298] What is now the settled construction of this term, therefore, is in accordance with the sense in which it was finally intended to be used by the framers of the Const.i.tution before the instrument pa.s.sed from their hands.

The committee of detail had reported in their draft of the Const.i.tution a clause which restrained the United States from granting any t.i.tle of n.o.bility. The Convention, for the purpose of preserving all officers of the United States independent of external influence, added to this a provision that no person holding an office of profit or trust under the United States shall, without the consent of Congress, accept of any present, emolument, office, or t.i.tle, of any kind whatever, from any king, prince, or foreign state.[299]

In addition to the special powers conferred by the Const.i.tution upon the national government, it has imposed certain restraints on the political power of the States, which qualify and diminish what would otherwise be the unlimited sovereignty of each of them. These restraints are of two cla.s.ses;--a part of them being designed to remove all obstructions that might be placed by State legislation or action in the way of the appropriate exercise of the powers vested in the United States, and a part of them being intended to a.s.similate the nature of the State governments to that of the Union, by the application of certain maxims or rules of public policy. These restraints may now be briefly examined, with reference to this cla.s.sification.

The idea of imposing special restrictions upon the power of the separate States was not expressly embraced in the plan of government described by the resolutions on which the committee of detail were instructed to prepare the instrument of government. Such restrictions, however, were not unknown to the previous theory of the Union. They existed in the Articles of Confederation, where they had been introduced with the same general purpose of withdrawing from the action of the States those objects, which, by the stipulations of that instrument, had been committed to the authority of the United States in Congress. But the inefficacy of those provisions lay in the fact, that they were the mere provisions of a theory. The step now proposed to be taken was to superadd to the prohibitions themselves the principle of their supremacy as matters of fundamental law, and to enable the national judiciary to make that supremacy effectual.

Almost all the restraints imposed by the Articles of Confederation upon the States could be removed or relaxed by the consent of the Congress to the doing of what was otherwise prohibited. In the first draught of the Const.i.tution, the committee of detail inserted four absolute prohibitions, which could not be removed by Congress itself.

These related to the coining of money, the granting of letters of marque and reprisal, the making of treaties, alliances, and confederations, and the granting of t.i.tles of n.o.bility. All the other restraints on the States were to be operative or inoperative, according to the pleasure of Congress.[300] Among these were included bills of credit; laws making other things than specie a tender in payment of debts; the laying of imposts or duties on imports; the keeping of troops or ships of war in time of peace; the entering into agreements or compacts with other States, or with foreign powers; and the engaging in war, when not invaded, or in danger of invasion before Congress could be consulted. The enactment of attainder and _ex post facto_ laws, and of laws impairing the obligation of contracts, was not prohibited at all.

But when these various subjects came to be regarded more closely, it was perceived that the list of absolute prohibitions must be considerably enlarged. Thus the power of emitting bills of credit, which had been the fruitful source of great evils, must either be taken away entirely, or the contest between the friends and the opponents of paper money would be transferred from the State legislatures to Congress, if Congress should be authorized to sanction the exercise of the power. Fears were entertained that an absolute prohibition of paper money would excite the strenuous opposition of its partisans against the Const.i.tution; but it was thought best to take this opportunity to crush it entirely; and accordingly the votes of all the States but two were given to a proposition to prohibit absolutely the issuing of bills of credit.[301] To the same cla.s.s of legislation belonged the whole of that system of laws by which the States had made a tender of certain other things than coin legal satisfaction of a debt. By placing this cla.s.s of laws under the ban of a strict prohibition, not to be removed by the consent of Congress in any case, the mischiefs of which they had been a fruitful source would be at once extinguished. This was accordingly done, by unanimous consent.[302]

At this point, the kindred topic of the obligation of contracts presented itself to the mind of Rufus King, suggested doubtless by a provision in the Ordinance then recently pa.s.sed by Congress for the government of the Northwestern Territory.[303] The idea of a special restraint on legislative power, for the purpose of rendering inviolate the obligation of contracts, appears to have originated with Nathan Dane, the author of that Ordinance. It was not embraced in the resolve of 1784, reported by Mr. Jefferson, which contained the first scheme adopted by Congress for the establishment of new States in the Northwestern Territory; and it first appears in our national legislation in the Ordinance of 1787. Its transfer thence into the Const.i.tution of the United States was a measure of obvious expediency, and indeed of clear necessity. In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of a.s.sumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American const.i.tutional law, but which, like many features of our inst.i.tutions, grew out of previous abuses.

In the old States of the Confederacy, from the time when they became self-governing communities, the power of a mere majority had been repeatedly exercised in legislation, without any regard to its effect on the civil rights and remedies of parties to existing contracts. The law of debtor and creditor was not only subjected to constant changes, but the nature of the change depended in many of the States upon the will of the debtor cla.s.s, who formed the governing majority. So pressing were the evils thus engendered, that, when the framers of the Ordinance came to provide for the political existence of communities whose inst.i.tutions they were to dictate, they determined to impose an effectual restraint on legislative power; and they accordingly provided, in terms much more stringent than were afterwards employed in the Const.i.tution, that no law should have effect in the Territory which should in any manner whatever interfere with or affect private contracts or engagements previously made.[304]

The framers of the Const.i.tution were not engaged in the same work of creating new political societies, but they were to provide for such surrenders by existing States of their present unquestioned legislative authority, as the dictates of sound policy and the evils of past experience seemed to require. When this subject was first brought forward in the Convention, the restriction was made to embrace all retrospective laws bearing upon contracts, which were supposed to be included in the term "_ex post facto_ laws." It being ascertained, however, that the latter phrase would not, in its usual acceptation, extend to civil cases, it became necessary to consider how such cases were to be provided for, and how far the prohibition should extend.

The provision of the Ordinance was regarded as too sweeping; no legislature, it was said, ever did or can altogether avoid some retrospective action upon the civil relations of parties to existing contracts, and to require it would be extremely inconvenient. At length, a description was found, which embodied the extent to which the prohibition could with propriety be carried. The legislatures of the States were restrained from pa.s.sing any "law impairing the obligation of contracts";--a provision that has been found amply sufficient, and attended with the most salutary consequences, under the interpretation that has been given to it.[305]

Bills of attainder and _ex post facto_ laws, which had not been included in the prohibitions on the States by the committee of detail, were added by the Convention to the list of positive restrictions, which was thus completed.

In the cla.s.s of conditional prohibitions, or those acts which might be done by the States with the consent of Congress, the committee of detail had placed the laying of "imposts or duties on imports." To this the Convention added "exports," in order to make the restriction applicable both to commodities carried out of and those brought into a State. But this provision, as thus arranged, would obviously make the commercial system extremely complex and inconvenient. On the one hand, the power to lay duties on imports had been conferred upon the general government, for the purposes of revenue, and to leave the States at liberty, with the consent of Congress, to lay additional duties, would subject the same merchandise to separate taxation by two distinct governments. On the other hand, if the States should be deprived of all power to lay duties on exports, they would have no means of defraying the charges of inspecting their own productions. At the same time, it was apparent that, under the guise of inspection laws, if such laws were not to be subject to the revision of Congress, a State situated on the Atlantic, with convenient seaports, could lay heavy burdens upon the productions of other States that might be obliged to pa.s.s through those ports to foreign markets. Again, if the States should be deprived of all power to lay duties on imports, they could not encourage their own manufactures; and if allowed to encourage their own manufactures by such State legislation, it must operate not only upon imports from foreign countries, but upon imports from other States of the Union, which would revive all the evils that had flowed from the want of general commercial regulations. To prevent these various mischiefs, the Convention adopted three distinct safeguards.

They provided, first, by an exception, that the States might, without the consent of Congress, lay such duties and imposts as "may be absolutely necessary for executing their inspection laws"; second, that the net produce of all duties and imposts laid by any State, whether with or without the consent of Congress, shall be for the use of the Treasury of the United States; third, that all such State laws, whether pa.s.sed with or without the previous consent of Congress, shall be subject to the revision and control of Congress.[306] There is, therefore, a twofold remedy against any oppressive exercise of the State power to lay duties for purposes of inspection. The question whether the particular duties exceed what is absolutely necessary for the execution of an inspection law, may be made a judicial question; and in addition to this, the law imposing the inspection duty is at all times subject to the revision and control of Congress. Any tendency to lay duties or imposts for purposes of revenue or protection, is checked by the requirement that the net produce of all duties or imposts laid by any State on imports or exports shall be paid over to the United States, and such tendency may moreover be suppressed by Congress at any time, by the exercise of its power of revision and control.

In order to vest the supervision and control of the whole subject of navigation in Congress, it was further provided that no State, without the consent of Congress, shall lay any duty of tonnage. An exception, proposed by some of the Maryland and Virginia members, with a view to the situation of the Chesapeake Bay, ill.u.s.trates the object of this provision. They desired that the States might not be restrained from laying duties of tonnage "for the purpose of clearing harbors and erecting light-houses." It was perhaps capable of being contended, that, as the regulation of commerce was already agreed to be vested in the general government, the States were restrained by that general provision from laying tonnage duties. The object of the special restriction was, to make this point entirely certain; and the object of the proposed exception was to divide the commercial power, and to give the States a concurrent authority to regulate tonnage for a particular purpose. But a majority of the States considered the regulation of tonnage an essential part of the regulation of trade.

They adopted the suggestion of Mr. Madison, that the regulation of commerce was, in its nature, indivisible, and ought to be wholly under one authority. The exception was accordingly rejected.[307]

The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another State or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.[308]

FOOTNOTES:

[232] Art. VII. -- 1 of the first draft of the Const.i.tution. Elliot, V.

378.

[233] August 18. Elliot, V. 440.

[234] A committee of one member from each State.

[235] Elliot, V. 441. To the same grand committee was afterwards referred the subject of the militia. See _infra_.

[236] August 21. Elliot, V. 451.