Chapter XI (2)

Mr. Carroll thereupon renewed the effort to introduce a clause saving the rights of the United States to vacant lands; and after some modification, he finally submitted it in these words: "Nothing in this Constitution shall be construed to alter the claims of the United States, or of the individual States, to the Western territory; but all such claims shall be examined into, and decided upon, by the Supreme Court of the United States." Before any vote was taken upon this proposition, however, Gouverneur Morris moved to postpone it, and brought forward as a substitute the very provision which now forms the second clause of the third section of article fourth, which he presented as follows: "The legislature shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this Constitution contained shall be so construed as to prejudice any claims, either of the United States or of any particular State." This provision was adopted, without any other dissenting vote than that of the State of Maryland.[292]

The purpose of this provision, as it existed at the time in the minds of the framers of the Constitution, must be gathered from the whole course of their proceedings with respect to it, and from the surrounding facts, which exhibit what was then, and what was afterwards likely to become, the situation of the United States in reference to the acquisition of territory and the admission of new States. There were, then, at the time when this provision was made, four classes of cases in the contemplation of the Convention. The first consisted of the Northwestern Territory, in which the title to the soil and the political jurisdiction were already vested in the United States. The second embraced the case of Vermont, which was then exercising an independent jurisdiction adversely to the State of New York, and the case of Kentucky, then a district under the jurisdiction of Virginia; in both of which the United States neither claimed nor sought to acquire either the title to the vacant lands or the rights of political sovereignty, but which would both require to be received as new and separate States, the former without the consent of New York, the latter with the consent of Virginia. The third class comprehended the cessions which the United States in Congress were then endeavoring to obtain from the States of North Carolina, South Carolina, and Georgia, and in which were afterwards established the States of Tennessee, Mississippi, and Alabama.[293] These cessions, as it then appeared, might or might not all be made. If made, the title of the United States to the unoccupied lands would be complete, resting both upon the cessions and upon the treaty of peace with England; and the political jurisdiction over the existing settlements, as well as over the whole territory, would be transferred with the cessions, subject to any conditions which the ceding States might annex to their grants. If the cessions should not be made, the claims of the United States to the unoccupied lands would stand upon the treaty of peace, and would require to be saved by some clause in the Constitution which should signify that they were not surrendered; while the claims of the respective States would require to be protected in like manner.

The reader will now be prepared to understand the following explanation of the third section of the fourth article of the Constitution. First, with reference to the Northwestern Territory, the soil and jurisdiction of which was already completely vested in the United States, it was necessary that the Constitution should confer upon Congress power to exercise the political jurisdiction of the United States, power to dispose of the soil, and power to admit new States that might be formed there into the Union. Secondly, with reference to such cases as that of Vermont, it was necessary that there should be a power to admit new States into the Union without requiring the assent of any other State, when such new States were not formed within the actual jurisdiction of any other State. Thirdly, with reference to such cases as that of Kentucky, which would be formed within the actual jurisdiction of another State, it was necessary that the power to admit should be qualified by the condition of the consent of that State. Fourthly, with reference to such cessions as were expected to be made by North Carolina, South Carolina, and Georgia, it was necessary to provide the power of political government, the power to admit into the Union, and the power to dispose of the soil, if the cessions should be made; and at the same time to save the claims of the United States and of the respective States as they then stood, if the cessions anticipated should not be made. None of these cases, however, were specifically mentioned in the Constitution, but general provisions were made, which were adapted to meet the several aspects of these cases. From the generality of these provisions, it is held by some that the clause which relates to "the territory or other property of the United States," was intended to be applied to all cessions of territory that might ever be made to the United States, as well as to those which had been made, or which were then specially anticipated; while others give to the clause a much narrower application.[294]

There now remain to be considered the restraints imposed upon the exercise of the powers of Congress, both within the States and in all other places; both where the authority of the United States is limited to certain special objects, and where it is unlimited and universal, excepting so far as it is narrowed by these constitutional restraints. Some of them I have already described, in tracing the manner in which they were introduced into the Constitution. We have seen how far the commercial and revenue powers became limited in respect to the slave-trade, to taxes on exports, to preferences between the ports of different States, and to the levying of capitation or other direct taxes. These restrictions were applicable to these special powers. But others were introduced, which apply to the exercise of all the powers of Congress, and are in the nature of limitations upon its general authority as a government.

One of these is embraced in the provision, "that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."[295] The common law of England, which recognizes the right to the writ of habeas corpus for the purpose of delivery from illegal imprisonment or restraint, was the law of each of the American States; and it appears from the proceedings of the Convention to have been the purpose of this provision to recognize this right, in the relations of the people of the States to the general government, and to secure and regulate it. The choice lay between a declaration of the existence of the right, making it inviolable and absolute, under all circumstances, and a recognition of its existence by a provision which would admit of its being suspended in certain emergencies. The latter course was adopted, although three of the States recorded their votes against the exception of cases of rebellion or invasion.[296]

The prohibition upon Congress to pass bills of attainder, or _ex post facto_ laws, came into the Constitution at a late period, and while the first draft of it was under consideration. Bills of attainder, in the jurisprudence of the common law, are acts of legislation inflicting punishment without a judicial trial. The proposal to prohibit them was received in the Convention with unanimous assent. With regard to the other class of legislative acts, described as "_ex post facto_ laws," there was some difference of opinion, in consequence probably of different views of the extent of the term. In the common law, this expression included only, then and since, laws which punish as crimes acts which were not punishable as crimes when they were committed. Laws of a civil nature, retrospective in their operation upon the civil rights and relations of parties, were not embraced by this term, according to the definition of English jurists. But it is manifest from what was said by different members, that, at the time when the vote was taken which introduced this clause into the Constitution, the expression "_ex post facto_ laws" was taken in its widest sense, embracing all laws retrospective in their operation. It was objected, therefore, that the prohibition was unnecessary, since, upon the first principles of legislation, such laws are void of themselves, without any constitutional declaration that they are so. But experience had proved that, whatever might be the principles of civilians respecting such laws, the State legislatures had passed them, and they had been acted on. A large majority of the Convention determined, therefore, to place this restraint upon the national legislature, and at the time of the vote I think it evident that all retrospective laws, civil as well as criminal, were understood to be included.[297] But when the same restraint came afterwards to be imposed upon the State legislatures, the attention of the assembly was drawn to the distinction between criminal laws and laws relating to civil interests. In order to reach and control retrospective laws operating upon the civil rights of parties, when passed by a State, a special description was employed to designate them, as "laws impairing the obligation of contracts," and the term "_ex post facto_ laws" was thus confined to laws creating and punishing criminal offences after the acts had been committed.[298] What is now the settled construction of this term, therefore, is in accordance with the sense in which it was finally intended to be used by the framers of the Constitution before the instrument passed from their hands.

The committee of detail had reported in their draft of the Constitution a clause which restrained the United States from granting any title of nobility. The Convention, for the purpose of preserving all officers of the United States independent of external influence, added to this a provision that no person holding an office of profit or trust under the United States shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.[299]

In addition to the special powers conferred by the Constitution upon the national government, it has imposed certain restraints on the political power of the States, which qualify and diminish what would otherwise be the unlimited sovereignty of each of them. These restraints are of two classes;--a part of them being designed to remove all obstructions that might be placed by State legislation or action in the way of the appropriate exercise of the powers vested in the United States, and a part of them being intended to assimilate the nature of the State governments to that of the Union, by the application of certain maxims or rules of public policy. These restraints may now be briefly examined, with reference to this classification.

The idea of imposing special restrictions upon the power of the separate States was not expressly embraced in the plan of government described by the resolutions on which the committee of detail were instructed to prepare the instrument of government. Such restrictions, however, were not unknown to the previous theory of the Union. They existed in the Articles of Confederation, where they had been introduced with the same general purpose of withdrawing from the action of the States those objects, which, by the stipulations of that instrument, had been committed to the authority of the United States in Congress. But the inefficacy of those provisions lay in the fact, that they were the mere provisions of a theory. The step now proposed to be taken was to superadd to the prohibitions themselves the principle of their supremacy as matters of fundamental law, and to enable the national judiciary to make that supremacy effectual.

Almost all the restraints imposed by the Articles of Confederation upon the States could be removed or relaxed by the consent of the Congress to the doing of what was otherwise prohibited. In the first draught of the Constitution, the committee of detail inserted four absolute prohibitions, which could not be removed by Congress itself. These related to the coining of money, the granting of letters of marque and reprisal, the making of treaties, alliances, and confederations, and the granting of titles of nobility. All the other restraints on the States were to be operative or inoperative, according to the pleasure of Congress.[300] Among these were included bills of credit; laws making other things than specie a tender in payment of debts; the laying of imposts or duties on imports; the keeping of troops or ships of war in time of peace; the entering into agreements or compacts with other States, or with foreign powers; and the engaging in war, when not invaded, or in danger of invasion before Congress could be consulted. The enactment of attainder and _ex post facto_ laws, and of laws impairing the obligation of contracts, was not prohibited at all.

But when these various subjects came to be regarded more closely, it was perceived that the list of absolute prohibitions must be considerably enlarged. Thus the power of emitting bills of credit, which had been the fruitful source of great evils, must either be taken away entirely, or the contest between the friends and the opponents of paper money would be transferred from the State legislatures to Congress, if Congress should be authorized to sanction the exercise of the power. Fears were entertained that an absolute prohibition of paper money would excite the strenuous opposition of its partisans against the Constitution; but it was thought best to take this opportunity to crush it entirely; and accordingly the votes of all the States but two were given to a proposition to prohibit absolutely the issuing of bills of credit.[301] To the same class of legislation belonged the whole of that system of laws by which the States had made a tender of certain other things than coin legal satisfaction of a debt. By placing this class of laws under the ban of a strict prohibition, not to be removed by the consent of Congress in any case, the mischiefs of which they had been a fruitful source would be at once extinguished. This was accordingly done, by unanimous consent.[302]

At this point, the kindred topic of the obligation of contracts presented itself to the mind of Rufus King, suggested doubtless by a provision in the Ordinance then recently passed by Congress for the government of the Northwestern Territory.[303] The idea of a special restraint on legislative power, for the purpose of rendering inviolate the obligation of contracts, appears to have originated with Nathan Dane, the author of that Ordinance. It was not embraced in the resolve of 1784, reported by Mr. Jefferson, which contained the first scheme adopted by Congress for the establishment of new States in the Northwestern Territory; and it first appears in our national legislation in the Ordinance of 1787. Its transfer thence into the Constitution of the United States was a measure of obvious expediency, and indeed of clear necessity. In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of assumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American constitutional law, but which, like many features of our institutions, grew out of previous abuses.

In the old States of the Confederacy, from the time when they became self-governing communities, the power of a mere majority had been repeatedly exercised in legislation, without any regard to its effect on the civil rights and remedies of parties to existing contracts. The law of debtor and creditor was not only subjected to constant changes, but the nature of the change depended in many of the States upon the will of the debtor class, who formed the governing majority. So pressing were the evils thus engendered, that, when the framers of the Ordinance came to provide for the political existence of communities whose institutions they were to dictate, they determined to impose an effectual restraint on legislative power; and they accordingly provided, in terms much more stringent than were afterwards employed in the Constitution, that no law should have effect in the Territory which should in any manner whatever interfere with or affect private contracts or engagements previously made.[304]

The framers of the Constitution were not engaged in the same work of creating new political societies, but they were to provide for such surrenders by existing States of their present unquestioned legislative authority, as the dictates of sound policy and the evils of past experience seemed to require. When this subject was first brought forward in the Convention, the restriction was made to embrace all retrospective laws bearing upon contracts, which were supposed to be included in the term "_ex post facto_ laws." It being ascertained, however, that the latter phrase would not, in its usual acceptation, extend to civil cases, it became necessary to consider how such cases were to be provided for, and how far the prohibition should extend. The provision of the Ordinance was regarded as too sweeping; no legislature, it was said, ever did or can altogether avoid some retrospective action upon the civil relations of parties to existing contracts, and to require it would be extremely inconvenient. At length, a description was found, which embodied the extent to which the prohibition could with propriety be carried. The legislatures of the States were restrained from passing any "law impairing the obligation of contracts";--a provision that has been found amply sufficient, and attended with the most salutary consequences, under the interpretation that has been given to it.[305]

Bills of attainder and _ex post facto_ laws, which had not been included in the prohibitions on the States by the committee of detail, were added by the Convention to the list of positive restrictions, which was thus completed.

In the class of conditional prohibitions, or those acts which might be done by the States with the consent of Congress, the committee of detail had placed the laying of "imposts or duties on imports." To this the Convention added "exports," in order to make the restriction applicable both to commodities carried out of and those brought into a State. But this provision, as thus arranged, would obviously make the commercial system extremely complex and inconvenient. On the one hand, the power to lay duties on imports had been conferred upon the general government, for the purposes of revenue, and to leave the States at liberty, with the consent of Congress, to lay additional duties, would subject the same merchandise to separate taxation by two distinct governments. On the other hand, if the States should be deprived of all power to lay duties on exports, they would have no means of defraying the charges of inspecting their own productions. At the same time, it was apparent that, under the guise of inspection laws, if such laws were not to be subject to the revision of Congress, a State situated on the Atlantic, with convenient seaports, could lay heavy burdens upon the productions of other States that might be obliged to pass through those ports to foreign markets. Again, if the States should be deprived of all power to lay duties on imports, they could not encourage their own manufactures; and if allowed to encourage their own manufactures by such State legislation, it must operate not only upon imports from foreign countries, but upon imports from other States of the Union, which would revive all the evils that had flowed from the want of general commercial regulations. To prevent these various mischiefs, the Convention adopted three distinct safeguards. They provided, first, by an exception, that the States might, without the consent of Congress, lay such duties and imposts as "may be absolutely necessary for executing their inspection laws"; second, that the net produce of all duties and imposts laid by any State, whether with or without the consent of Congress, shall be for the use of the Treasury of the United States; third, that all such State laws, whether passed with or without the previous consent of Congress, shall be subject to the revision and control of Congress.[306] There is, therefore, a twofold remedy against any oppressive exercise of the State power to lay duties for purposes of inspection. The question whether the particular duties exceed what is absolutely necessary for the execution of an inspection law, may be made a judicial question; and in addition to this, the law imposing the inspection duty is at all times subject to the revision and control of Congress. Any tendency to lay duties or imposts for purposes of revenue or protection, is checked by the requirement that the net produce of all duties or imposts laid by any State on imports or exports shall be paid over to the United States, and such tendency may moreover be suppressed by Congress at any time, by the exercise of its power of revision and control.

In order to vest the supervision and control of the whole subject of navigation in Congress, it was further provided that no State, without the consent of Congress, shall lay any duty of tonnage. An exception, proposed by some of the Maryland and Virginia members, with a view to the situation of the Chesapeake Bay, illustrates the object of this provision. They desired that the States might not be restrained from laying duties of tonnage "for the purpose of clearing harbors and erecting light-houses." It was perhaps capable of being contended, that, as the regulation of commerce was already agreed to be vested in the general government, the States were restrained by that general provision from laying tonnage duties. The object of the special restriction was, to make this point entirely certain; and the object of the proposed exception was to divide the commercial power, and to give the States a concurrent authority to regulate tonnage for a particular purpose. But a majority of the States considered the regulation of tonnage an essential part of the regulation of trade. They adopted the suggestion of Mr. Madison, that the regulation of commerce was, in its nature, indivisible, and ought to be wholly under one authority. The exception was accordingly rejected.[307]

The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another State or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.[308]

FOOTNOTES:

[232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V. 378.

[233] August 18. Elliot, V. 440.

[234] A committee of one member from each State.

[235] Elliot, V. 441. To the same grand committee was afterwards referred the subject of the militia. See _infra_.

[236] August 21. Elliot, V. 451.

[237] August 22. Ibid. 462.

[238] See the proceedings which took place, August 22, 24, and 25. Elliot, V. 462, 463, 464, 471, 475-477.

[239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as being unnecessary, was disagreed to"; that is, unnecessary as a security of the _old debts_ of the United States.

[240] Ibid. 506, 507.

[241] Elliot, V. 478, 479.

[242] Constitution, Art. I. §9. See the proceedings which took place on the proposition of the Maryland delegates. Elliot, V. 478, 479, 483, 502, 545.

[243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1.

[244] Elliot, V. 439.

[245] Ibid. 506, 507.

[246] Ibid. 434. Journal, Elliot, I. 245.

[247] See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page.

[248] Constitution, Art. I. § 8, clause 9.

[249] Ibid., clause 11.

[250] Elliot, V. 436.

[251] That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land.

[252] Madison, Elliot, V. 436, 437.

[253] In the clause as it passed the Convention, the offence of _counterfeiting_ was placed with the other crimes which Congress was to "define" and "punish"; but, on the revision of the Constitution, counterfeiting was placed in a separate clause, under the term "to provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10.

[254] Elliot, V. 438, 439.

[255] Elliot, V. 440, 510, 511.

[256] Ibid. 442.

[257] Ibid. 443.

[258] Ibid. 440.

[259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12.

[260] Elliot, V. 443.

[261] Art. VII. § 1 of the first draft. Elliot, V. 379.

[262] Ibid. 440.

[263] Aug 18. Elliot, V. 445.

[264] Constitution, Art. I § 8, cl. 16.

[265] Art. I. § 8, cl. 15. Ibid. p. 467.

[266] Constitution, Art. I. § 8, cl. 18.

[267] Elliot, V. 447.

[268] See the statutes of Massachusetts and Connecticut, &c. cited in Curtis on Copyright, pp. 77, 78, 79.

[269] _Ante_, Chap. IX.

[270] Elliot, V. 510, 511, 512.

[271] _Ante_, Vol. I. Book III. ch. 5, p. 291 _et seq._

[272] Resolve of October 10, 1780. Journals, VI. 325.

[273] Resolve of April 23, 1784. Journals, IX. 153.

[274] March 16, 1785. Journals, X. 79. See _ante_, Vol. I. p. 299.

[275] See the note on the authorship of the Ordinance of 1787, in the Appendix to this volume.

[276] _Ante_, Chap. IV. p. 77, note.

[277] See the proceedings concerning Kentucky, in 1788. Journals, XIII. 16, 32, 51, 52, 55.

[278] The Federalist, No. 38.

[279] The passage quoted from Mr. Jefferson, _ante_, p. 77, also shows that strong doubts were felt in Congress, in 1784, respecting their power to admit new States formed out of unoccupied territory. Indeed, the whole of the proceedings upon Mr. Jefferson's measure of April 23, 1784, show that the powers of Congress over the territory that had been acquired under the cession of Virginia were very variously regarded by the different delegates. See Journals, IX. 138-156. The State of South Carolina voted against the resolve on its final passage, and after it had been modified to meet some of the objections raised.

[280] I think we are to understand Mr. Madison's assertion in the Federalist,--that what had been done by Congress in relation to the Northwestern Territory was without constitutional authority,--to mean, that it had been done without the authority of any proper constitutional provision. Mr. Madison himself, being a member of Congress in 1783, voted for the acceptance of a report, by the adoption of which Congress settled the conditions on which the cession of Virginia was to be received by the United States. These conditions embraced the whole of the three fundamental points, that the territory should be held and disposed of for the common benefit of the United States, that it should be divided into States, and that those States should be admitted into the Union. So that Mr. Madison was a party to the arrangement by which Congress undertook to hold out these promises to the States. (Journals of Congress for September 13, 1783, VIII. 355-359.) But he was not a member of Congress in 1784, when Mr. Jefferson's measure was adopted; and although he was a member in 1787, when the Ordinance was adopted, he was at that time in attendance upon the national Convention, and consequently never voted upon the Ordinance. His participation in the proceedings of the Convention, by which the necessary power was created, shows his sense of its necessity.

[281] See especially the cession by Virginia, of March 1, 1784. Journals of Congress, IX. 67. Cession by Massachusetts, April 19, 1785. Journals, X. 128. Cession by Connecticut, September 13, 1786. Journals, XI. 221. Also the resolve of Congress passed, in anticipation of these cessions, October 10, 1780. Journals, VI. 325.

[282] Resolution 10. Madison, Elliot, V. 128.

[283] Art. XVII. of the draft prepared by the committee of detail. Elliot, V. 381.

[284] August 18. Elliot, Vol. V. p. 439.

[285] August 29. Elliot, V. 492-497.

[286] Ibid. 492, 493.

[287] Ibid. 493.

[288] See the vote on a proposition moved by Mr. Carroll for a recommitment for the purpose of asserting in the Constitution the right of the United States to the lands ceded by Great Britain in the treaty of peace. New Jersey, Delaware, and Maryland alone voted for the recommitment. Elliot, V. 493, 494.

[289] Elliot, V. 495.

[290] Ibid. 496. New Jersey, Delaware, and Maryland, _ay_.

[291] When the Constitution was finally revised, the word "hereafter" was left out of the first clause of the third section of article fourth, apparently because the phraseology of the clause was sufficient, without it, to save the case of Vermont, which was regarded as not being within the "_jurisdiction_," although it was within the asserted _limits_, of the State of New York.

[292] Elliot, V. 496, 497.

[293] The cession by South Carolina of all its "right, title, interest, jurisdiction, and claim" to the "territory or tract of country" lying, within certain northern and southern limits, between the western boundary of that State and the river Mississippi, was in fact made and accepted in Congress, August 9-10, 1787, twenty days before the territorial clause was finally settled in the Convention, which took place August 30. (Journals of the Old Congress, XII. 129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the same year, the Congress passed a resolution urging the States of North Carolina and Georgia to cede their Western claims. This request was not complied with until after the Constitution had gone into operation. The cession of North Carolina was made February 25, 1790; that of Georgia, April 24, 1802.

[294] It is not my purpose to enter into the argument on this question. I have recently had occasion professionally to maintain that the territorial clause is applicable to all territorial cessions made to the United States, whether by States of the Union or by foreign States, and that it clothes the government with a full legislative power over such territories and their inhabitants, which is subject only to the particular restrictions enumerated in the Constitution. Perhaps it is needless for me to add that I entertain this opinion. But it is rejected by others, and, in the present state of judicial interpretation of this part of the Constitution, by the supreme tribunal, it is not easy to determine what will finally become the settled construction.

[295] Constitution, Art. I. § 9, cl. 2.

[296] See Elliot, V. 484. The three States were North Carolina, South Carolina, and Georgia.

[297] Elliot, V. 462, 463.

[298] Elliot, V. 488.

[299] Ibid. 467. Constitution, Art. I. § 9, cl. 8.

[300] Articles XII., XIII. of the first draft, Elliot, V. 381.

[301] Elliot, V. 484, 485.

[302] Elliot, V. 484, 485.

[303] The Ordinance, which was passed July 13, was published at length in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on the 25th of July (1787). Mr. King's motion was made August 28, and is described by Mr. Madison as a motion "to add, in the words used in the Ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts." Elliot, V. 485.

[304] See the clause of the Ordinance, cited _ante_, Vol. I. p. 452, note 2.

[305] Elliot, V. 485, 488, 545, 546.

[306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

[307] By a vote of six States against four. Elliot, V. 548.

[308] Elliot, V. 548.