PROHIBITIONS ON THE UNITED STATES.
§ 1325. HAVING
finished this review of the powers of congress, the order of the subject
next conducts us to the prohibitions and [l]imitations upon these powers,
which are contained in the ninth section of the first article. Some of
these have already been under discussion, and therefore will be
§ 1326. The first clause is as follows:
"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."
§ 1327. The corresponding clause of the
first draft of the constitution was in these words: "No tax, or duty,
shall be laid, &c. on the migration, or importation of such persons,
as the several states shall think proper to admit; nor shall such
migration, or importation be prohibited." In this form it is obvious,
that the migration and importation of slaves, which was the sole object of
the clause, was in effect perpetuated, so long, as any state should choose
to allow the traffic. The subject was afterwards referred to a committee,
who reported the clause substantially in its present shape; except that
the limitation was the year one thousand eight hundred, instead of one
thousand eight hundred and eight. The latter amendment was substituted by
the vote of seven states against four; and as thus amended, the clause was
adopted by the like vote of the same states. 2
§ 1328. It is to the honour of America,
that she should have set the first example of interdicting and abolishing
the slave-trade, in modern times. It is well known, that it constituted a
grievance, of which some of the colonies complained before the revolution,
that the introduction of slaves was encouraged by the crown, and that
prohibitory laws were negatived. 3
It was doubtless to have been wished, that the power of prohibiting the
importation of slaves had been allowed to be put into immediate operation,
and had not been postponed for twenty years. But it is not difficult to
account, either for this restriction, or for the manner, in which it is
expressed. 4 It ought to be
considered, as a great point gained in favour of humanity, that a period
of twenty years might for ever terminate, within the United States, a
traffic, which has so long, and so loudly upbraided the barbarism of
modern policy. Even within this period, it might receive a very
considerable discouragement, by curtailing the traffic between foreign
countries; and it might even be totally abolished by the concurrence of a
few states. 5 "Happy,"
it was then added by the Federalist, "would it be for the unfortunate
Africans, if an equal prospect lay before them of being redeemed from the
oppressions of their European brethren." 6
Let it be remembered, that at this period this horrible traffic was
carried on with the encouragement and support of every civilized nation of
Europe; and by none with more eagerness and enterprize, than by the parent
country. America stood forth alone, uncheered and unaided, in stamping
ignominy upon this traffic on the very face of her constitution of
government, although there were strong temptations of interest to draw her
aside from the performance of this great moral duty.
§ 1329. Yet attempts were made to
pervert this clause into an objection against the constitution, by
representing it on one side, as a criminal toleration of an illicit
practice; and on another, as calculated to prevent voluntary and
beneficial emigrations to America. 7
Nothing, perhaps, can better exemplify the spirit and manner, in which the
opposition to the constitution was conducted, than this fact. It was
notorious, that the postponement of an immediate abolition was
indispensable to secure the adoption of the constitution. It was a
necessary sacrifice to the prejudices and interests of a portion of the
Southern states. 8 The glory of
the achievement is scarcely lessened by its having been gradual, and by
steps silent, but irresistible.
§ 1330. Congress lost no time in
interdicting the traffic, as far as their power extended, by a prohibition
of American citizens carrying it on between foreign countries. And as
soon, as the stipulated period of twenty years had expired, congress, by a
prospective legislation to meet the exigency, abolished the whole traffic
in every direction to citizens and residents. Mild and moderate laws were,
however, found insufficient for the purpose of putting an end to the
practice; and at length congress found it necessary to declare the
slave-trade to be a piracy, and to punish it with death. 9
Thus it has been elevated in the catalogue of crimes to this 'bad
eminence' of guilt; and has now annexed to it the infamy, as well as the
retributive justice, which belongs to an offence equally against the laws
of God and man, the dictates of humanity, and the solemn precepts of
religion. Other civilized nations are now alive to this great duty; and by
the noble exertions of the British government, there is now every reason
to believe, that the African slave-trade will soon become extinct; and
thus another triumph of virtue would be obtained over brutal violence and
unfeeling cruelty. 10
§ 1331. This clause of the
constitution, respecting the importation of slaves, is manifestly an
exception from the power of regulating commerce. Migration seems
appropriately to apply to voluntary arrivals, as importation does to
involuntary arrivals; and so far, as an exception from a power proves its
existence, this proves, that the power to regulate commerce applies
equally to the regulation of vessels employed in transporting men, who
pass from place to place voluntarily, as to those, who pass involuntarily.
§ 1332. 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."
§ 1333. In order to understand the
meaning of the terms here used, it will be necessary to have recourse to
the common law; for in no other way can we arrive at the true definition
of the writ of habeas corpus. At the common law there are various writs,
called writs of habeas corpus. But the particular one here spoken of is
that great and celebrated writ, used in all cases of illegal confinement,
known by the name of the writ of habeas corpus ad subjiciendum,
directed to the person detaining another, and commanding him to produce
the body of the prisoner, with the day and cause of his caption and
detention, ad faciendum, subjiciendum, et recipiendum, to do,
submit to, and receive, whatsoever the judge or court, awarding such writ,
shall consider in that behalf. 12
It is, therefore, justly esteemed the great bulwark of personal liberty;
since it is the appropriate remedy to ascertain, whether any person is
rightfully in confinement or not, and the cause of his confinement; and if
no sufficient ground of detention appears, the party is entitled to his
immediate discharge. This writ is most beneficially construed; and is
applied to every case of illegal restraint, whatever it may be; for every
restraint upon a man's liberty is, in the eye of the law, an imprisonment,
wherever may be the place, or whatever may be the manner, in which the
restraint is effected. 13
§ 1334. Mr. Justice Blackstone has
remarked with great force, that "to bereave a man of life, or by
violence to confiscate his estate without accusation or trial, would be so
gross and notorious an act of despotism as must at once convey the alarm
of tyranny throughout the whole kingdom. But confinement of the person by
secretly hurrying him to gaol, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore a more
dangerous engine of arbitrary force." 14
While the justice of the remark must be felt by all, let it be remembered,
that the right to pass bills of attainder in the British parliament still
enables that body to exercise the summary and awful power of taking a
man's life, and confiscating his estate, without accusation or trial. The
learned commentator, however, has slid over this subject with surprising
§ 1335. In England this is a high
prerogative writ, issuing out of the Court of King's Bench, not only in
term time, but in vacation, and running into all parts of the king's
dominions; for it is said, that the king is entitled, at all times, to
have an account, why the liberty of any of his subjects is restrained. It
is grantable, however, as a matter of right, ex merito justitić,
upon the application of the subject. 16
In England, however, the benefit of it was often eluded prior to the reign
of Charles the Second; and especially during the reign of Charles the
First. These pitiful evasions gave rise to the famous Habeas Corpus Act of
31 Car. 2, c. 2, which has been frequently considered, as another magna
charta in that kingdom; and has reduced the general method of proceedings
on these writs to the true standard of law and liberty. 17
That statute has been, in substance, incorporated into the jurisprudence
of every state in the Union; and the right to it has been secured in most,
if not in all, of the state constitutions by a provision, similar to that
existing in the constitution of the United States. 18
It is not without reason, therefore, that the common law was deemed by our
ancestors a part of the law of the land, brought with them upon their
emigration, so far, as it was suited to their circumstances; since it
affords the amplest protection for their rights and personal liberty.
Congress have vested in the courts of the United States full authority to
issue this great writ, in cases falling properly within the jurisdiction
of the national government. 19
§ 1336. It is obvious, that cases of a
peculiar emergency may arise, which may justify, nay even require, the
temporary suspension of any right to the writ. But as it has frequently
happened in foreign countries, and even in England, that the writ has,
upon various pretexts and occasions, been suspended, whereby persons
apprehended upon suspicion have suffered a long imprisonment, sometimes
from design, and sometimes, because they were forgotten, 20
the right to suspend it is expressly confined to cases of rebellion or
invasion, where the public safety may require it. A very just and
wholesome restraint, which cuts down at a blow a fruitful means of
oppression, capable of being abused in bad times to the worst of purposes.
Hitherto no suspension of the writ has ever been authorized by congress
since the establishment of the constitution. 21
It would seem, as the power is given to congress to suspend the writ of
habeas corpus in cases of rebellion or invasion, that the right to judge,
whether exigency had arisen, must exclusively belong to that body.
§ 1337. The next clause is, "No
bill of attainder or ex post facto law shall be passed."
§ 1338. Bills of attainder, as they are
technically called, are such special acts of the legislature, as inflict
capital punishments upon persons supposed to be guilty of high offences,
such as treason and felony, without any conviction in the ordinary course
of judicial proceedings. If an act inflicts a milder degree of punishment
than death, it is called a bill of pains and penalties. 23
But in the sense of the constitution, it seems, that bills of attainder
include bills of pains and penalties; for the Supreme Court have said, "A
bill of attainder may affect the life of an individual, or may confiscate
his property, or both." 24 In
such cases, the legislature assumes judicial magistracy, pronouncing upon
the guilt of the party without any of the common forms and guards of
trial, and satisfying itself with proofs, when such proofs are within its
reach, whether they are conformable to the rules of evidence, or not. In
short, in all such cases, the legislature exercises the highest power of
sovereignty, and what may be properly deemed an irresponsible despotic
discretion, being governed solely by what it deems political necessity or
expediency, and too often under the influence of unreasonable fears, or
unfounded suspicions. Such acts have been often resorted to in foreign
governments, as a common engine of state; and even in England they have
been pushed to the most extravagant extent in bad times, reaching, as well
to the absent and the dead, as to the living. Sir Edward Coke
25 has mentioned it to be among
the transcendent powers of parliament, that an act may be passed to
attaint a man, after he is dead. And the reigning monarch, who was slain
at Bosworth, is said to have been attainted by an act of parliament a few
months after his death, notwithstanding the absurdity of deeming him at
once in possession of the throne and a traitor. 26
The punishment has often been inflicted without calling upon the party
accused to answer, or without even the formality of proof; and sometimes,
because the law, in its ordinary course of proceedings, would acquit the
offender. 27 The injustice and
iniquity of such acts, in general, constitute an irresistible argument
against the existence of the power. In a free government it would be
intolerable; and in the hands of a reigning faction, it might be, and
probably would be, abused to the ruin and death of the most virtuous
citizens. 28 Bills of this sort
have been most usually passed in England in times of rebellion, or of
gross subserviency to the crown, or of violent political excitements;
periods, in which all nations are most liable (as well the free, as the
enslaved) to forget their duties, and to trample upon the rights and
liberties of others. 29
§ 1339. Of the same class are ex
post facto laws, that is to say, (in a literal sense,) laws passed
after the act done. The terms, ex post facto laws, in a
comprehensive sense, embrace all retrospective laws, or laws governing, or
controlling past transactions, whether they are of a civil, or a criminal
nature. And there have not been wanting learned minds, that have contended
with no small force of authority and reasoning, that such ought to be the
interpretation of the terms in the constitution of the United States.
30 As an original question, the
argument would be entitled to grave consideration; but the current of
opinion and authority has been so generally one way, as to the meaning of
this phrase in the state constitutions, as well as in that of the United
States, ever since their adoption, that it is difficult to feel, that it
is now an open question. 31 The
general interpretation has been, and is, that the phrase applies to acts
of a criminal nature only; and, that the prohibition reaches every law,
whereby an act is declared a crime, and made punishable as such, when it
was not a crime, when done; or whereby the act, if a crime, is aggravated
in enormity, or punishment; or whereby different, or less evidence, is
required to convict an offender, than was required, when the act was
committed. The Supreme Court have given the following definition. "An
ex post facto law is one, which renders an act punishable in a
manner, in which it was not punishable, when it was committed."
32 Such a law may inflict
penalties on the person, or may inflict pecuniary penalties, which swell
the public treasury. 33 Laws,
however, which mitigate the character, or punishment of a crime already
committed, may not fall within the prohibition, for they are in favour of
the citizen. 34
§ 1340. The next clause (passing by
such, as have been already considered) is, "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 be published from time to time."
§ 1341. This clause was not in the
original draft of the constitution; but the first part was subsequently
introduced, upon a report of a committee; and the latter part was added at
the very close of the convention. 35
§ 1342. The object is apparent upon the
slightest examination. It is to secure regularity, punctuality, and
fidelity, in the disbursements of the public money, As all the taxes
raised from the people, as well as the revenues arising froth other
sources, are to be applied to the discharge of the expenses, and debts,
and other engagements of the government, it is highly proper, that
congress should possess the power to decide, how and when any money should
be applied for these purposes. If it were otherwise, the executive would
possess an unbounded power over the public purse or the nation; and might
apply all its monied resources at his pleasure. The power to control, and
direct the appropriations, constitutes a most useful and salutary check
upon profusion and extravagance, as well as upon corrupt influence and
public peculation. In arbitrary governments the prince levies what money
he pleases from his subjects, disposes of it, as he thinks proper, and is
beyond responsibility or reproof. It is wise to interpose, in a republic,
every restraint, by which the public treasure, the common fund of all,
should be applied, with unshrinking honesty to such objects, as
legitimately belong to the common defence, and the general welfare.
Congress is made the guardian of this treasure; and to make their
responsibility complete and perfect, a regular account of the receipts and
expenditures is required to be published, that the people may know, what
money is expended, for what purposes, and by what authority.
§ 1343. A learned commentator has,
however, thought, that the provision, though generally excellent, is
defective in not having enabled the creditors of the government, and other
persons having vested claims against it, to recover, and to be paid the
amount judicially ascertained to be due to them out of the public
treasury, without any appropriation. 36
Perhaps it is a defect. And yet it is by no means certain, that evils of
an opposite nature might not arise, if the debts, judicially ascertained
to be due to, an individual by a regular judgment, were to be paid, of
course, out of the public treasury. It might give an opportunity for
collusion and corruption in the management of suits between the claimant,
and the officers of the government, entrusted with the performance of this
duty. Undoubtedly, when a judgment has been fairly obtained, by which a
debt against the government is clearly made out, it becomes the duty of
congress to provide for its payment; and, generally, though certainly with
a tardiness, which has become, in some sort, a national reproach, this
duty is discharged by congress in a spirit of just liberality. But still,
the known fact, that the subject must pass in review before congress,
induces a caution and integrity in making and substantiating claims, which
would in a great measure be done away, if the claim were subject to no
restraint, and no revision.
§ 1344. The next clause is, "No
title of nobility shall be granted by the United States; and no person
holding any 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".
§ 1345. This clause seems scarcely to
require even a passing notice. As a perfect equality is the basis of all
our institutions, state and national, the prohibition against the creation
of any titles of nobility seems proper, if not indispensable, to keep
perpetually alive a just sense of this important truth. Distinctions
between citizens, in regard to rank, would soon lay the foundation of
odious claims and privileges, and silently subvert the spirit of
independence and personal dignity, which are so often proclaimed to be the
best security of a republican government. 37
§ 1346. The other clause, as to the
acceptance of any emoluments, title, or office, from foreign governments,
is founded in a just jealousy of foreign influence of every sort. Whether,
in a practical sense, it can produce much effect, has been thought
doubtful. A patriot will not be likely to be seduced from his duties to
his country by the acceptance of any title, or present, from a foreign
power. An intriguing, or corrupt agent, will not be restrained from guilty
machinations in the service of a foreign state by such constitutional
restrictions. Still, however, the provision is highly important, as it
puts it out of the power of any officer of the government to wear borrowed
honours, which shall enhance his supposed importance abroad by a titular
dignity at home. 38 It is
singular, that there should not have been for the same object, a general
prohibition against any citizen whatever, whether in private or public
life, accepting any foreign title of nobility. An amendment for this
purpose has been recommended by congress; but, as yet, it has not received
the ratification of the constitutional number of states to make it
obligatory, probably from a growing sense, that it is wholly unnecessary.
1. Those, which respect taxation,
and the regulation of commerce, have been considered under former heads;
to which the learned reader is referred. Ante, Vol. II, ch. 14, 15.
2. Journ. of Convention, p. 222,
275, 276, 285, 291, 292, 358, 378; 2 Pitk. Hist. ch. 20, p. 261, 262. —
It is well known, as an historical fact, that South-Carolina and Georgia
insisted upon this limitation, as a condition of the Union. See 2 Elliot's
Deb. 335, 336, 3 Elliot's Deb. 97.
3. See 2 Elliot's Debates, 335; 1
Secret Journal of Congress, 378, 379.
4. See 3 Elliot's Debates, 98, 250,
251; 3 Elliot's Debates, 335 to 338. — In the original draft of the
Declaration of Independence by Mr. Jefferson there is a very strong
paragraph on this subject, in which the slave-trade is denounced, "as
a piratical warfare, the opprobrium of infidel powers, and the warfare of
the Christian king of Great Britain, determined to keep open a market,
where men should be bought and sold;" and it is added, that "he
has prostituted his negative for suppressing every legislative attempt to
prohibit, or restrain this execrable commerce." 1 Jefferson's
Corresp. 146, in the fac simile of the original.
5. The Federalist, No. 42.
7. The Federalist, No. 42; 2
Elliot's Debates, 335, 336; 3 Elliot's Debates, 250, 251.
8. 2 Elliot's Debates, 335, 336; 1
Lloyd's Deb. 305 to 313; 3 Elliot's Debates, 97; Id. 250, 251; 1 Elliot's
Debates, 60; 1 Tuck. Black. Comm. App. 290.
9. Act of 1820, ch. 113.
10. See 1 Kent's Comm. Lect. 9, p.
179 to 187.
11. Gibbons v. Ogden, 9
Wheat. R. 1, 216, 217; Id. 206, 207.
12. 3 Black. Comm. 131.
13. 2 Kent. Comm. Lect. 24, p. 22, &c.
(2 edit. p. 26 to 32.)
14. 1 Black. Comm. 136.
15. 4 Black. Comm. 259.
16. 4 Inst. 290; 1 Kent's Comm.
Lect. 94, p. 22, (p. 26 to 32;) 3 Black. Comm. 133.
17. 3 Black. Comm. 135, 136; 2
Kent's Comm. Lect. 24, p. 22, 23, (2d edit. p. 26 to 32.)
18. 2 Kent's Comm. Lect. 24, p. 23,
24, (2d edit. p. 26 to 32.)
19. Ex parte Bollman, &c.
4 Cranch, 75; S. C. 2 Peters's Cond. R. 33.
20. 3 Black. Comm. 137, 138; 1 Tuck.
Black. Comm. App. 291, 292.
21. Mr. Jefferson expressed a
decided objection against the power to suspend the writ of habeas corpus
in any case whatever, declaring himself in favour of "the eternal and
unremitting force of the habeas corpus laws." 2 Jefferson's Corresp.
274, 291. — "Why," said he on another occasion, "suspend
the writ of habeas corpus in insurrections and rebellions?" — "If
the public safety requires, that the government should have a man
imprisoned on less probable testimony in those, than in other emergencies,
let him be taken and tried,retaken and retried, while the
necessity continues, only giving him redress against the government for
damages." 2 Jefferson's Corresp. 344. — Yet the only attempt
ever made in congress to suspend the writ of habeas corpus was during his
administration on occasion of the supposed treasonable conspiracy of Col.
Aaron Burr. Mr. Jefferson sent a message to congress on the subject of
that conspiracy on 22d January, 1807. On the next day, Mr. Giles of the
senate moved a committee to consider the expediency of suspending the writ
of habeas corpus be appointed, and the motion prevailed. The committee
(Mr. Giles, chairman) reported a bill for this purpose. The bill passed
the senate, and was rejected in the house of representatives by a vote of
113 for the rejection, against 19 in its favour. See 3 Senate Journal, 22d
January, 1807, p. 127; Id. 130, 131. 5 Journ. of House of Representatives,
26th January, 1807, p. 550, 551, 552.
22. Martin v. Mott, 12
Wheat. R. 19. See also 1 Tuck. Black. Comm. App. 292; 1 Kent's Comm. Lect.
12, (2d edit. p. 262 to 265.)
23. 2 Woodeson's Law Lect. 625.
24. Fletcher v. Peck, 6
Cranch, R. 138; S.C. 2 Peters's Cond. R. 322; 1 Kent's Comm. Lect. 19, p.
25. 4 Coke. Inst. 36, 37.
26. 2 Woodeson's Lect. 623, 624.
27. 2 Woodeson's Lect. 624.
28. Dr. Paley has strongly shown his
disapprobation of laws of this sort. I quote from him a short but pregnant
passage. "this fundamental rule of civil jurisprudence is violated in
the case of acts of attainder or confiscation, in bills of pains and
penalties, and in all ex post facto laws whatever, in which parliament
exercises the double office of legislature and judge. And whoever either
understands the value of the rule itself, or collects the history of those
instances, in which it has been invaded, will be induced, I believe, to
acknowledge, that it had been wiser and safer never to have departed from
it. He will confess, at least, that nothing but the most manifest and
immediate peril of the commonwealth will justify a repetition of these
dangerous examples. If the laws in being do not punish an offender, let
him go unpunished; let the legislature, admonished of the defect of the
laws, provide against the commission or future crimes of the same sort.
The escape of one delinquent can never produce so much harm to the
community, as may arise from the infraction of a rule, upon which the
purity of public justice, and the existence of civil liberty, essentially
29. See 1 Tucker's Black. Comm. App.
292, 293; Rawle on Const. ch. 10, p. 119. See Cooper v. Telfair, 4
Dall. R. 14. — Mr. Woodsson, in his Law Lectures, (Lect. 41,) has
devoted a whole lecture to this subject, which is full of instruction, and
will reward the diligent perusal of the student. 2 Woodeson's Law Lect.
621. — During the American revolution this power was used with a meet
unsparing hand; and it has been a matter of regret in succeeding times,
however much it may have been applauded flagrante bello.
30. Mr. Justice Johnson's Opinion in
Satterlee v. Mathewson, 2 Peters's R. 416, and note, id. App. 681,
&c.; 2 Elliot's Debates, 353; 4 Wheat. R. 578, note;Ogden v.
Saunders, 12 Wheat. R. 286.
31. See Calder v. Bull, 3
Dall. 386; Fletcher v. Peck, 6 Cranch, 138; S. C. 1 Peters's Cond.
R. 172; 2 Peters's Cond. R. 308; The Federalist, No. 44, 84; Journ. of
Convention, Supp. p. 431; 2 Amer. Mus. 536; 2 Elliot's Debates, 343, 352,
354; Ogden v. Saunders, 12 Wheat. R. 266, 303, 329, 330, 335; 1
Kent. Comm. Lect. 19, p. 381, 382.
32. Fletcher v. Peck, 6
Cranch, 138; S. C. 2 Peters's Cond. R. 322.
34. Rawle on Constitution, ch. 10,
p. 119; 1 Tuck. Black. Comm. App. 293; 1 Kent. Comm. Lect. 19, p. 381,
382; Sergeant on Constitution, ch. 28 [ch. 30]; Calder v. Bull, 3
Dall. R. 386.
35. Journal of Convention. 219, 328,
345, 358, 378.
36. 1 Tuck. Black. Comm. App. 362 to
37. The Federalist, No. 84.
38. 1 Tuck. Black. Comm. App. 295,
296; Rawle on Constitution, ch. 10, p. 119, 120.
39. Rawle on Constitution, ch. p.
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