The Short Constitution Part 38

"A state court or judge cannot inquire by habeas corpus into the validity of arrest or detention of a person under federal authority.

The right to redress in such cases, if any, must be sought in the Federal courts. But on the other hand Federal courts and judges may inquire into the cause of the restraint of liberty of any person by a state when the justification of Federal authority or immunity is set up for the act complained of."-_Cyclopedia of American Government_, Vol. II, p. 106.

86 Const.i.tution of the United States, Art. I, Sec. 9, Cl. 3.

"The effect of attainder upon a felon is, in general terms, that all his estate, real and personal, is forfeited; that his blood is corrupted, and so nothing pa.s.ses by inheritance to, from or through him."

"In the United States the doctrine of attainder is now scarcely known, although during and shortly after the Revolution acts of attainder were pa.s.sed by several of the states. The pa.s.sage of such bills is expressly forbidden by the Const.i.tution."-Bouvier's _Law Dictionary_, Vol. I, p. 190.

"A bill of attainder, as thought of in the United States to-day, would be such law as permitted a person charged with the commission of a crime, to be tried and found guilty and sentenced without being present at the trial." It is one of the rules of procedure in court to-day that in all criminal cases the person charged with crime must be present during the entire trial. Another fundamental judicial fact is that all criminal punishment terminates with the death of the person found guilty; his children are exempt.

87 "An ex-post-facto law is a law which in its operation makes an act criminal which was not criminal at the time the act was committed, or provides a more severe punishment for criminal acts already committed, or changes the rules of procedure so as to make it more difficult for one accused of crime to defend in a prosecution of such crime." "The prohibition relates to retroactive criminal statutes providing a punishment for an act previously committed or increasing the punishment making it more difficult for the accused to defend, but not to retroactive laws, even though criminal, which mitigate the punishment or merely change or regulate the procedure without imposing any additional substantial burden on the accused in making his defense."-_Cyclopedia of American Government_, Vol. I, p.

700.

We should keep in mind that both "bills of attainder" and "ex post facto" laws have only to do with crimes and their punishment. These laws do not relate to civil matters.

88 Const.i.tution of the United States, Art. I, Sec. 8.

t.i.tles of n.o.bility as recognized in many European countries include the following: duke, earl, marquis, viscount, and baron. These t.i.tles were in part hereditary and in part acquired. They always conferred special privileges both in rank and in political preferment. Such t.i.tles cannot exist in a democracy because they in their very nature destroy equality before the law, and that is the fundamental principle of democratic government.

"The provisions prohibiting the granting of t.i.tles of n.o.bility are designed, no doubt, first to preserve equality before the law, and second, to secure in perpetuity a republican form of government.

Such provisions are not essential to theoretical equality before the law, for such equality is fundamental in the law of England notwithstanding the existence of t.i.tles of n.o.bility. But the framers of the Const.i.tution evidently contemplated a form of government in which there should be no special privileges conferred by rank or t.i.tle. The additional provision in the Federal Const.i.tution prohibiting the acceptance by any person holding any office of profit or trust under the United States of any present, emolument, office or t.i.tle from any foreign sovereign or power without the consent of Congress, was probably intended to prevent the exercise of foreign influence in governmental affairs. These articles in the Const.i.tution are substantially borrowed from the Articles of Confederation."-Emlin McClain, quoted in the _Cyclopedia of American Government_, Vol. II, p. 58.

89 Const.i.tution of the United States, Art. III, Sec. 3, Cl. 1.

Treason is defined in this article of the Const.i.tution and therefore Congress cannot define it in any other manner. Many people use the word "treason" very loosely. They often speak of a person committing treason when the act committed is not treasonable at all, but is some less severe crime. Treason consists only in levying war against the United States or in giving aid or comfort to enemies of the United States.

The meaning of "two witnesses to the same overt act" is that the Const.i.tution requires that two persons will appear in court and swear to the fact that they personally saw the act committed. "Overt act" means "openly committed act". Chief Justice John Marshall knew that in the trial of Aaron Burr it would be impossible to get two persons to swear to having seen Burr commit the conspiracy, so he took advantage of the technicality in the indictment and threw the case out of court. This trial was held at Richmond, Virginia.

"Confession in open court" is about the only instance in which such confession will convict a person charged with committing a crime. As a rule a person's own confession will not be accepted as evidence against him, in criminal prosecutions, because few confessions are made without some threat or inducement and under the guaranty (p.

99) that a person cannot be compelled to be a witness against himself they are excluded.

90 Const.i.tution of the United States, Art. III, Sec. 2, Cl. 3.

Impeachment is the manner of trial fixed by the Const.i.tution for the trial and removal of Federal officers who are accused of treason, bribery, and other high crimes and misdemeanors. Congress alone has the power of conducting an impeachment of Federal officers. The legislature of a State has the power of impeaching State officers.

Impeachment, as the word is commonly used, includes both accusation and trial. The "Impeachment" or accusation is brought by a two-thirds vote of the lower house, and the trial and conviction or acquittal is carried on by the upper house. Andrew Johnson, President of the United States, was impeached-i.e. he was formally accused, but he was acquitted in his trial in the Senate. Conviction in an impeachment proceeding causes an officer to be removed from office and disqualified from ever holding any office of honor or trust under the government again. A person may be convicted and not given the full penalty. He may be only removed from office, but not disqualified from again holding office.

It is possible that a crime may be committed on a river that forms State boundaries. Where a river forms a boundary the middle of the main channel is made the boundary line. It is often difficult to determine on which side of the line the crime was committed, and both States may then claim to have jurisdiction over the case. This must be decided as any other fact in the case.

The manner of the trial in use, before jury trial was established, was by ordeal or by battle. In trial either by ordeal or by battle the issue was left to G.o.d to decide and He was thought to perform a miracle to reveal the guilt or innocence of the accused person. One form of ordeal was to compel the accused to plunge his arm into boiling water and if innocent the Lord would protect him from being scalded. Another form of ordeal was to compel the accused to walk barefoot over hot plow shares. If innocent the Lord would again protect his feet from being burned.

The first form of jury to displace the old ordeal or battle as a means of deciding guilt or innocence was the "compurgators" or "oath bearers". They comprised a group of men who would appear before the court and give oath that the accused was not a bad man and had committed no crime. They did not investigate the accusation, they only testified to the good character of the accused. If a man accused could not produce compurgators, he must undergo the ordeal.

The duty of these oath bearers gradually became more extended until they became investigators, and finally became a grand jury.

91 Const.i.tution of the United States, Art. IV, Sec. 2, Cl. 1.

"The right of a citizen of one state to pa.s.s through, or to reside in, any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of habeas corpus; to inst.i.tute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the description"-Corfield vs. Coryell, _Washington C. C. Rep. 380_.

92 Const.i.tution of the United States, Art. 6, Cl. 3.

While no religious test of any kind may ever be required from any officer of the United States as a condition of his being elected, or holding office, public sentiment nevertheless favors Christian character among the people. If a candidate for office were an atheist and made public confession as to his lack of belief in G.o.d, it would doubtless mitigate against his election.

"The general principle of equality of all persons before the law excludes discriminations made on account of religions belief, with the result that religious tests should not be made the basis of political rights or for determining qualifications for office or in general for the possession, exercise, or protection of civil rights."-Emlin McClain, quoted in the _Cyclopedia of American Government_, Vol. III, p. 176.

"This clause was introduced for the double purpose of satisfying the scruples of many persons who feel an invincible repugnance to any religious test or affirmation, and to cut off forever every pretence of any alliance between church and state in the national government"-Story's Const. Sc. 1841.

93 A glance at the motives of Europeans in coming to America will reveal the fact that thousands of the best people of European countries left their homes to escape either religious or political persecution at the hands of the government or the king. Such was true of the Huguenots of France, the Pilgrims and Puritans of England, and only recently, the Jews of Russia.

The laws of "attainder" in England in the early times confiscated the property of persons, however innocent they themselves might be, if they were near relatives of other persons who had committed grave crimes.

Before the pa.s.sage of the Habeas Corpus Act of 1679 in England, any person of royalty or high official standing in the government could falsely accuse another person of crime and cause that innocent person to languish in prison for years, or even for life, because he could not get before a court of justice to establish his innocence.

In many European countries the peasants were burdened with taxes to support kings and courts without the slightest representation in the tax levying authority. In France, just preceding the French Revolution, the peasants were obliged to purchase a certain number of barrels of salt each year, without having the slightest use for the salt, because the crown lands produced salt and the revenues went to the king.

In many European countries a state church was established and the people obliged to support it by taxes levied against their property, regardless of whether it represented their religious beliefs.

94 A comparison of the provisions of the Declaration of Independence with those of the Const.i.tution will show the wrongs of the English king righted by the Const.i.tution.

Declaration of Independence.-"He has refused a.s.sent to laws the most wholesome and necessary for the public good."

Const.i.tution of the United States.-A bill if vetoed by the President may be repa.s.sed by two-thirds of the senate and house of representatives.

Declaration of Independence.-"He has forbidden his governors to pa.s.s laws of immediate and pressing importance."

Const.i.tution of the United States.-Congress shall have the power to lay and collect taxes, duties, etc. (See Const. Art. I, --. 8.)

Declaration of Independence.-"He has dissolved representative houses repeatedly, for opposing with manly firmness, his invasions on the rights of the people."

Const.i.tution of the United States.-Congress shall meet at the seat of government-once each year.

Declaration of Independence.-"He has refused, for a long time after dissolution, to cause others to be elected."

Const.i.tution of the United States.-The time, place and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof.

Declaration of Independence.-"He has obstructed the administration of justice."

Const.i.tution of the United States.-Jurisdiction of Courts fixed by Const.i.tution. Judges not responsible to the President, but to Congress, which represents the people.

Declaration of Independence.-"He has made judges dependent on his will alone."

Const.i.tution of United States.-Judges subject to removal only by impeachment by Congress.

Declaration of Independence.-"He has kept standing armies ...

without consent of the legislature."

Const.i.tution of the United States.-"Congress shall have power to raise and support armies." "To provide and maintain a navy."

Declaration of Independence.-"For transporting us beyond seas to be tried for pretended offenses."