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je o the treaty stipulations, under which they were acquired, are of course under the general regulation of Congress, so far as the power has not been or may not be parted with by erecting them into States. The Northwestern Territory has been peopled under the admirable Ordi nance of the Continental Congress of the 13th of July, 1787, which we owe to the wise forecast and political wisdom of a man, whom New England can never fail to reverence. *
§ 218. The main provisions of this Ordinance, which constitute the basis of the Constitutions and Governments of all the States and Territories organized within the Northwestern Territory, deserve here to be stated, as the ordinance is equally remarkable for the beauty and exactness of its text, and for its masterly display of the fundamental principles of civil and religious and political liberty. It begins, by providing a scheme for the descent and distribution of estates equally among all the children, and their representatives, or other relatives of the deceased in equal degree, making no distinction between the whole and the half blood; and for the mode of disposing of real estate by will, and by conveyances. it then proceeds to provide for the organization of the territorial governments, according to their progress in popnlation, confiding the whole power to a Governor and Judges, in the first instance, subject to the control of Congress. As soon as the Territory contains five thousand inhabitants, it provides for the establishment of a general Legislature, to consist of three branches, a Governor, a Legislative Council, and a House of Representatives; with a power to the Legislature to appoint a delegate to Congress. It then proceeds to state certain fundamental articles of compact between the original States, and the people and States in the Territory, which are to remain unalterable, unless by common consent. The first provides for the freedom of religious opinion and worship. The second provides for the right to the writ of habeas corpus; for the trial by jury; for a proportionate represent ation in the Legislature; for judicial proceedings accord
*The late Hon. Nathan Dane, of Beverly, Massachusetts.
ng to the course of the common law; for capital offences being bailable; for fines being moderate, and punishments not being cruel or unusual; for no man's being deprived of his liberty or property, but by the judgement of his peers, or the law of the land; for full compensation for property taken, or services demandel, for the public exigencies; and, for the just preservation of rights and property, that no law ought ever to be made, or have force in the said Territory, that shall, in any manner whatever, interfere with, or affect private contracts or engagements, bona fide, and without fraud, previously formed." The third provides for the encouragement of religion, and education, and schools, and for good faith and due respect for the rights and property of the Indians. The fourth provides, that the Territory, and States formed therein, shall for ever remain a part of the Confederacy, subject to the constitutional authority of Congress; that the inhabitants shall be liable to be taxed proportionately for the public expenses; that the Legislatures in the Territory shall never interfere with the primary disposal of the soil by Congress, nor with their regulations for securing the title to the soil to purchasers; that no tax shall be imposed on lands, the property of the United States; and non-resident proprietors shall not be taxed more than residents; that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free. The fifth provides, that there shall be formed in the Territory not less than three, nor more than five States, with certain boundaries; and whenever any of the said States shall contain sixty thousand free inhabitants, such State shall (and may not before) be admitted, by its delegates, into Congress, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent Constitution and State government, provided it shall be republican, and in conformity to these articles of compact The sixth and ast provides, that there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than n the punishment of crimes; but fugitives from other
States, owing service therein, may be reclaimed. Such is a brief outline of this most important ordinance, the effects of which upon the destinies of the country have already been abundantly demonstrated in the Territory, by an almost unexampled prosperity and rapidity of population, by the formation of republican governments, and by an enlightened system of jurisprudence. Already five States, composing a part of that Territory, have been adm'tted into the Union; and others are fast advancing towards the same grade of political dignity.
§ 219. The proviso, reserving the claims of the Union, as well as of the several States, was adopted from abundant caution, to quiet public jealousies upon the subject of the contested titles, which were then asserted by some of the States to some parts of the Western Territory. Happily, these sources of alarm and irritation have long since been dried up.
§ 220. And here is closed our Review of the express powers conferred upon Congress. There are other incidental and implied powers, resulting from other provisions of the Constitution, which will naturally present themselves to the mind in our future examination of those provisions. At present, it may suffice to say, that, with reference to due energy in the General Government, to due protection of the national interests, and to due security to the Union, fewer powers could scarcely have been granted, without jeoparding the existence of the whole system. Without the power to lay and collect taxes, to provide for the common defence, and promote the general welfare, the whole system would have been vain and illusory. Without the power to borrow money upon sudden or unexpected emergencies, the National Government might have been embarrassed, and sometimes have been incapable of performing its own proper functions and du ties. Without the power to declare war and raise armies, and provide a navy, the whole country would have been placed at the mercy of foreign nations, or of invading foes, who should trample upon our rights and liberties. With out the power exclusively to regulate commerce, the intercourse between the States would have been liable to con
stant jealousies, rivalries, and dissensions; and the inter course with foreign nations would have been liable to mischievous interruptions, from secret hostilities, or open retaliatory restrictions. The other powers are principally auxiliary to these; and are dictated by an enlightened policy, a devotion to justice, and a regard to the permanence of the Union. The wish of every patriot must be, that the system thus formed may be perpetual, and that the pewers thus conferred may be constantly used for the purposes, for which they were originally given, for the promotion of the true interests of all the States, and not for the gratification of party spirit, or the aggrandizement of rulers at the expense of the people.
Prohibitions on the United States.
§221. WE next come to the consideration of the pro hibitions and limitations upon the powers of Congress which are contained in the ninth section of the first arti cle, passing by such, as have been already incidentally discussed.
§ 222. The first clause is, "The migration or importation of such persons, as any of the States now ex isting shall think proper to admit, shall not be prohibited by the Congress, prior to the year eighteen hundred and eight. But a tax or duty may be imposed upon such importation, not exceeding ten dollars for each person.
§ 223. This clause, as is manifest from its language was designed solely to reserve to the Southern States, for a limited period, the right to import slaves. It is to the honor of America, that she should have set the first example of interdicting and abolishing the slave trade, in modern times. It is well known, that it constituted a grievance, of which some of the Colonies complained. before the Revolution, that the introduction of slaves was encouraged by the parent country, and that the prohibi
tory laws, passed by the Colonies, were negatived of the Crown. It was, doubtless, desirable, that the importation of slaves should have been at once interdicted throughout the Union. But it was indispensable to yield something to the prejudices, the wishes, and the supposed in terests of the South. And it ought to be considered as a great point gained, in favor of humanity, that a period of twenty years should enable Congress to terminate, in America, (as Congress in fact have terminated the African slave trade,) a traffic, which has so long and so loud ly upbraided the morals and justice of modern nations
§224. The next clause is, "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." In order to understand the exact meaning of the terms here used, recourse must be had to the common law. The writ of habeas corpus, here spoken of, is a writ known to the common law, and used in all cases of confinement, or imprisonment of any party, in order to ascertain whether it is lawful or not. The writ commands the person, who detains the party, to produce his body, with the day and cause of his detention, before the Court or Judge, who issues the writ, to do, submit to, and receive, whatever the Court or Judge shall direct at the hearing. It is hence called the writ of habeas corpus ad subjiciendum, from the effective words of the writ, (when it was issued, as it originally was, in the Latin language) that you (the person, detaining the party,) have the body (habeas corpus) to submit (ad subjiciendum) to the order of the Court or Judge. And if the cause of detention is found to be insufficient, or illegal, the party is immediately set at liberty by the order of the Court or Judge. It is justly, therefore, esteemed the great bulwark of personal liberty, and is grantable, as a matter of right, to the party imprisoned. But as it had often, for frivolous reasons of state, been suspended or denied in the parent country, to the grievous oppression of the subject, it is made a matter of constitutional right in all cases, except when the public safety may, in cases of rebellion or irvacion, require it. The exception is reasonable, since