The Constitution For The United States
Its Sources and Its Application A
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THE FUNCTION OF THE COURTS
"There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.
"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
Alexander Hamilton, in the "Federalist", No. LXXVIII.
Section 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.97
97 "But for this system of United States courts extended throughout the States and supreme within its own sphere," says Fiske ("Critical Period American History", p. 300), "the Federal Constitution could never have been put into practical working order.... This intrusting to the judiciary the whole interpretation of the fundamental instrument of the government is the most peculiarly American feature of the work done by the convention, and to the stability of such a federation as ours, covering as it does the greater part of a huge continent, it was absolutely indispensable."
The first session of the first Congress (Sept. 24, 1789) provided for a Supreme Court with "a chief justice and five associate justices", four of whom should constitute a quorum. In February, 1801, the number of associates was reduced to four. On April 29, 1802, the Court was enlarged to six associate justices, The number of associates was increased to eight on March 3, 1837. On March 3, 1861, Congress increased the Court by making it consist of a chief justice and nine associates, and Stephen J. Field of California was appointed by President Lincoln to the new associate justiceship. To prevent President Johnson from appointing Attorney-General Stanbery to fill a vacancy on the bench, Congress reduced the number of associates to six on July 23, 1866. The number of associates was increased to eight, six of whom are a quorum, by an act of April 10, 1869, about a month after Johnson's term expired. One of the appointees of President Grant to the two new places was rejected by the Senate, and the other, Edwin M. Stanton, died before he could take his seat. Thus a court of seven decided the first Legal Tender Case on February 7, 1870, holding that paper money ("Greenbacks", so called) could not under the Constitution 44, be made a legal tender in place of coin in payment of debts. On the same day President Grant appointed William Strong of Pennsylvania, and Joseph P. Bradley of New Jersey, and in May, 1871, another Legal Tender Case coming up, the first decision was overruled. At present (1940) the Supreme Court consists of a chief justice and eight associates.
In 1937 President Roosevelt submitted to Congress a bill for reform of the Supreme Court, providing for the increase of the number of judges to 15, by appointing one additional judge for each incumbent eligible to retire. This bill was rejected by Congress, and a milder one substituted, and subsequently passed. This provides for a change in procedure, allowing the Attorney General to take part in any suit in the federal courts involving the constitutionality of a federal Act, and allowing him to appeal directly to the Supreme Court from any inferior federal court decision against the constitutionality of an Act.
"Inferior courts" were established under this clause by the first Congress and called Circuit Courts. They sit throughout the States for the trial of causes arising under the Constitution, the laws of Congress, and treaties.
In 1890 Congress created under this clause, for the relief of the overburdened Supreme Court, a Circuit Court of Appeals consisting of three judges in each of the nine circuits into which it. divided the United States and its territories. To illustrate, the First Circuit contains Rhode Island, Massachusetts, New Hampshire, Maine, and Porto Rico; and the Ninth embraces Arizona, California, Oregon, Nevada, Washington, Idaho, Montana, and Hawaii. In many cases the decision of a Circuit Court of Appeals is final and the litigation therefore never reaches the Supreme Court.
Below the Circuit Courts of Appeals (the Circuit trial courts having been abolished) are the United States District Courts (over eighty), there being one or more districts in a State, according to the needs of the population. These courts try civil and criminal cases, and appeals lie from them to the Circuit Courts of Appeals in most cases, but in a few (involving Federal questions) directly to the Supreme Court.
In 1855 a Court of Claims was created by Congress to hear cases against the United States, as the sovereign can be sued only upon its consent.
In 1909 Congress established a Court of Customs Appeals to review decisions of the Board of General Appraisers on questions arising out of import duties.
In China and some other countries consular courts have been created by Congress, in which the American consul sits to effectuate treaties and try certain causes.
In organized territories of the United States, like Alaska and Hawaii before statehood, the courts were created by Congress; but when the territory is admitted as a State, then the Federal courts are superseded by courts of the State's creation.
The Interstate Commerce Commission was created in 1887 to regulate commerce among the States by railway, telegraph, telephone or any other means; and so in 1914 the Federal Trade Commission was created to prevent unfair methods and unfair competition in interstate trade. While these tribunals are not courts, they ate mentioned here because of their great importance.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. 98
98 The Declaration of Colonial Rights of October 14, 1774, complained that judges were "dependent on the Crown alone for their salaries."
A complaint in the Declaration of Independence was that King George III "has made judges dependent on his will alone for the tenure of their office and the amount and payment of their salaries."
Lecky mentions in "England in the Eighteenth Century" that there was "a long and bitter quarrel about the position of the judges" in the Colonies, He says that the colonists wished the judges to hold their office during good behavior and thus be beyond the control of the home government.
The King of England, becoming dissatisfied with the conduct of the colonists, demanded the surrender of their charters. This being resisted, a proceeding in quo warranto (inquiring by what warrant they claimed rights) was instituted in the courts of England "and," as Story well said, "it terminated, as in that age it might well be supposed it would, in a judgment pronounced in 1624 by judges holding their office during his pleasure."
Most of the constitutions of other nations which have been drafted since ours have adopted the provision making the term of judges during good behavior, and many of them prohibit the intimidation of the judge by the reduction of his salary. By the constitutions of Belgium(1831- 1873) and Brazil (1890) judges are appointed for life. In Argentine (1853, 1860) and Chile (1833 - 1893) the judges hold during good behavior. It is significant that the constitutions of the three great British dependencies, those of the Dominion of Canada (1867), the Commonwealth of Australia (1900), and the Union of South Africa (1909), follow explicitly that of the United States in requiring that judges be appointed, that they hold office during good behavior, and that their salaries be not reduced. Canada had seen the practical operation of this clause of our Constitution for over three quarters of a century. It was more than a century and a decade old when Australia followed it. In 1909, when the Union of South Africa was established, this constitutional provision had served for 120 years the great purpose for which it was designed,
In December, 1919, the United States District Court of Kentucky, in a suit brought by another district judge, held that the Income Tax Act of September 24, 1919, imposing a tax upon salaries, including those of the judges of the Federal courts, was not intended to and therefore did not diminish the compensation of judges within the meaning of this clause.
On June 1, 1920, the Supreme Court reversed that decision, holding that the tax on the salaries of judges "was imposed contrary to the Constitutional prohibition and so must be adjudged invalid." The Court expressed "regret that its solution falls to us, and this although each member [of the Supreme Court] has been paying the tax in respect of his salary voluntarily and in regular course." But, it added, "jurisdiction of the present case cannot be declined or renounced; the plaintiff was entitled by law to invoke our decision." However, construing an act (1932) taxing the salaries of judges "taking office after" the enactment, the Supreme Court, really overruling the decision just examined, held (1939) that the tax would not work a "diminution of salary" within the prohibition of this clause. c55, c58
Under like constitutional provisions in Pennsylvania, Louisiana, and North Carolina, the rulings had been that the judicial salary cannot be touched even by a tax. Up to 1862 no attempt had been made to tax the salaries of judges. When Chief Justice Taney raised the question, the Government discontinued the Civil War income tax as to Federal judges and refunded to the judges what had been withheld by the Treasurer of the United States. In the Income Tax Act of 1894 the salaries of the judges were not mentioned. In the acts of 1913, 1916, and 1917 they were expressly excepted from the income tax. But in the Act of 1919 income was made to include for taxation "the compensation received as such" by "the President of the United States, the judges of the Supreme and inferior courts of the United States", and some others.
In 1937 the Supreme Court Retirement Act was passed, giving the Justices the privilege of retiring upon reaching the age of 70, a privilege previously accorded to judges of inferior Federal courts.
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; 99
99 "By the "judicial power", as distinguished from the legislative power and the executive power, is meant the authority to hear and determine controversies as to law or fact between the government and individuals, or between individual parties. "That power is capable of acting," said the Supreme Court, "only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law; it then becomes a case." The Constitution of the Commonwealth of Australia (1900), which copies this paragraph almost verbatim, defines judicial power as "a power to declare and apply the laws of the Commonwealth." A court does not express an opinion upon the Constitution, a law of Congress, or a treaty except in a "case" -- -- when its judicial power has been invoked by some one asserting a right. Nor does a court ever decide a constitutional question if it can be avoided; that is, if the case may be disposed of by the decision of other questions the constitutional question will be passed. The purpose in this clause is that essentially National questions shall be tried in National courts. c30, c60
"One great object in the establishment of the courts of the United States and regulating their jurisdiction," said the Supreme Court, "was to have a tribunal in each State presumed to be free from local influence and to which all who were non-residents or aliens might resort for legal redress." c72
Under the Articles of Confederation there were no such tribunals as the present National (Federal, so called) courts, and experience had taught the positive need of them.
The judicial power does not extend to a determination of political questions, such as whether a State has a republican form of government.
When a case arises in a State court and involves a question of the Constitution, or of an act of Congress, or of a treaty, it is the duty of the court to follow and enforce the National law; for the Constitution explicitly and emphatically requires 134 that "the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Should a State law, for example, deny "the equal protection of the laws" by favoring one class of citizens as against another; or should a State pass an ex post facto law, or tax exports, or interfere with commerce among the States, or take private property for public use without compensation, or do any other of many things forbidden by the Constitution which have been done: and should the Supreme Court of the State uphold such a law in a case brought by a citizen claiming to be wronged, then "the judicial power of the United States" would "extend" to such a case and it would be the duty of the Supreme Court of the Nation to reverse the ruling of the tribunal of the State and to declare the law of the State to be void and inoperative because of conflict with "the supreme law of the land." In the course of our history the Supreme Court of the United States has been under the necessity of deciding many such cases.
Alexander Hamilton discussed in the "Federalist" the relative powers of the Legislative Department, the Executive Department, and the Judicial Department. "The Executive not only dispenses the honors," he said, "but holds the sword of the community. The Legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse... and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. This simple view of the matter suggests several important consequences -- it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the others, and that all possible care is requisite to enable it to defend itself against their attacks."
In Canada the Supreme Court of the Dominion passes upon legislation of the Provinces and of the Dominion just as ours determines whether an act of a State legislature or an act of Congress goes beyond the hounds fixed by the Constitution. Many acts of legislation in Canada have been held void for convict with the Constitution, the British North America Act of Parliament of 1867, which follows closely in general plan the Constitution of the United States. This statement may be repeated about Australia and its Constitution of 1900. A decision of the Supreme Court of Canada may be (and many decisions have been) reviewed and sustained or reversed by the Privy Council in London, the court of last resort of the British colonies, except Australia, which refused in 1900 to permit Parliament to insert in its constitution a provision for such appeal. It contended that experience in the United States with a court of final resort justified its opposition to the plan.
-- to all cases Affecting Ambassadors, other public Ministers, and Consuls; 100
100 It is fitting that the representatives of nations should have a hearing in our National courts when their rights have been drawn into question.
-- to all Cases of admiralty and maritime Jurisdiction; 101
101 These cases arise out of the law of the sea and often involve rights of citizens of other countries. Therefore National jurisdiction of the subject is preferable to what might be differing decisions by State courts.
-- to Controversies to which the United States shall be a Party; 102
102 The United States is the moving party in its own courts against violators of the revenue laws and the many other acts of Congress contained in what is called the penal code. It also brings civil suits in its courts to enforce its rights, as to set aside a patent to public land obtained by fraud, or to cancel a certificate of naturalization secured by an alien who did not intend to be loyal to the United States, or to enforce any rights of contract, or to collect money owing to it. The cases which the United States litigates in its courts are of great number and variety. Were there no Federal courts the Nation might not always secure speedy and adequate relief in the courts of the States.
But because the Government enters its courts at pleasure to seek redress from individuals or corporations, or to punish them under its penal laws, it by no means follows that individuals or corporations may in like manner bring actions against it. The sovereign cannot be sued except upon its consent, and the United States has established a special tribunal (the Court of Claims) for the trial of special cases, particularly claims for money.
Nor because the Nation may sue a State, as it has done to settle a boundary dispute between a State and a Territory, does it follow that a State may sue the Nation. Thus the Supreme Court held (1907) that the State of Kansas could not maintain in that court under this clause a suit against the United States respecting grants of railroad right of way through Indian lands of which the State claimed to be the trustee. It was said that public policy forbids that the sovereign be sued without its consent. That consent was given as to some cases (but not all) by the creation of the Court of Claims. c102, c115
Where revenue agents of the United States, acting in pursuance of the National prohibitory law, were indicted in the State of Oregon for involuntary manslaughter, they having unintentionally killed a man while they were engaged in the performance of a lawful act, it was held (1920) by the United States District Court that the State had no right to prevent the removal of the case to a Federal court under acts of Congress dating back to 1833, when South Carolina undertook to prevent the collection of National revenue, and Congress provided for the trial in Federal courts of criminal charges against Federal officers. During the Civil War (1863) it was considered necessary, owing to the difficulties which beset officers of the Government in the southern and in some of the northern States, to make the act include civil cases as well as criminal. The National Government takes care in its own courts of litigation in, which it or its representatives are concerned.
-- to Controversies between two or more States; 103
103 In an early case the Supreme Court said that the Constitution had made justiciable -- that is, properly triable or disposable in a court rather than by the sword, by treaty, or otherwise -- some matters "which were not known as: such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solutions. " That is another example of entirely new methods devised and presented to mankind by the Fathers of the Republic. Beginning in 1799, with a controversy between New York and Connecticut, many disputes between States respecting boundaries have been disposed of by the Supreme Court.
"Instead of reserving the right to seek redress for injustice from another State by their sovereign powers," wrote Chief Justice Taney, "they [the States] have bound themselves to submit to the decision of this court, and to abide by its judgment. And it is not out of place to say, here, that experience has demonstrated that this power was not unwisely surrendered by the States; for in the time that has already elapsed since this government came into existence, several irritating and angry controversies have taken place between adjoining States, in relation to their respective boundaries, and which have sometimes threatened to end in force and violence, but for the power vested in this court to hear them and decide between them." c102, c105
Other cases, as that of Kansas against Colorado for draining by irrigation the Arkansas River (1907) to the damage of farmers in the complaining State, in which it was found that "little if any detriment" had been worked to "the great body of the valley" because the large flow is underground, have been heard by the Supreme Court. So Missouri was held (1906) not to have sustained its allegations against Illinois regarding, the pollution of the waters of the Mississippi by the Chicago drainage canal, although in 1930 a decision was handed down that Chicago must reduce her water diversion to 1,500 cu. ft.
-- between a State and Citizens of another State; 104
104 It is manifest that in a controversy between a State and a citizen of another State the citizen should have the right to remove the case against him from the court of the suing State to a court of the Nation. The citizen of a State is also a citizen of the United States, and that should entitle him to litigate in a court of the United States when a State is plaintiff. The language of this clause imports that a citizen of one State may sue another (not his own) State. This objection was raised when the Constitution was before the States for adoption. James Madison (afterward President) and John Marshall (afterward Chief Justice) said, that an individual could not "call any State into Court." Nevertheless, in 1793 the Supreme Court held in a historic case (Chisholm, a citizen of South Carolina, against Georgia) that he could. As many of the States were in poor financial condition and liable to suits for money, that decision, though logical under the language of the clause, was threatening as a precedent. It caused a great commotion, which resulted in the adoption of the Eleventh Amendment 164 on January 8, 1798, declaring that "the judicial power of the United States" should not be construed to extend to a suit against a State by a citizen of another State, or by a citizen or subject of any foreign State. c104
The Constitution of Australia grants jurisdiction to the High (Supreme) Court where a citizen desires to sue a State.
In our country a person having a claim against a State, must apply to the legislature for relief, unless the State has established a Court of Claims, which some States have done.c102
-- between Citizens of different States; 105
105 Several States have passed laws to prevent the removal under this clause to Federal courts of suits begun in the courts of the States against non-residents, but these acts have been held void for conflict with the Constitution. In one such case (1908) the Supreme Court said: "A State cannot tie up a citizen of another State having property within its territory, invaded by unauthorized acts of its own officers, to suits for redress in its own courts." The dispute between citizens of different States is one in which the Nation is properly concerned; the contesting parties are citizens of the Nation as distinguished from citizens of a State. The practical need for this clause was early learned by the Government itself. When South Carolina called (1832) a convention and adopted an ordinance to resist the collection of duties imposed by a tariff law of Congress, and the legislature of the State passed "An Act to Carry into Effect in Part an Ordinance to Nullify Certain Acts of the Congress of the United States", the revenue officers of the Nation were so badly dealt with that Congress (1833) passed "An Act Further to provide for the Collection of Duties on Imports" which gave a right of action in a Federal court to a revenue officer injured in person or property and also gave him the right to remove from a State court to a Federal court any suit or prosecution brought against him. And in the midst of the Civil War (March 3, 1863), three months after the Emancipation of the Negro, an act was passed by Congress providing for the removal to Federal courts of any civil or criminal case brought in a State court against "any person who is denied or cannot enforce in the judicial tribunals of the State... any right secured to him by any law providing for the equal civil rights of citizens of the United States." In the Civil War, again, the draft officers of the Nation were protected by the Federal courts where public feeling was against the Union. c102
"The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained there would be but little danger from abroad," said the Supreme Court of the United States in reversing the decision of the highest court of a State which had undertaken to release by its writ of habeas corpus a man in the custody of a United States marshal on a charge of violating an act of Congress; "and to accomplish this purpose, it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the general government; and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the government was established; and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force, unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all, by appropriate laws, to be carried into execution peacefully by its judicial tribunals." c72, c94, c102
-- between Citizens of the same State claiming Lands under Grants of different States, 106
106 This is only a landmark now. In 1787 there were many and serious disputes among persons claiming lands which had been granted by different States, the boundaries of States being very vaguely defined.
and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 107
107 Any foreign Nation, or any citizen thereof, is entitled to sue any American citizen in one of our Federal courts. In like manner a citizen of the United States may sue a foreign State or a citizen of a foreign State in a court of the United States -- but of course he must first find the party on American soil. A writer on the jurisdiction of Federal courts states that he advised the Governor General of Canada that Queen Victoria might bring a suit in the Supreme Court of the United States to determine the liability of the State of New York on a claim of tribes of Indians which had gone from that State to Canada.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 108
108 That is, the action, suit, or proceeding must be begun in the Supreme Court.
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, 109 both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
109 This means that the proceeding must originate in an inferior court and be there brought to decision or judgment. After that the case may be taken to the Supreme Court for review.
The Supreme Court of the Dominion of Canada is not the court of last resort. Cases involving questions of constitutional law (such as a controversy between two provinces, or between a province and the Dominion, regarding power) are finally heard by the Privy Council in London. This practice obtains generally in other British colonies, except Australia, which omitted from its draft of a constitution (1900) a provision for such appeal'. The Supreme Court of Canada, precisely after the manner of ours, passes upon the constitutionality of laws enacted by the provincial parliaments and by the Dominion Parliament. So in Australia.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; 110
110 In the Colonial Declaration of Rights of October 19, 1765, it was said "that trial by jury is the inherent and invaluable right of every British subject in these Colonies", and there was condemned an act of Parliament "extending the jurisdiction of the courts of the admiralty beyond its ancient limits" so as to try colonists for various offences without a jury. In the Declaration of October 14, 1774, it was said that the colonists were entitled "to the great and inestimable privilege of being tried by their peers of the vicinage."
The jury trial is given here and in the Sixth Amendment153 only in criminal cases, but the Seventh Amendment guarantees a jury in civil cases157 in which the amount in controversy exceeds twenty dollars. While this provision relates to trials in Federal courts only, the constitutions of the States have similar provisions. Indeed, such a clause was in the constitutions of many of the States before the National Constitution was drafted. The jury of the Constitution is the jury of the England of that day. It consists of twelve men and their verdict must be unanimous.
The Declaration of IndependenceDOI arraigned the English Government for "depriving us in many cases of the benefit of a trial by jury."
Referring to the provisions of the Constitution guaranteeing to the citizen a public trial by jury, with witnesses and counsel in his defense, the Supreme Court of the United States, holding (1866) that a citizen of Indiana who had not been in the military service, but who had been sentenced (1864) by a military tribunal to be hanged for disloyal conduct during the Civil War, should have been tried before a jury in a court of law, the courts of Indiana never having been closed by the War, employed this language:
"Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."c31, c62, c67, c117
See Also "An Essay on the Trial By Jury" by Lysander Spooner - (1852), a most important history and treatise on the reasons for trial by jury and, more importantly, the rights, duties and responsibilites of the jurors in trying both the facts and the law.
and such Trial shall be held in the State where the said Crimes shall have been committed; 111
111 In the Declaration of Colonial Rights of October 14,1774, an act of Parliament of the twelfth year of George III, for the protection of the King's docks and munitions in the Colonies, was condemned because it "declares a new offense in America and deprives the American subject of a constitutional trial by jury of the vicinage by authorizing the trial of any person charged with the committing of any offense described in the said act, out of the realm, to be indicted and tried for the same in any shire or county within the realm", that is, in any county of England or Scotland; and it was recited in the preamble that Parliament had lately resolved that, by the force of a statute passed in the thirty-fifth year of the reign of Henry VIII, "colonists may be transported to England and tried there upon accusations for treasons and misprisions, or concealments of treasons committed in the Colonies, and by a late statute such trials have been directed in cases therein mentioned."
The Declaration of Independence complained of King George III that "he has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws"; and it said that he had given "his assent to their acts of pretended legislation... for transporting us beyond seas to be tried for pretended offenses." This provision of our Constitution has been strictly enforced by the courts whenever attempts have been made (and they have been numerous) to take an accused person from his home to a distant jurisdiction for trial.
In President Grant's administration (1873) an attempt was made to take to Washington for trial on a charge of libel the editor of a paper published in New York and circulated in the National capital. The court, finding that the defendant "if removed to the District of Columbia would be tried in a manner forbidden by the Constitution", refused to grant a warrant for removing him. In the administration of President Roosevelt (1909) a like dispute originated. An attempt was made by officers of the United States to take to Washington for trial on a charge of criminal libel editors living in Indianapolis who had questioned the motive of the Government in changing its plan for an Isthmian canal from the Nicaraguan route to the Panama route after a committee had reported in favor of the former, which could be purchased for $40,000,000, while the latter was to cost $100,000,000. The United States District Court at Indianapolis denied the application for the removal of the defendants, and said: "To my mind that man has read the history of our institutions to little purpose who does not look with grave apprehension upon the possibility of the success of a proceeding such as this.... If the prosecuting officers have the right to select the tribunal... if the government has that power, and can drag citizens from distant States to the capital of the Nation there to be tried, then, as Judge Cooley says, this is a strange result of a revolution where one of the grievances complained of was the assertion of the right to send parties abroad for trial." 153, c35, c114
but when not committed within any State, 112 the Trial shall be at such Place or Places as the Congress may by Law have directed.
112 As on the high seas.
Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 113
113 William Blackstone, whose lectures (1758) at the University of Oxford became the great textbook on English law, with which lectures the members of the Constitutional Convention were very familiar, gives a statement of the law of treason which embraced at least seventeen acts punishable by death -- death in a "very solemn and terrible" way, the commentator says, by hanging, followed by disemboweling and quartering. Hallam ("Constitutional History of England"), dealing with civil government in the reign of Elizabeth (1558 - 1603), refers to "those glaring transgressions of natural as well as positive law that reduced our courts of justice in cases of treason to little better than the caverns of murderers." That is enough to make clear why the Founders of the Republic defined treason -- the only crime defined in the Constitution -- and limited it to two offenses. A proposal to let Congress define treason, as the English Parliament had always done, was rejected by the Constitutional Convention. The Constitution defined it and Congress cannot change it. Treason "shall consist only" of the Constitutional specifications.
In the celebrated trial of Aaron Burr (1807) on a charge of treason in the United States Circuit Court at Richmond, Virginia, the meaning of "levying war" was discussed by Chief Justice Marshall, who presided in that circuit, in the light of a full review of English history; for this clause was borrowed from an elaborate act of Parliament of the reign of Edward III (1352) saying that "if a man do levy war against our lord the King and his realm", or "if a man be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm or elsewhere", he should be guilty of treason. Marshall said that it is not enough to be leagued in a conspiracy; it is necessary to perform a part. That part may be minute, and it may not be actual appearance in arms, but it must be a part of the plan and must be performed by the person charged. Notwithstanding the great efforts of the Jefferson administration to secure the conviction of Burr, the jury was directed by Marshall to return a verdict of not guilty because the testimony offered by the Government was "irrelevant until there be proof of the overt act by two witnesses," Burr had been charged with raising troops against the Government, but no proof of overt acts was produced. The feeling ran so high that Marshall was hanged in effigy, but the search of historians has failed to find evidence sufficient under this section to convict Burr of treason. c113
Upon our entering World War 1 a proclamation was issued (April 16, 1917) by President Wilson stating the acts which had been held to be within the Constitutional definition of treason, and warning both citizens and aliens not to do them. In part it was as follows:
"The courts of the United States have stated the following acts to be treasonable:
"The use or attempted use of any force or violence against the Government of the United States, or its military of naval forces;
"The acquisition, use or disposal of any property with knowledge that it is to be, or with intent that it shall be, of assistance to the enemy in their hostilities against the United States;
"The performance of any act or the publication of statements or information which will give or supply in any way aid and comfort to the enemies of the United States;
"The direction, aiding, counseling, or countenancing of any of the foregoing acts;
"Such acts are held to be treasonable whether committed within the United States or elsewhere, whether committed by a citizen of the United States, or by an alien domiciled, or residing, in the United States, inasmuch as resident aliens, as well as citizens, owe allegiance to the United States and its laws."
There may be treason against a State under its constitution or laws, which the State may punish. Thus John Brown was executed by the State of Virginia for treason committed by his attack upon the State arsenal at Harper's Ferry.
No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, 114 or on Confession in open Court.
114 Referring to the execution of Sir Walter Raleigh (1618) for high treason, under a sentence passed fifteen years before, which "stained the reign of James I", Hallam says:
"His conviction was obtained on the single deposition [written testimony] of the Lord Cobham, an accomplice, a prisoner, not examined in court, and known to have already retracted his accusation."
Hallam states that while some contended "that less than two witnesses ought not to be received in a case of treason", it is doubtful whether anyone had been allowed the benefit of that contention.
Two witnesses to the same act are required by our Constitution. and of course the accused must be "confronted with the witnesses against him." [Sixth Amendment 155] The written statement of one absentee, such as lost Raleigh his life, will not do in the United States. The "overt act" is one that discloses a purpose to levy war or to aid the enemy.
In the eleventh year of Queen Victoria (1848) the Treason-Felony Act of Parliament reduced the number of treasons and fixed penal servitude instead of death as punishment in many cases.
The Congress shall have Power to declare the Punishment of Treason, 115
115 In 1790 Congress prescribed death by hanging as the punishment of treason. In 1862 Congress enacted that treason be punishable by death and the liberation of the traitor's slaves, or by imprisonment of not less than five years and a fine of not less than $10,000 and the liberation of slaves. The punishment now is death, or imprisonment and fine, with the loss of right to hold office under the United States.
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. 116
116 Congress ran counter to this limitation during the Civil War. It passed (July 17, 1862) an act "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels", and for some other purposes, which was called the Confiscation Act. To insure the speedy termination of the war it was made the duty of the President to seize the property and money of officers of the Confederate army and of the president and other officials of the Confederate States.
President Lincoln had prepared a draft of a message objecting to this Act as violative of this clause. But before it was presented to Congress a joint resolution was passed to the effect that the Act "shall be so construed as not... to work a forfeiture of the real estate of the offender beyond his natural life." In view of the resolution President Lincoln signed the bill and it became a law. Not withstanding the resolution, purchasers of real estate under the Confiscation Act claimed full title. In one of the first cases to reach the Supreme Court, reference was made to the qualifying resolution by Congress, and it was said that had Congress undertaken to convey title beyond the life of the offender, "it would have transcended its jurisdiction." Where the property of a Confederate general had been seized and sold and he left a son as heir, the Supreme Court held that under this clause the purchaser could take no interest beyond the lifetime of the original owner, upon whose death the son had legal title to the land. Several cases of this kind arose and the decisions were uniformly as stated -- that the purchaser of property under the Confiscation Act could acquire an interest only during the life of the offender, punishment for whose offence could not be visited upon his children. c22
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