Tucker's Blackstone

Volume 1 — Appendix
Note D

[Section 17 - Miscellaneous Provisions]

It now only remains to examine some miscellaneous articles, which have either not yet been noticed, or have been but slightly mentioned.

1. No money shall be drawn from the treasury, but in consequence of appropriations made by law.

All the expences of government being paid by the people, it is the right of the people, not only, not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money which they have brought into the treasury; it is therefore stipulated that no money shall be drawn from the treasury, but in consequence of appropriations, previously made by law: and, that the people may have an opportunity of judging not only of the propriety of such appropriations, but of seeing whether their money has been actually expended only, in pursuance of the same; it is further provided, that a regular statement and account of the receipts and expenditures of all public money shall be published from time to time 322. These provisions form a salutary check, not only upon the extravagance, and profusion, in which the executive department might otherwise indulge itself, and its adherents and dependents; but also against any misappropriation, which a rapacious, ambitious, or otherwise unfaithful executive might he disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government, if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments, where there is responsibility, and where there is none.

Yet even this excellent regulation has an inconvenience attending it, which was formerly hinted at. According to the theory of the American constitutions, the judiciary ought to be enabled to afford complete redress in all cases, where a man may have a just claim for compensation for any injury done him, or for any service which he may have rendered another, in expectation of a just recompence. According to the laws of Virginia, if a claim against the commonwealth be disallowed or abated by the auditor of public accounts, any person who may think himself aggrieved thereby may petition the high court of chancery, or the district court held at Richmond, according to the nature of his case, for redress; and such court shall proceed to do right thereon; and a like petition shall be allowed in all other cases to any person who is entitled to demand against the commonwealth any right in law or equity 323. But although redress is thus intended to be afforded in such cases, yet it seems to be held, that the treasurer can not pay the money for which the claiment may have obtained a judgment, or decree, until the general assembly have passed a law making an appropriation, for that purpose, if no law authorising such payment be previously passed. But whatever doubt there may be upon the subject, under the laws of the state, it seems to be altogether without a question, that no claim against the United States (by whatever authority it may be established,) can be paid, but in consequence of a previous appropriation made by law; unless, perhaps, it might be considered as falling properly under the head of contingent charges against the government. An interpretation which may be somewhat strained, and which the executive department of the government, to which the management of the fund appropriated for contingent charges is committed, might be as little disposed to admit, as congress might be to pass a law making a specific appropriation.

Both the constitution and laws of the United States appear, then, to be defective upon this subject; inasmuch, as they neither provide in what manner a just claim against the United States, which may happen to be disallowed by the auditor and comptroller of the treasury, shall be judicially examined 324; nor for the payment of any just claim which might be judicially established, without submitting it to the discretion of congress, whether they will make an appropriation for that purpose. As the congress are supposed, in all pecuniary cases, to have the same common interest with their constituents, they can hardly be considered in any other light than as parties, whenever a demand is made against the public. They cannot then be presumed to be altogether as impartial judges in such cases, as those who are sworn to do equal right to all persons, without distinction: and although the practice has been to petition them for any disputed claim against the United States, cases may arise where such a petition might be highly improper, and yet the nature of the case be such, as to entitle the party to obtain redress according to the dictates of moral obligation. A judicial court is, according to the true spirit of the constitution, the proper place in which such a right should be enquired into, and from which redress might be finally obtained: and that, without impediment from any other department of the government. This might be effected by an amendment, declaring, that no money shall be drawn from the treasury but in consequence of appropriations made by law; or, of a judicial sentence of a court of United States.

2. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And congress may by general laws, prescribe the manner in which the same shall be proved, and the effect thereof 325. The act of 1 Cong. 2 Sess. c. 11, accordingly declares, that the acts of the legislature of the several states shall be authenticated by having the seal of their respective states affixed thereto; that the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that such attestation is in due form. And records and judicial proceedings so authenticated, shall have such faith in every court within the United States, as they have by law or usage in the courts of the state, from whence they may be taken. The propriety and necessity of such a provision to be made between members of an extensive confederacy, are too obvious to escape observation. A similar provision was accordingly made by the former articles of confederation and perpetual union, Art. 4.

3. The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states 326.

This article, with some variation, formed a part of the confederation: we have in another place supposed, that the states retain the power of admitting aliens to become denizens of the states respectively, notwithstanding the several acts of congress establishing an uniform rule of naturalization. But such denizens, not being properly citizens, would not, I apprehend, be entitled to the benefit of this article in any other state. They would still be regarded as aliens in every state, but in that of which they may be denizens. Consequently, an alien before he is completely naturalized, may be capable of holding lands in the state, but not of holding them in any other.

4. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime 327.

This article likewise formed a part of the former confederation, and was necessary to cement and secure the harmony of the union. The act of 1784, c. 35. [V. L. Edi. 1794, c. 118.] provided for the mode of carrying it into execution; but a different provision is made by the act of 2 Cong. 51.... Either mode may be adopted, I apprehend, according to the nature of the case. If the party accused be already in custody of the law, by virtue of process from the state courts, he may, on demand of the executive authority of the state from whence he fled, be sent thither in custody by order of the general court, or warrant of any two judges thereof in vacation: if he be not already in custody, the act of congress makes it the duty of the executive authority of the state to which he flees, upon a copy of an indictment found, or affidavit made before a magistrate of any state, charging him with any crime, to cause him to be arrested and secured, and notice to be given to the executive authority making the demand, or his agent, and the fugitive to be delivered up. But if no agent appear, within six months from the time of the arrest, the prisoner may be discharged.

5. No person held to service in one state, under the laws thereof, and escaping into another state, shall, in consequence of any law or, regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service is due 328.

This necessary provision had not a place in the former articles of confederation; in consequence of which numberless inconveniencies were felt by the citizens of those states, where slavery prevails, from the escaping of their slaves into other states, where slavery was not tolerated by law, and where it was supposed no aid ought to be given to any other person claiming another as his slave. The act of 2 Cong. c. 31, prescribes the mode of proceeding in such cases; authorising the master to seize his slave, and making it the duty of the district judge of the United States, and of the magistrates of the state to aid him therein; and imposing a penalty of five hundred dollars upon any person obstructing him.

6. The United States shall guarantee to every state in the union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. C. U. S. Art. 4. Sec. 4.

It is an observation of the enlightened Montesquieu, that mankind would have been at length obliged to submit to the government of a single person, if they had not contrived a kind of constitution, by which the internal advantages of a republic might be united with the external force of a monarchy; and this constitution is that of a confederacy of smaller states, to form one large one for their common defence. But these associations ought only to be formed, he tells us, between states whose form of government is not only similar, but also republican. The spirit of monarchy is war, and the enlargement of dominion; peace and moderation is the spirit of a republic. These two kinds of government cannot naturally subsist together in a confederate republic. Greece, he adds, was undone, as soon as the kings of Macedon obtained a seat among the Amphictions 329. If the United States wish to preserve themselves from a similar fate, they will consider the guarantee contained in this clause as a corner stone of their liberties 330.

The possibility of an undue partiality in the federal government in affording it's protection to one part of the union in preference to another, which may be invaded at the same time, seems to be provided against, by that part of this clause which guarantees such protection to each of them. So that every state which may be invaded must be protected by the united force of the confederacy. It may not he amiss further to observe, that every pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence is taken away, by that part of the provision which renders an application from the legislative, or executive authority of the state endangered, necessary to be made to the federal government, before it's interference can be at all proper. On the other hand, this article secures an immense acquisition of strength; and additional force to the aid of any of the state governments, in case of an internal rebellion or insurrection against authority... The southern states being more peculiarly open to danger from this quarter, ought to be particularly tenacious of a constitution from which they may derive such assistance in the most critical periods.

322. C. U. S. Art. 1, Sec. 9.

323. L. V. Edi. 1794, c. 85.

324. It hath been said on the floor of the house of representatives of the United States, "that it had been repeatedly decided, that the United States would not permit themselves to be brought into their own courts." The editor had supposed that that clause of the constitution, which declares that "the judicial power shall extend to all cases, in law and equity, arising under the constitution," &c. had prescribed a different rule of decision. Nor can he, even now, form a different opinion upon the subject; believing that there is as much reason that a legal or equitable claim against the United States, should receive a judicial discussion, and decision, as any similar claim which might be made on their behalf. And though he doubts, as to the mode in which a judicial enquiry into the justice of a pecuniary claim against them may be instituted, yet he cannot doubt that the constitution meant to afford the right to every citizen of the United States.

325. C. U. S. Art. 4.

326. C. U. S. Art. 4.

327. Ibid.

328. C. U. S. Art. 4.

329. Spirit of Laws, B. 9. c. l and 2.

330. On this subject, see Federalist, vol. 2. p. 60 to 64.

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