Nature of the Union under the Confederation.
Sec.1. As early as the year 1774, the colonies united in the plan of a congress, to be composed of delegates chosen in all the colonies, for the purpose of consulting on the common good and of adopting measures of resistance to the claims of the British government. The first great continental congress met on the 4th of September, 1774. Another congress assembled in May, 1775. This congress adopted sundry measures having reference to war, and finally made the declaration of independence, July 4th, 1776. The continental congress, the members of which were chosen by the state legislatures, conducted the affairs of the nation until near the close of the war.
Sec.2. With a view to a permanent union of the colonies under a general government, the congress, in November, 1777, agreed upon a frame of government, contained in certain articles, called, "Articles of Confederation and perpetual Union between the States." These articles were to go into effect when they should have received the assent of all the states. But as the consent of the last state (Maryland) was not obtained until March, 1781, they went into operation only about two years before the close of the war.
Sec.3. As a plan of national government, the confederation was soon found to be very defective. The union formed under it was a very imperfect one. Having been framed in time of war, it had respect to the operations of war rather than to a state of peace. Although it answered some good purpose in carrying on the war, it was not well adapted oven to the condition of the country then existing. Its defects appeared almost as soon as it went into effect; and after the return of peace, it was found that the union, instead of being strengthened and perpetuated by it, could be preserved only by a radical change in the system of government.
Sec.4. The leading defect of the confederation was its weakness. Congress could do little more than to recommend measures. As it could not legislate directly upon persons, its measures were to be carried into effect by the states; but the states were not in all cases willing, and some of them did at times refuse to do so, and congress could not compel them. It belonged to congress to determine the number of troops and the sums of money necessary to carry on the war, and to call on each state to raise its share; but congress could not enforce its demands. It borrowed money in its own name, but it had not the means of paying it. It had no power to lay and collect taxes; this power was reserved to the states.
Sec.5. Hence we see that congress was dependent for every thing upon the good will of thirteen independent states. It is a wonder that a government of such inherent weakness should bring the war to a successful issue. It was a sense of danger from abroad, rather than any power in the government, that induced a sufficient compliance with the ordinances of congress to achieve the independence of the states.
Sec.6. On the restoration of peace, new difficulties arose. We have already spoken of the want of power in congress to lay and collect taxes for war purposes. Money was now wanted to discharge the public debt, and to pay the current expenses of the government; yet congress had no power to raise it, either by a direct tax upon the persons or property of the citizens, or indirectly by duties on goods imported, as at present under the constitution. The power to lay and collect duties was with the states; but it was of little use so long as each state could impose such duties as it chose. The states being unable to agree upon a uniform rate of duties, the goods would be imported into states which levied the lowest duties. It was expedient, if it had been possible, to borrow more money on the credit of the union, as the heavy debt contracted during the war remained unpaid, and congress had no means of paying it.
Sec.7. But the inability to raise money was not the only difficulty that attended the want of power by congress to lay duties. This power was necessary also to regulate the foreign trade. We have already remarked, that it was the policy of Great Britain before the revolution to secure in the colonies a market for her manufactures. (Chap. XXVI.) Not only so; she had by her navigation acts, for more than a hundred years, imposed heavy duties upon foreign vessels coming into her ports, in order to secure the carrying trade to her own shipping. In addition to this, she also levied high duties upon the produce of the states sent to pay for the goods we were obliged to buy of her, our own people not having as yet the means, nor having had time, to establish manufactories, and to manufacture for themselves.
Sec.8. Another of the numerous troubles which arose from this imperfect union was the want of peace and harmony between the states. Laws were enacted in some states with a view to their own interests, which operated injuriously upon other states. This induced the latter states to retaliate, by passing laws partial to themselves and injurious to the former. The states soon became disaffected toward each other; and their mutual jealousies and rivalries and animosities at length became so great as to cause fears that some of the states would become involved in war among themselves, and that the union would be broken up.
Sec.9. In the hope of remedying the difficulty last mentioned, an attempt was made to procure the insertion, into the articles of confederation, of a provision giving to congress the power to regulate trade; but the attempt failed. In January, 1786, the legislature of Virginia proposed a convention of commissioners from all the states, to take into consideration the situation and trade of the United States, and the necessity of a uniform system of commercial regulations.
Sec.10. A meeting was accordingly held at Annapolis, in September, 1786; but as commissioners from only five states attended, viz., New York, New Jersey, Pennsylvania, Delaware, and Virginia, the commissioners deemed it unadvisable to proceed to business relating to an object in which all the states were concerned; but they united in a report to the several states and to congress, in which they recommended the calling of a general convention of delegates from all the states, to meet in Philadelphia on the 2d Monday of May, 1787, with a view not only to the regulation of commerce, but to such other amendments of the articles of confederation as were necessary to render them "adequate to the exigencies of the union."
Sec.11. In pursuance of this recommendation, congress, in February, 1787, passed a resolution for assembling a convention. All the states, except Rhode Island, appointed delegates, who met pursuant to appointment; and framed the present constitution of the United States. They also recommended it to be laid by congress before the several states, to be by them considered and ratified in conventions of representatives of the people. Conventions were accordingly called for this purpose in all the states, except Rhode Island, and the constitution was ratified by all of them in which conventions had been called, except North Carolina.
Sec.12. The constitution was to go into effect if ratified by nine states. The ninth state, New Hampshire, sent its ratification to congress in July, 1788; and measures were taken by congress to put the new constitution into operation. Ratifications were received from North Carolina and Rhode Island the year after the organization of the new government.
Nature of the Union under the Constitution.
Sec.1. Having given, in the preceding chapter, a sketch of the union under the confederation, we shall next show the nature of the union under the present constitution, commencing with a brief comparison of the leading features of the two systems of government.
Sec.2. The former union was a mere confederacy. A confederacy is a league, a federal compact. The word federal is from the Latin fadus, a league, or alliance. Hence a confederacy is a combination or union of two or more parties, whether persons or states, for their mutual benefit and assistance. And let it be here particularly noted, that this union was a union of states, as states. The articles of confederation were framed by congress, whose members were appointed by the state legislatures, and, when framed, were submitted to the state legislatures for ratification.
Sec.3. On the other hand, the union under the constitution is a union, not of the states, as such, but of the people of the states. Thus it is expressed in the preamble to the constitution: "We, the people of the United States, in order to form a more perfect union, ... do ordain and establish this constitution for the United States of America." And the constitution was submitted for ratification, not to the state legislatures, but to conventions whose members were elected by the people for that purpose.
Sec.4. The states under the confederation were independent, not only of each other, but of the general government. True, they agreed, for their common defense and mutual welfare, to do certain things; and certain other things they agreed not to do, but delegated to congress the power to do them; but, as we have seen, congress had not the power to compel the states to obey its requisitions. By the constitution, the states have given up a greater portion of their sovereignty to the general government, which has power, in certain cases, to control the state governments, and to enforce its laws upon them and upon individuals.
Sec.5. Again, under the confederation, as in confederacies generally, the states were equal. They were entitled to an equal number of delegates in the congress, in which they voted by states, each state having one vote; that is, if a majority of the delegates of a state voted in favor of or against a proposed measure, the vote of the state was so counted; and a proposition having in its favor a majority of the states, was carried. Every state was entitled to seven delegates; but there must be at least two delegates present and voting, in order to give a state vote; and if an equal number of the delegates of a state voted for and against a proposition, the state was said to be divided, and to have no vote.
Sec.6. Under the constitution there are two branches of congress, in one of which the number of representatives of each state is in proportion to its population; in the other, (the senate,) the states are equally represented, on the principle of the confederation, though by two senators only. But the vote in both is taken, not by states as under the confederation, but per capita, that is, by the head or poll, the vote of each member counting one.
Sec.7. The articles of confederation were framed by congress, the members of which were appointed by the state legislatures; and the articles, when framed, were submitted for ratification to the state legislatures. The constitution was framed by a convention of delegates from the states appointed for that purpose; and was ratified, not by the state legislatures, but by state conventions whose members were elected by the people of the several states.
Sec.8. The former union, as has been remarked, was a mere Confederacy, composed of independent states, and united simply for purposes of defense and their mutual safety. In most respects they had no more political connection than so many different nations. The people of a state were not, properly speaking, citizens of the United States, but only citizens of the state in which they lived. But by the constitution, the people of the states were incorporated into a nation; and a citizen of a state is also a citizen of the United States. The government of the confederation, although sometimes called the national government, was not really such, nor was it generally so regarded, as appears from the proceedings of the convention that framed the constitution.
Sec.9. Among the earliest proceedings of the convention was the offering of a resolution, declaring that "a national government ought to be formed, consisting of legislative, judiciary, and executive." This resolution was strongly opposed by a large portion of the delegates, because it proposed to establish a national government. They were in favor of continuing the confederation with a slight enlargement of the powers of congress, so as to give that body the power to lay and collect taxes, and to regulate commerce. But the friends of a national government prevailed; and we have now a complete government, consisting of the three departments, legislative, executive, and judicial.
Sec.10. Under the confederation, there was no executive to execute the ordinances of congress; nor a national judiciary, the state courts being used for all judicial purposes. There was only a legislature; and that consisted of a single body, called the congress, appointed by the state legislatures, and having scarcely power enough to entitle it to the name of legislature.
Sec.11. But, although the present government, with these three departments of power, and controlling, in matters of general concern, the action of the state governments and of individuals, is properly a national government; yet it is not wholly such, but partly national and partly federal; some of the federal features of the confederation having been retained in the constitution, as will appear on a further examination of this instrument. Hence the union is still called, with propriety, the federal union, and the government the federal government.
Legislative Department. House of Representatives.
Sec.1. The first article of the constitution describes the manner in which the legislature is formed, and prescribes its principal powers. It declares, "All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives." Members of the old congress were appointed by the state legislatures for one year, and might be recalled by them at any time. Representatives are now chosen for two years. It was thought that a single session was too short a term for men in general to acquire the knowledge and experience necessary to a right performance of the responsible duties of a representative. Besides, measures are often left unfinished at the close of a session; and those who have once examined their merits and demerits, can dispose of them more promptly than new members.
Sec.2. The same clause declares that "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." The qualifications of electors were various in the different states. (Chap. VI, Sec.8.) In some of them, owners of property, or tax-payers, in others, freeholders only, were voters. In some, only the latter voted for the higher officers; in a few, suffrage was almost universal. It was presumed that no state would object to its own rule for electing the popular branch of its legislature. It is proper that a representative should be chosen directly by those whose wants he is to make known, and whose rights he is to guard.
Sec.3. A representative must, at the time of his election, "have attained the age of twenty-five years; and have been seven years a citizen of the United States;" and he must "be an inhabitant of the state in which he is chosen." Few young men, on attaining the age of majority, have the knowledge, or experience, or wisdom, which is requisite to qualify them for the responsible duties of a representative. Nor is it to be presumed that an alien, at the earliest period at which he may become a naturalized citizen, would be sufficiently familiar with our institutions and the wants of our people to be a competent representative.
Sec.4. The next clause prescribes the rule of apportionment. "Representatives and direct taxes shall be apportioned among the several states, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." To the younger class of readers, this part of the clause needs explanation.
Sec.5. The convention found it very difficult to agree upon a rule of apportionment. In the first place, the states, as will be recollected, were entitled to an equal number of delegates in the old congress; and each state had one vote. But as each member of the house of representatives was to have a vote, the small states opposed a representation according to numbers, while the large states as strenuously insisted upon it.
Sec.6. In the next place, the slaveholding states claimed a representation according to numbers including slaves; the non-slaveholding states insisted on a representation according to the number of free persons. It may here be observed, that slavery then existed in all the states except Massachusetts; but as the slaves were so few in the northern states, in which slavery has been since abolished, the latter are generally spoken of as if they were at that time non-slaveholding states. The controversy on this point rose so high, and the parties were for a long time so unyielding, that fears were entertained of a sudden dissolution of the convention.
Sec.7. It became evident that the question could be settled only by compromise. The northern states consented that in ascertaining the number of persons to be taken as the basis of apportionment, three-fifths of the slaves should be added to the number of free persons. And as these states had opposed the computation of any slaves in fixing a rule of apportionment, on the ground that slaves are property, and that no property in these states entitled its owners to representation, the southern states consented, on their part, that direct taxes should be apportioned on the same basis as representatives.
Sec.8. To illustrate this rule by an example: Suppose a state to contain 600,000 free persons, and 500,000 slaves. Adding three-fifths of the number of slaves, (300,000) to the number of free persons, gives 900,000 as the number of the representative population: and the state would be entitled to three representatives for every two that a state would have which contained 600,000 free inhabitants and no slaves. So in apportioning taxes according to population, the state in the case we have supposed, would have to raise three dollars for every two that it would raise if no slaves were counted.
Sec.9. But the advantages of this arrangement are more unequal than may at first sight appear, or than was anticipated by the framers of the constitution. The benefits are chiefly on the side of the slaveholding states. In the first place, two-fifths of a large class of property in these states is exempt from taxation, while all the property in the free states is liable to taxation. Of this the framers were aware. But they did not foresee the fact, that the laying of direct taxes would be unnecessary, and that the slave states would consequently escape taxation for their slaves. Only three direct taxes have been laid; and it is not probable that another will become necessary; the treasury being supplied from other sources, chiefly by duties on imports.
Sec.10. Now, although nothing is gained by the slave states, nor is anything lost by the free states, by the exemption of the two-fifths of the slaves from taxation, since direct taxes are unnecessary; there is a great gain to the slave states, which have between thirty and forty representatives for what their laws hold to be "property to all intents and purposes whatsoever," for which the free states have nothing in return.
Sec.11. The constitution does not limit the house to any definite number of representatives; it only declares that the number shall not exceed one for every 30,000 inhabitants. It requires an enumeration of the inhabitants every ten years; and the next congress thereafter determines the ratio of representation and the number of representatives, and apportions them among the states. The word ratio signifies rate, or proportion. It here means the number or portion of the inhabitants entitled to a representative.
Sec.12. But as a representative for every 30,000 inhabitants, after the population became very numerous, would have made the house too large to transact business with due dispatch, and would have unnecessarily increased the public expense, the ratio of representation has from time to time been increased. But to whatever number the ratio may be raised, the constitution expressly declares, that "each state shall have at least one representative." Neither Delaware nor Florida had, in 1850, a population equal to the present ratio; and without the above constitutional provision, these states would have been deprived of a representation in the house, unless congress had adopted a smaller ratio.
Sec.13. It will be seen by reference to the constitution, that the number of representatives was for the time fixed at sixty-five. After the first census, taken in 1790, the ratio was fixed at 33,000, which gave the house 106 members. After the census of 1800, the same ratio was adopted, and the number of members was 142.
After 1810, the ratio was 35,000; number of members 182. After 1820, the ratio was 40,000; number of members 213. After 1830, the ratio was 47,700; number of members 240. After 1840, the ratio was 70,680; number of members 233.
After 1850, the ratio was 93,000 and a fraction, making the number of members 233, of which California had one; but in view of her rapid increase in population, she was allowed an additional member, making, in all, 234. Minnesota has since been admitted into the Union (1858) with two members, and Oregon (1859) with one member.
Sec.14. Representatives are chosen by districts. Each state is divided by the legislature into as many districts as there are representatives to be elected in the state; and one representative is chosen in each district. In most of the states, representatives are chosen at the general state election; in the others, there are special elections for choosing representatives.
Sec.15. By an act of congress, every territory belonging to the United States in which a government has been established, is entitled to send a delegate to congress, who has a right to take a part in the debates of the house, but not the right of voting.
Sec.1. "The senate of the United States shall be composed of two senators from each state; chosen by the legislature thereof, for six years; and each senator shall have one vote." (Art. I, sec. 3.) The convention readily agreed upon dividing congress into two branches; but, as has been observed, it was difficult to settle the mode of representation. The delegates from the large states insisted upon a representation in proportion to numbers, in the senate as well as in the house; and the small states contended for equality in both branches. The debate was long and animated; and it became apparent that, as in the case of slave representation in the house, there must be a compromise. This was at length effected; the small states consenting to a proportional representation in the house, and the large states to an equal representation in the senate.
Sec.2. It has been remarked, that the federative principle of the old system has been to some extent retained in the constitution. Both the equality of representation in the senate, and the election of senators by the state legislatures, are in strict conformity with the plan of the confederation, and of simple confederacies generally. Different modes of electing senators were proposed; but the one adopted by the convention seems preferable to any other.
Sec.3. There is, however, in one particular, a material difference between the plan of the old congress and that of the senate. It is in the manner of voting. In the former, the vote was taken by states, each state having but one vote; (Chap. XXVIII, Sec.5,) in the latter, the senators vote separately, the vote of each senator counting one, as in the house; and a question is decided by the united votes of a majority of the members, and not by the vote of a majority of the states. Nor is the vote of a state lost if but one of its senators is present, as formerly. If, however, the two senators vote on different sides of a question, the effect is the same as when, in the old congress, the members from a state were equally divided.
Sec.4. There were also various opinions as to the proper term of office of senators. Terms were proposed differing in length from three to nine years; and a proposition was even made by one distinguished member to make the term continue during good behavior, which is practically for life. There appear to be sound objections both to long and short terms. It is urged by those in favor of the latter, that an officer elected for a short term, especially if he desires a reelection, will have a strong inducement to please and faithfully serve those who are to elect or appoint him.
Sec.5. Others, however, while they admit that short terms tend to insure responsibility on the part of a representative, consider this argument more than counterbalanced by the objections to which a short term is liable. Looking to a reelection, he may act with a view to his popularity rather than to the public good. Again, the oftener a legislature is changed, the more changeable and uncertain will be the laws. Men having invested their capital in a business enterprise, and made a successful beginning under existing laws, may be ruined by a sudden and unexpected change of governmental policy.
Sec.6. In view of these objections to both long and short terms, a medium term of six years was adopted. This was believed to be short enough to keep up in a senator a feeling of responsibility, and yet long enough to insure his acting independently and with a regard to the general interests of the nation. Although a bad senator may occasionally be kept too long in office by a six years' term, cases also occur in which the act of a senator, especially in time of public excitement, is strongly condemned, but upon calm and mature reflection meets the public approbation.
Sec.7. The next clause of the third section provides for the gradual change of the senate. One-third of the senators go out of office every two years. In favor of this arrangement are two important considerations. First, it secures to the public at all times the benefit of the experience of at least two-thirds of the body. Whereas, if the terms of all the senators expired at once, their places might be supplied mainly by new members without the requisite knowledge and experience. Secondly, while a long term is intended to guard against the too frequent changes in the laws, it may also prevent, for too long a time, the amendment or the repeal of bad laws. Such amendment or repeal may be hastened by the election of new members in the place of the one-third who retire every two years.
Sec.8. Vacancies which happen in the representation of any state in the senate during the recess of its legislature, may be filled by the governor until the next meeting of the legislature. Without this provision, either the legislature must be assembled immediately to fill the vacancy, or the state must remain in part, or perhaps wholly unrepresented in the senate, until the next regular session of the legislature.
Sec.9. But an appointment may not be made by an executive before the vacancy actually happens. In 1825, the term of a senator was about to expire during the recess of the legislature of his state, which had failed at its previous session to appoint a successor. As a special session of the senate was to be held immediately after the expiration of the senator's term, the governor, a few days before the term expired, in anticipation of the vacancy, reappointed the senator. But the senate decided that, as the appointment had been made before the vacancy happened, the senator was not entitled to a seat.
Sec.10. The next clause prescribes the qualifications of senators. A senator must have attained the age of thirty years, and been nine years a citizen of the United States; and he must, when elected, be an inhabitant of the state for which he is chosen. As many of the duties of a senator require more knowledge, experience, and stability of character than those of a representative, greater age and longer citizenship are required. The nature of these duties will be noticed in subsequent chapters.
Sec.11. The seventh section of the first article provides for the passage of bills negatived, or vetoed, by the president. Bills returned by him with his objections, become laws when passed by majorities of two-thirds of both houses; that is, by two-thirds of the members present. They also become laws if not returned by him within ten days (Sundays excepted) after they have been presented to him, unless their return is prevented by the adjournment of congress.
Sec.12. We have passed over several sections and clauses of this article without remark. Most of them are similar to some in the state constitutions, which we have noticed; and the propriety of others is so readily perceived, that any comment upon them is deemed unnecessary.
Power of Congress to lay Taxes, Duties, &c.; Power to Borrow Money.
Sec.1. Having shown how the legislative department of the general government is constituted, we proceed to consider its powers. It is thought proper, however, first to notice one important characteristic of the general government, in which it differs from the state governments, and the knowledge of which is necessary to a right understanding of the powers of the state and national governments respectively.
Sec.2. The general government is a government of delegated powers; that is, powers which have been intrusted or delegated to it by the states, or the people of the states. Having derived its powers from the states, or the people, it has such powers only as have been conferred by the constitution. Hence it is called a government of limited powers. The states, on the other hand, existing before the general government, and possessing entire sovereignty or supreme power, may exercise all powers which they have not surrendered to the general government. In other words, their powers are unlimited, except so far as they have parted with any of their original powers.
Sec.3. Most of the powers of congress are enumerated in the eighth section of the first article of the constitution. The first in the list is in these words: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the U. States."
Sec.4. We have already noticed the want of such a power in the old congress. The debt which had been contracted to carry on the war remained unpaid; and congress, as we have seen, had no power to raise money either to pay debts or to defray the current expenses of the government. (Chap. XXVII: Sec.4, 6.) It could neither raise money by direct taxation; that is, by taxing the persons and property of the citizens, nor by indirect taxation, which is by duties.
Sec.5. Duties, or customs, are taxes on goods imported from, or exported to, a foreign country. Imposts are taxes on imported goods only. Duties on exports, however, being deemed inexpedient, are not laid by our government. An excise is a tax neither on imports nor exports, but on articles produced and consumed in the country, and on licenses to deal in certain commodities. The money paid for license to sell spirituous liquors is an excise tax.
Sec.6. Duties are specific and ad valorem. A specific duty is a specified sum of money charged upon every yard, pound, or gallon of any commodity. Thus, a duty of ten cents on a pound of tea, or of one dollar on a yard of cloth, or of fifty cents on a gallon of wine, is a specific duty. Ad valorem is a Latin phrase, signifying according to the value. An ad valorem duty is a certain per centage on the value or price. Thus, thirty per cent, on a yard of cloth costing two dollars, is sixty cents; on a yard costing three dollars, ninety cents; the sum charged being varied by the difference in the price or value.
Sec.7. The power to lay duties is very properly qualified by the provision that "all duties shall be uniform throughout the United States." This was intended to prevent the giving of unjust preference to any one or more states over others. Without this restriction upon the exercise of this power, the representatives of a part of the states might combine, and by laying higher duties upon goods imported into other states, than upon those imported into their own, might turn the trade chiefly into the latter. Or they might in laying duties on exports, impose high duties upon the productions of other states, and low duties, or none at all, upon the products of their own.
Sec.8. Although Congress has power to lay direct taxes, it has seldom been exercised. The duties on foreign goods and on the vessels in which they were imported, have been found sufficient for the payment of the public debt, and for other government purposes. The national debt in 1791 was about $75,000,000, and, in 1804, had risen to $86,000,000; yet chiefly by duties was this debt reduced nearly one-half by the year 1812. By the war which commenced that year, the debt was again increased, being in 1816, $127,000,000. In 1835, this large debt had been, in the manner stated, entirely extinguished.
Sec.9. The next power mentioned is the "power to borrow money on the credit of the United States." Although Congress may, under the power to lay taxes and duties, raise money to any extent, a large amount may sometimes be wanted before it can be raised from the regular income or revenue of the nation, or even before it could be raised by a direct tax, which would be burdensome to the people. Hence the utility of the power to borrow money until it can be reimbursed from the national revenues.
Power of Congress to Regulate Commerce. Commerce with Foreign Nations.
Sec.1. Next in the list of powers is "the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The need of no power under the confederation was more deeply felt than the power to regulate foreign trade. It was the want of this power, as we have seen, which was the more immediate cause of calling the convention that framed the constitution. (Chap. XXVII: Sec.7-11.) The necessity of this power arose mainly from the policy of Great Britain, by which she had secured to herself undue advantages in her foreign commerce, especially in her trade with this country.
Sec.2. During the war of the revolution, the direct trade with Great Britain was interrupted. But when peace was restored, our markets were again open to British goods and vessels, while upon American produce and American vessels entering British ports, heavy duties were levied. To enable some young readers more clearly to understand the objects and the unequal operation of the policy of the British government, the subject may need some further illustration.
Sec.3. One object was, to secure a market at home for the products of agricultural labor. How this is done by taxing foreign products, will appear from the following example: Suppose the market value of a bushel of wheat in Great Britain to be one dollar a bushel, and the cost of raising the article here and carrying it to that market to be the same. If now a duty of 40 cents a bushel is laid upon wheat from abroad, the English consumer, instead of buying it with this duty added, will buy of the English producer. But more wheat is produced here than there is a market for; and the American farmer must find a market abroad. But in order to sell it in the English market, he must pay 40 cents on every bushel to the British government; or, which is the same thing in effect, he must sell it for 40 cents a bushel less than its value to the British purchaser, who pays the duty to that government.
Sec.4. Now, as much less American wheat will be sent to Great Britain than if it were free from duty, a better market is secured to the English farmer. Besides this, of the value of every bushel which Great Britain may please to admit, or which the people of other countries maybe obliged to sell to her, 40 per cent, is paid into her treasury. Thus by one operation, are two benefits secured, namely, the reward of agricultural labor at home, and the raising of revenue. So by the duties imposed upon foreign vessels entering her ports, the national revenue was to some extent increased, and great advantages were secured to her citizens engaged in the carrying trade.
Sec.5. The people of this country being nearly all employed in agriculture, and consequently dependent upon foreign markets for the sale of the surplus products of their labor, they were obliged to submit to the payment of these duties. And not possessing at that time the means of manufacturing to any considerable extent for themselves, goods in large quantities came in from Great Britain, for which they must pay in produce heavily burdened with duties, or with money obtained for the produce subject to these heavy duties.
Sec.6. To remove the inequality in the trade between the two countries, it was thought necessary to retaliate upon Great Britain by subjecting her goods and vessels coming into our ports to the payment of duties similar to those imposed on our produce and vessels in her ports. But the power to lay duties was with the states; and, as we have seen, the states could not agree upon any effectual system; for, in order to make any system effectual, the duties must be uniform throughout the United States.
Sec.7. It was intended, in regulating trade, to render our own country less dependent upon foreign nations for manufactured goods, by encouraging domestic or home manufactures by duties on goods imported. Duties laid for this purpose are called protective duties, being designed to protect our manufacturers against loss from the competition of foreigners. The nature and operation of a protective duty may be thus illustrated:
Sec.8. Suppose foreign broadcloth of a certain quality is sold in this country for $2.50 a yard, and cloth of the same quality manufactured here can not be afforded for less than $3 a yard. There would now be no encouragement to any one to engage in the manufacture of such cloth; because in order to sell it, he must reduce the price to that of the foreign article, which would subject him to a loss of fifty cents a yard. Let now a duty of $1 a yard be laid upon the foreign cloth, and the price would be $3.50, and preference would be given to the domestic article, unless the importer should reduce the price of his foreign cloth to $3; in which case, it is to be presumed, about an equal quantity of each would be consumed, and the duty of $1 a yard on the foreign cloth would go into the United States' treasury.
Sec.9. The same objects may, to some extent, be effected by the first mentioned power, "to lay taxes, duties," &c. In laying duties for revenue, that is, raising money to pay the debts and other expenses of the government, congress may lay the duties upon those kinds of goods which it wishes to protect; and thus indirectly both encourage domestic industry and regulate commerce. From this it appears that the three objects mentioned may be accomplished under the grant of either one of the two general powers, to lay duties, and to regulate commerce.
Sec.10. Why, then, it may be asked, were both these powers inserted in the constitution? The first expressly authorizes the laying of duties only to raise money for paying debts and government expenses; and protection and the regulation of commerce can only be effected indirectly. Hence, if our arrangements with foreign nations should be such as to render it unnecessary to lay duties to regulate commerce, or encourage domestic industry, money could not be raised without the express power to lay taxes, duties, &c. And such might be the state of things, that rates of duties sufficient for revenue would be insufficient for the purposes of protection and regulating trade. Therefore, both powers are properly granted to congress.
Sec.11. Again, it may be asked, if foreign goods without duty can be had at lower prices than domestic, why is it not better for us to buy them than to force the manufacture and sale of our own at higher prices? and, if there is no other way of raising money, why not do it by direct taxation? Suppose, for example, as in a preceding section, (Sec.8,) the price of foreign cloth to be $2.50 a yard, for which the farmer has to pay in wheat, or in cash received for it. But as the wheat has to be shipped to a foreign market, the merchant who takes it in exchange for the cloth, or the cash purchaser, deducts from the foreign market price the cost of transportation and the foreign duty, which, together, let us suppose to be fifty cents a bushel, or one-half of the foreign market price. A yard of cloth would then cost five bushels of wheat.
Sec.12. Let us now suppose a domestic article at $3 a yard to take the place of the foreign. A large portion of the laborers formerly employed in agriculture, are now engaged in building factories and in manufacturing. These, instead of being producers, have become only consumers of the wheat of the farmers, who now have a market at home, thus saving the duties and the cost of transportation. As there are now fewer producers, the price of wheat would probably be not less than $1 a bushel. Therefore a yard of domestic cloth would cost only three bushels of wheat, instead of five paid for the foreign cloth. And as there would be a corresponding rise in the price of labor, more cloth at $3 a yard could be bought for the avails of a day's labor than formerly.
Sec.13. The protection of domestic industry received the early attention of congress. The second law passed by the first congress under the constitution, authorized "duties to be laid on goods, wares, and merchandises imported;" and among the objects of the law expressed in a preamble one was "the encouragement and protection of domestic manufactures." For a long time, however, little was done in the way of protection. The principal nations of Europe, England included, became involved in war. A large portion of their laboring population having been called from agricultural pursuits into the armies, a foreign demand was created for American produce; and we were enabled to supply ourselves at less disadvantage with foreign manufactures.
Sec.14. But after peace had been restored in Europe, and people had returned to their usual employments, the foreign demand for our breadstuffs nearly ceased; and large quantities of foreign goods were again imported, for which our people were unable to pay. Congress now found it necessary to exercise, to a greater extent, its power to regulate trade, by discouraging importations, and encouraging domestic manufactures, and, in 1816, commenced an effective system of protection. Laws have from time to time been passed to favor manufactures from cotton, wool, iron, and other materials; and manufacturing is now carried on extensively in this country. By thus drawing a large portion of the people into manufacturing and mechanical employments, a market has been created at home for more grain, meat, and other agricultural products, than is required to supply all foreign demand.
Sec.15. The laws relating to foreign commerce prescribe the manner of collecting the revenue. There is in every port of entry a collector of customs, who superintends the collection of duties. When a vessel arrives it is submitted, with the cargo and all papers and invoices, to the inspection of the proper officers; and the goods subject to duty are weighed and measured, and the duties estimated according to law.
Power to regulate Commerce, continued. Navigation; Commerce among the States, and with the Indian Tribes.
Sec.1. In regulating foreign commerce, congress has also passed navigation laws. Navigation is the art of conducting ships and other vessels. It has reference also to the rules to be observed by owners and masters engaged in the shipping trade. We have noticed the navigation acts of Great Britain by which she built up her shipping interest; (Chap. XXVII, Sec.7,) and we have stated that one object of the power to regulate commerce was to countervail the effects of those acts upon our shipping.
Sec.2. To encourage and promote domestic navigation, an act was passed by the first congress conferring special privileges upon vessels built and owned by citizens of the United States. This was done by laying duties on tunnage. Tunnage means the content of a ship, or the burden that it will carry, which is ascertained by measurement, 42 cubic feet being allowed to a tun. This act imposed a duty of fifty cents a tun on foreign vessels, and upon our own a duty of only six cents a tun. As such a law discriminates, or makes a distinction or difference between domestic and foreign vessels, these duties are also called discriminating duties.
Sec.3. By the aid of these protective duties, slightly changed from time to time, our shipping interest acquired great strength. But the necessity of discriminating duties no longer exists. By the stipulations of existing treaties between the principal commercial nations, each is to admit into her ports the vessels of the others on equal terms with her own. Our government having become a party to this agreement, discriminating tunnage duties have been abolished.
Sec.4. The registry, however, of vessels of the United States, and other regulations concerning them, are for the most part continued. A vessel is measured by a surveyor to ascertain her tunnage, and the collector records or registers in a book her name, the port to which she belongs, her burden or tunnage, and the name of the place in which she was built, and gives to the owner or commander a certificate of such registry.
Sec.5. The master of a vessel departing from the United States, bound to a foreign port, must deliver to the collector of the district, a manifest, which is an invoice, or account of the particulars of a cargo of goods, and of their prices or value. This statement is subscribed by the master, and sworn by him to be true. The collector then grants a clearance, for the vessel, which is a certificate stating that the commander has cleared his vessel according to law.
Sec.6. Vessels of the United States going to foreign countries, are, at the request of the masters, furnished with passports. A passport is a writing from the proper authority of a state or kingdom, granting permission to pass from place to place, or to navigate some sea without hinderance or molestation. It contains the name of the vessel and that of her master, her tunnage, and the number of her crew, certifying that she belongs to the subjects of a particular state, and requiring all persons at peace with that state, to suffer her to proceed on her voyage without interruption. In this country the form of a passport is prepared by the secretary of state, and approved by the president.
Sec.7. The navigation laws also provide for the safety of passengers and the crews of vessels, limiting the number of passengers on passenger vessels, and prescribing the quantity of water and certain kinds of provisions which merchant vessels are required to have for each person on board. They also declare what persons may be employed on board, and how funds shall be provided for sick and disabled seamen.
Sec.8. Under the power to regulate commerce, congress has also passed laws relating to quarantines. The word quarantine, from the Latin quarantina, signifies the space of forty days. Originally vessels suspected of having contagious sickness on board, or of being infected with malignant, contagious disease, were forbidden, for forty days, to have intercourse with the place or port at which they arrived. The period for which ships are now detained is not defined, but is fixed by the proper officers at their discretion, according to circumstances. Quarantines are required by the health laws of the states; and by the laws of congress, vessels are to be subject to the health laws of the state at whose ports they arrive.
Sec.9. In connection with the power to regulate foreign commerce, power is given to regulate "commerce among the several states," or internal commerce. We have noticed the difficulties which attended the different commercial regulations of the states, and the necessity of a uniform system, which could be had only by giving congress alone the power to regulate commerce. (Chap. XXXI., Sec.7.) Without the power to regulate internal commerce, congress could not give effect to the power to regulate foreign commerce. One state might impose unjust and oppressive duties upon goods imported or exported through it by another state. But in the hands of congress, the power to regulate internal as well as foreign commerce, secures to all the states the benefits of a free and uninterrupted trade.
Sec.10. In granting to congress the power to regulate commerce "with the Indian tribes," it was intended to lessen the dangers of war. Murders and war had been provoked by the improper conduct of some of the states. It was believed, that, by a uniform policy, difficulties would be more likely to be prevented; and that if they should occur, they would be more likely to be amicably settled by the general government than by a state, which, being an interested party, would be more liable to misjudge the matter in dispute, and more rigid in demanding satisfaction for injuries, as well as more severe in redressing them.
Powers of Congress in relation to Naturalization; Bankruptcy; Coining Money; Weights and Measures; Punishment of Counterfeiting.
Sec.1. The next clause grants to congress the power "to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States." We have already noticed some of the disqualifications of aliens. (Chap. VI, Sec.5.) By the common law of England and this country, aliens were not only politically disqualified, but they could not in their own name lawfully hold and sell real estate. To admit aliens to all the rights and privileges of citizens immediately on their arrival in this country, and before they shall have acquired a knowledge of our government and laws, and of the duties of citizens, would be expedient. Educated under monarchical governments, many of them, it is to be presumed, have little respect for our republican institutions, or at most but an imperfect knowledge of them.
Sec.2. But to deny foreigners the rights of citizens after they shall have acquired a fixed residence here, and a knowledge of their civil and political duties, would be illiberal and unjust. Provision has therefore been made for removing their disqualifications, or for naturalizing them; that is, for investing them with the rights and privileges of natural born citizens. But if different rules were established by the different states, a person, having become naturalized in one state, would, on removing into another state, be deprived of the rights of citizenship, until he should have been naturalized by the laws of such state. Besides, by the constitution, a person, on becoming a citizen of any state, is a citizen of the United States, and entitled to the privileges of a citizen in any other state. (Art. IV., Sec.2.) As, therefore, there should be one uniform rule, the power of naturalization is properly given to congress.
Sec.3. An alien, to become a citizen, must declare on oath before a state court or a circuit court of the United States, or before a clerk of either of said courts, after having resided three years in the United States, that it is his intention to become a citizen, and to renounce his allegiance to all foreign governments, and particularly that under which he formerly lived, and that he will support the constitution of the United States. Then after two years, the court, if satisfied that he has resided five years in the United States, and one year in the state in which the court is held, and that during that time he has behaved as a man of good moral character, and is attached to the principles of the constitution, may admit him as a citizen.
Sec.4. An alien minor who has resided in the United States at least three years before he was twenty-one years of age, may, at any time after that age and five years' residence in the United States, be admitted as a citizen, without having previously declared his intention to become a citizen. Also the minor children of a naturalized citizen, if dwelling in the United States at the time of his naturalization, become citizens.
Sec.5. A bankrupt is an insolvent debtor; that is, a person who is unable to pay all his just debts. A bankrupt law is a law which, upon an insolvent's giving up all his property to his creditors, discharges him from the payment of his debts. Such laws are designed for the benefit of honest and unfortunate debtors, who, by having the enjoyment of their future earnings secured to them, are encouraged to engage anew in industrial pursuits. But these laws, intended for the benefit of the unfortunate poor, have enabled dishonest and fraudulent debtors to procure a release from their debts.
Sec.6. Experience had shown the propriety of intrusting to congress the power to make these laws. The dissimilar and conflicting laws of the different states, and the entire want of them in others, had caused great inconvenience. A debtor, though discharged from debt by the laws of one state, was liable to be prosecuted on removing into another state. Important as such laws were deemed, there is no existing law on the subject. A bankrupt law was passed in April, 1800, and repealed in December, 1803. Another was passed in 1841, which was of still shorter duration.
Sec.7. The next power mentioned is the power "to coin money and regulate the value thereof." As a consequence of giving this power to Congress, we have a uniform currency throughout the union. We have also, instead of the awkward system of reckoning by pounds, shillings, and pence, the more convenient decimal mode of calculation by dollars and cents. The old system was rendered the more inconvenient by the difference in the value of a pound, shilling, and penny in the different states. A merchant in a New England state, buying goods in New York or Philadelphia, must, in order to put prices upon them, reduce the currency of the state in which he bought them to New England currency. Thus, the cost of an article being in New York two shillings and four pence a pound, would be in Connecticut one shilling and nine pence. One shilling and six pence in New York would be in any New England state one shilling and a penny and a half.
Sec.8. The place where money is coined is called mint. The principal mint in the United States, and the first that was established in this country, is at Philadelphia. The business of coining is under the superintendence of a director. Under him are a treasurer, an assayer, a chief coiner, an engraver, and a melter and refiner. The gold and silver, before it is coined, is called bullion. There is a branch mint in New Orleans, one at Charlotte, in North Carolina, one at Dahlonega, in Georgia, one in California, and one in the city of New York. At the place last mentioned, gold is assayed, but not coined.
Sec.9. The clause containing the power last quoted, gives power also to "fix the standard of weights and measures." For the convenience of trade between the states, the standard of weights and measures should be the same in all the states. Without such uniformity, commerce among the states would meet with embarrassments scarcely less than those experienced from the want of a uniform currency. To effect the desired object, this power was given to congress.
Sec.10. The next power in the list is the power "to provide for the punishment of counterfeiting the securities and current coin of the United States." By securities here are meant bonds and other evidences of debt. As the general government has the power to borrow money and to coin money, it is proper that it should also have the power to provide for punishing those who forge its written obligations for the payment of the money borrowed, and who counterfeit its coin. These offenses are tried in the courts of the United States.
Powers of Congress in relation to Post-Offices, Copy-Rights, and Patents, and Inferior Courts.
Sec.1. Congress has power "to establish post-offices and post-roads." The post-office department, from the facilities which it affords for the circulation of intelligence and the transaction of business, is an institution of incalculable value to the union. It is impossible to conceive all the difficulties which would attend the exercise of this power by the different states. A uniform system of regulations is indispensable to the efficiency of this department, and could be secured only by placing this power in the hands of congress.
Sec.2. Congress has power "to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Useful sciences and arts are promoted by new books and new inventions. But if every man had the right to print and sell every book or writing, without compensation to the author, there would be little to encourage men of ability to spend, as is often done, years of labor in preparing new and useful works. Nor would men of genius be likely to spend their time and money in inventing and constructing expensive machinery, if others had an equal right to make and sell the same. In pursuance of the power here given, congress has enacted laws for the benefit of authors and inventors.
Sec.3. The exclusive right of an author to the benefits of the sale of his books or writings, is called copy-right, and is obtained thus: The author sends a printed copy of the title of his book to the clerk of the district court of the United States of the district in which the author resides. The clerk records the title in a book, for which he receives fifty cents, and gives the author, under the seal of the court, a copy of the record, for which also he receives fifty cents.
Sec.4. The author must also, within three months after the first publication of the work, deliver a copy of the same to the clerk of the district court. And he must cause to be printed on the title page or page immediately following, of every copy of the book, words showing that the law has been complied with. This secures to the author the sole right to print and sell his work for twenty-eight years, at the expiration of which time, he may have his right continued for fourteen years longer, by again complying with the requirements of the law as before, provided it be done within six months before the expiration of the first term, and a copy of the record published in a newspaper for the space of four weeks.
Sec.5. Patents for new inventions are obtained at the patent office at the seat of government. This office is connected with the department of the interior. (Chap. XLI, Sec.7.) The commissioner of patents superintends the granting of patents under the direction of the secretary of the interior. To secure an exclusive right to an invention, the inventor must deliver to the commissioner of patents, a written description of his invention, and specify the improvement which he claims as his own discovery; and he must make oath that he believes he is the discoverer thereof.
Sec.6. Before the petition of an inventor is considered, he must pay the sum of thirty dollars. If the commissioner, upon examination, does not find that the invention had been before discovered, he issues a patent therefor. Patents are granted for the term of fourteen years, and may be renewed for a further term of seven years, if the inventor has not been able to obtain a reasonable profit from his invention.
Sec.7. Congress has power "to constitute tribunals inferior to the supreme court." As the first section of the third article of the constitution, in providing for a national judiciary, authorizes congress to ordain and establish such inferior courts, the insertion of the power in this place seems to have been unnecessary, (Chap. XLII, Sec.1.)
Powers of Congress in relation to Piracy and Offenses against the Law of Nations; War; Marque and Reprisal, Public Defense, District of Columbia; Implied Powers.
Sec.1. The next clause grants to congress the power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Piracy is commonly defined to be forcible robbery or depredation upon the high seas. But the term felony was not exactly defined by the laws of England, whence the common law of this country was derived; consequently its meaning was not the same in all the states. It was sometimes applied to capital offenses only; at other times, to all crimes above misdemeanors. For the sake of uniformity, the power to define these offenses is given to congress: and as the states have no jurisdiction beyond their own limits, it is proper that congress should have the power to punish as well as define crimes committed on the high seas.
Sec.2. Nor were offenses against the law of nations more clearly defined: therefore the power to define these are with equal propriety given to congress. As our citizens are regarded by foreign nations as citizens of the United States and not as citizens of their respective states; and as the general government alone is responsible to foreign nations for injuries committed on the high seas by citizens of the United States, this power is vested in congress.
Sec.3. Congress is also properly intrusted with the power "to declare war; grant letters of marque and reprisal; and make rules concerning captures on land and water." It is very evident that a single state ought not to be allowed to make war. As the people of all the states become involved in the evils of war, the power to declare it is justly given to the representatives of the whole nation. In monarchical governments this power is exercised by the king, or supreme ruler. But so important a power should not be intrusted to a single individual. The framers of the constitution have wisely intrusted it to the representatives of those who have to bear the burdens of the war.
Sec.4. Marque means passing the frontier or limits of a country; reprisal, taking in return. Letters of marque and reprisal authorize persons injured by citizens or subjects of another nation to seize the bodies or goods of any of the citizens of such nation, and detain them until satisfaction shall be made. To permit an individual to act as judge in his own case in redressing his private wrongs would increase the dangers of war.
Sec.5. Nor should a state be permitted to authorize its citizens to make reprisals; for, although such authority is designed to enable the citizens of one country to obtain redress for injuries committed by those of another, without a resort to war, the tendency of reprisals is to provoke rather than to prevent war; and as the whole nation becomes involved in a war, the power to authorize reprisals properly belongs to the general government. Indeed it is not clear that such license ought ever to be given. It does not appear strictly just to capture the bodies or goods of unoffending persons, especially before war has been declared between the two countries. But if the power to grant such license is ever to be exercised, it ought to be vested in congress.
Sec.6. As congress has the power to declare war, it ought to have power to make rules concerning the property captured in time of war. The general practice is to distribute the proceeds of the property among the captors as a reward for bravery and a stimulus to exertion. But proof must be made in a court of the United States that the property was taken from the enemy, before it is condemned by the court as a prize.
Sec.7. The next five clauses provide for the security and defense of the nation. The power to declare war would be of little use in the hands of congress, without power over the army, navy and militia. This had been proved by experience Congress had power under the confederation to declare war; but, as we have seen, it could not raise troops, nor compel the states to raise them. To guard against similar difficulties in future, power to control the public forces was placed where it can be promptly and effectively exercised.
Sec.8. The next power of congress is, "to exercise exclusive legislation over such district, not exceeding ten miles square, as may, by cession of particular states, and the acceptance of congress, become the seat of government of the United States." If the seat of the general government were within the jurisdiction of a state, congress and other public officers would be dependent on the state authority for protection in the discharge of their duties. To guard the public business more effectually against the danger of interruption, complete and exclusive power at the seat of government is given to congress. The old congress had once, near the close of the Revolution, been treated with insult and abuse while sitting at Philadelphia; and the executive authority of Pennsylvania having failed to afford protection, congress adjourned to Princeton in the State of New Jersey.
Sec.9. It appears that the cession of this territory to the general government had not yet been made; but it was in contemplation by the states of Virginia and Maryland to cede it. It is called the District of Columbia. Its inhabitants are subject to the laws of congress. That part of the district which was ceded by Virginia, was in 1846, retroceded by congress to that state. To congress is given, with equal propriety, exclusive authority over all places purchased "for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."
Sec.10. The last power granted in this section, is the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." As it was impossible to enumerate in the constitution every particular act which congress might find it necessary to perform, certain powers were expressly granted; and to these powers was added this general grant of power to pass laws for carrying them into effect.
Sec.11. It is the opinion of eminent statesmen that this clause confers no additional power. They hold that the power therein granted is necessarily implied or included in the foregoing powers. For example: The power "to regulate commerce" includes the power to cause the construction of break-waters and light-houses, the removal of obstructions from navigable rivers, and the improvement of harbors; for in regulating and facilitating commerce, these works and improvements are absolutely necessary. So the power "to establish post-offices" implies the power to punish persons for robbing the mail. The doctrine is, "that wherever a general power to do a thing is given, every particular power for doing it is included." Hence it is inferred that congress would have had the power to pass the laws here authorized, though no express power for that purpose had been given.
Sec.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.
Prohibitions on Congress.
Sec.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."
Sec.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.
Sec.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.
Sec.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.
Sec.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.
Sec.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.
Sec.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. Sec.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.
Sec.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 principal 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.
Sec.9. As it was the purpose of the framers of the constitution 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."
Sec.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, passes 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.
Sec.11. It is next declared, that "no title of nobility shall be granted by the United States." Although the bare titles of lord, duke, &c., which are conferred upon citizens in monarchical governments, could not add to the political power of any person under our constitution; 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 titles of nobility. And to guard public officers against being corrupted by foreign influence, they are forbidden to "accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state."
Prohibitions on the States.
Sec.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: Sec.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 constitute 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.
Sec.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. XXXVI, Sec.5.)
Sec.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. XXXIV, Sec.7.) But this object would not be likely to be attained, if the power to coin money were exercised by the states.
Sec.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.
Sec.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.
Sec.6. Nor may a state "pass 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. XXXVII, Sec.5.) If these laws are in their nature wrong, the states as well as congress should be prohibited from passing 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.
Sec.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 pass 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 pass a bankrupt law discharging a debtor from the obligation of a contract made before such law was passed. 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.
Sec.8. The last thing prohibited in this clause, is, "to grant any title of nobility." This is forbidden to the states for the same reason as it is prohibited to congress. (Chap. XXXVII, Sec.11.)
Sec.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. XXXII, Sec.6.) And as congress is properly prohibited from laying duties on exports, (Chap. XXXVI, Sec.8, 9,) there can be no good reason for allowing it to be done by the states.
Sec.10. The exception allowing a state to lay duties necessary to execute its inspection laws was deemed proper. Laws are passed 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 quantity, 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."
Sec.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.
Executive Department. President and Vice-President; their Election, Qualifications, &c.
Sec.1. The second article of the constitution relates to the executive department. Of the necessity of a separate and distinct power to execute the laws, we have already spoken. (Chap. VIII, Sec.7.) Under the confederation, as will be recollected, there was no national executive. This defect has been supplied by the constitution. "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, Sec.1.)
Sec.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 associated 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.