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THE SYSTEM OF

CHAPTER II.

INDIVIDUAL LIBERTY PROVIDED IN THE

CONSTITUTION OF THE UNITED STATES.

WHEN the constitution of the United States issued from the convention of 1787, it contained several provisions touching the domain of individual liberty, and when this instrument was submitted for adoption, much was said in the legislatures of the commonwealths, in the ratifying conventions and by the press of the day concerning a bill of rights, as it was then called, which should make the domain of individual liberty more complete. The idea was not that the United States government should be made by the constitution the positive defender of this sphere of individualism, but that that government should itself be more expressly restrained from trenching upon this sphere. What was proposed was, therefore, rather a bill of immunities than of rights. I think it cannot be doubted that the view of that day was that the so-called "States" were in the main the proper definers and defenders of individual rights.

The opposition to the adoption of the "bill of rights," by way of amendment to the original draft of the constitution, did not attempt to stand upon any principle worth naming. The argument of the opposition was, in brief: that the United States government being one of limited powers, the principle of constitutional interpretation in reference to its powers must be that what is not granted, expressly or impliedly, is denied; and that, therefore, the "bill of rights excepting anything was not necessary. But the answer to this that the powers granted might, if pressed to the utmost

in all directions, conflict at some point or other with individual liberty, proved the more convincing. The first ten amendments, in the nature of such a bill, were framed and passed by the first Congress and subsequently ratified by the legislatures of the commonwealths in sufficient number to make them parts of the constitution.

But if the political history of the United States from 1790 to 1860 taught anything, it was this: That the so-called States were not sufficient guarantors, to say the least, of individual liberty, and that the United States government must be authorized to change its position from a passive noninfringer of individual liberty to an active defender of the same against the tyranny of the commonwealths themselves. The thirteenth and fourteenth amendments express this change in the organic law.

We may now proceed to the analysis in detail of the immunities guaranteed to the individual by the constitution of the United States.

A. The Immunities against the Central Government.

An immunity is, as I have above indicated, a defense established by the constitution in behalf of the individual against the powers of the government. The chief means of encroaching upon the domain of individual liberty which necessarily lay within the hands of government are the powers of criminal legislation, of taxation and of eminent domain. The restrictions placed by the constitution upon the exercise of these powers by the government are, when regarded from the standpoint of the individual thus protected, immunities.

I. The Personal Immunities.

The central government has no general power of criminal legislation in those parts of the United States which enjoy the dual or federal system of government; ie. in the commonwealths. Its powers in this regard, in and for these parts, extend to only two species of crime, viz; treason,1 1 United States Constitution, Art. III, sec. 3.

and counterfeiting the securities and current coin of the United States. The judicial department of the central government has criminal jurisdiction only so far as it is conferred by the constitution and the statutes of Congress made in accordance therewith.2 The executive power is, of course, confined within the same boundaries. On the other hand, upon the high seas, and in those parts of the United States not enjoying the dual system of government, general powers of legislation and administration in respect to crime are conferred upon the central government by the constitution.* But the powers of the central government in regard both to crimes committed within the commonwealths and those committed upon the high seas and within those parts of the United States not yet erected into commonwealths are placed under many important limitations, all of which are of the character of individual immunities, as follows:

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1. The Congress can pass no bill of attainder or ex post facto law; i.e. the legislative department shall not act as a court and convict any one of common crime by its resolutions; nor pass a law making an act, innocent at the time of its committal, criminal; or, if the act be already a crime, a law increasing the penalty or lessening the evidence necessary to conviction or altering in any manner the situation of the accused to his disadvantage.

2. The government cannot issue or authorize general warrants of search or arrest; but all warrants must rest upon

1 United States Constitution, Art. I, sec. 8, § 6.

2 Ex parte Bollman, U. S. Reports, 4 Cranch, 75; United States v. Hudson, US. Reports, 7 Cranch, 32; United States v. Coolidge, U. S. Reports, I Wheaton, 415; United States v. Bevans, U. S. Reports, 3 Wheaton, 336. 3 United States Constitution, Art. I, sec. 8, § 10.

4 Ibid. Art. IV, sec. 3, § 2.

5 Ibid. Art. I, sec. 9, § 3.

* Calder v. Bull, U. S. Reports, 3 Dallas, 386; Ex parte Garland, U. S. Reports, 4 Wallace, 333; Kring v. Missouri, 107 U. S. Reports, 221.

A law simply enlarging the class of persons who may testify in a given case is not, however, ex post facto in its application to offenses committed previous to its enactment. Hopt v. Utah, 110 U. S. Reports, 574.

probable cause; must be supported by an oath or an affirmation on the part of some reliable person; must particularly describe the place to be searched and the person or thing to be seized; must contain the name of the person; and must state with reasonable certainty the time, place and nature of the offense.1

3. The government cannot, except in time of war, suspend the writ of habeas corpus; i.e. it cannot prevent a person, under arrest and detention, from having his body brought immediately before a judge, in order that judicial determination of the question of his further detention may be had.2

4. The government cannot require a bail so excessive in amount as to be practically a denial of the privilege of bail.3

5. The government cannot authorize any unreasonable delay in the trial of an individual legally held.1

6. The government cannot authorize prosecution for any crime, the punishment of which is so grievous as the deprivation of personal liberty, except by way of grand jury presentment or indictment; i.e. except upon accusation by at least twelve men of the country, who, it is presumed from their being men of the country or citizens, have no governmental interest in the oppression of their fellow-citizens, and will not seek to make criminal accusation a pretext for disposing of political opponents.5 Military persons do not enjoy. this immunity.

7. The government cannot authorize the trial of any person for a crime or for a misdemeanor, the punishment of which is

1 Constitution, Amendments, Art. IV; Ex parte Burford, U. S. Reports, 3 Cranch, 448.

2 Constitution, Art. I, sec. 9, § 2.

3 Constitution, Amendments, Art. VIII.

4 Ibid. Art. VI.

Ibid. Art. V; Ex parte Wilson, 114 U. S. Reports, 417; Mackin v. United States, 117 U. S. Reports, 348.

so grievous as the deprivation of personal liberty, except by way of the jury process; i.e. except by the participation of the community, whose peace shall have been violated, in the trial; and except the rendering of the verdict be by the unanimous agreement of the representatives of the community.1

8. The government cannot authorize any arbitrary procedure in the trial. It cannot deport the accused for trial from the commonwealth and district in which the crime charged shall have been committed, or from the place already assigned by the legislation of Congress for the trial, in case the crime charged shall have been committed outside of the commonwealths.2 It cannot authorize a secret trial. It cannot deprive the accused of the right to have counsel. It cannot deny to the accused information of the nature and cause of his arraignment. It cannot prevent him from confronting the witnesses against him. It cannot refuse him compulsory process for obtaining witnesses in his favor. It cannot compel him to give testimony against himself, either by word of mouth or by the production of his private papers. It cannot prosecute him a second time for the same offense, after a verdict either of conviction or acquittal shall have been pronounced upon him by a lawful jury proceeding upon a good indictment. And it cannot deprive him of his life or liberty without fulfilling all of the requirements of a due process of law; 10 i.e. without a course of legal proceedings according to those rules and principles definitely contained in these very provisions of the constitution which we have just been considering, and upon points not covered by these, if any, according to those rules and principles "existing in the common and statute law of England, before the emigration of our ances

1 Constitution, Amendments, Art. VI; Callan v. Wilson, 127 U. S. Reports, 540. 2 Constitution, Art. III, sec. 2, § 3; Amendments, Art. VI. 3 Constitution, Amendments, Art. VI.

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4 Ibid.

Ibid.

8 Ibid. Art. V; Boyd v. United States, 116 U. S. Reports, 616.
9 Constitution, Amendments, Art. V.
1) Ibid.

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