SECTION IX.—PROHIBITIONS ON CONGRESS.
Clause 1.—The Slave Trade.
The migration or importation of such persons[1] as any of the states now existing shall think proper to admit, shall not be prohibited by congress prior to the year one thousand eight hundred and eight, but a tax or duty may he imposed on such importation,[2] not exceeding ten dollars for each person.[1]
[1] The framers of the constitution disliked to tarnish the instrument by using the word slave, and adopted this euphemism.
At that time there was a general desire, not ripened into a purpose however, that slavery might soon cease to exist in the United States.
This clause, which permitted the continuance for a time of the slave trade, was a concession to North Carolina, South Carolina and Georgia. The other states had already prohibited the slave trade, and it was hoped by all that before the time specified the abolition of slavery would be gradually accomplished.
[2] No such tax was imposed.
This provision is now obsolete, and is of interest only historically. (For further discussion of slavery, see page 343.)
Clause 2.—The Writ of Habeas Corpus.
The privileges of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
"It has been judicially decided that the right to suspend the privilege of the writ rests in congress, but that congress may by act give the power to the president." [Footnote: Lalor's Cyclopedia of Political Economy]
The privilege of the writ never was suspended by the general government until 1861. Questionable suspensions of the writ, covering a very limited territory, had been made in two or three instances by generals.
So valuable as a "bulwark of liberty" is this writ considered to be, that the courts of the United States have decided that, even in time of war, the privilege of the writ can be suspended only in that part of the country actually invaded, or in such a state of war as to obstruct the action of the federal courts.
Clause 3.—Certain Laws Forbidden.
No bill of attainder[1] or ex post facto law[2] shall be passed.
[1] A bill of attainder was a legislative conviction for alleged crime, with judgment of death. Those legislative convictions which imposed punishments less than that of death were called bills of pains and penalties. [Footnote: Cooley's Constitutional Limitations] The term is here used in its generic sense, so as to include bills of pains and penalties.
The great objection to bills of attainder is that they are purely judicial acts performed by a legislative body. A legislative body may and should try a political offense, and render a verdict as to the worthiness of the accused to hold public office. But to try him when conviction would deprive him of any of his personal rights—life, liberty, or property,—should be the work of a duly organized judicial body.
This provision, then is directed not so much against the penalty (for limitations upon penalties are found elsewhere in the constitution,) as against the mode of trial. Or we may say that it is intended to prevent conviction without a trial; for in previous times legislative bodies had frequently punished political enemies without even the form of a trial, or without giving them an opportunity to be heard in their own defense, by passing against them bills of attainder.
[2] An ex post facto law is, literally, one which acts back upon a deed previously performed. But as here intended, it means a law making worse such an act, either by declaring criminal that which was not so regarded in law when committed, or by increasing the penalty and applying it to the act previously performed.
But a law may be passed making better, in a sense, some previous act. That is, an unforseen but imperative necessity may call for the doing of something which is not unlawful, but which needs, yet has not received, the sanction of law. This act may afterwards be legalized by the legislature.
The things forbidden by this clause would, if permitted, render unsafe all those personal rights for the security of which the constitution was framed and the government founded.
Clause 4.—Direct Taxes
No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.
This clause emphasizes the first sentence of clause three, section two, of this article. It was intended to prevent the taxation of the two-fifths of the slaves not enumerated for representation, and was evidently inserted as a concession to the slave states. But the abolition of slavery takes from the clause all force except that mentioned at the beginning of this paragraph.
No capitation tax (that is, so much per head) has ever been levied by the general government.
Clause 5.—Duties on Exports.
No tax or duty shall be laid on articles exported from any state.
This was designed to prevent discrimination against any state or section.
Though the question has never been judicially determined, it is generally understood that since anything exported must be exported from some state (or territory), this clause prohibits all export duties.
Clause 6.—Commercial Restrictions.
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.
This provision has the same object in view as that which requires duties to be uniform—the impartial treatment of the several states. It shows, too, the fear felt by many that the general government might show partiality.
The latter part of the clause virtually establishes free trade among the states.
Clause 7.—Care of Public Funds.
No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall he published from time to time.
There are two great purposes to be subserved by this provision: First, to impose upon those handling the money a feeling of responsibility, and thus to increase the probability of carefulness; second, to prevent the use of public funds for any purpose except those authorized by the representatives of the people. This is in harmony with the provision which gives to congress the power to raise money.
Incidentally, too, this is a protector of our liberties. Those who have charge of the public purse are appointees of the president. But for this provision he might, as rulers in arbitrary governments do, use the public treasury to accomplish his own private purposes; and one of these purposes might be the overthrow of our liberties. This thought undoubtedly was a prominent one in the minds of the framers of the constitution.
The account of receipts and expenditures is reported to congress annually by the secretary of the treasury.
Clause 8.—Titles of Nobility.
No title of nobility shall be granted by the United States;[1] and no person holding an office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state[2]_.
[1] This is in harmony with the principle "All men are created equal." And, while in society there are classes and grades based upon learning, wealth, etc., we intend that all shall be equal before the law, that there shall be no "privileged classes."
[2] The purpose of this is evident—to free public officers from blandishments, which are many times the precursors of temptations to treason.
An amendment to the constitution was proposed in 1811, prohibiting any citizen from receiving any kind of office or present from a foreign power, but it was not ratified.