Chapter XXXVII.
Prohibitions on Congress.
§1. While the constitution confers on congress all the powers deemed necessary to be exercised for the general welfare, it imposes on congress certain restrictions, the most of which are contained in the next section. (Art. I, sec. 9.) The first prohibition is in these words: "The migration or importation of such persons as any of the states, now existing, shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."
§2. It is generally known that, from an early period, slaves had been imported into the colonies from Africa. At the time when the constitution was formed, laws prohibiting the foreign slave trade had been passed in all the states except North Carolina, South Carolina, and Georgia. The delegates from these states in the convention insisted on having the privilege of importing slaves secured, by withholding from congress the power to prohibit the importation. A majority of the convention were in favor of leaving congress free to prohibit the trade at any time. But as it was doubtful whether these states would in such case accede to the constitution; and as it was desirable to bring as many states as possible into the union; it was at length agreed that the trade should be left open, and free to all the states choosing to continue it, until 1808, (twenty years;) congress being allowed, however, to lay a duty or tax of ten dollars on every slave imported.
§3. It has ever been a cause of wonder and regret to many, that the traffic in human beings should have been permitted by the constitution, even for the most limited period. It is, however, a gratifying fact, that congress exercised its power for terminating the foreign slave trade, at the earliest possible period. A law was passed in 1807, to go into effect in January, 1808, making it unlawful, under severe penalties, to import slaves into the United States; and in 1820, the African slave trade was by law declared piracy, and made punishable by death.
§4. 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." Habeas corpus, (Latin,) signifies, have the body. A person deprived of his liberty, may, before the final judgment of a court is pronounced against him, petition a court or judge, who issues a writ commanding the party imprisoning or detaining him, to produce his body and the cause of his detention before the judge or court. If the imprisonment or detention is found to be illegal, or without sufficient cause, the prisoner is set at liberty.
§5. The next clause declares, "No bill of attainder or ex post facto law shall be passed." A bill of attainder is an act of the legislature by which the punishment of death is inflicted upon a person for some crime, without any trial. If it inflicts a milder punishment, it is usually called a bill of pains and penalties. Such laws are inconsistent with the principles of republican government, and are therefore properly prohibited.
§6. An ex post facto law is literally a law made after an act is done, or which has effect upon an act after it is done. But it here means a law that makes punishable as a crime, an act which was not criminal when done. A law is also an ex post facto law that increases the punishment of a crime after it has been committed. If, for example, a law should be passed by which a person, having previously killed another in lawfully defending his own life, should be made to suffer death, it would be an ex post facto law, because killing in self-defense, before the passage of the law, was not punishable as a crime. Such also would be a law that should require all persons now charged with stealing, to be imprisoned for life, if found guilty; because the crime, when committed, was punishable by a shorter imprisonment.
§7. The next prohibition is, "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." The words capitation and capital are from the Latin caput, the head, or poll. Hence a capitation-tax or a poll-tax, is a tax upon each head or person. (Chap. VII. §4.) The above clause means, that poll-taxes, if laid, must be laid in conformity to article 1st, section 2d, clause 3d, of the constitution, which requires three-fifths of the slaves to be counted in apportioning taxes among the states according to population.
§8. The next prohibition is, "No tax or duty shall be laid on articles exported from any state." Probably no law for taxing exports could be devised which would operate equally upon the interests of the different states. Or some states the principal product is cotton, rice, or tobacco; of others, grain; and of others, manufactures; and some of these products might not bear the same rates of duties as others. But though it were possible to devise a plan which would be equal in its operation, a majority of the representatives might be opposed to it. The representatives of the grain producing, and those of the planting states, might combine in imposing excessive taxes upon the productions of the manufacturing states. Or the manufacturing and the grain producing states might, with the same intent, combine against the planting states.
§9. As it was the purpose of the framers of the constitution to make taxation, as nearly as possible, equal in the different states, by uniform duties; and as every necessary object of indirect taxation may be attained by duties on imports; duties on exports are properly prohibited. And to secure to all the states freedom and equality in trade, it is expressly provided in the same clause, that "no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another."
§10. The next clause provides that "no money shall be drawn from the treasury, but in consequence of appropriations made by law." This places the public money beyond the reach or control of the executive or any other officer, and secures it in the hands of the representatives of the people. In pursuance of this provision, congress, at every session, passes laws specifying the objects for which money is to be appropriated. The latter part of the clause requires, that "a regular statement and account of the receipts and expenditures of all public money shall be published from time to time." And it is by law made the duty of the secretary of the treasury to make to congress annually such statement, which is published by order of congress; so that the people may know for what purposes the public money is expended.
§11. It is next declared, that "no title of nobility shall be granted by the United States." Although the bare titles of lord, duke, &c., which are conferred upon citizens in monarchical governments, could not add to the political power of any person under our constitution; yet, as it is desirable that there should be equality of rank as well as of political rights, it is proper that congress should be prohibited from creating titles of nobility. And to guard public officers against being corrupted by foreign influence, they are forbidden to "accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state."