were not punishable at the time they were committed; and for other of the acts it adds a new punishment to that before prescribed, and it is thus brought within the further inhibition of the Constitution against the passage of an ex post facto law."

The act was held to be unconstitutional.53

We have seen that the principle is established that ex post facto laws apply only to criminal statutes. Mr. Justice Miller observes on this subject, "Ex post facto laws' are laws intended to operate in the way of punishing crimes which are passed after the offense or crime for which the party is being tried was committed. It was at one time suggested that this kind of enactment might be held to be any law which affected the rights of a person, civilly or criminally, after those rights had been acquired or established in accordance with existing laws. This, however, is a mistake, and the phrase, 'ex post facto laws' has application alone to laws which relate to crimes and criminal proceedings, because it was used in that limited sense by our English ancestors long previous to the formation of the Constitution.''54

A. was convicted of murder, the punishment for which was death. Subsequent to his conviction and prior to his execution, the legislature of the State passed a law that persons so convicted should be kept in solitary confinement until infliction of the death penalty. This statute was held to be an ex post facto law, and it was further held that both punishments could not be inflicted upon the prisoner. Held further, that that provision of the statute which commanded the sheriff to withhold. knowledge of the day of execution from the prisoner was void, since it was not a part of the law when the crime was committed. The general doctrine was stated to be, that a law passed subsequent to the commission of a crime, which inflicts a greater punishment for the crime than was done by the law at the time it was committed, or which changes the relation of the prisoner to his disadvantage, is an ex post facto law, and contrary to the Constitution of the United States.55

53 Ex parte Garland, 4 Wallace, 333. 54 Miller on the Constitution, 585.

55 Medley Petitioner, 134 U. S., 160-171-72.

But a State law which changes the trial from one county to another, even though in a different district from the one in which the offense was committed, or where the indictment was found, does not amount to an ex post facto law, though passed after the commission of the offense or the indictment was found.5

56 Gut v. The State, 9 Wallace, 35.

POWERS

CHAPTER XXXI.

DENIED TO THE CONGRESS CONTINUED-CAPITATION OR DIRECT TAXES, HOW LAID-NO TAX ON EXPORTSNO PREFERENCE TO PORTS OF ANY STATE-VESSELS FROM ONE STATE NOT TO PAY DUTY IN ANOTHER STATE -MONEY, HOW DRAWN FROM TREASURY-ACCOUNT OF RECEIPTS AND EXPENDITURES-UNITED STATES NOT TO GRANT TITLES OF NOBILITY-ACCEPTANCE OF PRESENTS BY OFFICIALS OF UNITED STATES PROHIBITED.

No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

Mr. Pinckney's plan contained the provision: "No capitation tax shall be laid but in proportion to the census before directed."1

The Committee of Detail reported as the 5th section in its 7th article, "No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.''2

Neither Mr. Pinckney's plan nor the report of the Committee of Detail referred to any tax except a capitation tax.

This clause together with other clauses reported by the Committee of Detail was referred to the Committee of Eleven. On the 24th of August that committee reported in favor of retaining the clause under consideration." It was then adopted by the Committee on Style and inserted in its report of the Constitution.*

On the 14th of September, when the report of that committee was being considered, Mr. Read moved to insert after "capitation," the words "or other direct

1 Journal, 68.

2 Journal, 455.

3 Journal, 599.

4 Journal, 706.

tax," which was agreed to. Colonel Mason then moved to insert the words "or enumeration," as explanatory of the word "census," which was also agreed to.5 This completed the clause and it was inserted in the Constitution after this amendment had been made to it.

Capitation is from caput, the Latin word for head. Capitation taxes, therefore, are taxes by the head, or as they are generally called poll taxes, by which are meant taxes upon polls, heads, or persons. Poll is akin to Low German polle, meaning the head of a person, so that capitation taxes and poll taxes are taxes by the head.

On the subject of poll taxes Hamilton said:

"As to poll taxes, I without scruple, confess my disapprobation of them; and though they have prevailed from an early period in the New England States, which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the National Government. But does it follow, because there is a power to lay them, that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State Governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the National Government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction, that the power of having recourse to it, ought to exist in the Federal Government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the Government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an in

Journal, 728.

estimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the Government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security."

The subject of direct taxes has already been considered. In Loughborough v. Blake, Chief Justice Marshall, in referring to this clause said: "The census to which it refers is found in that clause of the Constitution which makes numbers the standard by which both representatives and direct taxes shall be apportioned among the

זיי.States

The provision that a capitation or rather direct tax, must be laid in proportion to the census or enumeration, is not strictly a limitation of power, but a rule prescribing the mode in which it shall be exercised.

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.

No Tax or Duty shall be laid on Articles exported from any State. This is almost the exact language found in Art. 7, Sec. 4, of the report of the Committee of Detail," where the clause was reported along with that on the subject of migration or importation of persons. In the Convention it provoked considerable debate. Mr. Langdon said that under it the States were left free to tax exports, and this he was opposed to.10

Mr. Ellsworth said the power of regulating trade between the States would protect them against each other.

• The Federalist, No. 36.

75 Wheaton, 317-21.

8 Veazie Bank v. Fenno, 8 Wallace, 533-541; Nicol v. Ames, 173 U. S., 509; Spreckles v. McClain, 192 U. S., 397; Springer v. U. S., 102 U. S., 586; Pollock v. Farmers, etc., 157 U. S., 429.

9 Journal, 455.

10 Journal, 572.