manence (may it ripen into a perpetuity!) of the Union.

§ 670. As there are incidental powers belonging to the United States in their sovereign capacity, so there are incidental rights, obligations, and duties. It may be asked, how these are to be ascertained. In the first place, as to duties and obligations of a public nature, they are to be ascertained by the law of nations, to which, on asserting our independence, we necessarily became subject. In regard to municipal rights and obligations, whatever differences of opinion may arise in regard to the extent, to which the common law attaches to the national government, no one can doubt, that it must, and ought to be resorted to, in order to ascertain many of its rights and obligations. Thus, when a contract is entered into by the United States, we naturally and necessarily resort to the common law, to interpret its terms, and ascertain its obligations. The same general rights, duties, and limitations, which the common law attaches to contracts of a similar character between private individuals, are applied to the contracts of the government. Thus, if the United States become the holder of a bill of exchange, they are bound to the same diligence, as to giving notice, in order to charge an indorser, upon the dishonour of the bill, as a private holder would be. In like manner, when a bond is entered into by a surety for the faithful discharge of the duties of an office by his principal, the nature and extent of the obligation, created by the instrument, are constantly ascertained by reference to the common law; though the bond is given to the government in its sovereign capacity.

CHAPTER XXXII.

PROHIBITIONS ON THE UNITED STATES.

§ 671. HAVING finished this review of the powers of congress, the order of the subject next conducts us to the prohibitions and limitations upon these powers,

which are contained in the ninth section of the first article. Some of these have already been under discussion, and therefore will be pretermitted.

§ 672. The first clause is as follows: "The mi"gration, or importation of such persons, as any of the "states now existing shall think proper to admit, shall "not be prohibited by the congress, prior to the year "one thousand eight hundred and eight; but a tax, "or duty, may be imposed on such importation, not "exceeding ten dollars for each person."

§ 673. It is to the honour of America, that she should have set the first example of interdicting and abolishing the slave-trade, in modern times. It is well known, that it constituted a grievance, of which some of the colonies complained before the revolution, that the introduction of slaves was encouraged by the crown, and that prohibitory laws were negatived. It was doubtless to have been wished, that the power of prohibiting the importation of slaves had been allowed to be put into immediate operation, and had not been postponed for twenty years. But it is not difficult to account, either for this restriction, or for the manner, in which it is expressed. It ought to be considered, as a great point gained in favour of humanity, that a period of twenty years might forever terminate, within the

United States, a traffic, which had so long, and so loudly upbraided the barbarism of modern policy. Even within this period, it might receive a very considerable discouragement, by curtailing the traffic between foreign countries; and it might even be totally abolished by the concurrence of a few states. "Happy," (it was then added by the Federalist,) "would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren." Let it be remembered, that at this period this horrible traffic was carried on with the encouragement and support of every civilized nation of Europe; and by none with more eagerness and enterprize, than by the parent country. America stood forth alone, uncheered and unaided, in stamping ignominy upon this traffic on the very face of her constitution of government, although there were strong temptations of interest to draw her aside from the performance of this great moral duty.

§ 674. The next clause is, "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."

§ 675. In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus. At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and

detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court, awarding such writ, shall consider in that behalf. It is, therefore, justly esteemed the great bulwark of personal liberty; since it is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement; and if no sufficient ground of detention appears, the party is entitled to his immediate discharge. This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected.

§ 676. It is obvious, that cases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of the right to this writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons, apprehended upon suspicion, have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it; a very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by congress since the establishment of the constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body.

677. The next clause is, "No bill of attainder or "ex post facto law shall be passed."

§ 678. Bills of attainder, as they are technically called, are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. But in the sense of the constitution, it seems, that bills of attainder include bills of pains and penalties; for the Supreme Court have said, "A bill of attainder may affect the life of an individual, or may confiscate his property, or both." In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may properly be deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions. Such acts have been often resorted to in foreign governments, as a common engine of state; and even in England they have been pushed to the most extravagant extent in bad times, reaching, as well to the absent and the dead, as to the living. Sir Edward Coke has mentioned it to be among the transcendent powers of parliament, that an act may be passed to attaint a man, after he is dead. And the reigning monarch, who was slain at Bosworth, is said to have been attainted by an act of parliament