Bills of attainder and ex post facto laws, which had not been included in the prohibitions on the States by the committee of detail, were added by the Convention to the list of positive restrictions, which was thus completed.

In the class of conditional prohibitions, or those acts which might be done by the States with the consent of Congress, the committee of detail had placed the laying of "imposts or duties on imports." To this the Convention added "exports," in order to make the restriction applicable both to commodities carried out of and those brought into a State. But this provision, as thus arranged, would obviously make the commercial system extremely complex and inconvenient. On the one hand, the power to lay duties on imports had been conferred upon the general government, for the purposes of revenue, and to leave the States at liberty, with the consent of Congress, to lay additional duties, would subject the same merchandise to separate taxation by two distinct governments. On the other hand, if the States should be deprived of all power to lay duties on exports, they would have no means of defraying the charges of inspecting their own productions. At the same time, it was apparent that, under the guise of inspection laws, if such laws were not to be subject to the revision of Congress, a State situated on the Atlantic, with convenient seaports, could lay heavy burdens upon the productions of other States that might be obliged to pass through those ports to foreign markets. Again, if the States should be de

prived of all power to lay duties on imports, they could not encourage their own manufactures; and if allowed to encourage their own manufactures by such State legislation, it must operate not only upon imports from foreign countries, but upon imports from other States of the Union, which would revive all the evils that had flowed from the want of general commercial regulations. To prevent these various mischiefs, the Convention adopted three distinct safeguards. They provided, first, by an exception, that the States might, without the consent of Congress, lay such duties and imposts as "may be absolutely necessary for executing their inspection laws"; second, that the net produce of all duties and imposts laid by any State, whether with or without the consent of Congress, shall be for the use of the Treasury of the United States; third, that all such State laws, whether passed with or without the previous consent of Congress, shall be subject to the revision and control of Congress.1 There is, therefore, a twofold remedy against any oppressive exercise of the State power to lay duties for purposes of inspection. The question whether the particular duties exceed what is absolutely necessary for the execution of an inspection law, may be made a judicial question; and in addition to this, the law imposing the inspection duty is at all times subject to the revision and control of Congress. Any tendency to lay duties or imposts for purposes of revenue or protection, is checked by the requirement that the net produce 1 Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

of all duties or imposts laid by any State on imports or exports shall be paid over to the United States, and such tendency may moreover be suppressed by Congress at any time, by the exercise of its power of revision and control.

In order to vest the supervision and control of the whole subject of navigation in Congress, it was further provided that no State, without the consent of Congress, shall lay any duty of tonnage. An exception, proposed by some of the Maryland and Virginia members, with a view to the situation of the Chesapeake Bay, illustrates the object of this provision. They desired that the States might not be restrained from laying duties of tonnage "for the purpose of clearing harbors and erecting light-houses." It was perhaps capable of being contended, that, as the regulation of commerce was already agreed to be vested in the general government, the States were restrained by that general provision from laying tonnage duties. The object of the special restriction was, to make this point entirely certain; and the object of the proposed exception was to divide the commercial power, and to give the States a concurrent authority to regulate tonnage for a particular purpose. But a majority of the States considered the regulation of tonnage an essential part of the regulation of trade. They adopted the suggestion of Mr. Madison, that the regulation of commerce was, in its nature, indivisible, and ought to be wholly under one authority. The exception was accordingly rejected.'

1 By a vote of six States against four. Elliot, V. 548.

The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another State or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.1

Elliot, V. 548.

CHAPTER XII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED. — SUPREMACY OF THE NATIONAL GOVERNMENT.-DEFINITION AND PUNISHMENT OF TREASON.

AMONG the resolutions sent to the committee, there were four which had reference to the supremacy of the government of the United States. They declared that it ought to consist of a supreme legislative, executive, and judiciary; - that its laws and treaties should be the supreme law of the several States, so far as they related to the States or their citizens and inhabitants, and that the judiciaries of the States should be bound by them, even against their own laws; that the officers of the States, as well as of the United States, should be bound by oath to support the Articles of Union; - and that the question of their adoption should be submitted to assemblies of representatives to be expressly chosen by the people of each State under the recommendation of its legislature.'

In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a constitution a preamble; two

1 These were the 1st, 7th, 20th, and 21st of the resolutions. Ante, p. 190 et seq., note.