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

Chapter x.x.xVII.

Prohibitions on Congress.

--1. While the const.i.tution 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 const.i.tution was formed, laws prohibiting the foreign slave trade had been pa.s.sed 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 const.i.tution; 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 const.i.tution, 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 pa.s.sed 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 p.r.o.nounced against him, pet.i.tion 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 pa.s.sed." 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 pa.s.sed 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 pa.s.sage 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 const.i.tution, 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 princ.i.p.al 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 const.i.tution 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, pa.s.ses 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 t.i.tle of n.o.bility shall be granted by the United States." Although the bare t.i.tles of lord, duke, &c., which are conferred upon citizens in monarchical governments, could not add to the political power of any person under our const.i.tution; 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 t.i.tles of n.o.bility. And to guard public officers against being corrupted by foreign influence, they are forbidden to "accept of any present, emolument, office, or t.i.tle of any kind whatever, from any king, prince, or foreign state."

Chapter x.x.xVIII.

Prohibitions on the States.

--1. The next section contains restrictions on the powers of the states.

"No state shall enter into any treaty, alliance, or confederation." [For the definition of _treaty_ and the manner in which a treaty is made, see Chapter XL: --3-5.] An _alliance_ is a union between two or more nations, by a treaty, or contract, for their mutual benefit. _Confederation_ and _alliance_, have nearly the same meaning. If the states, separately, were allowed to make treaties or form alliances with foreign powers, the rights and interests of one state might be injured by the treaties made by another state. As the states united const.i.tute but one nation, it is obvious that the power to treat with other nations properly belongs to the general government. If the states also had the power, they might counteract the policy of the national government.

--2. Nor may a state "grant letters of marque and reprisal." If, as has been shown, this power is properly given to congress, it could not be safely intrusted to the states. (Chap. x.x.xVI, --5.)

--3. The power to "coin money" is also prohibited to the states. It was given to the general government to secure a uniform currency. (Chap.

x.x.xIV, --7.) But this object would not be likely to be attained, if the power to coin money were exercised by the states.

--4. A state may not "emit bills of credit." _Bills of credit_, to a vast amount, were issued by the states during the war, and for some time thereafter. They were in the nature of promissory notes, issued by the authority of the state, and on the credit of the state, and put in circulation by the continental congress and the states as money. This paper money, having no funds set apart to redeem it, became almost worthless. Bank bills issued upon the credit of private individuals, do not come under the prohibition. It is also held that the prohibition does not apply to the notes or bills of a _state_ bank, drawn on the credit of a particular fund set apart for that purpose.

--5. No state shall "make any thing but gold and silver coin a tender in payment of debts." _Tender_ signifies an offer, or to offer. In law, it is an offer of something in payment of a debt, or the thing itself which is offered in payment. Some of the states had declared their irredeemable paper money a lawful tender. But paper money and property of all kinds are continually liable to fluctuation in value, and might subject those who should be compelled to receive it to great inconvenience and loss. But although no person is obliged to take in payment any thing but coin, bank bills are by common consent taken in the course of business and in payment of debts, because they may be converted into specie by presenting them at the bank by which they are issued.

--6. Nor may a state "pa.s.s any bill of attainder, ex post facto law, or law impairing the obligation of contracts." Bills of attainder and ex post laws have been defined and considered. (Chap. x.x.xVII, --5.) If these laws are in their nature wrong, the states as well as congress should be prohibited from pa.s.sing them. Not less unjust are laws impairing the obligation of contracts. Laws that should weaken the force of contracts, or that would release men from their obligations, would be contrary to the principles of justice, and destroy all security to the rights of property.

--7. As bankrupt laws release debtors from the payment of their debts, and consequently impair the obligation of contracts, the question has arisen whether the states have power to pa.s.s insolvent or bankrupt laws.

From decisions of the supreme court of the United States, which is the highest judicial authority, it appears, that a state may not pa.s.s a bankrupt law discharging a debtor from the obligation of a contract made before such law was pa.s.sed. But it was not to be considered a law impairing the obligation of a contract, if it existed before the contract was made; because the parties, who are presumed to know that such law exists, may guard themselves against loss.

--8. The last thing prohibited in this clause, is, "to grant any t.i.tle of n.o.bility." This is forbidden to the states for the same reason as it is prohibited to congress. (Chap. x.x.xVII, --11.)

--9. The first prohibition to the states in the next clause is to "lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing their inspection laws." The objections to the power of the states to lay duties have been considered. They are founded upon the same reasons as have been given for intrusting congress with this power; one of which is to secure uniformity throughout the United States. (Chap. x.x.xII, --6.) And as congress is properly prohibited from laying duties on exports, (Chap.

x.x.xVI, --8, 9,) there can be no good reason for allowing it to be done by the states.

--10. The exception allowing a state to lay duties necessary to execute its inspection laws was deemed proper. Laws are pa.s.sed by the states for the inspection or examination of flour and meat in barrels, leather, and sundry other commodities in commercial cities, to ascertain their quality and quant.i.ty, and to be marked accordingly. By this means the states are enabled to improve the quality of articles produced by the labor of the country, and the articles are better fitted for sale, as the purchaser is thereby guarded against deception. A small tax is laid upon the goods inspected, to pay for their inspection. But, lest the states should carry this power so far as to injure other states, these "laws are to be subject to the revision and control of congress."

--11. The last restrictions upon the power of the states contained in this section, are: "No state shall, without the consent of congress, lay any duty of tunnage; keep troops or ships of war in time of peace; enter into any agreement or compact with any other state, or with a foreign power; or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Some of the prohibitions here enumerated have been noticed in this and preceding chapters; and the reasons of the others are so obvious as to render any remarks upon them unnecessary.

Chapter x.x.xIX.

Executive Department. President and Vice-President; their Election, Qualifications, &c.

--1. The second article of the const.i.tution relates to the executive department. Of the necessity of a separate and distinct power to execute the laws, we have already spoken. (Chap. VIII, --7.) Under the confederation, as will be recollected, there was no national executive.

This defect has been supplied by the const.i.tution. "The executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years, and, together with the vice-president, chosen for the same term, be elected as follows." (Art.

2, --1.)

--2. In regard to the organization and powers of the executive department, there was a great diversity of opinion. Ought the chief executive power to be vested in one person, or a number of persons? Laws should be executed with promptness and energy. This is more likely to be done by one man than by a number. If several were a.s.sociated in the exercise of this power, disagreement and discord would be likely to happen, and to cause frequent and injurious delays. Unity being deemed favorable to energetic and prompt action, the chief executive power of the nation was given to a single person.

--3. Secondly, as to the duration of the office. Much of what has been said in relation to the term of office of senators, will apply to that of president. (Chap. x.x.x, --4-6.) His term of office should not be so short as to induce him to act more with a view to his re-election than to the public good; yet it should be short enough to make him feel his responsibility. And it should be long enough to insure a due degree of independence, and to enable him to carry out his system of public policy. The term of four years was accordingly adopted.

--4. Thirdly, the mode of election. Among the various modes proposed, the one adopted was that of electing the president by electors chosen in the several states for that purpose; the number of the electors chosen in each state to be equal to the number of its senators and representatives in congress. A material alteration in the mode of election has been made since the adoption of the const.i.tution, as will be seen by examining the two modes. (Art. 2, --1; and Art. 12 of Amendments.) This amendment does not change the manner of choosing the electors, but the manner of choosing the president by the electors.

--5. The const.i.tution does not prescribe the manner in which the electors shall be appointed or chosen; it only declares that each state shall appoint them "in such manner as the legislature thereof shall direct." No uniform mode was adopted by the different states. In some states the electors were appointed by the legislature; in others, by the people. At present the latter mode prevails in all the states except South Carolina, where presidential electors are still chosen by the legislature.

--6. The electors are, by the laws of the several states, chosen by _general ticket_. The names of two men, corresponding to the number of senators to which a state is ent.i.tled in congress, together with the names of as many others as there are representatives of the state in the lower house of congress, one to reside in each congressional district, are all placed on the same ballot; so that every voter votes for the whole number of presidential electors to be chosen in the state. And, by a law of congress, the electors are required to be chosen in all the states on the same day, which is the Tuesday next after the first Monday of November.

--7. The electors so chosen are required by a law of congress, to meet in their respective states on the first Wednesday of December, and vote for president and vice-president; and to make and sign three certificates of all the votes given by them, and seal up the same. One of these is to be sent by a person duly appointed by them, to the president of the senate at the seat of government, before the first of January next ensuing; another is to be forwarded by mail, also directed to the president of the senate; and the third is to be delivered to the United States judge of the district in which the electors are a.s.sembled.

--8. On the second Wednesday of February, the president of the senate, in presence of all the senators and representatives, opens the certificates from all the states, and the votes are counted. The person having a majority of all the electoral votes for president is elected. If no person has a majority of all the electoral votes, the house of representatives must choose the president from those candidates, not exceeding three, who had the highest numbers of the electoral votes. But in so doing, the members do not all vote together; but those of each state vote by themselves; and the candidate who receives the votes of a majority of the representatives of a state, has but one presidential vote for such majority; and the person who receives the votes of a majority of the states, is elected. Thus in the election of president by the house of representatives, voting is done _by states_, as was done in pa.s.sing laws by the old congress. (Chap. XXVIII, --5.)

--9. There have been two elections by the house of representatives. The second was 1825. The votes of the electoral colleges (a.s.semblies) had in December, 1824, been divided upon four candidates. Andrew Jackson had received 99 electoral votes; John Quincy Adams, 84; William H. Crawford, 41; and Henry Clay, 37. Neither having received a majority of all the electoral votes, the election devolved upon the house of representatives. Of the three candidates who had received the highest numbers of the electoral votes, Mr. Adams received in the house of representatives the votes of thirteen states; Gen. Jackson, the votes of seven states; and Mr. Crawford, the votes of four states. Mr. Adams having received the votes of a majority of all the states, he was elected.

--10. By the 12th article of amendments, if there is no election of vice-president by a majority of the electors, then, from the two highest numbers on the list, the senate shall choose the vice-president.

Two-thirds of the whole number of senators shall const.i.tute a quorum for such election; and a majority of the whole number shall be necessary to a choice.