Opinion of the


passed by Congress to suspend the writ was in March, 1863. It had, however, been previously suspended by President Lincoln (April 27th, 1861) in an order to Lieutenant-General Scott. This had reference to the military line between Philadelphia and Washington. This action of the President was in accordance with the opinion of the Attorney-General, who is his legal adviser. Attorney-General Bates says: "If by the phrase, the suspension of the writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean that in case of a great and dangerous rebellion like the present, the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion that the President has lawful power to suspend the privilege of persons arrested under such circumstances, for he is specially charged by the Constitution with the 'public safety,' and he is the sole judge of the emergency which requires his prompt action."


Most of those who believe that the Constitution gives to Congress the power to suspend the writ, would admit that in cases of exigency the President might exercise the power without the authority of Congress. Thus Mr. Mulford says: “Since the legislature can not always act with the immediate energy which may be demanded, and does not act continuously, in its supreme necessity, in the actual or in the imminent peril of the nation, it becomes not only the office but the imperative duty of the executive to assert it." 1

In the act of Congress passed March 3d, 1863, the President was authorized to suspend the privilege of the writ in any case throughout the United States, whenever in his

judgment the public safety should require it. The Action of Congress in 1863. same act contained a clause of indemnity to the President and those acting under his orders for any arrest or

1 The Nation, page 188.

imprisonment during the existence of the rebellion. The suspension of the writ of habeas corpus in the recent rebellion was, therefore, by the authority of both the legislative and executive departments of the government.

The suspension of the writ does not make it unlawful for the judge to issue the writ; but the writ having been issued, it is a sufficient return, or answer, to it to say that the privilege of the writ has been suspended.


Though the writ of habeas corpus had never been suspended, either by the Congress or the President, until the late rebellion, it appears to have been suspended by military officers. "During the administration of President Washington, in the Pennsylvania 'Whisky Insurrection' of 1794 and 1795, the military authorities engaged in suppressing it disregarded the writs which were issued by the courts for the release of the prisoners who had been captured as insurgents. General Wilkinson, under the authority of President Jefferson, during the Burr Conspiracy of 1806, suspended the privilege of this writ, as against the Superior Court of New Orleans. General Jackson assumed the right to refuse obedience to the writ of habeas corpus first in New Orleans, in 1814, as against the authority of Judge Hall, when the British army was approaching that city; and afterward, in Florida, as against the authority of Judge Fromentin." 1

Clause 3.-No bill of attainder or ex post facto law shall be passed.

Bill of Attainder.

A bill of attainder is a legislative act inflicting death or other punishment without a judicial trial. If the punishment is less than death, the act is now called in England a bill of pains and penalties. The legislature, in passing such a bill, assumes the functions of the judicial department of the government; it pronounces sentences and inflicts punishments not determined by previous law; and it ordinarily gives the person accused no opportunity of defending

1 Halleck's International Law and Laws of War, page 379, quoted by Hon. A. F. Perry.

himself. "Such was the bill of attainder in England, and such was it in this country at the time of the adoption of the Constitution. By that the whole subject was abolished and prohibited entirely and forever." 1

Ex Post Facto

An ex post facto law is one which makes an act criminal which was not criminal when committed. So a law would be ex post facto that inflicts a greater punishment than the law imposed when the crime was committed.) The phrase applies only to penal and criminal laws, and not to civil proceedings which affect private interests retrospectively. A law abolishing imprisonment for debt would not be an ex post facto law, though it should apply to past contracts; nor would a law rectifying some error, as making deeds of land valid which were void through some defect.

In the case, ex parte Garland, the majority of the Supreme Court held that the law of January 24th, 1865, which required a prescribed oath of every attorney before he could practice at the bar of a United States Court, was

Case of Gar


in violation of this clause, and therefore unconstitutional. Judges Chase, Davis, Miller, and Swayne dissented; in their judgment the act of Congress referred to was neither a bill of attainder nor an ex post facto law.2

Clause 4.-No capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be taken.

A capitation tax is a poll tax.
ing to property but by the head.
Constitution provided that direct taxes should be
divided among the States according to the popula-
tion; and in estimating the population, only three

The tax is levied not accord-
By Article I, Section 2, the



fifths of the slaves should be counted. This clause would therefore exempt two fifths of the slaves from every poll tax

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levied by the general government. It was to secure this exemption, and to prevent the levying of any special tax on slaves that the clause was inserted. No capitation tax has ever been levied by the United States. The Constitution of Ohio forbids it for State or county purposes. The direct tax of 1798 was assessed upon dwelling-houses, lands, and slaves-upon each slave fifty cents. This was not a capitation tax, though in the States where slaves were held, a part of the tax was levied upon the capitation principle, so far as the slaves were concerned.

Clause 5. No tax or duty shall be laid on articles exported from any State. 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.

Export Duties.

That part of this clause which relates to the taxing of exports was reported by the committee of detail in connection with the clause relating to the importation of slaves. There was strong opposition in the Convention to giving up the right to tax exports. Several of the most influential members, Washington, Madison, Wilson, Morris, and others, were in favor of allowing Congress to tax exports as well as imports, regarding the power as essential to a general government.

The Constitution of the Confederate States contained no such clause of prohibition, and heavy export duties were levied upon cotton.

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To" enter a port is to report the ship with the cargo to the proper officer, and obtain permission to land the cargo.

Entering a


"clear" is to obtain from the proper authorities Port. the necessary papers for sailing from the port. While we were colonies under Great Britain, no American ship could trade with any port in Europe unless it

But now a vessel

first entered and cleared from a British port. can take her cargo from New York, or Boston, or New Orleans, directly to any European port. So a vessel can go from any one American port to any other. This latter constitutes the coasting trade, which is vastly greater in amount than the foreign trade.

A former clause (Sec. 8, Clause 1) requires all duties, imposts, and excises to be uniform throughout the United States. This clause, providing that no preference should be given to one State over another in any commercial regulation, is of the same character. The different States were to be treated with absolute impartiality and equal justice by the general govern


Clause 6.-No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.



The propriety of this clause is obvious. It is a limitation on the Executive Department, and not on the Legislative. The appropriations are voted annually, the fiscal year ending on the 30th of June. These appropriations are made for the different departments of the government with much detail, and the duties devolving on the committee on appropriations are very arduous and responsible. The acts making appropriations for the year ending June 30th, 1872, fill ninety-eight pages of the United States Statutes at Large. To show the minuteness of these appropriations, there are fifteen different specifications under the head of "Library of Congress."


The account of the receipts and expenditures is annually reported to Congress by the Secretary of the Treasury. These reports form an important part of the executive documents of the government.


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