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bound to hear his complaints when made in due | crimes unless on indictment by a grand jury, except form, not as a courtesy under the comity of nations, in cases arising in the land or naval forces, or in the but as a duty which the Constitution imposes, and militia when in actual service in time of war or for which Congress has provided.
public danger. 8. The right not to be subject for Thus a broad field of varied rights, as well as the same offense to be twice put in jeopardy of life duties, though latent and simply provisional in the or limb. 9. The right to exemption from being Constitution, is opened to the citizen of the United compelled to be a witness against one's self in a States, when the Government proceeds to exercise | criminal case. 10. The right to exemption from the powers granted to it. These rights correspond any deprivation of life, liberty or property without with the powers and functions of the Government, due process of law. 11. The right not to have priand flow directly from its existence and operations. vate property taken for public use without just They are in the Constitution when and as adminis compensation. 12. The right in all criminal cases tered and carried into effect by its appropriate agen to a speedy and public trial, to an impartial jury of cies.
the State and district wherein the crime shall have This, however, is not the whole case, since the | been committed, to be informed of the nature and Constitution contains several provisions which are cause of the accusation, to be confronted with the specific limitations upon the power of the General adverse witnesses, to have compulsory process for Government. In the body of the instrument there the purpose of summoning witnesses, and to have are eight provisions of this character, as follows: the assistance of counsel for one's defense. 13. The 1. That “the privilege of the writ of habeas corpus right of trial by jury in suits at common law where shall not be suspended, unless when in cases of re- the value in controversy exceeds twenty dollars. bellion or invasion the public safety may require it." | 14. The right to exemption from excessive bail and 2. That “no bill of attainder or ex post facto law fines and cruel and unusual punishments. shall be passed.” 3. That “the trial of all crimes, The amendments that secure these fourteen rights except in cases of impeachment, shall be by jury." operate as restraints upon the Government of the 4. That “such trial shall be held in the State where United States, and have no relation to the State the said crimes shall have been committed.” 5. Governments in their dealing with State citizens. That when the crimes have not been “committed This question has frequently been before the Suwithin any State, the trial shall be at such place or preme Court, and such has been its uniform decision. places as Congress may have by law directed.” 6. See Barron v. The Mayor of Baltimore, 7 Pet, 243; That “ treason against the United States shall con- | Livingston's Lessee v. Moore, id. 469; Fox v. The sist only in levying war against them, or in adhering State of Ohio, 5 How. 410; Smith v. The State to their enemies, giving them aid and comfort.” 7. of Maryland, 18 id. 71; Pervear v. The CommonThat no person shall be convicted of treason un- | wealth, 5 Wall. 475; Tuitchell v. The Commonwealth, less on the testimony of two witnesses to the same | 7 id. 321 ; and Edwards v. Elliott, 21 id. 535. overt acts, or on confession in open court.” 8. That The Thirteenth Amendment, declaring that “neither while Congress is authorized to declare the punish slavery nor involuntary servitude, except as a punment of treason, “no attainder of treason shall | ishment for crime whereof the party shall have been work corruption of blood or forfeiture, except dur duly convicted, shall exist within the United States, ing the life of the person attainted.” These pro- or any place subject to their jurisdiction," is so visions are limitations upon the General Govern- | worded as to make it alike applicable to the Federal ment in respect to United States citizens. Each and the State Governments, and to the citizens of provision secures a right which cannot be violated both. The Fourteenth Amendment provides that without violating the Constitution.
“no State shall make or enforce any law which The first eight amendments, added soon after the shall abridge the privileges or immunities of citizens Constitution was adopted, limit the Government of the United States," or "deprive any person of still further in respect to the following rights: | life, liberty or property without due process of law," 1. The right to the free exercise of religion. 2. The or “deny to any person within its jurisdiction the right to freedom of speech and of the press. 3. The equal protection of the laws." This guarantees Uniright peaceably to assemble and petition the Gov- ted States citizens in each State against the abuses ernment for a redress of grievances. 4. The right of State power forbidden. The Fifteenth Amendto keep and bear arms. 5. The right in time of ment provides that citizens of the United States peace to exemption from having soldiers quartered shall not be excluded from voting, either by the in one's house without his consent, and even in United States or by any State, on account of race, time of war except in a manner to be prescribed by color, or previous condition of servitude. This does law. 6. The right to security against unreasonable not confer the right of voting upon anybody, but searches and seizures of papers and effects and ille- simply prohibits its denial to United States citizens gal warrants for this purpose. 7. The right to ex- on the grounds stated. See The United States v. emption from trial for capital or otherwise infamous | Reese et al., 2 Otto, 214.
In three provisions of the Constitution grants of A third provision extends the judicial power of power are made to the General Government, whose the United States to "all cases of adıniralty and field of action lies entirely outside of State juris- | maritime jurisdiction." This applies to the high diction, and hence here the Government operates seas, and, as interpreted by Congress and the Suas if there were no State citizenship known to our preme Court, includes also the navigable waters of political system, and all the rights and obligations the United States. Merchant ships and ships of of citizenship were placed under its exclusive war, when on the high seas, are, in the contemplacharge. The whole work of government is here in tion of law, a part of the territory of the country to its hands.
which they belong. 8 Op. At.-Gen. 73. The laws One of these provisions confers on Congress the of that country act upon them, and its power is power of exclusive legislation in the district, not
pledged for their defense. The subjects embraced exceeding ten square miles, ceded and accepted for in the jurisdiction here granted are “collision, the seat of the Government of the United States, prize, salvage, seamen and shipping." Abb. Pr., and a like power in all places purchased, with the vol. 1, p. 182. Captures jure belli, torts, injuries consent of the legislature of the State in which
and maritime contracts as matters of purely civil they are located, for the erection of forts, maga
| cognizance, rights and duties pertaining to comzines, arsenals, dock yards and other necessary
merce and navigation, and also crimes on the high buildings. In these localities the State governments seas, come under this jurisdiction; and Congress is have no existence, and, of course, State citizenship, authorized to pass laws “necessary and proper" to as a distinct status, is here unknown. United States carry it into effect. The jurisdiction follows the citizenship is the only one possible, and all rights, national flag with the powers of government; and whether civil or political, that exist at all, are at whatever may be true as to a concurrent jurisdictached to it. Congress here has the power to do, tion of the States on the navigable waters of the and actually does many things which it has no United States, it is certain that no such jurisdiction power to do in the several States. Rights and du- operates on the high seas. The States can neither ties which in the States exist under the State gov punish crime nor protect rights beyond their own ernments here come under the exclusive jurisdic- , territory. State citizenship on the high seas has no tion of the General Government. See United States existence. Nothing there appears but United States v. Cornell, 2 Mass. 60; Cohens v. Virginia, 6 Wheat. citizenship, and the whole duty of regulation and 264; Loughborough v. Blake, 5 id. 317; 6 Op. At.
| protection devolves upon the General Government Gen. 577; Op. Sup. Ct. Mass., 1 Metc. 580; Serg. by an express grant of the Constitution. Its powers Const. Law, 350, and Story's Const., § 1229. of action are much more comprehensive under this
A second provision gives to Congress the power grant than within the territory of a State. It is the to make all needful rules and regulations respect | business of a State, and not of the General Governing the territory * * * belonging to the United ment, to punish theft or murder if committed on its States.” This has been construed to mean absoluteown soil; but if the crime be committed on board and exclusive jurisdiction over this entire territory, of an American ship on the high seas, then it is the except as it may be qualified by the rights of Indian business of the General Government, and not of a tribes residing therein. The only form of citizen- State, to deal with the offender. The locality of the ship found here is that of the United States, and | offense settles the question of jurisdiction. See The the only rights are such as the Constitution guaran- United States v. Bevans, 3 Wheat. 336; The United tees, or Congress chooses to establish and secure. States v. Furlong, 5 id. 184, and United States v. The territorial governments exist by the authority | Holmes, id. 412. of Congress, and are subject to its supervisory con What the General Government can and should do trol. It may here in its discretion enact laws in under these three provisions of the Constitution is respect to the inhabitants which it has no power to not to be taken as an example of what it can and enact in respect to citizens residing in a State and should do when operating within the territorial living under a State government. A statute of limits of a State. In the district of Columbia, in Congress forbidding polygamy in the States would military sites, in the territories of the United States, be unconstitutional, but not so if forbidding it in and over American ships on the high seas, it has the the territories of the United States. The usual entire jurisdiction; yet the Constitution gives it no rights and duties of State citizenship, as established such power in the bosom of a State. It is a great by State constitutions and laws, so far as they have mistake to assume that the General Government can any existence, here relate to the status of United | do in the latter all the things which it can do in the States citizenship, and come under the jurisdiction, former. The two cases are not parallel, and hence either directly or indirectly, of the General Govern we cannot reason from the one to the othe: Let ment. See American Ins. Co. v. Canter, 1 Pet. 511; | Congress, for example, enact for the States e ReUnited States v. Gratiot, 14 id. 526; Cro88 v. Harri vised Statutes which it has enacted for the 'istrict son, 16 How. 85, and Story's Const., 8 1325. of Columbia; and it would not take the people
long to see the enormous usurpation of angranted | It is in those countries no rule of rights to an power.
American citizen. What does operate is the law of The Constitution evidently contemplates that the nations; and it is under this law, established by the United States will occupy the position of a nation general consent of nations, that the United States in the great family of nations, and be entitled to will judge whether the rights of its citizens have the rights and subject to the responsibilities of a been violated, and if so, decide what remedies shall nation, as established by international law. This be applied to the case. Such a violation is deemed is specially manifest in the powers bestowed upon a national offense; and the difficulty arising therethe President of the United States. He is author from must be settled by diplomacy or war. ized to make treaties, and to nominate and appoint If a United States citizen, being a citizen of a ambassadors, other public ministers and consuls, State, should in that State be robbed or murdered, subject to the advice and consent of the Senate. the General Government would have no power to He is charged with the duty of receiving ambassa | bring the offender to justice, or demand redress dors and other public ministers. And while the from the State. International law does not operate declaration of war and the granting of letters of in this case at all. The question is purely one of marque and reprisal belong exclusively to Congress, | local and municipal law; and it so happens that the the President is made the Commander-in-Chief of Constitution assumes that the State itself will atthe army and navy of the United States. These tend to the business of punishing the crime, and features point clearly to the idea of a nation, hold- | does not commit to the United States any power or ing the relations of peace or war, as the case may | duty in respect to it. be, to the other nations of the earth.
But if the rights of a United States citizen, as It is true that the Government of the United expounded by international law, should be outraged States has no jurisdiction in other countries, except | by Great Britain or France, especially by the public as the same may be acquired by arms, or by treaties | authorities, then, while no State in this country in the establishment of consular or other courts; would have any thing to do with the subject, even yet, because it is a National Government, and recog if the person injured were a State citizen, the Gennized as such in the family of nations, it assumes eral Government, being informed of the facts, would and enforces the right, under the law of nations, to interpose with its remonstrance, and, if necessary, extend its protection to citizens of the United with its sword. What it could do in thus defendStates when in other countries. This protection | ing a citizen is no criterion of what it could do if does not exempt them from a just and proper obe a similar wrong were located in a State. Its powers dience to foreign authorities when within their juris of action are widely different in the two cases. diction. But it does seek to defend them against Those who assume that the General Government any wrongful action of these authorities; and what can and should, by the agency of legislation and is such action is a question to be settled by the es courts operative in the States, protect precisely the tablished usages of civilized nations. The interna same rights which it claims the power to protect in tional remedy for any such wrong consists in holding foreign countries, overlook the fact that this Govthe foreign nation responsible for it, in demanding ernment, when acting within the boundaries of the an apology, and perhaps the punishment of the di State governments is limited by a specific enumeration rect offender or offenders, and in requiring repara of powers, and that it cannot exceed this enumeration when the wrong admits of this mode of relief; tion without itself becoming a trespasser. The Constiand, if the proper redress be refused, then the tution leaves a large body of rights to be defined and wrong may be made an occasion for a declaration protected by the State governments; and in respect of war. It is in this way that nations defend their to these rights the General Government has no jurisown citizens or subjects when in foreign countries. diction whatever, and hence no duty to perform. International law, and not State constitutions, or Restraints imposed upon State power it may eneven the Constitution of the United States, fur- force; but it cannot exercise that power or undernishes the rule of the rights to be defended, and take to discharge its duties. the mode of the defense, whenever the Federal Gov- Our duplicate system of a General Government ernment has occasion to deal with such a question. | for certain defined and limited purposes, and of
In the Code of International Jurisprudence State State Governments for other and different purposes, citizenship, in the American sense, with its rights and of both simultaneously operating in the same and its remedies, is absolutely out of sight; and territory and upon the same people, would involve that of the United States is the only citizenship confusion and, finally, destruction of one or both, if known. And even this citizenship carries with it it did not assign to each a specific sphere of action, into other countries only such privileges and immu- | and exclude each from the sphere of the other. nities as international law accords, or as treaties may | The Constitution expects each to be content with have secured. The Constitution of the United its own powers, and each to leave the other to the States does not operate in Great Britain or in France. I exercise of those powers. It is no part of its theory
that if a State Government ought to hang a man bility, however, is measured more by causes than by but does not, the General Government should fur consequences, and in the present instance it must fall nish the court, the sheriff, and the gallows, and do
where the argument failed. If the army had been
abused, and the clause proposed would have afforded the hanging. It is no part of its theory that the
a remedy, and was within the competency of Congress, General Government should, within the States, do
the House was right; if, on the other hand, Congress what, as a National Government acting under the was uot competent, the Senate was right. Nobody in law of nations, it assumes the power to do when either House, whatever may have been the private protecting citizens of the United States in foreign
opinions of members, denied the existence of the
abuse, or that the remedy proposed was direct and countries. Not to see the distinction between these
complete; the point, and the only point pressed in detwo cases is a very serious error in the interpreta
bate, was the incompatibility of the remedy with the tion of the Constitution.
provisions of the Constitution. A few extracts from the speeches agaiust the measure will make this evi
dent. THE ARMY BILL.
In the Senate Mr. Blaine said: “I have a very
great desire that the Army Bill should pass, without To the Editor of the Albany Law Journal:
any angry discussion, or without any introduction of SIR - The Forty-fourth Congress will always be the controverted points that lie just in that section. I memorable for two collisions between the two Houses, have very decided views upon the subject, but I do not one in respect to the counting of the electoral votes | know that the expression of them would do any good. and the other in respect to the bill for the support of I cannot believe that there is a lawyer on either side the army. The two measures, though independent in of this chamber who will assert in his place that he their reasons, were, nevertheless, strangely related. believes that the Congress of the United States has On the first occasion the Senate and the Ilouse stood the right to say to the President, who, by the Constidirectly at variance regarding the votes of some of the tution, is the Commander-in-Chief of the Army and States, but having previously agreed to abide by the Navy, that, in a particular exigency, he shall not comadvice of an electoral commission, the views of the mand the army, and in another exigency, he shall Senate prevailed, and the votes which it claimed were command it in a certain way. If that does not concounted. On the second occasion, the Senate having stitute a clear invasion of the powers of the President, insisted upon striking from the bill for the support of conferred upon him by the organic law of the land, the army a provision, which the House had inserted, then I cannot read it. The Senator from Delaware with the view of preventing an abuse of the service, must know, and himself see that, with that provision already carried to the extent of falsifying the electoral in the bill, it would be simply impossible to get the votes of two, at least, of the States, the House main army appropriation bill passed — tained its position, and the result was, of course, the Mr. Bayard. -- And yet the Senator understands that failure of the bill.
the power of ('ongress to regulate the use of the army The provision which the House had inserted was the is undoubted following:
Mr. Blaine. - It is perfectly undoubted that the
President of the United States must command the “Sec. 5. That no part of the money appropriated by this act, nor any money heretofore appropriated, shall
army, under the provisions of law, but that is a very be applied to the pay, subsistence or transportation of different thing from saying, that in a particular introops used, employed, or to be used or employed, in stance you shall command the army in this way, and support of the claim of Francis T. Nicholls or S. B.
in another particular instance you shall not command Packard, to be Governor of the State of Louisiana. Nor shall any of said money be applied in support of
| it in that way. I think the Senator from Delaware does the claim of the two bodies claiming to be the legisla not need to be reminded that there is a world-wide ture of said State, presided over, respectively, by L. A. Wiltz and Louis Bush; nor of the two bodies claiming
distinction just there, and one which I am very sure to be the legislature of said State, presided over. r
he would not cross.". spectively, by C. C. Antoine and Michael Hahn; nor In the House Mr. Banks said: “But there are some in support of the claim of Thomas C. Manning and things which are not within the power of the two associates to be the Supreme Court of said State; nor in support of the claim of John T. Ludeling and asso
Houses of Congress, and among these is the command ciates to be the Supreme Court of said State; nor in of the army. * * •The President shall be Comaid of the execution of any process in the hands of the mander-in-Chief of the Army and Navy of the UniUnited States Marshal in said State issued in aid of and for the support of any such claims. Nor shall the
ted States, and of the militia of the several States when army, or any portion of it, be used in support of the
called into the actual service of the United States.' claims, or pretended claim or claims, of any State gov That is the language of the Constitution (sec. 2, art. 2). ernment, or officer thereof, in any State, until such
Congress has power to provide for organizing, arming government shall have been duly recognized by Congress. And any person offending against any of the
and disciplining the militia, and for governing such provisions of this act shall be deemed guilty of a mis part of them as may be employed in the service of the demeanor, and upon conviction thereof shall be im
United States (sec. 8, art. 1). Undoubtedly it has the prisoned at hard labor for not less than five nor more than ten years."
same power in regard to the Regular Army of the
United States; but its command is given to the PresiUpon the objection of the Senate, three successive dent. It is the duty of the United States to 'guarancommittees of conference were appointed, but all of tee to every State in this Union a republican form of them failed.
government,' and 'on application of the legislature, or The responsibility for the failure was charged by the of the executive when the legislature cannot be conHouse upon the Senate, and by the Senate upon the vened.' to protect each of them against invasion and House; by the democrats upon the republicans, and domestic violence. Whatever power is given in the by the republicans upon the democrats. Responsi- ' Constitution for this purpose is given to Congress and the President, but the commard of the army is withhold all arms of the United States distributed in, nevertheless in the President."
or to said Territory, in pursuance of any law of the
United States authorizing the distribution of arms to Mr. Garfield said: “But coming back to the consti
the States and Territories." tutional question, the passage of this clause in the Army bill is absolutely impossible. We cannot, under
This was rejected by the Senate, and the House not any circumstances, consent to do what we know to be
receding, the bill was lost. I have said that the ques. unconstitutional, and believe to be dishonorable.”
tion of 1856 was similar to that of 1877, but they were Whether these eminent members of Congress, and
by no means identical. The Democrats had more rearepresentatives of their party, were of one mind in
son for rejecting the proposed restriction in the first their reasons for the conclusion, or not, they all agreed
instance, than the Republicans had in the last. Kanin the conclusion itself, that the clause in controversy
sas was a Territory, while Louisiana is a State, and was an invasion of the constitutional rights of the
the authority of the Federal government to control the President.
Territories, in all things, is as clear as its want of auSuch were the words uttered in debate. But, lest
thority to control the States in their State affairs. In they be treated as unguarded utterances, in the heat of
the Kansas controversy Mr. Seward stated his position the moment, let us turn to more deliberate ones
thus: since of the same gentlemen or their party supporters. "The House of Representatives may, therefore, lawMr. Morton has repeated, on at least two occasions, fully pass a bill prohibiting the employment of the that he thinks the measure of the House an unconsti
Army of the United States in executing laws in Kan
sas which it does not approve, no matter by whom tutional interference with the President's prerogative. I those laws were made. Since the House of RepresenThe late Republican convention in Maine, in which tatives has power to pass a bill distinctly, it has power Mr. Blaine took an active part, resolved as follows: also to pass an equivalent prohibition in any bill which
it has constitutional power to pass, and so it has a conFifth -- The action of the Democratic House of Rep-1 stitutional right to place the prohibition in the annual resentatives in refusing appropriations for the army, appropriation bill." except upon conditions that deprived the Commanderin-Chief of the discretion vested in him by the Consti The precise question involved in the present controtution, was wholly unjustifiable, dangerous, and revo
versy is, the power of Congress to prevent the use of lutionary, and it is a striking commentary on this evil and perilous course, that two of the States, whose en
the army to dispose of the title to State offices. The tire representation in Congress aided in defeating the contention of the House, as stated in the general Army bill, have been since compelled, under the pres words of the section, was that the army should not sure and violence of mob law, to call on the National
“ be used in support of the claim, or pretended claim or government for such aid as only the army can render.
cluims of any State government or officer thereof, in any The Penn. Monthly, a journal of deserved reputa
State, until such government shall have been duly recogtion, takes a similar view. Indeed, I have yet to see
nizeil by Congress;" while on the other side the conthe first line written, or to hear the first word spoken
tention of the Senate was that the section was an inby a Republican in favor of the provision, or against the
vasion of the constitutional rights of the President. action of the Senate.
This position of the Senate involves one of two Because of the failure of this bill, an extra session
propositions, either that it is the constitutional right of Congress has been called to be held in October. The
of the President, rather than Congress, to determine question between the two houses is, therefore, as im
the rightful government of a State, or that it is his minent as it is important. Considered as a question
constitutional right to use the army in support of the of constitutional right, there is scarcely another of
claim of a State government or officer whose title Congreater magnitude; considered as a practical question
gress refuses to recognize. Both of these propositions, to be decided by the two houses within a few months,
I venture to affirm, are not only unsupported by the it is one of the most urgent of all questions before the
Constitution, but plainly repugnant to it. country. Let us discuss it, if we can, with no thought
It will, I am confident, be found, upon examination, of its effect upon parties, and solely as a question of
that the only authority which the President ever had liberty and constitutional law.
to decide a question of title to any State office, was a Once before, and once only, has there been a dis
mere incident to his authority to intervene for the agreement between the two houses of Congress on a
protection of the State from domestic violence, and similar question. That occurred in 1856, when the troubles in Kansas were at their height. On that oc
that his only authority for such intervention has been
derived, not from the Constitution, but from an act of casion the position of parties was reversed. The Re
Congress, which, of course, Congress can continue or publicans, having a majority in the House, inserted the following clause in the Army appropriation bill:
discontinue at its mere will and pleasure. What it
gave it can assuredly take away. And I am equally “That no part of the military force of the United
confident that the only function of the President in States, for the support of which appropriations are made by this act, shall be employed in aid of the en
respect to the army is to take command of such forcement of any enactment of the body claiming to
troops as Congress may choose to raise for any service be the Territorial Legislature of Kansas, until such which it deems proper, and in the capacity of their enactment shall have been affirmed and approved by
first General, direct their military operations incident Cougress; but this proviso shall not be so construed as to prevent the President from employing there an ade
to such service. In the exercise of his function as quate military force, but it shall be his duty to employ general or general-ir-chief, he is subject, like any such force to prevent the invasion of said Territory other general, to the law of the land. While Congress by armed bands of non-residents, or any other body of non-residents, acting or claiming to act as a posse
cannot deprive him of his command, it can make laws comitatus of any officer in said Territory in the en
which he must obey, and he must, in all things, conforcement of any such enactments, and to protect the form himself to such regulations as Congress may see persons and property therein, and upon the national fit to impose. highways leading to said Territory, from all unlawful searches and seizures; and it shall be his further duty
It should have been sufficient, for an answer to both to take efficient measures to coinpel the return of, and I the propositions involved in the claim of the Senate,