Prohibitions on the United States§ 1325.§ 1326.§ 1327.§ 1328.§ 1329.§ 1330.§ 1331.§ 1332.§ 1333.§ 1334.§ 1335.§ 1336.§ 1337.§ 1338.§ 1339.§ 1340.§ 1341.§ 1342.§ 1343.§ 1344.§ 1345.§ 1346.
FOOTNOTES
1. Those, which respect taxation, and the regulation of commerce, have been considered under former heads; to which the learned reader is referred. Ante, Vol. II, ch. 14, 15.
2. Journ. of Convention, p. 222, 275, 276, 285, 291, 292, 358, 378; 2 Pitk. Hist. ch. 20, p. 261, 262. — It is well known, as an historical fact, that South-Carolina and Georgia insisted upon this limitation, as a condition of the Union. See 2 Elliot's Deb. 335, 336, 3 Elliot's Deb. 97.
3. See 2 Elliot's Debates, 335; 1 Secret Journal of Congress, 378, 379.
4. See 3 Elliot's Debates, 98, 250, 251; 3 Elliot's Debates, 335 to 338. — In the original draft of the Declaration of Independence by Mr. Jefferson there is a very strong paragraph on this subject, in which the slave-trade is denounced, "as a piratical warfare, the opprobrium of infidel powers, and the warfare of the Christian king of Great Britain, determined to keep open a market, where men should be bought and sold;" and it is added, that "he has prostituted his negative for suppressing every legislative attempt to prohibit, or restrain this execrable commerce." 1 Jefferson's Corresp. 146, in the fac simile of the original.
5. The Federalist, No. 42.
6. Ibid.
7. The Federalist, No. 42; 2 Elliot's Debates, 335, 336; 3 Elliot's Debates, 250, 251.
8. 2 Elliot's Debates, 335, 336; 1 Lloyd's Deb. 305 to 313; 3 Elliot's Debates, 97; Id. 250, 251; 1 Elliot's Debates, 60; 1 Tuck. Black. Comm. App. 290.
9. Act of 1820, ch. 113.
10. See 1 Kent's Comm. Lect. 9, p. 179 to 187.
11.Gibbons v. Ogden, 9 Wheat. R. 1, 216, 217; Id. 206, 207.
12. 3 Black. Comm. 131.
13. 2 Kent. Comm. Lect. 24, p. 22, etc. (2 edit. p. 26 to 32.)
14. 1 Black. Comm. 136.
15. 4 Black. Comm. 259.
16. 4 Inst. 290; 1 Kent's Comm. Lect. 94, p. 22, (p. 26 to 32;) 3 Black. Comm. 133.
17. 3 Black. Comm. 135, 136; 2 Kent's Comm. Lect. 24, p. 22, 23, (2d edit. p. 26 to 32.)
18. 2 Kent's Comm. Lect. 24, p. 23, 24, (2d edit. p. 26 to 32.)
19.Ex parte Bollman, etc. 4 Cranch, 75; S. C. 2 Peters's Cond. R. 33.
20. 3 Black. Comm. 137, 138; 1 Tuck. Black. Comm. App. 291, 292.
21. Mr. Jefferson expressed a decided objection against the power to suspend the writ of habeas corpus in any case whatever, declaring himself in favour of "the eternal and unremitting force of the habeas corpus laws." 2 Jefferson's Corresp. 274, 291. — "Why," said he on another occasion, "suspend the writ of habeas corpus in insurrections and rebellions?" — "If the public safety requires, that the government should have a man imprisoned on less probable testimony in those, than in other emergencies, let him be taken and tried,retaken and retried, while the necessity continues, only giving him redress against the government for damages." 2 Jefferson's Corresp. 344. — Yet the only attempt ever made in congress to suspend the writ of habeas corpus was during his administration on occasion of the supposed treasonable conspiracy of Col. Aaron Burr. Mr. Jefferson sent a message to congress on the subject of that conspiracy on 22d January, 1807. On the next day, Mr. Giles of the senate moved a committee to consider the expediency of suspending the writ of habeas corpus be appointed, and the motion prevailed. The committee (Mr. Giles, chairman) reported a bill for this purpose. The bill passed the senate, and was rejected in the house of representatives by a vote of 113 for the rejection, against 19 in its favour. See 3 Senate Journal, 22d January, 1807, p. 127; Id. 130, 131. 5 Journ. of House of Representatives, 26th January, 1807, p. 550, 551, 552.
22.Martin v. Mott, 12 Wheat. R. 19. See also 1 Tuck. Black. Comm. App. 292; 1 Kent's Comm. Lect. 12, (2d edit. p. 262 to 265.)
23. 2 Woodeson's Law Lect. 625.
24.Fletcher v. Peck, 6 Cranch, R. 138; S.C. 2 Peters's Cond. R. 322; 1 Kent's Comm. Lect. 19, p. 382.
25. 4 Coke. Inst. 36, 37.
26. 2 Woodeson's Lect. 623, 624.
27. 2 Woodeson's Lect. 624.
28. Dr. Paley has strongly shown his disapprobation of laws of this sort. I quote from him a short but pregnant passage. "this fundamental rule of civil jurisprudence is violated in the case of acts of attainder or confiscation, in bills of pains and penalties, and in all ex post facto laws whatever, in which parliament exercises the double office of legislature and judge. And whoever either understands the value of the rule itself, or collects the history of those instances, in which it has been invaded, will be induced, I believe, to acknowledge, that it had been wiser and safer never to have departed from it. He will confess, at least, that nothing but the most manifest and immediate peril of the commonwealth will justify a repetition of these dangerous examples. If the laws in being do not punish an offender, let him go unpunished; let the legislature, admonished of the defect of the laws, provide against the commission or future crimes of the same sort. The escape of one delinquent can never produce so much harm to the community, as may arise from the infraction of a rule, upon which the purity of public justice, and the existence of civil liberty, essentially depend."
29. See 1 Tucker's Black. Comm. App. 292, 293; Rawle on Const. ch. 10, p. 119. See Cooper v. Telfair, 4 Dall. R. 14. — Mr. Woodsson, in his Law Lectures, (Lect. 41,) has devoted a whole lecture to this subject, which is full of instruction, and will reward the diligent perusal of the student. 2 Woodeson's Law Lect. 621. — During the American revolution this power was used with a meet unsparing hand; and it has been a matter of regret in succeeding times, however much it may have been applauded flagrante bello.
30. Mr. Justice Johnson's Opinion in Satterlee v. Mathewson, 2 Peters's R. 416, and note, id. App. 681, etc.; 2 Elliot's Debates, 353; 4 Wheat. R. 578, note;Ogden v. Saunders, 12 Wheat. R. 286.
31. See Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 138; S. C. 1 Peters's Cond. R. 172; 2 Peters's Cond. R. 308; The Federalist, No. 44, 84; Journ. of Convention, Supp. p. 431; 2 Amer. Mus. 536; 2 Elliot's Debates, 343, 352, 354; Ogden v. Saunders, 12 Wheat. R. 266, 303, 329, 330, 335; 1 Kent. Comm. Lect. 19, p. 381, 382.
32.Fletcher v. Peck, 6 Cranch, 138; S. C. 2 Peters's Cond. R. 322.
33. Ibid.
34. Rawle on Constitution, ch. 10, p. 119; 1 Tuck. Black. Comm. App. 293; 1 Kent. Comm. Lect. 19, p. 381, 382; Sergeant on Constitution, ch. 28 [ch. 30]; Calder v. Bull, 3 Dall. R. 386.
35. Journal of Convention. 219, 328, 345, 358, 378.
36. 1 Tuck. Black. Comm. App. 362 to 364.
37. The Federalist, No. 84.
38. 1 Tuck. Black. Comm. App. 295, 296; Rawle on Constitution, ch. 10, p. 119, 120.
39. Rawle on Constitution, ch. p. 10, 120.
