North America — Volume 2

by Anthony Trollope

And, moreover, the Senate of the United States is not debarred from an interference with money bills, as the House of Lords is debarred with us. "All bills for raising revenue," says the seventh section of the first article of the constitution, "shall originate with the House of Representatives, but the Senate may propose or concur with amendments as on other bills." By this the Senate is enabled to have an authority in the money matters of the nation almost equal to that held by the Lower House,—an authority quite sufficient to preserve to it the full influence of its other powers. With us the House of Commons is altogether in the ascendant, because it holds and jealously keeps to itself the exclusive command of the public purse.

Congress can levy custom duties in the United States, and always has done so; hitherto the national revenue has been exclusively raised from custom duties. It cannot levy duties on imports. It can levy excise duties, and is now doing so; hitherto it has not done so. It can levy direct taxes, such as an income-tax and a property-tax; it hitherto has not done so, but now must do so. It must do so, I think I am justified in saying; but its power of doing this is so hampered by constitutional enactment, that it would seem that the constitution as regards this heading must be altered before any scheme can be arranged by which a moderately just income-tax can be levied and collected. This difficulty I have already mentioned, but perhaps it will be well that I should endeavour to make the subject more plain. It is specially declared, "That all duties, imposts, and excises shall be uniform throughout the United States." And again, "That no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken." And again, in the words before quoted, "Representatives and direct taxes shall be apportioned among the several States which shall be included in this Union, according to their respective numbers." By these repeated rules it has been intended to decree that the separate States shall bear direct taxation according to their population and the consequent number of their representatives; and this intention has been made so clear, that no direct taxation can be levied in opposition to it without an evident breach of the constitution. To explain the way in which this will work, I will name the two States of Rhode Island and Iowa as opposed to each other, and the two States of Massachusetts and Indiana as opposed to each other. Rhode Island and Massachusetts are wealthy Atlantic States, containing, as regards enterprise and commercial success, the cream of the population of the United States. Comparing them in the ratio of population, I believe that they are richer than any other States. They return between them thirteen representatives, Rhode Island sending two and Massachusetts eleven. Iowa and Indiana also send thirteen representatives, Iowa sending two, and being thus equal to Rhode Island; Indiana sending eleven and being thus equal to Massachusetts. Iowa and Indiana are western States; and though I am not prepared to say that they are the poorest States of the Union, I can assert that they are exactly opposite in their circumstances to Rhode Island and Massachusetts. The two Atlantic States of New England are old established, rich, and commercial. The two western States I have named are full of new immigrants, are comparatively poor, and are agricultural. Nevertheless any direct taxation levied on those in the East and on those in the West must be equal in its weight. Iowa must pay as much as Rhode Island; Indiana must pay as much as Massachusetts. But Rhode Island and Massachusetts could pay without the sacrifice of any comfort to its people, without any sensible suffering, an amount of direct taxation which would crush the States of Iowa and Indiana,—which indeed no tax-gatherer could collect out of those States. Rhode Island and Massachusetts could with their ready money buy Iowa and Indiana; and yet the income-tax to be collected from the poor States is to be the same in amount as that collected from the rich States. Within each individual State the total amount of income-tax or of other direct taxation to be levied from that State may be apportioned as the State may think fit; but an income-tax of two per cent. on Rhode Island would probably produce more than an income-tax of ten per cent. in Iowa; whereas Rhode Island could pay an income-tax of ten per cent. easier than could Iowa one of two per cent.

It would in fact appear that the constitution as at present framed is fatal to all direct taxation. Any law for the collection of direct taxation levied under the constitution would produce internecine quarrel between the western States and those which border on the Atlantic. The western States would not submit to the taxation. The difficulty which one here feels is that which always attends an attempt at finality in political arrangements. One would be inclined to say at once that the law should be altered, and that as the money required is for the purposes of the Union and for State purposes, such a change should be made as would enable Congress to levy an income-tax on the general income of the nation. But Congress cannot go beyond the constitution.

It is true that the constitution is not final, and that it contains an express article ordaining the manner in which it may be amended. And perhaps I may as well explain here the manner in which this can be done, although by doing so, I am departing from the order in which the constitution is written. It is not final, and amendments have been made to it. But the making of such amendments is an operation so ponderous and troublesome, that the difficulty attached to any such change envelops the constitution with many of the troubles of finality. With us there is nothing beyond an act of parliament. An act of parliament with us cannot be unconstitutional. But no such power has been confided to Congress, or to Congress and the President together. No amendment of the constitution can be made without the sanction of the State legislatures. Congress may propose any amendments, as to the expediency of which two-thirds of both Houses shall be agreed; but before such amendments can be accepted they must be ratified by the legislatures of three-fourths of the States, or by conventions in three-fourths of the States, "as the one or the other mode of ratification may be proposed by Congress." Or Congress, instead of proposing the amendments, may, on an application from the legislatures of two-thirds of the different States, call a convention for the proposing of them. In which latter case the ratification by the different States must be made after the same fashion as that required in the former case. I do not know that I have succeeded in making clearly intelligible the circumstances under which the constitution can be amended; but I think I may have succeeded in explaining that those circumstances are difficult and tedious. In a matter of taxation why should States agree to an alteration proposed with the very object of increasing their proportion of the national burden? But unless such States will agree,—unless Rhode Island, Massachusetts, and New York will consent to put their own necks into the yoke,—direct taxation cannot be levied on them in a manner available for national purposes. I do believe that Rhode Island and Massachusetts at present possess a patriotism sufficient for such an act. But the mode of doing the work will create disagreement, or at any rate, tedious delay and difficulty. How shall the constitution be constitutionally amended while one-third of the States are in revolt?

In the eighth section of its first article the Constitution gives a list of the duties which Congress shall perform,—of things, in short, which it shall do, or shall have power to do:—To raise taxes; to regulate commerce and the naturalization of citizens; to coin money and protect it when coined; to establish postal communication; to make laws for defence of patents and copyrights; to constitute national courts of law inferior to the Supreme Court; to punish piracies; to declare war; to raise, pay for, and govern armies, navies, and militia; and to exercise exclusive legislation in a certain district which shall contain the seat of Government of the United States, and which is therefore to be regarded as belonging to the nation at large, and not to any particular State. This district is now called the district of Columbia. It is situated on the Potomac and contains the city of Washington.

Then the ninth section of the same article declares what Congress shall not do. Certain immigration shall not be prohibited; the privilege of the writ of habeas corpus shall not be suspended, except under certain circumstances; no ex post facto law shall be passed; no direct tax shall be laid unless in proportion to the census; no tax shall be laid on exports; no money shall be drawn from the treasury but by legal appropriation; no title of nobility shall be granted.

The above are lists or catalogues of the powers which Congress has, and of the powers which Congress has not; of what Congress may do, and of what Congress may not do; and having given them thus seriatim, I may here perhaps be best enabled to say a few words as to the suspension of the privilege of the writ of habeas corpus in the United States. It is generally known that this privilege has been suspended during the existence of the present rebellion very many times; that this has been done by the executive, and not by Congress; and that it is maintained by the executive, and by those who defend the conduct of the now acting executive of the United States, that the power of suspending the writ has been given by the constitution to the President, and not to Congress. I confess that I cannot understand how any man, familiar either with the wording or with the spirit of the constitution should hold such an argument. To me it appears manifest that the executive, in suspending the privilege of the writ without the authority of Congress, has committed a breach of the constitution. Were the case one referring to our British constitution, a plain man, knowing little of Parliamentary usage, and nothing of law lore, would probably feel some hesitation in expressing any decided opinion on such a subject, seeing that our constitution is unwritten. But the intention has been that every citizen of the United States should know and understand the rules under which he is to live,—and he that runs may read.

As this matter has been argued by Mr. Horace Binney, a lawyer of Philadelphia, much trusted, of very great and of deserved eminence throughout the States, in a pamphlet in which he defends the suspension of the privilege of the writ by the President, I will take the position of the question as summed up by him in his last page, and compare it with that clause in the constitution by which the suspension of the privilege under certain circumstances is decreed; and to enable me to do this I will, in the first place, quote the words of the clause in question:—

"The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." It is the second clause of that section which states what Congress shall not do.

Mr. Binney argues as follows:—"The conclusion of the whole matter is this: that the constitution itself is the law of the privilege, and of the exception to it; that the exception is expressed in the constitution, and that the constitution gives effect to the act of suspension when the conditions occur; that the conditions consist of two matters of fact,—one a naked matter of fact, and the other a matter-of-fact conclusion from facts, that is to say, rebellion and the public danger, or the requirement of public safety." By these words Mr. Binney intends to imply that the constitution itself gave the privilege of the writ of habeas corpus, and itself prescribes the taking away of that privilege under certain circumstances. But this is not so. The constitution does not prescribe the suspension of the privilege of the writ under any circumstances. It says that it shall not be suspended except under certain circumstances. Mr. Binney's argument, if I understand it, then goes on as follows. As the constitution prescribes the circumstances under which the privilege of the writ shall be suspended, the one circumstance being the naked matter-of-fact rebellion, and the other circumstance the public safety supposed to have been endangered by such rebellion,—which Mr. Binney calls a matter-of-fact conclusion from facts, the constitution must be presumed itself to suspend the privilege of the writ. Whether the President or Congress be the agent of the constitution in this suspension is not matter of moment. Either can only be an agent, and as Congress cannot act executively, whereas the President must ultimately be charged with the executive administration of the order for that suspension, which has in fact been issued by the constitution itself, therefore the power of exercising the suspension of the writ may properly be presumed to be in the hands of the President, and not to be in the hands of Congress.