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.1 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 government intrusted 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.

§ 1350. The next clause is, "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state."

§ 1351. 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.2

§ 1352. The other clause, as to the acceptance of any emoluments, title, or office, from foreign governments, is founded in a

1 1 Tuck. Black. Comm. App. 362 to 364. [Claims against the United States and counter claims are now adjudicated by a Court of Claims, originating from the act of Feb. 24, 1855. An appeal to the Supreme Court is given in certain cases]. 2 The Federalist, No. 84.

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 honors, which shall enhance his supposed importance abroad by a titular dignity at home.1 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.2

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

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

CHAPTER XXXIII.

PROHIBITIONS ON THE STATES.

§ 1353. 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.

§ 1354. 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

§ 1355. The prohibition against treaties, alliances, and confederations, constituted a part of the articles of confederation,2 and was from thence transferred in substance into the Constitution. The sound policy, 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 neighboring or

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. Journal of Convention, p. 227, 302, 359, 377, 379. It was probably suggested by the clause in the ordinance of 1787 (Art. 2.), which declared, "that no law ought to be made, etc. that shall interfere with or affect private contracts, or engagements, bona fide, and without fraud, previously formed."

2 Art. 6.

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.

§ 1356. 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; and therefore is most generally the precursor of an appeal to arms by general hostilities. The security (as has been justly observed) of the whole Union ought not to be suffered to depend upon the petulance or precipitation of a single State.2 Under the confederation there was a like prohibition in a more limited form. According to that instrument, no State could grant letters of marque and reprisal until after a declaration of war by the Congress of the United States. In times of peace the power was exclusively confided to the general government. The Constitution has wisely, both in peace and war, confided the whole subject to the general government. Uniformity is thus secured in all operations which relate to foreign powers; and an immediate responsibility to the nation on the part of those for whose conduct the nation is itself responsible.4

§ 1357. The next prohibition is to coin money. We have already seen that the power to coin money, and regulate the value thereof, is confided to the general government. Under the confederation,

1 The Federalist, No 44. [See note to § 1402, post.]

2 1 Tuck. Black. Comm. App. 310, 311.

3 Article 6.

4 The Federalist, No. 44; Rawle on Constitution, ch. 10, p. 136.

a concurrent power was left in the States, with a restriction, that Congress should have the exclusive power to regulate the alloy and value of the coin struck by the States. In this, as in many other cases, the Constitution has made a great improvement upon the existing system. Whilst the alloy and value depended on the general government, a right of coinage in the several States could have no other effect than to multiply expensive mints, and diversify the forms and weights of the circulating coins. The latter inconvenience would defeat one main purpose for which the power is given to the general government, viz., uniformity of the currency; and the former might be as well accomplished by local mints established by the national government, if it should ever be found inconvenient to send bullion or old coin for re-coinage to the central mint. Such an event could scarcely occur, since the common course of commerce throughout the United States is so rapid and so free, that bullion can with a very slight expense be transported from one extremity of the Union to another. A single mint only has been established, which has hitherto been found quite adequate to all our wants. The truth is, that the prohibition had a higher motive, the danger of the circulation of base and spurious coin connived at for local purposes, or easily accomplished by the ingenuity of artificers, where the coins are very various in value and denomination, and issued from so many independent and unaccountable authorities. This subject has, however, been already enlarged on in another place.3

2

§ 1358. The prohibition to "emit bills of credit" cannot, perhaps, be more forcibly vindicated, than by quoting the glowing language of The Federalist, a language justified by that of almost every contemporary writer, and attested in its truth by facts from which the mind involuntarily turns away at once with disgust and indignation. "This prohibition," says The Federalist, "must give pleasure to every citizen in proportion to his love of justice, and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace from the pestilent effects of paper-money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people; and on the character of republican government, constitutes an enormous debt against the States 2 The Federalist, No. 44.

1 Article 9.

3 1 Tuck. Black. Comm. App. 311, 312; Id. 261. Ante, vol. 2, p. 62 to 65.