THE enumerated powers, which we now proceed to consider, will be all found to relate to, and be consistent with, the main principle; the common defence and general welfare.
The first is to lay and collect taxes, duties, imposts, and excises. The three latter must be uniform throughout the United States; but there is no description of the subjects to be taxed nor any limitation of the amount to be raised.
The necessity of vesting this power in the union, seems to be too obvious to require much argument. No government can be supported without the means of raising an adequate revenue. It must possess this power in itself, and must not be dependent on others for their concurrence. We have seen in our own history the inefficient condition to which we were reduced, when the necessary income for the most important national objects, could only be obtained by requisitions of the several states.
Of the amount necessary to be raised, the government itself can be the only judge. In governments under a single head, when a separate purse may be kept, in which the people have no share, restrictions, if practicable, may be useful. Here, where the only treasury is that of the people, where compensations to public officers are scrupulously fixed, and a severe accountability is a permanent principle, no such limitations are necessary. And if the money should be faithlessly intercepted in its way to the treasury, or fraudulently withdrawn from it afterwards, the defaulter is always liable to legal coercion.
It was not thought necessary to define what shall be the exclusive subjects of taxation, although in some instances a part of the revenue of a state may be interfered with, by the exercise of the power; for it is better that a particular state should sustain an inconvenience than that the general wants should fail of supply. It was manifestly intended that congress should possess full power over every species of taxable property, except exports. The term taxes is genetical, and was made use of to confer a plenary authority in all cases of taxation. The general division of taxes is into direct and indirect; the latter term is not to be found in the Constitution, but the former necessarily implies it. Indirect is opposed to direct. There may possibly be an indirect tax on a particular article that cannot be comprehended within the description of duties, imposts, or excises, but if such case can arise, it will be comprehended within the general denomination of taxes. The term tax includes, 1st. direct taxes, which are properly capitation taxes and taxes on land, although direct taxes may perhaps be laid on other things that generally pervade all the states in the union. 2dly. duties, imposts, and excises. And 3dly. all other classes of an indirect kind. Indirect taxes affect expense or consumption, those who reduce their consumption of an article so taxed, reduce the amount of their tax. 1 A direct tax is independent of consumption or expense, and is to be apportioned among the several states, according to their respective numbers, which is to be determined by the same rule that, as already observed, is applied to representation. Indirect taxes do not admit of this apportionment, but they are to be uniform throughout the United States on the subject taxed. Thus, if Congress think proper to raise a sum of money by direct taxation, the quota of each state is to be fixed according to its census. If indirect taxation is preferred, the same duty must be imposed on the article whether its quantity or consumption is greater or less in the respective states. Whether direct or indirect taxation is most consistent with the genius and interests of our republic, has been much discussed, but it is a question now of little moment to us, since a Constitution authorizing both has been formed.
The next enumerated power is that of borrowing money on the credit of the United States.
When this Constitution was formed, the United States were considerably indebted to foreign nations, for the expenses of the war, and its own citizens had heavy claims, as well on the Union as on individual states, for services and supplies during the same eventful period. To combine and consolidate these debts, to discharge some and secure the rest, was necessary for the public faith and interest both abroad and at home. But to avail itself of the power of taxation, in order to accomplish such extensive objects at once, would have been injurious to the community. It was foreseen that many public creditors, whether distant or domestic, would be satisfied with the assumption or recognition of the principal and the payment of the interest. By the terms thus introduced, congress received power to make the necessary provisions for such objects. In case of future exigencies, the expenses of war or the failure of part of the usual revenue; a similar mean of continuing the operations and the character of government is also thus provided.
To regulate commerce with foreign nations, among the several states, and with the Indian tribes, is the third power. This, from its nature, must be considered as exclusive. If each state retained a power to regulate its own commerce with foreign countries, each would probably pursue a different system. Heavy duties or total prohibitions in respect to some articles, irregular and changeable codes of commerce, mutual rivalries, and other obvious inconveniences would naturally ensue. A common head can alone cure these evils. A common head can alone form commercial treaties with foreign powers, for to no other would a foreign power give sufficient credence.
In like manner the commerce between the different states is the proper subject of a general regulation.
In the term commerce are included not merely the act of buying and selling or exchanging merchandise, but also the navigation of vessels, and commercial intercourse in all its branches: it extends to vessels, by whatever force they are propelled or governed, whether wind, or steam, or oars; to whatever purposes they are applied, whether the carrying of goods or of passengers, or proceeding in ballast only. A general, unconfined power to regulate a subject, is in its nature exclusive of the action of others on the same subject.
These principles are so fully and clearly explained by Chief Justice Marshall in a recent case, 2 that we shall make no apology for inserting a large extract from his opinion.
"Commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term.
"If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it.
"The subject to which the power is next applied is to commerce 'among the several states.' Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior.
"These words do not, however, comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to, or affect other states.
"Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one. The phrase would probably not have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended, would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seem to be, that its action is to be applied to all the external commercial concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state may be considered as reserved for the state itself.
"But in regulating commerce with foreign nations the power of congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it did. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. If congress has the power to regulate it, that power must be exercised wherever the subject exists. If it exists within the states, if a foreign voyage may commence or terminate at a port within a state, then the power of congress may be exercised within a state.
"This principle is, if possible, still more clear when applied to commerce 'among the several states.' They either join each other, in which case they are separated by a mathematical line; or they are remote from each other, in which case other states lie between them. What is commerce 'among' them, and how is it to be conducted? Can a trading expedition between two adjoining states commence and terminate outside of each? And if the trading intercourse be between two states remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the states must, of necessity, be commerce within the states. In the regulation of trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a state. The power of congress, then, may be exercised within the territorial jurisdiction of the several states."
In respect to commerce with the Indian tribes, we are to adopt the same broad interpretation; but it is applicable only to independent tribes. It is immaterial whether such tribes continue seated within the boundaries of a state, inhabit part of a territory, or roam at large over lands to which the United States have no claim; the trade with them is in all its forms, subject exclusively to the regulation of congress, and in this particular also we trace the wisdom of the Constitution. The Indians, not distracted by the discordant regulations of different states, are taught to trust one great body, whose justice they respect, and whose power they fear.
The power to establish an uniform system of naturalization is also an exclusive one.
In the second section of the fourth article it is provided that the citizens of each state, shall be entitled to all privileges and immunities of citizens in the several states, and the same rule had been ambiguously laid down in the articles of confederation. If this clause is retained, and its utility and propriety cannot be questioned, the consequence would be, that if each state retained the power of naturalization, it might impose on all the other states, such citizens as it might think proper. In one state, residence for a short time, with a slight declaration of allegiance, as was the case under the former constitution of Pennsylvania, might confer the rights of citizenship: in another, qualifications of greater importance night be required: an alien, desirous of eluding the latter, might by complying with the requisites of the former, become a citizen of a state in opposition to its own regulations, and thus in fact, the laws of one state become paramount to that of another. The evil could not be better remedied than by vesting the exclusive power in congress.
It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. Except in one instance, it gives no definitions, but it acts in all its parts, on qualifies and relations supposed to be already known. Thus it declares, that no person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of president that no person shall be a senator who shall not have been nine years a citizen of the United States, nor a representative who has not been such a citizen seven years, and it will therefore be not inconsistent with the scope and tendency of the present essay, to enter shortly into the nature of citizenship.
In a republic the sovereignty resides essentially, and entirely in the people. Those only who compose the people, and partake of this sovereignty are citizens, they alone can elect, and are capable of being elected to public offices, and of course they alone can exercise authority within the community: they possess an unqualified right to the enjoyment of property and personal immunity, they are bound to adhere to it in peace, to defend it in war, and to postpone the interests of all other countries to the affection which they ought to bear for their own.
The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that be so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.
The mode by which an alien may become a citizen, has a specific appellation which refers to the same principle. It is descriptive of the operation of law as analogous to birth, and the alien, received into the community by naturalization, enjoys all the benefits which birth has conferred on the other class.
Until these rights are attained, the alien resident is under some disadvantages which are not exactly the same throughout the Union. The United States do not intermeddle with the local regulations of the states in those respects. Thus an alien may be admitted to hold lands in some states, and be incapable of doing so in others. On the other hand, there are certain incidents to the character of a citizen of the United States, with which the separate states cannot interfere. The nature, extent, and duration of the allegiance due to the United States, the right to the general protection and to commercial benefits at home and abroad, derived either from treaties or from the acts of congress, are beyond the control of the states, nor can they increase or diminish the disadvantages to which aliens may, by such measures on the part of the general government, be subjected.
Thus if war should break out between the United States and the country of which the alien resident among us is a citizen or subject, he becomes on general principles an alien enemy, and is liable to be sent out of the country at the pleasure of the general government, or laid under reasonable restraints within it, and in. these respects no state can interfere to protect him.
The duration of the quality of citizen, both in the native and in him who is naturalized, is a subject of considerable interest.
The doctrine of indefeasible allegiance has a deeper root in England than in any other country in Europe: the term is indeed almost peculiar to the English law, and in discussing the extent to which they carry it, we shall find it useful to ascend to the source of their government, and the foundation on which this doctrine is placed.
Whatever repugnance may occasionally be felt at the avowal, the present government of England must be considered as founded on conquest, and perhaps it is justly observed by some of their historians, that in scarcely any instance has conquest by foreign arms been pushed to a greater extent than with them.
The reluctance with which a brave and generous nation submitted to the yoke, increased the exasperation, and the tyranny of their conqueror. Their property was almost completely transferred to his military followers, their ancient laws were soon disregarded, although sometimes promised to be restored, and the pure feudal system of tenure was substituted to the ancient allodial estates, or perhaps the imperfect feuds of the Saxons.
With this system the Norman doctrine of allegiance is considered by some to have been introduced, although others trace it up to antecedent periods, 3 but whether the solemn declaration of allegiance was practised in the time of Arthur or of Alfred, whether it were the custom of the Britons or the Angles, the Saxons or the Danes, we have sufficient ground for believing that after the conquest, it was understood to be due only to the king or the ruling chieftain, and not to the nation.
In the conflicts by which the country was distracted after the departure of the Romans, each successful competitor exacted from those he had subdued, an oath of fidelity and submission.
From this practice the usage arose of requiring a similar engagement from their own followers, as they subsequently dispersed themselves through the country and when Harold was overthrown by the Bastard of Normandy, the necessity of exacting it became more obvious, not only from the discontent which his severities excited, but from the impression which the illegitimacy of his birth might make on his subjects.
The oath of fealty and homage necessarily accompanied the numerous grants of land, wrested from its original owners, and bestowed upon his adherents; the oath of allegiance was incorporated with the oath of fealty, and whoever will reflect on the condition of the times will be satisfied that allegiance was not sworn to the nation, but to the individual whose victorious arms had rendered him the ruler of the nation.
Hence certain consequences were understood to flow; the allegiance thus solemnly pledged could not be withdrawn, unless the protection which was implied in return, should be withheld or become impracticable.
If the monarch was driven out by a successful competitor, who took possession of the throne, the allegiance was considered as transferred to him, and the subject who disobeyed the reigning sovereign, was held to violate his oath.
But from this allegiance, either original or transferred, he could not withdraw himself; he was supposed never to cease being the subject of the reigning sovereign. Allegiance equally permanent was held to result from birth. The king could see none but his own subjects within his own domain, Bound as he alleged to protect all, all were bound to be faithful to him. But allegiance sprung from the birth of those only who were born under his dominion. It is observed by Coke, that if enemies were to obtain possession of a town or fort, and have issue there, that issue would not be subjects of the king of England, for they would have no claim to his protection. 4
If this view of the subject be correct; if allegiance, at least since the Norman Conquest, is to be considered as proceeding from force and not from contract; if it is legally due to the king and not to the society which he governs, we can remain under no difficulty in respect to its inalienable quality according to their laws.
The rights or expectations of the people were seldom taken into account; the king might, by treaty with a foreign power, alienate an entire territory; and its inhabitants, without their previous knowledge or consent, be compelled to serve another sovereign. 5 Thus allegiance was rendered perpetual at the pleasure of the sovereign, not of the people; and the former, not the latter, possessed a sort of property in it; but with us its indefeasible nature rests on better grounds.
The instantaneous result on our political character, from the declaration of independence, was to convert allegiance from compulsion into compact, and while it still remained due to the sovereign, to see that. sovereign only in the whole community.
In the native we have observed that it is coeval with life; in him who migrates from another country, it commences as a permanent duty with naturalization; in both it lasts till death, unless it is released by some procedure, mutual on the part of both the state and the individual.
Whether the individual alone may relinquish it, is a question which in this as well as other countries has been often discussed, and on which an opinion cannot be given without diffidence, since it has not yet received a decision in the highest tribunal of our country.
In the first place, we may dispose with little comparative difficulty of the case of the naturalized citizen. His accession is voluntary, and his engagement is neither in its terms nor in its nature limited to any time. He therefore binds himself by contract for his life, and the state, which differently from the doctrine of the English and other monarchies, cannot afterwards deprive him of the quality thus acquired, which cannot again by its own act, convert him into an alien is equally bound for the same term.
This is well expressed by Locke in his treatise on civil government. "He that has once by actual agreement and express declaration given his consent to be of any commonweal, is perpetually and indispensably obliged to be and remain unalterably a subject of it, and can never be again in the liberty of a state of nature, unless by any calamity, the government he was under shall be dissolved, or by some public act it cuts him off from being a member of it."
Under our Constitution the last would be impossible without his own consent, and the citizen can no more dissolve this contract than he can any other of less moment without the consent of the opposite party.
But there are two other classes of citizens, and we must examine whether the same principle can be applied to them. It would, perhaps, be sufficient to say, that if the obligation, to which the naturalized citizen subjects himself, is clearly an obligation for life; that of the native cannot be for a shorter term. Naturalization is but a mode of acquiring the right, subject to the duties of a citizen; it is the factitious substitution of legal form for actual birth, and it can neither exceed nor fall short of the capacities and obligations which birth creates. It would be absurd indeed, if the foreigner was given to understand, that by naturalization he had become bound for life, in the midst of native citizens, none of whom were under the same obligation.
But we need not rest on this postulate. The compact created among the citizens, by the declaration of independence, was well understood by themselves at the moment, not to be of a temporary nature, and in the power of the individual at pleasure to dissolve. It was essential not only to the permanence, but to the formation of the new government, that every one either taking an active part in its establishment, or giving evidence of his consent by remaining within it, should be considered as bound to it, so long as it continued. Their situation at the moment was not that of aliens, who were held by a prior allegiance, while they undertook another. He who thus united himself with the newly formed state, instantly ceased, in contemplation of our law, to be a subject of Great Britain. He could thereafter, justify no hostile measure against us by alleging his ancient allegiance. What he once owed to that power was now wholly transferred to the new state, with all its qualities and accompaniments, except one. The correlative of protection, could not, as before, be destroyed at pleasure by the receiver of the allegiance. The obligation was mutual and perpetual. If any qualification of it was intended, it would have been expressed, but we do not find in any of the state constitutions, or in that of the United States, the slightest suggestion that the allegiance to be paid to them, was less solemn, less entire, less permanent than that which was previously due to the monarch of Great Britain. Thus the question stands in respect to this class of citizens.
The next inquiry is, whether this contract was confided to the individual or extended also to his issue. So far as relates to the parent, an answer to this question may be found in the mere statement of it. No one can suppose that the parent intended, that while he was a permanent citizen of the state, his children should not partake of the same rights, enjoy the same liberty, and be protected be, the same government. Nature itself impresses on the parental mind, a desire to promote the interests of children, and causes it to revolt at the idea of withholding from them what may not only be shared with them, but what also becomes more valuable by being so shared. The pleasing sensation in the parent, of passing from the condition of an oppressed subject, to that of a citizen of a free republic, would surely be impaired by a consideration that his offspring would acquire no birthright in the community of his choice. In respect to him, therefore, we cannot doubt the desire, and have only to examine the power, of fixing the political relations of his descendants. The principle which next presents itself is, that what all the members of the state must have thus understood, must also have been so understood by the state, which is only the collection of those members. The compact so far as relates to the state, of course extends to the individual and to all his descendants, and therefore, as the child is entitled to the benefit of being recognised as a citizen, the state is entitled in its turn, to view the child as under its allegiance. It may however be urged, that an infant cannot bind itself by contract, but if it is necessary to answer the objection, it is sufficient to say that an infant may expressly bind itself for necessaries, as food and raiment, that a contract is always implied where such articles are furnished, and that the reciprocal compact of protection and allegiance, must be ranked among considerations of the highest order and first necessity. The dignity of the subject is however somewhat affected by resting it on a ground so narrow; and when we consider all the obligations cast on a political society by the voluntary formation of it, we may discard the smaller rules of private contract, and more safely rely on the broad basis of the general good, inherent in its nature, and necessary to its self-preservation.
When the child has attained an age sufficiently mature, according to civil institutions, to enable it to determine the choice, it would seem, in consistency with the principles already laid down, that the individual must be allowed a reasonable time to enable him to select the country in which he will reside, and the society to which he will adhere. Of his willingness to continue, no public declaration seems to be requisite. His acts demonstrate his choice; but there would be a great difficulty in fixing the time in which a contrary determination ought to be formed and declared. The law has assigned twenty-one years as the age of discretion; but in whom is the judgment sufficiently ripened at so early a period, to enable him to determine on a subject so momentous, and how long after that period has been reached, shall be allowed for deliberation? These difficulties appear to be almost insuperable, and seem to render the principle itself inadmissible, unless it should be specially provided for by the legislature. But where the adult has for a sufficient length of time, by every external act, manifested his adhesion to the political society in which he was born, there can exist no right in him to shake off his allegiance without the consent of the state, and become a stranger, or in the course of events, an enemy to his country. By his acts he has bound himself as closely as the alien who, seeking to be naturalized, has taken an express oath. The obligations resulting from his birth are rivetted by his voluntary conduct afterwards, and he cannot dispute the indissoluble tie, of which he has thus doubled the effect.
To these positions some objections may be made, which it will be endeavoured to answer.
The leading one is the great act of July 4, 1776, by which two and a half millions of subjects threw off their allegiance to Great Britain, and it is argued that what might be done by them collectively, could be done by them individually; but an obvious fallacy appears in the very statement of this proposition.
When the protection of the crown was withdrawn; when the aspect and the arm of paternal power were converted into virtual exclusion from the pale of the British family; a right of collective resistance was created which, unless similar measures could be exerted against an individual, can never exist in an individual. Our case differed in form only from the cession of territories and their inhabitants already noticed. If either by cession to another or by unmerited severity to those who are normally retained as subjects, the legitimate protection is thus wholly withdrawn; the dissolution of allegiance is the act of the sovereign, and if assented to by its subjects, is binding on both. It depends therefore upon facts to determine whether the cause of our separation was sufficient, and on these facts no American mind can hesitate.
The treaty of 1783 may be safely referred to in confirmation of this opinion. In recognising the independence of the United States, the right to declare it on the principles we asserted, may justly be considered as also recognized. Great Britain did not by professing to grant us independence, (a grant which would not have been accepted,) affect to release us from present allegiance; but on the contrary must be considered as retrospectively acknowledging that by her own act she had entitled us to discontinue it.
Another objection arises from the acknowledged right of emigration, of which, with us, no inhabitant is deprived, while, in many other governments, express permission is necessary; but the error of this consists in supposing that emigration implies the dissolution of allegiance.
Emigration in its general sense, merely signifies removal from one place to another; its strict and more appropriate meaning is the removal of a person, his effects and residence: but in no sense does it imply or require that it should take place. with a view to become a subject or citizen of another country.
Motives of health or trade, convenience or pleasure, may lead to emigration; but if a deprivation of citizenship were the necessary and immediate consequence, (and unless it is, the argument is without weight,) emigration would often be a cause of terror and sometimes a punishment, instead of a benefit, in which sense the right is considered.
Those who contend for the affirmative of the proposition, must be able to prove that the quality of citizenship ceases at the moment of departure; that if the emigrant returns he cannot be restored to his former rank, without passing through the regular forms of naturalization; that if real estate had descended upon him during his absence, he could not inherit it without the aid of a law in favour of aliens, and that if the country to which he has removed, becomes engaged in war with us, and he did not choose to remain there, he would be liable on his return, to be treated as an alien enemy. In Virginia, what is termed expatriation is authorized by an act of assembly passed in 1792. 6 This is a fair compact which an independent state has a right to make with its citizens, and amounts to a full release of all future claims against the emigrant who, if taken in war against the state, would not be liable to the charge of treason. But the release is effective only so far as relates to the state which grants it. It does not alter his relation to the United States, and it was questioned in the case of Talbot v. Janson 7 how far such a law would be compatible with the Constitution of the United States.
The Virginia act makes no distinction between the time of peace and of war.
Whether the citizen, having formed the unnatural design of aiding the actual enemies of his country, could make use of its legal forms to enable him to commit such a crime with impunity, remains to be decided by the tribunals of that state.
A distinction certainly not unreasonable has been taken between citizenship and allegiance. Perpetual allegiance is a doctrine of less force and efficacy in some countries than in others. It depends on their respective systems of law.
The origin of allegiance in England has been already described. Its former extension through almost every part of this country is unquestionable, and in many states it continues unimpaired in its qualities and nature.
It is indirectly recognised in the Constitution of the United States, and by the acts of congress, which have been since passed. The indefeasible quality conceived to be incident to it has not yet been decided on by the Supreme Court of the United States; but in the Circuit Courts, Ellsworth, chief justice, declared, that a member of the community 8 cannot dissolve the social compact so as to free himself from our laws, without the consent or the default of the community. And in another case, Washington, J. declared that no citizen can throw off his allegiance to his country without some law authorizing him to do so. 9 But in those countries where the doctrine of allegiance, in the sense we affix to it, does not exist at all, or where it is a part of their law that it may be thrown off in certain cases, our positions do not apply.
It may still further be urged, that the renunciation of all foreign allegiance inserted in the oath of naturalization implies a power to renounce what is due to us as well as what is due to a foreign state.
If this were found in the Constitution, it might occasion some difficulty; but it is the language of congress, on whom it does not rest to give a binding exposition of the Constitution. It was not required in the first act prescribing the mode of obtaining naturalization, and it was probably introduced from political jealousy, and by way of caution to the new citizen. The necessity of retaining it is not very perceptible. If a naturalized citizen should commit treason against us, by uniting with a hostile country from which he had emigrated, he would not be more amenable to the law, because of his renunciation, nor less so, if it had never taken place; and it would have no effect in the country which he had left, either by way of aggravation or extenuation of any offence for which he might be responsible to them. 10
The temporary allegiance, which began with his residence among us, is rendered perpetual by his naturalization, and the renunciation is an useless adjunct. 11
The last objection which occurs to the author is, that independent of the oath of abjuration, the admission of a foreigner to naturalization among us implies that he may withdraw his allegiance from his native country, and that otherwise in case of war, he would be involved in the hardship of being obliged to commit treason against one or the other: but the satisfactory answer always given to this proposition is, that if the individual chooses to entangle himself in a double allegiance, it is his own voluntary act. He may reside among us without being naturalized, he may enjoy much of the protection, and some of the advantages of a citizen, yet retain, unimpaired even in sensation, his allegiance to his native country till the moment he chooses to leave us. If he determines completely to unite his character and his fortunes with ours, we receive him under the compact already explained, and his temporary allegiance becomes permanently binding.
Another point of considerable moment remains to be noticed. Having shown what a citizen, native or naturalized, may not do by way of withdrawing his allegiance. we will now proceed to show in what cases the state may not withdraw its protection.
Every person has a right to remain within a state as long as he pleases, except the alien enemy, the person charged with crimes in any of the other states, or in a foreign state with whom a treaty to that effect exists, and fugitives from service or labour in any of the states. To the two latter descriptions, no asylum can by the Constitution of the United States, be afforded.
The states are considered as a common family, whose harmony would be endangered, if they were to protect and detain such fugitives, when demanded in one case, by the executive authority of the state, or pursued in the other by the persons claiming an interest in their service.
In the case of alien enemies, the public good is consulted. The right of sending them away, is an incident to the right of carrying on public war. It is not mentioned in the Constitution, but it properly appertains to those who are to conduct the war.
Whoever visits or resides among us, comes under the knowledge that he is liable, by the law of nations, to be sent off, if war breaks out between his country and ours, before he is naturalized. So if there is any treaty in force, by which we are bound to deliver up a fugitive, charged by another nation with the commission of crimes within its territory, every one arriving among us is considered as having knowledge of such compact.
But whatever may be held by certain theoretical writers, there is no foundation for the opinion, that we are bound by the general law of nations, without such compact, to surrender a person charged with a crime in another nation.
The principles by which this conclusion is attained, are as follow. A criminal act, committed within the limits of a nation, is an offence against that nation, and not against any other. It is the duty of a nation to punish offences against itself, but not against others. If the offender escapes, it has no power to pursue him into the territories of another, nor any right, by the general rules of law, to require the other to deliver him up. The nation in which he seeks an asylum, may conscientiously retain and protect him. In legal acceptation, he has been received as an innocent man; he holds this character among us, till he forfeits it by the commission of a crime against us; he is then, on conviction, liable to punishment for such crime, but we cannot punish him for a crime committed in another country.
Nature gives to mankind the right of punishing only for their own defence and safety. Hence it follows, that he can only be punished by those he has offended.
To deliver the fugitive to the nation which claims, in order to punish him, is to assist the punishment, and therefore directly at variance with these principles. 12
Yet it is not to be inferred, that one state has a right to transfer its criminals to another, and that the latter is bound to receive them. It rests with every independent state to open its doors to the admission of foreigners on such terms only, as it may think proper.
During our colonial dependency, the mother country assumed a privilege of transporting certain classes of her convicted offenders to the provinces, and the want of labourers at first induced us to receive them without complaint.
But it was soon discovered to be an alarming evil, and many of the provinces took measures to oppose it. One of the last acts of the congress under the confederation, was to recommend to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States. Perhaps the power implied by the 9th section of the 2d article, might be usefully adapted to the regulation of this sort of political commerce, in which, at present, we cannot be gainers, for the United States have no constitutional power to export or banish offenders.
The power to pass uniform laws on the subject of bankruptcies, is contained in the same paragraph. It is held, however, from its nature, not to be completely exclusive.
Until it is exercised, the states axe not forbidden to pass bankrupt laws, except so far as they impair the obligation of contracts. When congress enacts a general bankrupt law, the right of the states is suspended, though not extinguished. From the expiration or repeal of the bankrupt law, the ability of the state to exercise the power, qualified as above mentioned, revives. 13 And even while the act of congress is in force, the power of the state continues over such cases as the law does not embrace. Hence the power to pass insolvent laws remains with the state. Bankrupt laws are generally, perhaps properly, considered as confined to the mercantile class, who are more exposed to pecuniary vicissitudes than those who pursue other occupations. Yet as poverty may also assail the latter, it would be hard to exclude them from the humane protection of the state legislatures. But as states are prohibited from passing laws impairing the obligation of contracts, it has been contended that their power to pass insolvent laws is now questionable. The answer to this objection is, that without impairing the obligation of a contract, the remedy to enforce it may be modified as the wisdom of the legislature may direct. Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as the means of inducing him to perform it. The state may withhold this mean and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligations. 14
Congress shall have power to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. In a subsequent section of the same article, the separate states are prohibited from coining money and emitting bills of credit. 15 The other parts of this section seem proper objects for the exclusive power of congress. But until it shall be exercised, each state, it is presumed, retains the right to fix the standard of weights and measures within its own precincts.
A power to provide for the punishment of counterfeiting the securities and current coin of the United States, is incident to part of the antecedent section, and in itself purports the exclusion of state power. But whether the exclusive cognizance of such cases may be given to the tribunals of the United States, or may not under some circumstances be concurrently exercised by the state courts, belongs to another head, and will be hereafter considered.
The power to establish post offices and post roads, has a necessary connexion with the promotion of commerce and the general welfare of the Union.
A regular system of free and speedy communication, is of vital importance to the mercantile interest, but on a wider scale we must also admit it to be of the first consequence to the general benefit. In time of peace, it tends to keep the people duly informed of their political interests; it assists the measures of government, and the private intercourse of individuals. During a war, the rapid communication of intelligence, by means of the post, and the greater facility of transferring bodies of men or munitions of war, to different places, by the aid of good roads, are evident advantages. If these establishments should in practice produce no revenue, the expense would be property chargeable to the Union, and the proceeds of taxation in the common forms be justly applied to defray it. If, however, as has proved to be the case, the post office yields a revenue, which is with the other revenues of the United States applicable only to the general service, it is obvious, that no state ought to interfere by establishing a post office of its own. This is therefore an exclusive power so far as relates to the conveyance of letters, &c. In regard to post roads, it is unnecessary, and therefore would be unwarrantable in congress where a sufficient road already exists, to make another; and on the other hand, no state has a power to deny or obstruct the passage of the mail, or the passage of troops, or the property of the United States over its public roads.
The power given to congress, in respect to this subject, was brought into operation soon after the Constitution was adopted, and various provisions have at different times been enacted, founded on the principle of its being an exclusive power.
It has been made a constitutional question, whether congress has a right to open a new mail road through a state or states for general purposes, involving the public benefit, and the same doubt has been extended to the right of appropriating money in aid of canals through states. If we adhere to the words of the text, we are confined to post roads; but it appears to the author to be one of those implied powers which may fairly be considered as within the principles of the Constitution, and which there is no danger in allowing. The general welfare may imperiously require communications of either of these descriptions. A state is bound to consult only its own immediate interests, and not to incur expense for the benefit of other states. The United States are bound to uphold the general interest at the general expense. To restrain them to pointing out the utility of the measure, and calling on particular states to execute it, would be partially to recall the inefficiency of the old government and to violate the main principle of the present one. If any political evil could result from the procedure, it would present a strong argument against the allowance of the power; but good roads, and facile, aquatic communications, while they promote the prosperity of the country, cannot be seriously alleged to affect the sovereignty of the states, or the liberties of the people. The road ought, however, to be an open, not a close one. It is doubtful whether tolls for passage on it, can be constitutionally exacted.
In the succeeding section, the interests of science and the useful arts are laudably provided for, by empowering congress to secure for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.
At common law, it seems to have been a question whether the inventor of any new art or improvement had such a special property in it, as to entitle him to pursue another who made use of it after the inventor had made it public. But there was no doubt that if another person had fallen on the same invention, without a knowledge of the first, he would be entitled to the benefit of his own talents. It has however been deemed in many countries politic and wise, to secure to the first inventor a reward for the time and study employed in such pursuits. In England, the king undertook, on the score of royal prerogative, to grant exclusive privileges of making and selling articles of domestic manufacture, and of importing foreign articles, by which protection to such inventors was occasionally obtained. But this practice began to be abused, and such licenses or monopolies, often conferred as rewards on particular favourites, or used merely to promote the interest of the crown, had increased in the reign of Elizabeth and James I. to an alarming degree, 16 and therefore, by an act passed in the twenty-first year of the reign of the latter, all such grants are declared to be void; in the fifth section, however, a proviso is introduced, which is the foundation of the present system in that country relative to patents, by allowing them to be granted to the authors of any new inventions for a term not exceeding fourteen years.
In respect to what is termed literary property; the right which a person may be supposed to have in his own original compositions, the same doubts as to the common law are entertained, and the protection of a statute has been likewise extended, 17 which at the same time disposed of the common law question, as to those who complied with its forms, by declaring that the author should have the benefit of it for fourteen years, and no longer, unless he was still living at the expiration of the first term, when it might be renewed for fourteen years more. But as the author might not avail himself of the benefit of the statute, the question remained unsettled till the year 1774, when a small majority of the twelve Judges decided against it. 18 This interesting question merits much consideration. At present it is sufficient to say, that as from the nature of our Constitution, no new rights can be considered as created by it, but its operation more properly is the organization and distribution of a conceded power in relation to rights already existing, we must regard these provisions as at least the evidence of opinion, that such a species of property, both in the works of authors and in the inventions of artists, had a legal existence.
In some of the states, prior to the adoption of the general Constitution, acts of the legislature in favour of meritorious discoveries and improvements, had been passed; but their efficacy being confined to the boundaries of the states, was of little value, and there can be no doubt that, as soon as congress legislated on the subject, (which was as early as the second session, 1790,) all the state provisions ceased; although in the act of 21 Feb. 1793, it is cautiously provided that the applicant for the benefit of the protection of the United States, shall surrender his right under any state law; of which his obtaining a patent shall he sufficient evidence.
To define and punish piracies and felonies committed on the high seas is an exclusive power.
The regulation of foreign commerce appertains to congress alone, and the punishment of offences committed on the high seas is an unavoidable incident to this power: as soon as the Constitution was adopted, the power of the states in this respect was at an end. But the principle of this exclusive jurisdiction might perhaps be further extended. After the territorial boundaries of a nation are left, the sea becomes the common property of all nations, and the rights and privileges relative thereto being regulated by the law of nations and treaties, properly belong to the national jurisdiction, and would be inconveniently retained by the states which, in this respect, form only parts of the nation.
It does not seem to have been necessary to define the crime of piracy. There is no act on which the universal sense of nations has been so fully and distinctly expressed, as there is no act which is so universally punished. The pirate is the enemy of all nations, and all nations are the enemy of the pirate.
Felony is a term derived from the common law of England, and when committed on the high seas, amounts to piracy. The power to define either may have been introduced to authorize congress to qualify and reduce the acts which should amount to either. It is coupled with the power to punish, and this power extends not merely to citizens of the United States, but to all others except the citizens or subjects of a foreign state sailing under its flag and committing acts which amount to piracy; but general piracy committed by persons on board of a vessel, acting in defiance of all law, and acknowledging obedience to no government, are punishable in our courts, and in the courts of all nations. 19
By the high seas we are to understand not only the ocean out of sight of land, but waters on the sea coast beyond the boundaries of low water mark, although in a roadstead or bay, within the jurisdiction or limits of one of the states or of a foreign government. 20
A power to define and to punish offences against the law of nations is contained in the same paragraph, but it is doubtful whether the power to punish ought to be considered as an exclusive one. The law of nations forms a part of the common law of every civilized country; violations of it may be committed as well on land as at sea, and while the jurisdiction of the separate states is admitted to be withdrawn from them in regard to acts committed on the sea, it does not seem to follow that it is superseded as to those on shore.
Such acts may be of various kinds, and although the most prominent subjects under this head are those which relate to the persons and privileges of ambassadors, yet in many other particulars, infringements of the law of nations may be proper subjects of state jurisdiction. But even if an outrage were committed on a diplomatic character, and he preferred the redress to be obtained from a state court to that afforded by the courts of the United States, it is not perceived that this clause would prohibit him from so doing; yet whether the power is exclusive or not, on which some further remarks will be made, the power to define and to punish this class of offences is with great propriety given to congress. The United States being alone responsible to foreign nations for all that affects their mutual intercourse, and tends to promote the general relations of good order and just demeanour, it rests with them alone to declare what shall constitute such crimes, and to prescribe suitable punishments.
When such laws are made, they become binding rules of decision as well on the state courts as on the courts of the United States; but if cases arise for which no such statutory provision has been made, both these descriptions of courts are thrown upon those general principles, which being enforced by other nations, those nations have a right to require us to apply and enforce in their favour, or for the benefit of their citizens and subjects.
The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of powers exclusively confided to congress:
The right of using force, or of making war, belongs to nations, so far as it is necessary for their defence and the support of their rights. But the evils of war are certain, and the event doubtful, and therefore both wisdom and humanity require, that every possible precaution should be used before a nation is plunged into it. In monarchies, the king generally possesses this power, and it is as often exercised for his own aggrandizement as for the good of the nation. Republics, though they cannot be wholly exonerated from the imputation of ambition, jealousies, causeless irritations, and other personal passions, enter into war more deliberately and reluctantly.
It is not easy to perceive where this power could, with us, be more prudently placed. But it must be remembered, that we may be involved in a war without a formal declaration of it. In the year 1800, we were engaged in a qualified, but public, war with France; 21 qualified, because it was only waged on the high seas public, because the whole nation was involved in it. It was founded on the hostile measures authorized by congress against France, by reason of her unjust aggressions on our commerce yet there was no declaration of war. In such a war we may also be involved by the conduct of the executive, without the participation of the legislature. The intercourse with foreign nations, the direction of the military and naval power, being confided to the president, his errors or misconduct may draw hostilities upon us. No other restraint appears to exist, than that of withholding the supplies to carry it on, which indeed congress can in no case grant beyond the term of two years. But in England, the king is, in this respect, equally dependent on the parliament, and its history shows that this dependence is not always adequate to prevent unpopular wars.
The several states are, by another clause, prohibited from engaging in war, unless actually invaded, or in such imminent danger as will not admit of delay.
But although congress alone can subject us to the dubious results of formal war, a smaller portion of the government can restore us to peace. Hostilities may be terminated by a truce, which the president alone (it is conceived) may make. The duration of a truce is indefinite. It suspends all hostilities while it continues in force; but it does not revive treaties which were broken by the commencement of the war, or restore rights of any sort, which were suspended by it. It may be general or partial it may extend to all places and to all the mutual forces of the belligerents, or it may be confined to particular places or particular armaments. When it ceases, it is unnecessary to repeat the declaration of war. But before its conventual termination, unless some fresh cause of complaint should have arisen, it would be inconsistent with good faith to renew hostilities.
Treaties, by which peace is completely restored, may, as already shown, be made by the president and senate alone, without the concurrence, and against the will of the house of representatives.
It has been made a subject of doubt, whether the power to make war and peace, should not be the same, and why a smaller part of the government should be entrusted with the latter, than the former. Sufficient reasons may certainly be assigned for the distinction. Peace is seldom effected without preparatory discussions, often of length and difficulty, the conduct of which, of course, belongs only to the president and senate. War is always an evil; peace is the cure of that evil. War should always be avoided as long as possible, and although it may happen to be brought on us as before observed, without the previous assent of congress, yet a regular and formal war should never be entered into, without the united approbation of the whole legislature. But although a peace is seldom obnoxious and unacceptable to the public, yet its necessity or propriety may not always be apparent, and a public disclosure of the urgent motives that really exist in favour of it, may be prejudicial. The people have, in such case, a stronger motive for relying on the wisdom and justice of the president and senate, than in the case of ordinary treaties. They are less likely than a larger body to be influenced by partial views or occasional inflammation, and the very circumstance of the smallness of their numbers increases their responsibility to public opinion.
By the fifteenth and sixteenth paragraphs of the same important section, congress is empowered to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, but in respect to the two last mentioned objects, it is not to be understood as an exclusive power. There cannot at least be any doubt, that on the first emergency, each state enjoys a similar power, of which no act of congress can deprive them. For the principle of the Constitution is not to deny to the states the right of self-protection in such cases, but to co-operate with the collective force of the Union in aid of the state.
Uniformity in the organization and discipline of the militia, should extend through the Union. The imbecility of the confederation in this respect, together with the variety of the periods of service for which the militia were engaged, produced considerable inconvenience during the war of the revolution. Hence, congress is further empowered to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. This power cannot be considered as infringing the rights and privileges of the states, since, however necessary, it cannot effectually be vested elsewhere, and since it is accompanied with an express reservation to them, of the appointment of the officers, and of the authority of training the militia, according to the discipline, prescribed by congress. This subject will be hereafter resumed.
The last enumerated power is to exercise exclusive legislation in all cases whatever, over such district, not exceeding ten miles square, as may by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.
A provision of this kind, is peculiar to the United States, 22 and the reasons in favour of it, are cogent.
If the general government held its sessions within the limits, and under the jurisdiction of a state, it would be dependent on that state for protection and safety. If it should happen, that at any time, unkind opinions, in respect to if, existed on the part of the state, or, if the state government were deficient in firmness and power, the general legislature might be subjected to insult and disgrace, in the midst of its most important functions. It would thus be dishonoured in the eyes of foreign powers, and pitied or despised at home. Nor is this an imaginary or improbable event. At the close of the war of the revolution, the congress, then sitting at Philadelphia, was surrounded and insulted by a small, but insolent body of mutineers of the continental army. It applied to the executive authority of Pennsylvania for defence; but under the ill conceived constitution of the state at that time, the executive power was vested in a council, consisting of thirteen members; and they possessed or exhibited so little energy, and such apparent intimidation, that the congress indignantly removed to New Jersey, whose inhabitants welcomed it with promises of defending it. It remained for some time at Princeton, without being again insulted, till, for the sake of greater convenience, it adjourned to Annapolis. The general dissatisfaction with the proceedings of the executive authority of Pennsylvania, and the degrading spectacle of a fugitive congress, suggested the remedial provisions now under consideration.
It has been carried into effect, by the cession and acceptance of a tract of land on the river Potowmack, partly from the state of Virginia, and partly from the state of Maryland. The inhabitants generally were satisfied. But some consequences, that perhaps were not fully foreseen, have flowed from it. The inhabitants of the District of Columbia, are no longer in all respects citizens of a state, although they are unquestionably, to a certain extent, citizens of the United States. As such, they are entitled to the benefit of all commercial or political treaties with foreign powers, and to the protection of the Union at home. But they have no representatives in the senate; they cannot partake in the election of members of the house of representatives, or of electors of president and vice president. The judiciary power between citizens of different states, does not extend to them, 23 in which respect, they are more unfavourably situate than aliens; but suitable courts of justice, and certain adequate provisions for its local government, have been made by congress. The immediate residence of government, has greatly contributed to its prosperity, and its political anomaly has produced no general inconvenience. Under a subsequent head, some remarks will be made on the judicial relations affecting this, and other separated districts.
The enumeration closes with a declaration of the powers of congress, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all others vested by the Constitution in the government of the United States, or in any department or officer thereof.
It is impossible not to perceive in this, as in so many other instances, the circumspection that confined the legislature to its proper bounds; the wisdom that, within those bounds, left nothing unsupplied.
Without this clause, the specific enumeration might have been construed by a morbid jealousy, to imply, that congress possessed no other powers of legislation; and some parts of the executive duties might have doubtfully rested only on the general description in the Constitution. Even the functions of the judicial tribunals require legislative developement and assistance. All necessary power, and no power that is not necessary, is contained in this final provision.
1. See the case of Hylton v. The United States, 3d Dall. 171.
2. Gibbons v. Ogden, 9th Wheaton, p. 1, &c.
3. See 7 Coke's Rep. 7.
4. 7 Coke's Rep. 6.
5. See Wooddeson, vol. i. 232, and many of the British treaties evince the truth of his position. In 1783, the cessions of Tobago, East Florida, &c.; the numerous transfers among the European monarchs since the year 1795, form striking instances of the general adoption of the principle. Time indeed is sometimes allowed to the people to withdraw themselves and their property, but age or other causes may render this impossible. In Great Britain such treaties are often confirmed by acts of parliament, but the principle is the same. Their colonies are not represented in parliament.
6. The words of the law are these:
Whensoever any citizen of this commonwealth shall by deed in writing under his hand and seal, executed in the presence of and subscribed by three witnesses, and by them or two of them proved in the general court, any district court, or the court of the county or corporation where he resides, or by open verbal declaration made in either of said courts to be by them entered of record, declare that he relinquishes the character of a citizen, and shall depart out of this commonwealth, such person shall from the time of his departure be considered as having exercised his right of expatriation and shall thenceforth be deemed no citizen." Passed 23d December, 1792.
7. 3 Dallas, 133. The author apprehends that no principle can be more clear than that a state cannot discharge a citizen from his allegiance to the United states.
8. United States v. Williams, 4 Hall's Law Journal, 401.
9. United States v. Gillies, I Peters 120 See 2 Cranch, 126.
During the late war President Madison directed one Clark, a citizen of the United States who had removed to Canada, and was afterwards taken within our lines and sentenced to death by a court martial as a spy to be delivered to the civil authority, thereby disclaiming military power over him as an alien enemy.
10. Isaac Williams, whose case has been noticed, expressly renounced his allegiance to this country when he was naturalized in France. In the opinion of the chief justice, this circumstance made no difference.
11. The legislature of Pennsylvania on the 29th of March, 1783, expunged from the oath, the part which required a renunciation of allegiance to the King of Great Britain, declaring that it was wholly useless.
12. It is proper, however, to observe, that a contrary opinion has been given in the state of New York by a judge of great learning and acuteness, Washburn's case, 4 Johnson, Ch. 106, to which is opposed the later decision of a man of equal character and talent, Chief Justice Tilghman in the case of Edward Short on a habeas corpus, Aug. 20, 1824.
13. 4 Wheaton, 122.
14. ibid. 200.
15. § 10.
16. Coke's Inst. vol. iii. 181.
17. 8 Ann. c. 19. 15 Geo. 3. c. 53.
18. 4 Burrow, 2417.
19. 5 Wheaton, 151, 417.
20. 1 Gallison, 124. 5 Wheaton, 204, 206.
21. 4 Dallas, 37.
22. In England, the Royal Palace, with an extent of twelve miles round it, has a peculiar jurisdiction in regard to some legal controversies; but any suits brought in the Marshalsea or Palace Courts, (as they are styled,) may be, and now generally are, removed at once to the King's Bench or Common Pleas. For all the purposes of legislation, there is no distinction between the "verge of the court," and the kingdom at large.
23. 2 Cranch, 452.
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