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In the third place, the Constitution guarantees to the people the right to assemble peaceably and petition the government for redress of grievances. This right is upheld against state governments as well as the federal government; but, of course, it does not secure to the petitioners the privilege of having their petition acted upon by the federal authorities.1

In the fourth place, the power of the federal government to punish persons is hedged about in many ways. Congress has no power to define treason; it is defined in the Constitution: "Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort." Congress cannot, therefore, vindictively declare any act treason which does not meet its approval.

Furthermore, the trial of persons accused of this high crime is carefully safeguarded. No person can be convicted of treason unless on the testimony of two witnesses to the overt act or on confession in open court. In the case of the United States v. The Insurgents,' the Court ordered that the names, residences, and occupations of the jurors, and a complete list of witnesses should be furnished the accused; and that a reasonable time be allowed for the defence to prepare its case after receiving this information. The Court, furthermore, declared that until the overt act of treason had been proved by testimony of two witnesses, no evidence relating to the charges could be introduced.

While Congress has the power to provide the penalties for treason, the Constitution expressly stipulates that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. In old English practice, corruption of blood meant the destruction of all inheritable qualities, so that any attainted person could not inherit lands or other hereditaments from his ancestors nor retain those which he already possessed or transmit them to his heirs.3 The constitutional provision mentioned above was designed to prevent this punishment of the relatives of traitors; and accordingly no punishment or proceedings may be construed to work a forfeiture of the real estate of a traitor longer than his natural life.1


1 Burgess, Middle Period, pp. 253-296.

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3 Story, Commentaries on the Constitution (5th ed.), sec. 1299. 'Bigelow v. Forrest, 9 Wallace, 339.

In the fifth place, proceedings against persons charged with crime under the federal law are controlled by several explicit provisions. Congress cannot act as a court by passing a bill of attainder condemning any person to death or to imprisonment or imposing any penalty whatsoever. Congress can pass no ex post facto law; that is, no law making an act a crime which was not a crime when committed, or adding new penalties after a commission of an act, or modifying the procedure in any such way as to make it substantially easier to convict.1 Federal authorities have no power of arresting wholesale on general warrant; all warrants of arrest must be issued only upon probable causes supported by oath or affirmation and particularly describing the place to be searched and the persons and things to be searched. Indictment by grand jury and trial by jury are secured to all persons coming within the jurisdiction of the federal authorities, except in the insular possessions. The writ of habeas corpus cannot be suspended unless in case of rebellion or invasion, when it may be required by public safety; that is, under all ordinary circumstances any person held by federal authorities has the right to have a speedy preliminary hearing before a proper judicial tribunal. Excessive bail cannot be demanded by federal authorities; in other words, except in capital cases, federal courts must release prisoners on bail, and must not fix the amount at such an unreasonable sum as practically to deny the right. Finally, in general, the federal government must allow due process of law in all of its criminal proceedings: the trial must be open and speedy and in the state and district where the crime was committed; the defendant must be informed of the nature and cause of the charge against him; the witnesses against him must be brought face to face with him; he may force, by compulsory process, the attendance of witnesses in his favor; he cannot be compelled to testify against himself in any criminal case; and he has a right to have the assistance of counsel in his own behalf.1


1 Of course, Congress is not so limited in making laws applicable to acts which may be committed in the future.

2 See below, chap. xxi.

3 Below, chap. xv.

It must be noted that these privileges in criminal matters are not extended to cases arising in the land and naval forces or in the militia when in active service in time of war or public danger. See below, chap. xvii.


II. The limitations on the federal government1 in behalf of property rights are relatively few in number, but they are fundamental in character. The power to define property is under our system left to the state governments, subject to the one great restriction that slavery and involuntary servitude, that is, property in man, shall not exist. Congress has no power to define property except in the territories not organized into states. Moreover, the Constitution provides some explicit limitations on the power of the federal government to attack the property of private persons: Congress cannot impose duties on articles exported from any state; all direct taxes must be apportioned according to the population so that a majority of the people cannot shift the burden of direct taxation to the minority. Duties, imposts, and

excises must be uniform, that is, must fall upon the same article with the same weight everywhere throughout the United States. In order to protect the taxpayer, it was provided in the Constitution that revenue bills must originate in the House of Representatives, which is composed of members chosen directly by the voters; but this provision is a dead letter in practice. The Constitution also stipulates that no money shall be drawn from the treasury except under appropriations made by law; consequently the executive authority cannot on its own motion withdraw money from the public treasury.

It is not only by way of taxation that the federal government may approach private property. It enjoys the power of eminent domain; in other words, it may take private property for public use; but it must make just compensation to the owner. In determining what is just compensation, federal authorities must take into account the use for which the property in question is suitable and pay due regard to the existing business or wants of the community and such as may be reasonably expected in the immediate future. The proceedings in ascertaining the value of property taken for public use may be prosecuted before commissioners or special boards or the courts, with or without the

1 For federal limitations on state governments in behalf of property, see below, chap. xxii.

? Congress may define property, however, in inventions and publications under its right to grant to authors and inventors special privileges with regard to their respective writings and discoveries.

3 See Readings, pp. 283 ff. and 323 ff.

intervention of a jury as Congress may determine. All that is required is that the examination into the value of the property shall be conducted in some fair and just manner affording to the owner of the property in question an opportunity to present evidence as to its value and to be heard on that matter.1

The Separation of Powers

Second in importance to the doctrine that our government is limited by certain fundamental principles of law is the theory that the power conferred on the federal government must be distributed among three distinct departments: legislative, executive, and judicial. This is a doctrine which publicists delight to expound with great show of historical learning; it is a legal principle interpreted by the courts and applied to concrete cases like any other rule of the Constitution; 2 it is a political slogan reiterated in Congress with great vehemence, especially in times when the President, expressing more accurately the living forces of the nation than do the Senators and Representatives, overshadows, in influence, the legislative branch of the government.

According to the traditional account, this doctrine came into our law and practice from Montesquieu, whose treatise on the Spirit of the Laws was a veritable political text-book for our eighteenth-century statesmen, and it was derived by that distinguished French author from his study of the English constitution. In point of fact, however, the doctrine, as far as Montesquieu was concerned, was a notion which he acquired during a conflict between the judiciary and king in France in which he participated, and afterwards read into his study of the institutions of England. As a principle of law and government, it is a part of that system of checks and balances and subdivisions of power by which statesmen have sought to prevent the development of that type of democracy that functions through simple legislative majorities. It is explained with great insight by

1 Boom Co. v. Patterson, 98 U. S. R., 403; United States v. Jones, 109 U. S. R., 513.

'See Readings, p. 138, for an important judicial decision on this point. Hatschek, Englisches Staatsrecht, p. 24.

The place of the theory of separation of powers in the evolution of government is thus described by Treitschke in comparing Sièyés and Rotteck:

Professor Goodnow. They hold that the functions of government are only twofold, the formulation and execution of public will, that is legislative and executive, the judiciary being merely a branch of the law-enforcing power. In their view the separation of powers only creates friction in the government, divides responsibility, necessitates iron-bound party machinery outside the government to overcome the unwieldiness of the system, and altogether works for confusion and obscurity instead of simplicity and efficiency. They cite the English system, in which the legislative and executive powers are fused under the direction of the Cabinet, and the judiciary cannot pass on the constitutionality of laws.

In response to this criticism, Professor Burgess contends: "I think that we are upon the right line, and that those nations which have developed parliamentary government are beginning to feel, as suffrage has become more extended, the necessity of greater executive independence. Parliamentary government, i.e., government in which the other departments are subject to legislative control, becomes intensely radical under universal suffrage, and will remain so until the character of the masses becomes so perfect as to make the form of government very nearly a matter of indifference. There is no doubt that we sometimes feel embarrassment from a conflict of opinion between the independent executive and the legislature, but this embarrassment must generally result in the adoption of the more conservative course, which is far less dangerous than the course of radical experimentation. . . . The feature par excellence of the American governmental system is the constitutional, independent, unpolitical judiciary and the supremacy of the judiciary over the other departments in all cases where private rights are concerned." 2 This undoubtedly represents the prevailing view of American publicists and statesmen, and is at all events the fundamental doctrine of our law.

1 Ford, Rise and Growth of American Politics; Goodnow, Politics and Administration.

'Political Science Quarterly, Vol. X, p. 420.

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