regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States. But the state courts and judges possess the right of determining on the legality of imprisonment under either authority.*

No bill of attainder, nor ex post facto law shall be passed.

Bills of attainder are those by which a person without a judicial trial, is declared by the legislature to be guilty of some particular crime. The definition itself shows the atrocity of the act. Such laws are never passed but in times of wild commotion or arbitrary misrule.

Ex post facto laws are often supposed to signify all laws having a retrospective operation, but the technical meaning of them is more confined. An ex post facto law is when an action is declared to be a crime, which at the time it was done was innocent, or when it aggravates a crime, and declares it to be greater than it was when committed, or when it increases the punishment, or directs that different or less evidence shall be sufficient to convict the offender; but if it softens the rigour of the ancient law, it is not within the prohibition. The Constitution does not prevent congress from passing retrospective laws in civil cases. Why this was omitted when the states in the same instrument are restrained from passing laws impairing the obligations of contracts, will be hereafter explained.

No title of nobility shall be granted by the United States, or by any individual state. Of this there could have been but little danger. The independent spirit of republicans leads them to contemn the vanity of hereditary distinctions, but the residue of the clause is more important. No person holding any office of trust or profit under the United States shall, without the

* See among other instances, the case of Commonwealth v. Smith, before Chief Justice Tilghman, 1809.

† 3 Dallas, 386. Calder v. Bull.

consent of congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign

state.

There cannot be too much jealousy in respect to foreign influence. The treasures of Persia were successfully distributed in Athens; and it is now known that in England a profligate prince and many of his venal courtiers were bribed into measures injurious to the nation by the gold of Louis XIV.*

A salutary amendment, extending the prohibition to all citizens of the United States, and disfranchising those who infringe it, has been adopted by some of the states; but not yet by a sufficient number. The clause in the text is defective in not providing a specific penalty for a breach of it. Disfranchisement, or a deprivation of all the rights of a citizen, seems the most appropriate punishment that could be applied, since it renders the seduction useless to those who were the authors of it, and disgraceful to the person seduced.

Of the amendments already adopted, (for which see the appendix,) the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power.

The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all.

Each state is obliged, while it remains a member of the Union, to preserve the republican form of government in all its strength and purity. The people of each state, by the amended constitution, pledge themselves to each other for the

* See Dalrymple's Memoirs, vol. 2, Mazure's late History of the Revolution of 1688, &c.

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sacred preservation of certain detailed principles, without which the republican form would be impure and weak.

They will now be viewed in succession.

The first amendment prohibits congress from passing any law respecting an establishment of religion, or preventing the free exercise of it. It would be difficult to conceive on what possible construction of the Constitution such a power could ever be claimed by congress. The time has long passed by when enlightened men in this country entertained the opinion that the general welfare of a nation could be promoted by religious intolerance, and under no other clause could a pretence for it be found. Individual states whose legislatures are not restrained by their own constitutions, have been occasionally found to make some distinctions; but when we advert to those parts of the Constitution of the United States, which so strongly enforce the equality of all our citizens, we may reasonably doubt whether the denial of the smallest civic right under this pretence can be reconciled to it. In most of the governments of Europe, some one religious system enjoys a preference, enforced with more or less severity, according to circumstances. Opinions and modes of worship differing from those which form the established religion, are sometimes expressly forbidden, sometimes punished, and in the mildest cases, only tolerated without patronage or encouragement. Thus a human government interposes between the Creator and his creature, intercepts the devotion of the latter, or condescends to permit it only under political regulations. From injustice so gross, and impiety so manifest, multitudes sought an asylum in America, and hence she ought to be the hospitable and benign receiver of every variety of religious opinion. It is true, that in her early provincial stage, the equality of those rights does not seem to have been universally admitted. Those who claimed religious freedom for themselves, did not immediately perceive that others were also entitled to it; but

States. This power cannot be considered as infringing the rights and privileges of the states, since, however necessary, it cannot effectually be vested elsewhere, and since it is accompanied with an express reservation to them, of the appointment of the officers, and of the authority of training the militia, according to the discipline prescribed by congress. This subject will be hereafter resumed..

The last enumerated power is to exercise exclusive legislation in all cases whatever, over such district, not exceeding ten miles square, as may by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings,

A provision of this kind, is peculiar to the United States,* and the reasons in favour of it, are cogent.

If the general government held its sessions within the limits, and under the jurisdiction of a state, it would be dependant on that state for protection and safety. If it should happen, that at any time, unkind opinions, in respect to it, existed on the part of the state, or, if the state government were deficient in firmness and power, the general legislature might be subjected to insult and disgrace, in the midst of its most important functions. It would thus be dishonoured in the eyes of foreign powers, and pitied or despised at home. Nor is this an imaginary or improbable event. At the close of the

* In England, the Royal Palace, with an extent of twelve miles round it, has a peculiar jurisdiction in regard to some legal controversies; but any suits brought in the Marshalsea or Palace Courts, (as they are styled,) may be, and now generally are, removed at once to the King's Bench or Common Pleas. For all the purposes of legislation, there is no distinction between the "verge of the court," and the kingdom at large.

war of the revolution, the congress, then sitting at Philadelphia, was surrounded and insulted by a small, but insolent body of mutineers of the continental army. It applied to the executive authority of Pennsylvania for defence; but under the ill conceived constitution of the state at that time, the executive power was vested in a council, consisting of thirteen members; and they possessed or exhibited so little energy, and such apparent intimidation, that the congress indignantly removed to New Jersey, whose inhabitants welcomed it with promises of defending it. It remained for some time at Princeton, without being again insulted, till, for the sake of greater convenience, it adjourned to Annapolis. The general dissatisfaction with the proceedings of the executive authority of Pennsylvania, and the degrading spectacle of a fugitive congress, suggested the remedial provisions now under consideration.

It has been carried into effect, by the cession and acceptance of a tract of land on the river Potowmack, partly from the state of Virginia, and partly from the state of Maryland. The inhabitants generally were satisfied. But some consequences, that perhaps were not fully foreseen, have flowed from it. The inhabitants of the District of Columbia, are no longer in all respects citizens of a state, although they are unquestionably, to a certain extent, citizens of the United States. As such, they are entitled to the benefit of all commercial or political treaties with foreign powers, and to the protection of the Union at home. But they have no representatives in the senate; they cannot partake in the election of members of the house of representatives, or of electors of president and vice president. The judiciary power between citizens of different states, does not extend to them,* in which respect, they are more unfavourably situate than

* 2 Cranch, 452.