[Section 9 - Powers of Congress (cont.)]



4. Congress have power to establish an uniform rule of naturalization,

and uniform laws on the subject of bankruptcies, throughout the United

States [188].



As to the former of these powers; by the first articles of confederation

and perpetual union between the states, it was agreed, that the free

inhabitants of each state, paupers, vagabonds, and fugitives from

justice excepted, should be entitled to all privileges and immunities of

free Citizens in the several states; and the people of each state shall,

in every other, enjoy all the privileges of trade and commerce, &c.

[189] The dissimilarity of the rules of naturalization in the several

states, had long been remarked as a fault in the system, and, as

combined with this article in the confederation, laid a foundation for

intricate and delicate questions. It seems to be a construction scarcely

avoidable, that those who come wider the denomination of free

inhabitants of a state, (although not citizens of such state), were

entitled in every other state to all the privileges of free citizens of

the latter, that is, to greater privileges than they may be entitled to

in their own state: our free negroes, for example, though not entitled

to the right of suffrage in Virginia; might, by removing into another

state, acquire that right there; and persons of the same description,

removing from any other state, into this, might be supposed to acquire

the same right here, in virtue of that article, though native-born

negroes are undoubtedly incapable of it under our constitution: so that

every state was laid under the necessity, not only to confer the rights

of citizenship in other states, upon any whom it might admit to such

rights within itself, but upon any whom it might allow to become

inhabitants within its jurisdiction. But were an exposition of the term

"inhabitants" to be admitted, which would confine the stipulated

privileges to citizens alone, the difficulty would not be removed. The

very improper power would still have been retained by each state, of

naturalizing in every other state. In one state, residence for a short

time conferred all the rights of citizenship; in another, qualifications

of greater importance were required: an alien, therefore, legally

incapacitated for certain rights in the latter, might, by previous

residence only in the former, elude his incapacity; and thus the law of

one state, be preposterously rendered paramount to the law of another,

within the jurisdiction of such other. By the laws of several states,

certain descriptions of aliens, who had rendered themselves obnoxious,

and other persons whose conduct had rendered them liable to the highest

penalties of the law, were laid under interdicts, inconsistent, not only

with the rights of citizenship, but with the privileges of residence,

beyond the short period allowed by the treaty of peace with Great

Britain. We owe it to mere casualty, that very serious embarrassments on

this subject have not occurred [190]. The constitution, and the several

acts of naturalization passed by congress, have therefore wisely

provided against them by this article, and by an explicit declaration

contained in the law, that no person heretofore proscribed by any state,

shall be admitted a citizen, except by an act of the legislature of the

state in which such person was proscribed [191].



The federal court, consisting of judges Wilson and Blair, of the supreme

court, and judge Peters, district judge in Pennsylvania, at a circuit

court held for the district of Pennsylvania, in April, 1792, decided,

"that the states, individually, still enjoy a concurrent jurisdiction

upon the subject of naturalization: but that their individual authority

cannot be exercised so as to contravene the rule established by the

authority of the union: the true reason for investing congress with the

power of naturalization (said the court,) was to guard against too

narrow, instead of too liberal a mode of conferring the right of

citizenship. Thus the individual states cannot exclude those citizens;

who have been adopted by the United States; but they can adopt citizens

upon easier terms, than those which congress may deem it expedient to

impose [192]"



But this decision seems to have been afterwards doubted by judge Iredel,

2 Dallas, 373. And the act of 5 cong. c. 71. declares, that "no alien

shall be admitted to become a citizen of the United States, or of any

state, unless in the manner prescribed by that act." And by a subsequent

act, passed 7 cong. chapter 28, it is also declared, that any alien,

being a free white person, may become a citizen of the United States, or

any of them, on the conditions therein mentioned, "and not otherwise."

These legislative expositions of the constitution do not accord with the

judicial opinion above-mentioned. A very respectable political writer

makes the following pertinent remarks upon this subject [193]. "Prior to

the adoption of the constitution, the people inhabiting the different

states might be divided into two classes: natural born citizens, or

those born within the state, and aliens, or such as were born out of it.

The first, by their birth-right, became entitled to all the privileges

of citizens; the second, were entitled to none, but such as were held

out and given by the laws of the respective states prior to their

emigration. In the states of Kentucky and Virginia, the privileges of

alien friends depended upon the constitution of each state, the acts of

their respective legislatures, and the common law; by these they were

considered, according to the time of their residence, and their having

complied with certain requisitions pointed out by these laws, either as

denizens, or naturalized citizens. As denizens, they were placed in a

kind of middle state between aliens and natural born citizens; by

naturalization, they were put exactly in the same condition that they

would have been, if they had been born within the state, except so far

as was specially excepted by the laws of each state. The common law has

affixed such distinct and appropriate ideas to the terms denization, and

naturalization, that they can not be confounded together, or mistaken

for each other in any legal transaction whatever. They are so absolutely

distinct in their natures, that in England the rights they convey, can

not both be given by the same power; the king can make denizens, by his

grant, or letters patent, but nothing but an act of parliament can make

a naturalized subject. This was the legal state of this subject in

Virginia, when the federal constitution was adopted; it declares that

congress shalt have power to establish an uniform rule of

naturalization; throughout the United States; but it also further

declares, that the powers not delegated by the constitution to the U.

States, nor prohibited by it to the states, are reserved to the states,

respectively, or to the people. The power of naturalization, and not

that of denization, being delegated to congress, and the power of

denization not being prohibited to the states by the constitution, that

power ought not to be considered as given to congress, but, on the

contrary, as being reserved to the states. And as the right of

denization did not make a citizen of an alien, but only placed him in a

middle state, between the two, giving him local privileges only, which

he was so far from being entitled to carry with him into another state,

that he lost them by removing from the state giving them, the

inconveniencies which might result from the indirect communication of

the rights of naturalized citizens, by different modes of naturalization

prevailing in the several states, could not be apprehended. It might

therefore have been extremely impolitic in the states to have

surrendered the right of denization, as well as that of naturalization

to the federal government, inasmuch as it might have operated to

discourage migration to those states, which have lands to dispose of,

and settle; since, it might be a disagreeable alternative to the states,

either to permit aliens to hold lands within their territory, or to

exclude all who have not yet completed their probationary residence

within the U. States, so as to become naturalized citizens, from

purchasing, or holding lands, until they should have acquired all other

rights appertaining to that character."



Here, another question presents itself: if the states, individually,

possess the right of making denizens of aliens, can a person so made a

denizen of a particular state, hold an office under the authority of

such state? And I think it unquestionable that each state hath an

absolute, and uncontrolable power over this subject, if disposed to

exercise it. For every state must be presumed to be the exclusive judge

of the qualifications of it's own officers and servants: for this is a

part of their sovereignty which they can not be supposed to have

intended ever to give up. And if there be nothing in their

constitutions, respectively, to the contrary, the legislature may

unquestionably, by a general law, limit, or extend such qualifications,

so far as they may think proper. The law of Virginia declares, "that all

persons other than alien enemies, who shall migrate into this state, and

give satisfactory proof by oath or affirmation that they intend to

reside therein, and take the legal oath of fidelity to the commonwealth

shall be entitled to all the rights, privileges and advantages of

citizens, except that they shall not he capable of election or

appointment to any office, legislative, executive or judiciary, until an

actual residence in the state for five years thereafter; nor until they

shall have evinced a permanent attachment to the state, by intermarrying

with a citizen thereof, or of some one of the United States, or

purchased lands of the value of three hundred dollars therein." Now

although the act of congress may operate to repeal this act, so far as

relates to the rights of naturalization, or, a state of perfect

citizenship, under the constitution and laws of the union; yet, as it

respects the rights which the state hath power to grant, such as holding

lands, or an office under the sole, and distinct authority of the state,

I see no reason to doubt that the law is as valid at this day, as it was

before the adoption of the constitution of the United States.



The periods of residence, required by the several acts of congress

before an alien can be admitted a citizen, have been various. The act of

1 congress, 2 session, c. 3, required two years only: this period was

increased to five years, by the act of 3 congress, c. 85, which was

still further extended to fourteen years, by the act of 5 congress, c.

71, but the act of 7 cong. c. 28. has reduced it to five years, again.

Any alien who shall have borne any hereditary title; or been of any

order of nobility, in any other state, must renounce the same, on oath,

at the time of his admission to take the oath of a citizen. A wise

provision, the benefit of which it is to be hoped, may reach to the

latest posterity.



There are few subjects upon which there is less practical information to

be obtained in Virginia, than that of bankruptcies. The English statutes

of Bankruptcy have never been regarded as in force, here; and the manner

in which the commerce of the colony was conducted, before the

revolution, by no means seemed to favour their adoption. In a commercial

country, such as England, the necessity of good faith in contracts, and

the support of commerce, oblige the legislature to secure for the

creditors the persons of bankrupts. It is, however, necessary to

distinguish between the fraudulent and the honest bankrupt: the one

should be treated with rigor; but the bankrupt, who, after a strict

examination, has proved before proper judges, that either the fraud, or

losses of others, or misfortunes unavoidable by human prudence, have

stripped him of his substance, ought to receive a very different

treatment. Let his whole property be taken from him, for the benefit of

his creditors; let his debt, if you will, not be considered as

cancelled, till the payment of the whole; let him be refused the liberty

of leaving his country without leave of his creditors, or of carrying

into another nation that industry, which, under a penalty, he should be

obliged to employ for their benefit; but what pretence can justify the

depriving an innocent, though unfortunate man, of his liberty, as is

said to be the practice in some parts of Europe, in order to extort from

him the discovery of his fraudulent transactions, after having failed of

such a discovery, upon the most rigorous examination of his conduct and

affairs [194]!



But, how necessary soever, bankrupt laws may be in great commercial

countries, the introduction of them into such as are supported chiefly

by agriculture, seems to be an experiment which should be made with

great caution. Among merchants and other traders, with whom credit is

often a substitute for a capital, and whose only actual property is the

gain, which they make by their credit, out of the property of others, a

want of punctuality in their contracts, may well be admitted as a ground

to suspect fraud, or insolvency. But the farmer has generally a visible

capital [195], the whole of which he can never employ, at the same time,

in a productive manner. His want of punctuality may arise from bad

crops, unfavourable seasons, low markets, and other causes, which

however they may embarrass, endanger not his solvency; his property is

incapable of removal, or of that concealment, which fraudulent traders

may practise with success; his transactions within the proper line of

his occupation are few, and not liable to intricacy; whilst the merchant

is perhaps engaged in a dozen different copartnerships, in which his

name does not appear, and in speculations which it might require a life

to unravel. To expose both to the same rigorous, and summary mode of

procedure, would be utterly inconsistent with those maxims of policy,

which limit laws to their proper objects, only. And accordingly, we

find, that even in England, where the interests of commerce are

consulted on all occasions, and where they are never sacrificed,

(unless, perhaps, to ambition,) the bankrupt laws cannot affect a

farmer, who confines himself to the proper sphere of his occupation; and

the bankrupt law of the United States, 6 congress, 1 session, c. 19, is

confined to merchants, or other persons, actually using the trade of

merchandise, by buying and selling in gross, or by retail, or dealing in

exchange as a banker, broker, factor, underwriter, or marine insurer.

Whilst the bankrupt laws are confined to such characters, and are

resorted to, merely as a necessary regulation of commerce, their effect,

in preventing frauds, especially where the parties or their property may

be, or be removed into different states, will probably be so salutary,

that the expediency of this branch of the powers of congress, will cease

to be drawn in question.



5. Congress have power to coin money, regulate the value thereof, and of

foreign coin, and fix the standard of weights and measures [196].



By the former articles of confederation it was agreed that the United

States in congress assembled, should have the sole and exclusive right

and power of regulating the alloy and value of coin struck by their own

authority, or by that of the respective states; and fixing the standard

of weights and measures throughout the United States [197]. By the

present constitution the respective states are interdicted from coining

money [198]. All the powers mentioned in this clause are branches of the

royal prerogative in England, but are with much greater propriety vested

in the legislative department by the federal constitution. The history

of England affords numberless instances [199], where this prerogative

has been exercised to the great oppression of the subject. The power of

debasing the value of the coin, at pleasure, has in fact been frequently

used as an expedient for raising a revenue, and is accordingly reckoned

as one of the indirect modes of taxation, by the author of the treaties

on political economy: for if the government gives coin of an inferior

standard, for purer coin of the same weight, as is generally done in

these cases; or if it receives more for the coin, than the value of the

bullion, and the expence of the coinage, as is likewise frequently

practised, the difference is an acquisition of revenue, paid by him who

brings his bullion to the mint. According to the principles of our

constitution, therefore, such a tax can not be imposed but by the

representatives of the people [200].



Mr. Barrington, in his readings upon the English statutes, doubts

whether the regulation of weights and measures be practicable, by law.

He remarks, that in England it has been attempted by at least six

different statutes, all of which have been ineffectual. He quotes an

observation of Montesquieu's that it is the mark of a little mind in a

legislature to attempt regulations of this kind. In England, perhaps,

the attempt has not succeeded from some defect in the system. That

proposed by Mr. Jefferson, when secretary of state, appears to be

perfectly simple, and, I should apprehend, easily practicable: and the

standard of measure, especially, may be obtained with a mathematical

exactness sufficient for all the purposes of commerce, and even of arts

and sciences.



It appears by the journals of the senate of the United States, March the

1st, 1791. "That a proposition had been made to the national assembly of

France for obtaining a standard of measure, which shall at all times be

invariable, and communicable to all nations, and at all times. That a

similar proposition had been submitted to the British parliament: as the

avowed object of these is to introduce an uniformity in the weights and

measures of commercial nations; and as a coincidence of regulation by

the government of the United States on so interesting a subject would be

desirable, the senate resolved, that it would not be eligible at that

time to introduce any alterations in the weights and measures of the

United States."



6. Congress have power to provide for the punishment of counterfeiting

the securities, and current coin of the United States [201].



This power seems to be a natural incident to two others, of which we

have before taken notice: the power of borrowing money on the credit of

the United states, and that of coining money, and regulating the value

thereof.



But congress appear to have extended the interpretation of this, article

much further than it might have been supposed it would bear: and

possibly much further than the framers of the constitution intended. I

allude to the act of 5 cong. c. 7 8, to punish frauds committed on the

bank of the United States, which inflicts the penalty of fine and

imprisonment, for forging or counterfeiting any bill or note, issued by

order of the president, directors and company of the bank of the United

States.



The right of congress to establish this company or corporation, with

exclusive, privileges, was warmly contested when the bill for

establishing the bank was introduced into congress. 1 cong. 3 sess. c.

10. The same congress had at their first session agreed to an amendment

of the constitution, declaring, that the powers not delegated to the

United States, by the constitution, nor prohibited by it to the states,

are reserved to the states respectively, or to the people. The advocates

for the bill were challenged to produce the clause in the constitution

which gave congress power to erect a bank. It nevertheless passed both

houses. The president of the United States hesitated; it is said that he

consulted his constitutional advisers upon the subject. That two of them

were of opinion the bill was unconstitutional. It nevertheless, received

his assent on the last day, that the constitution allowed him to

deliberate upon it. Had he turned to the journals of the convention (as

on another occasion,) it has been confidently said, he would there have

seen, that the proposition to authorise congress to establish a bank,

had been made in convention and rejected: of this, he can not be

supposed to have been ignorant, as he presided in the convention, when

it happened the journals of that body were then a secret, and in his

keeping. If it was proper to resort to those journals to give a proper

interpretation to the constitution in one instance, it surely was

equally proper in the other; and if the rejection of one proposition in

that body, was a sufficient reason for rejecting the same, when made by

either house of congress, it seems difficult to assign a reason why the

other should not have been treated in the same manner [202].



If it were, in fact, an unconstitutional exercise of power in congress

to pass a law establishing the bank, nothing can manifest the

impropriety of over-steping the limits of the constitution, more than

the act which we have just noticed. It shews that the most unauthorised

acts of government may be drawn into precedents to justify other

unwarrantable usurpations.



7. Congress have power to establish post-offices, and post-roads. And

this is one of those cases, in which I have supposed in that the states

may possess a concurrent, but subordinate authority, to that of the

federal government. Concurrent, inasmuch, as there seems to be nothing

in the constitution, nor in the nature of the thing itself, which may

not be exercised by both, at the same time, without prejudice, or

interference; subordinate, because wherever any power is expressly

granted to congress, it is to be taken, for granted, that it shall not

be contravened by the authority of any particular state. If, therefore,

any state should find it necessary to establish post-offices on any

road, which is not an established post-road, under the laws of the

United States, there seems to be no constitutional objection to its

doing so, until congress should think proper to exert its constitutional

right to establish a communication by post, between the same places ....

I put this case merely to shew how far the exercise of these concurrent

powers may be reconciled: it is much to be desired that a question of

such delicacy may never occur between any state, and the federal

government.



The post-office, under proper regulations, is one of the most beneficial

establishments which can be introduced by any government; by providing

the means of intercourse between the citizens of remote parts of the

confederation, on such a regular footing, as must contribute greatly to

the convenience of commerce, and to the free, and frequent communication

of facts, and sentiments between individuals. Hence the revenue arising

from this source will always be more easily collected, and more

cheerfully paid, than any other whatever. It appears, that

notwithstanding the many unprofitable branches, into which the

post-roads have been divided for the convenience of the people of the

United States, there still remains a considerable sum that is annually

brought into the federal treasury.



It seems reasonable that the product of this branch of the revenue

should be, exclusively, applied to the extention of its benefits, until

they shall completely pervade every part of that union [203].



8. Congress have power to promote the progress of science and useful

arts, by securing for limited times to authors and inventors the

exclusive right to their respective writings and discoveries. C. U. S.

Art. 1, Sect. 8.



This is another branch of federal authority, in which I presume the

states may possess some degree of concurrent right within their

respective territories; but as the security which the state could

afford, would necessarily fall short of that which an authority

co-extensive with the union may give, it is scarcely probable that the

protection of the laws of any particular state will hereafter be

resorted to; more especially, as the act of 2 Cong. c. 53, declares,

that "where any state before it's adoption of the present form of

government shall have granted an exclusive right to any invention, the

party claiming that right, shall not be capable of obtaining an

exclusive right under that act, but on relinquishing his right under

such particular state, and of such relinquishment his obtaining an

exclusive right under that act, shall be sufficient evidence." But this

act does not appear to extend to copy-rights: the exclusive right to

which is secured by an act passed, 1 Cong. 2 Sess. c. 15, amended by the

act of 1 Cong. c. 36, for fourteen years; and if at the expiration of

that term, the author being living, the same exclusive right shall be

continued to him and his heirs, for other fourteen years. But the

exclusive rights of other persons to their inventions, is limited to

fourteen years, only, by the act first mentioned. Aliens, who have

resided two years in the United States, are moreover entitled to the

benefit of a patent for any new invention, by virtue of the act of 6

Cong. c. 25.



Whether it was under this clause of the constitution, or not, that the

first secretary of the treasury grounded his opinion of the right of

congress to establish trading companies, for the purpose of encouraging

arts and manufactures [204]; or whether it was under this clause, that

the establishment of a company for the discovery of mines, minerals, and

metals, was contemplated by the authors of that scheme [205]; or whether

it was from a conviction of the unconstitutionality of the proposition,

in both cases, that neither of them took effect, I cannot presume to

determine: but, certainly, if this clause of the constitution was relied

upon, as giving congress a power to establish such monopolies, nothing

could be more fallacious than such a conclusion. For the constitution

not only declares the object, but points out the express mode of giving

the encouragement; viz. "by securing for a limited time to authors and

inventors, the exclusive right to their respective writings, and

discoveries." Nothing could be more superfluous, or incompatible, with

the object contended for, than these words, if it was, indeed, the

intention of the constitution to authorise congress, to adopt any other

mode which they might think proper.



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188. C. U. S. Art. 1. Sec. 8.



189. Confederation, Art. 4.



190. Federalist, No. 42.



191. L. U. S. 1 Cong. 2 Sess. c. 3. 7 Cong. c. 28.



192. 2 Dallas's Reports, 296.



193. See a letter of George Nicholas, Esq. on the Alien and Sedition

laws.



194. See Beccaria, on Crimes and Punishments, c. 14



195. In Virginia, farmers generally cultivate their own lands. It may be

otherwise in the northern states.



196. C. U. S. Art. 1. sect. 8.



197. Confederation, Art. 9.



198. C. U. S. Art. 1. sect. 9.



199. See Hale's Hist. p. C. v. 1. p.198.



200. Consequently every bill for this purpose, or for any other by which

a revenue may be raised, should originate in the house of

representatives. Yet I am very much mistaken if a recurrence to the

early journals of the senate of the United States, would not prove, that

the several acts for establishing the post-office; for regulating the

value of foreign coins, and for establishing a mint, all originated in

the senate. The reason of the acquiescence of the house of

representatives on these occasions, probably was, that no revenue was in

tended to be drawn to the government by these laws: whereas strictly

speaking, a revenue is raised by the act establishing the mint; 2 cong.

c. 16. §. 14, equal to one half per centum, as an indemnification to the

mint for the coinage: and in the case of the bill for establishing the

post-office, there can be no room to doubt that it operates as a revenue

law, and that, to a very considerable amount.



201. C. U. S. Art. 1. sec. 8.



202. On the 24th of March, 1796, the house of representatives requested

the president to lay before the house his instructions to Mr. Jay,

together with the correspondence and other documents relative to the

treaty with Great Britain, which he refused to do, upon the ground,

that that house had no constitutional participation in the business of

making treaties; to which he adds the following: ....



"If other proofs than these, and the plain letter of the Constitution

itself be necessary to ascertain the point under consideration, they may

be found in the journals of the general Convention, which I have

deposited in the office of the department of state. In those Journals,

it will appear, that a proposition was made, that no treaty should be

binding on the United States which was not ratified by a law, and that

the proposition was explicitly rejected." .... Message from the

president to the house of representatives, March 30, 1796.



203. The annual proceeds of the duties on postage may not be estimated

at less than 50,000 Dollars .... Report of the secretary of the treasury

to the house of representatives. December 18, 1801.



204. See the report of Mr. Secretary Hamilton on this subject.



205. See the resolution of congress respecting the copper-mines on the

south side of Lake Superior. April 16, 1800 .... A bill for establishing

a mine, mineral, and metal company, was brought into congress the next

session, (as I have understood) but miscarried.