The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

§12. Besides the long list of powers contained in the eighth section of the first article of the constitution, and considered in preceding chapters, there are sundry other powers of congress in subsequent articles, which will be noticed in their order.

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.