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1. 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.
This clause does not in its words or meaning apply to State governments. Butler v. Hopper, i Wash. C. C. 499.
The power to prohibit the admission of “all such persons,” includes necessarily the power to admit them on such conditions as Congress may think proper to impose, and therefore, as a condition, Congress has the unlimited power of taxing them. The whole power over the subject belongs exclusively to Congress, and connects itself indissolubly with the power to regulate commerce with foreign nations. It therefore follows that passengers can never be subject to State laws until they become a portion of the population of the State, temporarily or permanently. Passenger Cases, 7 How. 283; S. C. 45 Mass. 282.
2. 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.
The president can not suspendthe writ of habeas corpus. That is an act of legislative power which can only be performed by Congress. Griffin v. Wilcox, 21 Ind. 370; in re Nicholas Kemp, 16 Wis. 359; ex parte John. Merryman, Taney, 246; contra, ex parte Field, 5 Blatch. 63.
Congress, in the cases mentioned, is the judge of whether the public safety does or does not require the suspension of the writ, and its judgment is conclusive. Ex parte John Merryman, Taney, 246 ; McCall v. McDowell, 1 Deady, 233; S. C. I Abb. C. C. 212.
The commander of a military district can not suspend the writ of habeas corpus. Johnson v. Duncan, 3 Mart. 531; ex parte Field, 5 Blatch. 63.
Congress has no power to suspend the issuing of a writ of habeas corpus by a State court. Griffin v. Wilcox, 21 Ind. 370; Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465.
A stipulation in a treaty prohibiting the issuing of a writ of habeas cor- . pus would be void, for the treaty making power is not competent to suspend the writ in time of peace. Ex parte Thomas Kaine, 10 N. Y. Leg. Obs. 257.
The language.is, “the privilege of the writ shall not be suspended;"
" that is, the right to the writ, the privilege of having it issued and the case beard and determined shall not be suspended. It has no reference to the reasonable delay that may be occasioned in the disposition of such cases by a writ of review. Macready v. Wilcox, 33 Conn. 321.
A statute authorizing the president during a certain period to suspend the writ of habeas corpus whenever in his judgment the public safety requires it, is valid; for Congress does thereby exercise the discretion vested in it to determine that the emergency requires a suspension. In re Richard Oliver, 17 Wis. 681; McCall v. McDowell, i Deady, 233; S. C. I Abb. C. C. 212.
The suspension of the privilege of the writ is an express permission and direction from Congress to the executive to arrest and imprison all persons. for the time being, whom he has reason to believe or suspect of intention or conduct in relation to the rebellion or invasion, which is or may be dangerous to the common weal. McCall v. McDowell, i Deady, 233; S. C. I Abb. C. C. 212.
The suspension of the privilege of the writ of habeas corpus being the virtual authorization of arrests without the ordinary legal cause or warrant, it follows that such arrests, pending the suspension and when made in obedience to the order or authority of the officer to whom that power is committed, are practically legal, and the persons making them are not liable to an action of damages therefor. McCall v. McDowell, i Deady. 233; S. C. I Abb. C. C. 212.
Congress may provide that an officer shall not be liable for an arrest made during the suspension of the privilege of the writ of habeas corpus. McCall v. McDowell, i Deady, 233; S. C. I Abb, C. C. 212.
The privilege of the writ of habeas corpus is the privilege of having judicial inquiry made into the cause of imprisonment, and a discharge if the detention be found to be unlawful, and a suspension thereof precludes all further proceedings on a writ already issued. Ex parte Fagan, 2 Sprague, 91; ex parte Dunn, 25 How. Pr. 467.
There is a plain distinction between the suspension of the writ in the sense of the Constitution and the right of a military commander to refuse obedience when justified by the exigencies of war, or the ipso facto suspension which takes place wherever martial law actually exists. But this kind of suspension which comes with war and exists without proclamation or other act, is limited by the necessities of war. It applies only to cases where the demands upon the officer's time and services are such that he can not, consistently with his superior military duty, yield obedience to the mandates of the civil authorities, and to cases arising within districts which are properly subjected to martial law. In cases of the latter description it is probable that the civil magistrates would be bound to take judicial notice of martial law; but as to the former, it would seem that the military officer should, if practicable, make return of the facts showing his excuse. In re Nicholas Kemp, 16 Wis. 359.
3. No bill of attainder, or ex post facto law, shall be passed.
This provision relates to criminal laws only. Comm. v. Lewis, 6 Binn. 266.
A statute making treasury notes a legal tender is not an ex post facto law. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.
This provision applies not merely to criminal laws and cases, but to cases for the recovery of penalties and forfeitures. U. S. v. Hughes, 21 I. R. R. 84.
A statute which attempts to validate a punishment which would otherwise be illegal, is an ex post facto law. In re William Murphy, 1 Wool.141.
Exclusion from any of the professions, or any of the ordinary avocations of life, for past conduct, is a punishment for such conduct. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included. Ex parte Garland, 4 Wall. 333.
If a party who has once incurred a forfeiture seeks to avail himself of a defense granted by a subsequent law, he must take it subject to such terms and conditions as the legislature at the time when it passed the beneficial law, or at any future time, may please to prescribe. In such case the subsequent law can not be denominated ex post facto, because it does not, in any respect, change the condition of the party from what it was when the act was performed. U. S. v. Hall, 2 Wash. C. C. 366.
A statute excluding a person from the practice of a profession unless he will take an oath that he has not committed a certain act prior to the passage thereof, is an ex post facto law. Ex parte Garland, 4 Wall. 333; ex parte William Law, 35 Geo. 285; ex parte John Baxter, 14 A. L. Reg. 159.
A statute which imposes forfeiture of citizenship for a continuance of desertion by refusing to return after an assurance of pardon, is not an ex post facto law. Gotcheus v. Matheson, 58 Barb. 152; S. C. 40 How. Pr. 97.
If a statute, imposing a forfeiture of citizenship for a continuance of desertion after a proclamation, contemplates a trial by court martial to enforce the penalty, it is not a bill of attainder. Gotcheus v. Matheson, 58 Barb. 152; s. C. 40 How. Pr. 97.
A statute which in effect makes the non-payment of taxes for a certain period sufficient evidence of participation in rebellion, and forfeits the land absolutely therefor, is a bill of attainder. Martin v. Snowden, 18 Gratt.
A statute providing for a forfeiture of the distillery premises for a violation of an internal revenue law, is not a bill of attainder. U.S. v. Distillery, 2 Abb. C. C. 192.
A treaty for the extradition of criminals is not an ex post facto law, although it provides for crimes committed before its adoption. Ex parte Angelo De Giacomo, 12 Blatch. 391.
4. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.
The census referred to is a census exhibiting the numbers of the respective States. The omission to extend it to the District of Columbia or the territories, would not render it defective. The application of the power of direct taxation is not limited to the population contained in this census. *The language of the clause does not imply. this restriction. It is that no capitation or other direct tax shall be laid “unless in proportion to the census." This proportion may be applied to the District of Columbia or the territories. If an enumeration be taken of the population in the District of Columbia and the territories on the same principles on which the enumeration of the respective States is made, then the information is acquired by which a direct tax may be imposed on the District of Columbia and the territories. If the tax be laid in this proportion, it is within the very words of the restriction. Loughborough v. Blake, 5 Wheat. 317.
It was obviously the intention of the framers of the Constitution that Congress should possess full power over every species of taxable property except exports. The term taxes is generical, and was made use of to vest in Congress plenary authority in all cases of taxation. The general division of taxes is into direct and indirect. Although the latter term is not to be found in the Constitution, yet the former necessarily implies it. Indirect stands opposed to direct. There may, perhaps, be an indirect tax on a particular article that can not be comprehended within the description of duties, or imposts, or excises. In such case it will be comprised under the general denomination of taxes; for the term taxes is the genus, and includes: ist. Direct taxes. 2d. Duties, imposts and excises. 3d. All other classes of an indirect kind, and not within any of the classifications enumerated under the preceding heads. Taxes of the last class may be laid by the rule of uniformity or not, as Congress shall think proper and reasonable. Hylton v. U. S. 3 Dall. 171.
A general power is given to Congress to lay and collect taxes of every kind or nature, without any restraint, except on exports. But two rules are prescribed for their government, namely, uniformity and apportionment. Three kinds of taxes, to wit, duties, imposts and excises by the first rule, and capitation or other direct taxes by the second rule. Hylton v. U. S. 3 Dall. 171.
This clause gives a rule when the territories shall be taxed without imposing the necessity of taxing them. Loughborough v. Blake, 5 Wheat. 317.
The power to tax without apportionment extends to all other subjects. Taxes on other objects are included under the head of taxes not direct duties, imposts and excises, and must be laid and collected by the rule of uniformity. Veazie Bank v. Fenno, 8 Wall. 533.
The rule of apportionment is radically wrong, and can not be supported by any solid reasoning. It ought not, therefore, to be extended by construction. Apportionment is an operation on States, and involves valuations and assessments which are arbitrary, and should not be resorted to but in case of necessity. Uniformity is a visitant operation on individuals, without the intervention of assessments or any regard to States, and is at once easy, certain and efficacious. Hylton v. U. S. 3 Dall. 171.
The Constitution declares that a capitation tax is a direct tax, and both in theory and practice a tax on land is deemed to be a direct tax. In this way the terms, direct taxes and capitation and other direct taxes, are satisfied. Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax and a tax on land, is a questionable point. Hylton v. U. S. 3 Dall. 171.
The words “ • direct taxes," as used in the Constitution, comprehend only capitation taxes and taxes on lands, and perhaps taxes on personal property, by general valuation and assessment of the various descriptions possessed within the several States. Veazie Bank v. Fenno, 8 Wall. 533.
A tax on carriages kept for his own use by the owner is not a direct tax. Hylton v. U. S. 3 Dall. 171.
3 A tax upon the business of an insurance company is not a direct tax. Pacific Ins. Co. v. Soule, 7 Wall. 433.
A tax on bank circulation is not a direct tax.
Veazie Bank v. Fenno, 8
A tax on income is not a capitation or other direct tax. Smedberry v. Bentley, 21 I. R. R. 38; Clark v. Sickel, 14 I. R. R. 6.
A succession tax is not a direct tax, but is an excise tax or duty. Scholey v. Rew, 23 Wall. 331.