1

possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure. The power to control, and direct the appropriations, constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. In arbitrary governments the prince levies what money he pleases from his subjects, disposes of it, as he thinks proper, and is beyond responsibility or reproof. It is wise to interpose, in a republic, every restraint, by which the public treasure, the common fund of all, should be applied, with unshrinking honesty to such objects, as legitimately belong to the common defence, and the general welfare. Congress is made the guardian of this treasure; and to make their responsibility complete and perfect, a regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.

§ 1343. A learned commentator has, however, thought, that the provision, though generally excellent, is defective in not having enabled the creditors of the government, and other persons having vested claims against it, to recover, and to be paid the amount judicially ascertained to be due to them out of the public treasury, without any appropriation. Perhaps it is

a defect. And yet it is by no means certain, that evils of an opposite nature might not arise, if the debts, judicially ascertained to be due to an individual by a regular judgment, were to be paid, of course, out of the public treasury. It might give an opportunity for collusion and corruption in the management of suits between the claimant, and the officers of the

1 1 Tuck. Black. Comm. App. 362 to 364.

government, entrusted with the performance of this duty. Undoubtedly, when a judgment has been fairly obtained, by which a debt against the government is clearly made out, it becomes the duty of congress to provide for its payment; and, generally, though certainly with a tardiness, which has become, in some sort, a national reproach, this duty is discharged by congress in a spirit of just liberality. But still, the known fact, that the subject must pass in review before congress, induces a caution and integrity in making and substantiating claims, which would in a great measure be done away, if the claim were subject to no restraint, and no revision.

§ 1344. The next clause is, "No title of nobility shall "be granted by the United States; and no person hold"ing any office of profit or trust under them shall, with❝out the consent of the congress, accept of any present, "emolument, office, or title of any kind whatever, from any king, prince, or foreign state.

§1345. This clause seems scarcely to require even a passing notice. As a perfect equality is the basis of all our institutions, state and national, the prohibition against the creation of any titles of nobility seems proper, if not indispensable, to keep perpetually alive a just sense of this important truth. Distinctions between citizens, in regard to rank, would soon lay the foundation of odious claims and privileges, and silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government.1

§ 1346. The other clause, as to the acceptance of any emoluments, title, or office, from foreign govern

1 The Federalist, No. 84.

ments, is founded in a just jealousy of foreign influence of every sort. Whether, in a practical sense, it can produce much effect, has been thought doubtful. A patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions. Still, however, the provision is highly important, as it puts it out of the power of any officer of the government to wear borrowed honours, which shall enhance his supposed importance abroad by a titular dignity at home. It is singular, that there should not have been, for the same object, a general prohibition against any citizen whatever, whether in private or public life, accepting any foreign title of nobility. An amendment for this purpose has been recommended by congress; but, as yet, it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary.

1 1 Tuck. Black. Comm. App. 295, 296; Rawle on Constitution, ch. 10, p. 119, 120.

2 Rawle on Constitution, ch. p. 10, 120.

CHAPTER XXXIII.

PROHIBITIONS ON THE STATES.

§ 1347. THE tenth section of the first article (to which we are now to proceed) contains the prohibitions and restrictions upon the authority of the states. Some of these, and especially those, which regard the power of taxation, and the regulation of commerce, have already passed under consideration; and will, therefore, be here omitted. The others will be examined in the order of the text of the constitution.

§ 1348. The first clause is, "No state shall enter "into any treaty, alliance, or confederation; grant "letters of marque or reprisal; coin money; emit bills "of credit; make any thing but gold and silver coin a "tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of "contracts, or grant any title of nobility." 1

§ 1349. The prohibition against treaties, alliances, and confederations, constituted a part of the articles of confederation, and was from thence transferred in substance into the constitution. The sound policy,

2

1 In the original draft of the constitution, some of these prohibitory clauses were not inserted; and, particularly, the last clause, prohibiting a state to pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. The former part was inserted by a vote of seven states against three. The latter was inserted in the revised draft of the constitution, and adopted at the close of the convention, whether with, or without opposition, does not appear.* It was probably suggested by the clause in the ordinance of 1787, (Art. 2,) which declared, "that no law ought to be made, &c., that shall interfere with, or affect private contracts, or engagements, bona fide, and without fraud, previously formed."

2 Art. 6.

VOL. III.

* Journal of Convention, p. 227, 302, 359, 377, 3

28

379.

nay, the necessity of it, for the preservation of any national government, is so obvious, as to strike the most careless mind. If every state were at liberty to enter into any treaties, alliances, or confederacies, with any foreign state, it would become utterly subversive of the power confided to the national government on the same subject. Engagements might be entered into by different states, utterly hostile to the interests of neighbouring or distant states; and thus the internal peace and harmony of the Union might be destroyed, or put in jeopardy. A foundation might thus be laid for preferences, and retaliatory systems, which would render the power of taxation, and the regulation of commerce, by the national government, utterly futile. Besides; the intimate dangers to the Union ought not to be overlooked, by thus nourishing within its own bosom a perpetual source of foreign corrupt influence, which, in times of political excitement and war, might be wielded to the destruction of the independence of the country. This, indeed, was deemed, by the authors of the Federalist, too clear to require any illustration. The corresponding clauses in the confederation were still more strong, direct, and exact, in their language and import.

§ 1350. The prohibition to grant letters of marque and reprisal stands upon the same general ground; for otherwise it would be in the power of a single state to involve the whole Union in war at its pleasure. It is true, that the granting of letters of marque and reprisal is not always a preliminary to war, or necessarily designed to provoke it. But in its essence, it is a hostile measure for unredressed grievances, real or supposed;

1 The Federalist, No. 44.