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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 thereof. · 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.
OF THE RESTRICTIONS ON THE POWERS OF CONGRESS
AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES-RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS.
:: The restrictions on the powers of congress contained in the original text are few. The general principle on which it is constructed being declared and manifest throughout, it follows that to no purpose inconsistent with or extending beyond that principle, can its power of legislation be carried. Yet it was expedient in some instances to introduce positive exceptions; in some, to qualify powers enumerated or implied, and in others to secure by explicit declarations both the republican foundation and the equality of the states in all points within the sphere of the general government.
The first class of these restrictions relates to commerce.
No tax or duty shall be laid on articles exported from any state.
It has been repeatedly observed, that the leading principle of the whole Constitution is uniformity in respect to the several states, as far as it can be obtained. The natural or artificial products of states are different to lay a general duty on the exports of rice or cotton, or tobacco, would affect only the southern states; on flour or grain, principally
the central states, and on the domestic manufactures would operate chiefly on the northern and eastern states engaged in them yet without this restriction perhaps it might have been done.
A restriction both as to exports and imports is subsequently extended to the states themselves, except what may be absolutely necessary to execute their own inspection laws; and, to prevent evasion under colour of only securing the right of inspection, it is provided that the 'net produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the United States, and that all such laws shall be subject to the revision and control of congress.
On the same principle it is provided in general terms, that no preference shall be given by any regulations of commerce or revenue to the ports of one state-over those of another, nor shall vessels bound from one state be obliged to enter, clear, or pay duties in another. A vessel bound to or from Philadelphia, shall not be obliged to enter or pay duties in the state of Delaware or New Jersey. It is not however probable that congress, although unrestrained, would make such regulations.
These are all the restrictions immediately relating to commerce, but one of some importance was omitted. The danger of introducing contagious diseases, has suggested to commercial countries the propriety of interposing the utmost care in regard to the admission of vessels from suspected places. In the Mediterranean, where on account of the frequency of the plague, the practice began, it was required that such vessels should ride at anchor forty days without intercourse with the shore. Hence the term quarantine has been introduced, although the limitation of time is varied according to circumstances. The state or port at which the vessel immediately arrives, being the first in danger, has the greatest interest in
taking proper precautions according to its situations and means of enforcing them. But the utility of such precautions escaped notice in framing the Constitution ; and congress, with a fair construction of its implied powers, has made suitable provisions to enable the states to protect the health of their inhabitants, although by so doing, they may, in some degree, be considered as partaking of the power to regulate commerce.
An important clause with which this section commences, is partly of a commercial, and partly of a political and moral kind. It was foreseen, that the general power to regulate commerce would include a traffic now justly reprobated by most Christian nations, but some interests and opinions were to be respected, and while the power to abolish the slave trade entirely was indirectly conceded, the exercise of it till the year 1808, otherwise than by laying a tax or duty of ten dollars on each person imported, was prohibited. Congress did not fail to avail itself of the power, as soon as it became lawful to execute it.
The restrictions in regard to taxation and public moneys have already been mentioned.
Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction. It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors. After erecting the distinct government which we are considering, and after declaring what should constitute the supreme law in every state in the Union, fearful minds might entertain jealousies of this great and all-controlling power, if some protection against its energies when misdirected, was not provided by itself.
The national code in which the writ of habeas corpus was
originally found, is not expressly or directly incorporated into the Constitution.
If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief. But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress. The Constitution seems to have secured this benefit to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not be suspended unless when, in case of rebellion or invasion, the publie safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which, ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their