CHAPTER XXVI.

THE LIMITATIONS OF THE UNION.

ARTICLE I.

419. Reasons for Such Limitations.--As we have seen, the Government of the United States is one of limited or delegated powers. The first limitation, and the greatest one of all, is the States, to which powers not delegated to the Union are mainly reserved. But implied powers, in the very nature of the case, are matters of opinion or judgment. Hence Congress, in the use of its discretion, might exercise powers that the people did not intend to delegate. Public discussion and the elections would correct such abuses of power in ordinary cases; but there were some points deemed so important by the Federal Convention as to demand safeguards in the form of positive prohibitions. Some of these powers are forbidden merely because they were deemed inexpedient or impolitic; others, because their exercise would lead to injustice and oppression.

Section 9, Clause 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.

420. The Slave Trade.- All the States but North Carolina, South Carolina, and Georgia had prohibited the slave trade before 1787, and a majority of the Convention desired to put Congress in a position to make the prohibition universal. But these three States objected. After no little dissension, the difficulty was adjusted, as above, in the third compromise. The tax permitted was never imposed. In 1794 Congress prohibited the exportation of slaves, and

in 1807 it prohibited their importation, the act to take effect January 1, 1808. In 1820 it declared the Slave trade piracy.

Section 9, Clause 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.

421. The Habeas Corpus in England. The writ of habeas corpus is one of the most ancient and valuable political institutions of England. Its origin dates from before Magna Charta. Kings sometimes strove to restrict its operation, or to ignore it altogether, but these attempts came practically to an end with the Habeas Corpus Act of 1679. For centuries the writ has there been the main safeguard of personal liberty.

Hallam thus explains the ancient operation of the writ: "From earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the Court of the King's Bench a writ of habeas corpus ad subjiciendum directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, remand the party, admit him to bail, or discharge him, according to the nature of the charge.'

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422. The Operation of the Writ. A prisoner, or some person for him, makes an application to a judge of competent jurisdiction, alleging that the prisoner is unlawfully confined, reciting the history of the case, and praying that he be set at liberty. The judge, if he thinks the facts call for his interference, issues a writ of habeas corpus commanding the officer having the person in custody to produce him in court and to show reason for his detention. If the officer gives a good reason for his action, the judge leaves the prisoner in his hands; if not, he discharges him or admits him to bail. The writ is sometimes used to liberate persons confined in hospitals for the insane, and to obtain possession of children who are in the custody of other persons than the claimants. It takes its name from the words 1 Constitutional History of England, Vol. III., p. 16. London: 1832.

habeas corpus, you may have the body, found in the old Latin form.

423. Cases of Suspension.-This writ was in full force and vigor in the States when the Constitution was framed. It was considered the high-water mark that personal liberty had reached in the long conflict with kingly power. Naturally therefore the Constitution prescribed that it should not be suspended, unless in the gravest emergencies. At such times, when society is disturbed, when officers having prisoners in custody cannot attend to civil business, when it may be impossible to produce the witnesses against the accused, or when it is proper to confine men against whom legal offenses cannot be proved in courts of justice, the writ may be suspended in the name of the public safety.

424. Who Shall Suspend?-The common answer to the question is Congress. In fact, however, it has always been done by the President. The first suspension was in April, 1861, when President Lincoln authorized General Scott to disregard it on the line of travel between Washington and Philadelphia. In May the suspension was extended to Florida, in July to New York, and in September it was made general in cases of arrest by military authority for disloyal practices. In March, 1863, Congress passed an act of indemnity, legalizing the President's acts in respect to the writ, and authorizing him to suspend it throughout the United States, or in any part thereof, whenever, in his judgment, the public safety might require it. In September, 1863, the President made such a suspension throughout the country, in the case of deserters and of persons resisting the draft or accused of offenses against the military or naval service. The war over, the suspension was gradually withdrawn, but it was not until August, 1866, that the privilege of the writ was restored in Texas.

425. Military Arrests in the Civil War.-A great number of military arrests were made in the course of this war. Citizen prisoners to the number of 38,000 were reported to the Provost Marshal's Office in Washington. Chief Justice Taney, as well as State judges, issued

writs of habeas corpus in the interest of some of them, but the Federal officers to whom they were directed refused to obey them. A few of the prisoners were tried by court-martial, but most of them were in time discharged without trial. On the one hand, it was denied that the suspension of the writ was constitutional, and affirmed that many arrests were made without reason; on the other hand, it was said that the Nation was engaged in a tremendous war, calling for all its energies, that many persons not in the military or naval service were secretly or openly giving aid and comfort to the enemy, and that the Government must use summary and vigorous means in self-defense.

426. The Milligan Case.-In October, 1864, a court-martial sitting in Indianapolis sentenced several citizens of Indiana to death for treasonable practices. The President commuted the sentence to imprisonment for life, and the prisoners were sent to the Ohio penitentiary. In December, 1866, the case of these prisoners, known as the Milligan Case, from the principal actor, came before the Supreme Court. The Court set the prisoners at liberty, and overturned the whole legal theory underlying their arrest and trial. The Court held that "martial rule can never exist where the courts are open, and in the proper and unobstructive exercise of their jurisdiction." 1 Also that "the suspension of the writ does not authorize the arrest of any one, but simply denies the one arrested the privilege of this writ in order to obtain his liberty."1

Section 9, Clause 3.—No bill of attainder or ex post facto law shall be passed.

427. A Bill of Attainder.-Mr. Justice Field, delivering a decision of the Supreme Court, thus defines such a bill: "A Bill of Attainder is a (legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree

'Ex Parte, Milligan, 4 Wallace 2.

of punishment in accordance with its own notions of the enormity of the offense. These bills are generally directed against individuals by name; but they may be directed against a whole class."1

Evidently bills of attainder may be made terrible instruments of cruelty and oppression. Once kings of England frequently obtained their passage in the name of the public safety, in order to crush their enemies, but since 1796 no such bill has passed Parliament. Bills of attainder, or what amounted to the same thing, were much employed in the Revolution to punish the adherents of the Royal cause; but the Convention of 1787 considered it necessary to put so dangerous a power beyond the reach of either Congress or the States, and so prohibited it to Congress in the above clause, and to the States in section 10, clause 1.

428. Ex Post Facto Laws.-" An ex post facto law," says Chief Justice Marshall, "is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury." In the United States, the phrase ex post facto relates to criminal laws only. Such laws are repugnant to natural reason and feeling.

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Section 9, Clause 4.-No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

Section 9, Clause 5.-No tax or duty shall be laid on articles exported from any State.

Section 9, Clause 6.-No preference shall be given by any reg. ulation 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.

429. Export Duties.-This is an absolute prohibition of taxes on exports levied at the custom-house; but products intended for the foreign market may be taxed by Congress and by the States the same as products intended for the home market. The objection to export duties is, that they increase the price of products, and so make it Cummings v. the State of Missouri, 4 Wallace 277. 2 Fletcher v. Peck, 6 Cranch 138.