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.'

§ 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 pro

hibited.

§ 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 the House of Representatives,

1807.

2 Definitions, 28 and 29.

1

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 reci

procity 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

personal distinctions which arise from, and originate aristocracies in other countries.

The second clause, in reference to offices and titles from foreign powers, is made as a check against the corruption of the officers and citizens of this government, by the princes and ministers of foreign states.

§ 241. SECTION 10TH. Clause 1st. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.

§ 242. The power to enter into any treaty, alliance, or confederation, is one of the most important attributes of national sovereignty: when the states parted with it, they parted with one of those characteristics which made them independent as it respects each other. This should be borne in mind, as it will be seen in the end that they parted with them all, and thus divested themselves of all that national sovereignty, which in modern times is the sole foundation of the strange and fanciful theories put forth under the name of state rights.

This right to make separate treaties and alliances was yielded up by the old articles of confederation; for it was perfectly plain and palpable that the states could not retain it and form one united nation: the latter was their object, and they yielded the former.

§ 243. Letters of Marque and Reprisal are a commission from the sovereign authority to a citizen or subject to make reprisals on the vessels or property of foreign nations who have injured the one granting them.' The right of issuing these is prohibited to the several states. It lies in the government of the Union. The reason of this also is obvious. Letters of Marque2 are merely introductions to war; and if one state had the I Vattel, book 2d, chap. 18th, section 346. 23 Story's Comm. 219.

right to issue them independent of the rest, all the others might immediately be involved in war by the instrumentality of that one. It will be remarked, that this right again is, by the definition, an attribute of national sovereignty, and is therefore taken from the states and vested in the government of the nation.

§ 244. The right of coining money is also a right' of sovereignty, and is vested in the general government. If the right of coinage was vested in the several states, then there would be no uniformity in the standard of value, and spurious coin might be circulated.

§ 245. The next prohibition is that against issuing "Bills of Credit." What is a Bill of Credit? A Bill of Credit2. is defined to be paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day.

§ 246. Is it necessary to constitute a Bill of Credit, that it should be made a legal tender? In the case of Craig vs. the state of Missouri, the Supreme Court decided that it was not necessary that they should be made a legal tender in order to constitute them a Bill of Credit. In that case the state of Missouri made loans on certain certificates, issued by the Auditor and Treasurer of the state, of various denominations, and which were made receivable at the treasury in payment of taxes and debts, and by public officers in payment of their salaries. They bore interest, and were redeema ble by the state. Such certificates were decided by the court to be Bills of Credit, and as such unconstitutional.

247. The object of the prohibition was to prevent the flood of depreciated currency which had so embar rassed the states during and subsequent to the revolu tionary war. It is plain that without this and the ac companying clauses in relation to coins and currency, there could be no fixed standard of value, and commerce

1 Vattel, book 1, chap. 10th, sec. 106, 107. 23 Story's Comm. 227. 34 Peters' Supreme Court Reports, 410.