Having thus considered the principal general rules which govern in the interpretation of the Constitution of the United States, I proceed to consider some of the leading decisions made upon the above-cited clauses of the instrument, reserving to the last, the examination of the provision contained in the tenth section of the first article, in regard to the obligation of contracts, which thus far has proved, in regard to private rights, to be practically the most important clause that the instrument contains. Habeas Corpus. Art. i. sect. 9, § 2. The writ of of habeas corpus ad subjiciendum, was first secured to English liberty by the famous statute 31 Car. II. c. 2; but in England, like all the other guarantees of private right, it is subject to the pleasure of Parliament. Here, we have fixed it in the Constitution, and declared that it can only be forfeited during periods of warfare or rebellion. Practically as yet, Congress has never authorized the suspension of the writ. It is understood that as the unlimited power is vested in Congress, the right to judge of the expediency of its exercise is also absolute in that body.* Bills of Attainder. Art. i., sect. 9, § 3.-Bills of attainder (the enactment of which is forbidden with us as well by the States as by Congress), as they are strictly called when inflicting capital punishments, and Bills of pains and penalties, or those which award lesser punishment, are believed to be equally within the scope of the constitutional restriction. They both case as to the ordinance of 1787, and the constitution of Illinois. On the subject of the ordinance of 1787, see also, 1 Missouri, 472, 725; Walker, Miss. 36; 20 Martin, 699. * Martin vs. Mott, 12 Wheat. 19. belong in fact, as we have already noticed, to the most vicious class of judicial legislation.* The history of England is filled with instances of the gross abuse of this tremendous engine of political power; but they are now, apparently, as little likely to be resorted to there as here, unless some violent domestic convulsion should disturb the equilibrium of that eminently prac-tical and conservative people.+ Ex-post-facto Laws. Art. i., sect. 9, § 3.—This phrase is now well settled to apply only to acts of a criminal nature. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed, whether by personal or pecuniary penalties. The prohibition, whether in regard to the government of the Union or of the several States, has no application to retrospective laws of a civil character, nor any tendency to protect property or vested rights of a civil description.§ * Ante, p. 146. † See Wooddeson's Law Lectures, lect. 41. Mr. Justice Story in his Commentary, § 1338, says that the power of passing bills of attainder was used during the American Revolution with a most unsparing hand. In Jackson vs. Catlin, 2 J. R. 248, it is said, "The act of 22d October, 1779, attainted, among others, Thomas Jones, of the offense of adhering to the enemy of this State. It was a specific offense, and was not declared or understood to amount to treason; because many of the persons attainted had never owed allegiance to this State. The forfeitures arising from the attainder, must be sought for in the act and nowhere else." It is an interesting case as to the effect of an act of attainder. Mr. Austin, in his valuable work on Jurisprudence, says, "The sovereign Roman people solemnly voted or resolved, that they would never pass, or even take into consideration, what I will venture to denominate a bill of pains or penalties. This solemn resolution or vote was passed with the forms of legislation, and was inserted in the twelve tables in the following imperative terms-Privilegia ne irriganto." Fletcher vs. Peck, 6 Cranch, 138. § Watson vs. Mercer, 8 Peters, 110; see, also, Dash vs. Van Kleeck, 7 J. R. 477. This restricted interpretation of a phrase which, on its face, is Faith and Credit of Judicial Proceedings. Art. iv., sect. 1.—I have already* called attention to this provision. The act of May 26, 1790, provides the manner of authenticating acts and records, and declares that when so authenticated they shall have such faith and credit given to them in any court within the United States, as they have by law or usage in the courts of the State from whence the records are taken. Under this, it has been decided that if a judgment has the effect of record evidence in the courts of the State from whence it is taken, it has the same effect in the courts of any other State. At common law, a judg ment of the courts of one State would have been prima facie evidence in the courts of any other State. The Constitution contemplates a power in Congress to give a conclusive power to such judgments, which power it has executed by declaring a judgment conclusive when the courts of the State where it is rendered, would so pronounce it.+ Mutual enjoyment of Privileges and Immunities. Art. iv., sect. 2, § 1.-This clause has not as yet received susceptible of a much wider construction, has, however, been repeatedly regretted. In Satterlee vs. Matthewson, 2 Peters, 380, where a retrospective law was sustained, Mr. J. Johnson, dissenting, says, "The whole difficulty arises out of the unhappy idea that the phrase ex post facto, in the Constitution of the United States, was confined to criminal cases exclusively, a decision which leaves a large class of arbitrary legislative acts without the prohibitions of the Constitution." In Carpenter vs. Commonwealth of Pennsylvania, 17 How. 456, the Supreme Court reviewed the cases, and again decided that the phrase ex post facto is to be taken as applied to criminal cases only, and that it did not apply to an explanatory act the effect of which was to charge an estate with taxes to which it had not been before subjected. * Ante, p. 77. Mills vs. Duryee, 7 Cranch, 481; Hampton vs. M'Connel, 3 Wheat. Andrews vs. Montgomery, 19 J. R. 162; Borden vs. Fitch, 15 J. R. 121; Black's Case, 4 Abbott Pr. Rep. 164. 234; the attention which from its importance it would have been expected to command. It has been considered but in a few instances, and no general authoritative exposition of it has as yet been declared. Some partial interpretations of it have, however, been made.* It has been held, on the third circuit, in applying the clause, that an act of the State of New Jersey limiting the right to take oysters and clams to actual inhabitants and residents of the State, did not conflict with it, upon the ground that it would be going quite too far to construe the guarantee of privileges and immunities of citizens as amounting to a grant of a co-tenancy in the common property of a State to the citizens of all the other States; and Mr. J. Washington said,— The inquiry is, What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong, of right, to the citizens of all free governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every * As to the effect of the clause in New York, see Frost vs. Brisbin, 19 Wend., 11; Rogers vs. Rogers, 1 Paige, 184. An incorporated company is not a citizen within the meaning of the clause in the Constitution by which the citizens of each State are entitled to all privileges and immunities of citizens in the several States. The People vs. Imlay, 20 Barb., 68. In connection with this it may be noticed, that the law of a State limiting the remedies of its citizens in its own courts, cannot be applied to prevent the citizens of other States from suing in the courts of the United States in that State, for the recovery of any property or money there to which they may be legally or equitably entitled. The Union Bank of Tennessee vs. Jolly's Administrators, 18 How., 504; confirming Suydam vs. Broadnax, 14 Peters, 67. kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State,-may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These and many others which might be mentioned are, strictly speaking, privileges and immunities; and the enjoyment of them by. the citizens of each State, in every other State, was manifestly calculated (to use the expression of the preamble of the corresponding provision in the old Articles of Confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union." But we cannot accede to the proposition which was insisted on by the counsel, that under this provision of the Constitution the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all the other States the same advantages as are secured to their own citi The Supreme Court of the United States has said, without determining the general interpretation of the phrase "immunities and privileges," that "according to the express words and clear meaning of this clause, no privileges are secured by it except those which belong to citizenship. Rights attached by law to contracts by the usage of the place where such contracts * Corfield vs. Coryell, 4 Washington's C. C. Reports, p. 381. |