Chapter XII

POWERS DENIED THE UNITED STATES AND THE SEVERAL STATES.

While restrictions on Congressional powers are found elsewhere in the Constitution, Section 9 of Article I seems to have been framed especially for this purpose.[36]

[Footnote 36: Clause 1 of this article formed an important part of the third great compromise, which was discussed on p. 43.]

Writ of Habeas Corpus.--Clause 2 provides: _The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it._

A writ of _habeas corpus_ is a writ granted by a court, commanding an officer to produce before it a prisoner, in order that the court may inquire into the cause of his imprisonment or detention. If, after such inquiry, it is found that the person is detained for insufficient cause, he is granted his freedom.

President Lincoln and the Writ of Habeas Corpus.--President
Lincoln, as a military necessity, in 1861, suspended the privilege
of the writ over a limited area, constituting a large part of the
State of Maryland. The Supreme Court, however, declared his order
non-effective, maintaining that the right of suspending the writ of
_habeas corpus_ lay with Congress, though it might be granted to
the President. This attempt on the part of the Supreme Court to
restrain Mr. Lincoln was a failure, and shows that even the highest
of our tribunals may not have its usual power in time of war. It
was not until March 3, 1863, that Congress made the decree of
President Lincoln legal by authorizing him to suspend the writ
whenever he believed the public safety demanded it. In September of
that year he declared the suspension general throughout the
country.

Ex Post Facto Laws.--Clause 3. _No bill of attainder or ex post facto laws shall be passed._

An ex post facto law, as defined by the Supreme Court, is a "law which renders an act punishable in a manner in which it was not punishable when it was committed." It applies to acts of a criminal nature only.[37]

[Footnote 37: Clause 4 is discussed under National Finances, p. 84.]

Care of Public Money.--Clause 7. _No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time._

It is proper in a government such as ours that the control of the public money should be lodged with the representatives of the people. Through the annual report of the Secretary of the Treasury, the people may know from what sources our revenues are derived and for what purposes the money is expended.

Titles of Nobility and Gifts.--Clause 8. _No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state._

According to the wording of the clause, Congress may allow gifts, of the kind mentioned, to be accepted by our National officials. Usually, however, such gifts pass into the keeping of government.

Powers Denied the States.--We recall the power of the States and weakness of the general government under the Articles of Confederation. It was plain to the members of the Constitutional Convention that hopeless confusion would arise if the States should also be given the right to coin money, pass ex post facto laws, etc. Therefore, certain prohibitions were made on the powers of the States. In Section 10, Clause 1, we note that these prohibitions are absolute, as:--

_No State shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal, coin money, emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility._[38]

[Footnote 38: In the celebrated Dartmouth College case, it was finally determined that a State legislature may not modify the terms of a contract. See Life of John Marshall, by Magruder, "American Statesmen," new ed., 188-190.]

In Section 10, Clauses 2 and 3, the prohibitions are only conditional; thus:--

_No State shall, without the consent of the Congress, lay any impost or duties on imports or exports except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay._

More Complete Protection of Personal Rights.--By a careful reading of Sections 9 and 10, it is seen that some of the rights of the individual are guarded against encroachment on the part of government, either National or State. But the people felt that there were other personal rights which needed protection. They were familiar with the bills of rights in their own State constitutions. That the National Constitution did not also contain a bill of rights was, as we have seen, one of the chief arguments made against its adoption in the State conventions.

The First Ten Amendments.--A large number of propositions, therefore, were submitted to the first Congress by the States. Seventeen of these were selected by the House of Representatives, and proposed as amendments to the Constitution. Twelve of these were acceptable to the Senate also, and ten were ratified by the required three-fourths of the State legislatures. We call them the first ten amendments to the Constitution. If we read these amendments, we shall find that really they are a bill of rights, for the preservation or protection of rights of the people is expressed in all.[39]

[Footnote 39: See Appendix A.]