OF THE ENUMERATED POWERS OF CONGRESS.
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
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to the treasury, or fraudulently withdrawn from it afterwards, the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
"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
"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,
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
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
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
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
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
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
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
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
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
The power of declaring war, with all its train of consequences,
direct and indirect, forms the next branch of powers exclusively confided
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
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
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,
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
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
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,
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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