صور الصفحة
النشر الإلكتروني

United States are preferred creditors to citizens, or even to states; but no lien is created by this preference; a prior bona fide conveyance is valid. The same principle came up and received a further exposition in several other cases.'

§ 224. The limits of this priority is thus defined:

1. It exists in the case of the death of the debtor without sufficient assets.

2. In the case of bankruptcy, or legal insolvency, manifested by some act pursuant to law.

3. In case of the voluntary assignment, by the insolvent, of all his property to pay his debts.

4. In case of an absent, concealed, or absconding debtor, whose effects are attached by process of law. This prerogative of the United States must be strictly construed, for it is in derogation of the rights of creditors.

§ 225. The United States have likewise, by implication,2 the right of suing in their own courts; and suits may be brought in the name of the United States, or of any artificial person, as the Postmaster-general, for their benefit.3

§226. Another exercise of implied power by the government is found in the acquisition of Louisiana and Florida by treaty. No provision is made in the Constitution for acquiring foreign territory; and even in the opinion of President Jefferson, there was no constitutional power to make the treaty for the acquisition of Louisiana. The President and Congress, however, approved the act, and the nation acquiesced. This power is, however, an incident of sovereignty.

§ 227. Another exercise of implied authority was the passage of the celebrated Alien and Sedition Laws.5 The first gave the President the power to order out of the country such aliens as he should deem dangerous to

13 Cranch, 73; 5 Id. 289; 8 Cranch, 431; 2 Wheaton, 396. 21 Kent's Comm. 233. 33 Story's Comm. 155. 4 3 Story's Comm. 162; 4 Elliott's Debates, 255. 5 Alien and Sedition Acts, 1798.

the peace and safety of the country; and the second made it a public crime for persons to combine and conspire together, with intent to oppose any of the measures of the United States, or to write, print, or publish, or to disseminate any false, scandalous, and malicious writings against the government of the United States, Congress, or the President. These acts soon expired by their own limitations, and never received a judicial sanction. They excited general odium, and have not been revived.


$228. 1st Clause. 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.

§ 229. The persons here spoken of were slaves, and the effect of this clause was to permit the slave-trade till 1808. After that time arrived, Congress prohibited it in every direction, and affixed to it the penalties of piracy.

§ 230. 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.

231. The term Habeas Corpus is a Latin phrase, signifying "You may have the body." The Writ of Habeas Corpus is a judicial writ, grantable by any Court of Record or judge thereof, and commands the sheriff, or other officer named in it, to have the body, and bring it before said judge, or court. The object of the writ is, by bringing a person, confined by any means whatever, before a competent authority, to have his confinement, and the cause of it, investigated; and if it be not strictly legal, to discharge him. The writ is grant

11 Blackstone's Comm.

able upon the application of any person whomsoever, upon behalf of the prisoner, and is the only mode by which a person illegally detained may at once obtain his liberty. The privilege of the writ of Habeas Corpus is, therefore, an invaluable privilege, and is a part of the essence of liberty inserted in the Constitution, where it can neither be mistaken, nor evaded.

§ 232. Our writ of Habeas Corpus is derived from the English Statute of the 31st Charles II. which was passed in consequence of frequent invasions of the personal rights and liberties of the citizen during the reign of Charles I.

§ 233. The writ may be suspended in case of rebellion or invasion; yet no suspension has ever yet taken place. An attempt to suspend it was made during the administration of Mr. Jefferson, on the occasion of Burr's conspiracy, but it failed in the House of Representatives by a large majority.1

§ 234. 3d Clause. No Bill of Attainder, or Ex Post Facto law shall be passed.

The terms Bill of Attainder and Ex Post Facto have

already been defined.2 The very definition of these explains the meaning of the clause in the Constitution. The former, by which judgment should be passed and punishment inflicted upon the citizen without trial, and the latter which makes an act criminal which was not criminal when committed, were obviously inconsistent with any thing like justice to, or liberty in, the citizen. They were, therefore, expressly prohibited.

§ 235. 4th Clause. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

This clause is nearly the same with a part of the third clause of the 2d Section, 1st Article. The only

11 Senate Journal, 1807; Journal of House of Representatives, 1807. 2 Definitions, 28 and 29. H

difference is the insertion of the word capitation,—but this, by the following words, or other direct tax, is evidently included under the head of direct taxes. The meaning of both clauses then is, that direct taxes, as well as representation, should be in proportion to the census in each state,-as directed to be taken in the 2d Section.

§ 236. 5th Clause. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state, be obliged to enter, clear, or pay duties in another.

These prohibitions explain themselves so clearly, as to require little exposition by commentary or authority. The first clause, preventing duties upon exported articles, is rendered necessary by the fact, that without it, the agriculture and commerce of some states might, at any time, be destroyed by such duties. Some states, as South Carolina and Alabama, derive their whole wealth from the exportation of particular articles, and others again, as Virginia, and North-Carolina, and Maine, a great part of it: so that by means of such duties the government might at any time make the most odious distinctions among the states; nor would it derive any advantage to itself, for duties upon exports can at no time be advantageous, for the obvious reason that it is by such means only a nation is enabled to procure either the money or produce of other nations.

It is also forbidden to give any preference to the ports of one state over those of another, or to oblige vessels bound from one state to enter, clear, or pay duties in another. The reason of this is yet more clear than that of the other. If the reverse of this were true, and such preference was allowed, and such duties imposed on vessels, it is plain the states would be in the relation of foreign states to each other. There would be no

reciprocity of interests between them, and the unity of the government would be destroyed.

237. 6th Clause. No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipt and expenditures of all public money shall be published from time to time.

The object of this provision was,

1st, To place the public moneys beyond the reach of the executive: however limited the powers of the executive in other respects, it is obvious that if he has control of the purse, he would be unlimited in the most essential attribute of power. It is, therefore, wisely provided, that the people, who alone bear the burthens of taxation, should, through their representatives, alone have the power of appropriating the resulting revenue. The administrations of General Washington and Mr. Jefferson were minutely strict in the observance of this injunction of the Constitution; but many instances might be cited since their time, in which money had been applied to objects different from those to which it had been specifically appropriated.

238. 2d, The other part of this clause, requiring a strict account of receipts and expenditures, was made to ensure fidelity and accuracy in the disbursement of public moneys. In the treasury department, as will be seen hereafter, various checks and balances, in respect to the transfer of money from the treasury, have been devised.

$239. 7th Clause. No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them 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.

§ 240. The first clause, in reference to titles of nobility, is the constitutional barrier against those odious

« السابقةمتابعة »