One of these is embraced in the provision, "that 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."[295] The common law of England, which recognizes the right to the writ of habeas corpus for the purpose of delivery from illegal imprisonment or restraint, was the law of each of the American States; and it appears from the proceedings of the Convention to have been the purpose of this provision to recognize this right, in the relations of the people of the States to the general government, and to secure and regulate it. The choice lay between a declaration of the existence of the right, making it inviolable and absolute, under all circumstances, and a recognition of its existence by a provision which would admit of its being suspended in certain emergencies. The latter course was adopted, although three of the States recorded their votes against the exception of cases of rebellion or invasion.[296]
The prohibition upon Congress to pass bills of attainder, or ex post facto laws, came into the Constitution at a late period, and while the first draft of it was under consideration. Bills of attainder, in the jurisprudence of the common law, are acts of legislation inflicting punishment without a judicial trial. The proposal to prohibit them was received in the Convention with unanimous assent. With regard to the other class of legislative acts, described as "ex post facto laws," there was some difference of opinion, in consequence probably of different views of the extent of the term. In the common law, this expression included only, then and since, laws which punish as crimes acts which were not punishable as crimes when they were committed. Laws of a civil nature, retrospective in their operation upon the civil rights and relations of parties, were not embraced by this term, according to the definition of English jurists. But it is manifest from what was said by different members, that, at the time when the vote was taken which introduced this clause into the Constitution, the expression "ex post facto laws" was taken in its widest sense, embracing all laws retrospective in their operation. It was objected, therefore, that the prohibition was unnecessary, since, upon the first principles of legislation, such laws are void of themselves, without any constitutional declaration that they are so. But experience had proved that, whatever might be the principles of civilians respecting such laws, the State legislatures had passed them, and they had been acted on. A large majority of the Convention determined, therefore, to place this restraint upon the national legislature, and at the time of the vote I think it evident that all retrospective laws, civil as well as criminal, were understood to be included.[297] But when the same restraint came afterwards to be imposed upon the State legislatures, the attention of the assembly was drawn to the distinction between criminal laws and laws relating to civil interests. In order to reach and control retrospective laws operating upon the civil rights of parties, when passed by a State, a special description was employed to designate them, as "laws impairing the obligation of contracts," and the term "ex post facto laws" was thus confined to laws creating and punishing criminal offences after the acts had been committed.[298] What is now the settled construction of this term, therefore, is in accordance with the sense in which it was finally intended to be used by the framers of the Constitution before the instrument passed from their hands.
The committee of detail had reported in their draft of the Constitution a clause which restrained the United States from granting any title of nobility. The Convention, for the purpose of preserving all officers of the United States independent of external influence, added to this a provision that no person holding an office of profit or trust under the United States shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.[299]
In addition to the special powers conferred by the Constitution upon the national government, it has imposed certain restraints on the political power of the States, which qualify and diminish what would otherwise be the unlimited sovereignty of each of them. These restraints are of two classes;—a part of them being designed to remove all obstructions that might be placed by State legislation or action in the way of the appropriate exercise of the powers vested in the United States, and a part of them being intended to assimilate the nature of the State governments to that of the Union, by the application of certain maxims or rules of public policy. These restraints may now be briefly examined, with reference to this classification.
The idea of imposing special restrictions upon the power of the separate States was not expressly embraced in the plan of government described by the resolutions on which the committee of detail were instructed to prepare the instrument of government. Such restrictions, however, were not unknown to the previous theory of the Union. They existed in the Articles of Confederation, where they had been introduced with the same general purpose of withdrawing from the action of the States those objects, which, by the stipulations of that instrument, had been committed to the authority of the United States in Congress. But the inefficacy of those provisions lay in the fact, that they were the mere provisions of a theory. The step now proposed to be taken was to superadd to the prohibitions themselves the principle of their supremacy as matters of fundamental law, and to enable the national judiciary to make that supremacy effectual.
Almost all the restraints imposed by the Articles of Confederation upon the States could be removed or relaxed by the consent of the Congress to the doing of what was otherwise prohibited. In the first draught of the Constitution, the committee of detail inserted four absolute prohibitions, which could not be removed by Congress itself. These related to the coining of money, the granting of letters of marque and reprisal, the making of treaties, alliances, and confederations, and the granting of titles of nobility. All the other restraints on the States were to be operative or inoperative, according to the pleasure of Congress.[300] Among these were included bills of credit; laws making other things than specie a tender in payment of debts; the laying of imposts or duties on imports; the keeping of troops or ships of war in time of peace; the entering into agreements or compacts with other States, or with foreign powers; and the engaging in war, when not invaded, or in danger of invasion before Congress could be consulted. The enactment of attainder and ex post facto laws, and of laws impairing the obligation of contracts, was not prohibited at all.
But when these various subjects came to be regarded more closely, it was perceived that the list of absolute prohibitions must be considerably enlarged. Thus the power of emitting bills of credit, which had been the fruitful source of great evils, must either be taken away entirely, or the contest between the friends and the opponents of paper money would be transferred from the State legislatures to Congress, if Congress should be authorized to sanction the exercise of the power. Fears were entertained that an absolute prohibition of paper money would excite the strenuous opposition of its partisans against the Constitution; but it was thought best to take this opportunity to crush it entirely; and accordingly the votes of all the States but two were given to a proposition to prohibit absolutely the issuing of bills of credit.[301] To the same class of legislation belonged the whole of that system of laws by which the States had made a tender of certain other things than coin legal satisfaction of a debt. By placing this class of laws under the ban of a strict prohibition, not to be removed by the consent of Congress in any case, the mischiefs of which they had been a fruitful source would be at once extinguished. This was accordingly done, by unanimous consent.[302]
At this point, the kindred topic of the obligation of contracts presented itself to the mind of Rufus King, suggested doubtless by a provision in the Ordinance then recently passed by Congress for the government of the Northwestern Territory.[303] The idea of a special restraint on legislative power, for the purpose of rendering inviolate the obligation of contracts, appears to have originated with Nathan Dane, the author of that Ordinance. It was not embraced in the resolve of 1784, reported by Mr. Jefferson, which contained the first scheme adopted by Congress for the establishment of new States in the Northwestern Territory; and it first appears in our national legislation in the Ordinance of 1787. Its transfer thence into the Constitution of the United States was a measure of obvious expediency, and indeed of clear necessity. In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of assumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American constitutional law, but which, like many features of our institutions, grew out of previous abuses.
In the old States of the Confederacy, from the time when they became self-governing communities, the power of a mere majority had been repeatedly exercised in legislation, without any regard to its effect on the civil rights and remedies of parties to existing contracts. The law of debtor and creditor was not only subjected to constant changes, but the nature of the change depended in many of the States upon the will of the debtor class, who formed the governing majority. So pressing were the evils thus engendered, that, when the framers of the Ordinance came to provide for the political existence of communities whose institutions they were to dictate, they determined to impose an effectual restraint on legislative power; and they accordingly provided, in terms much more stringent than were afterwards employed in the Constitution, that no law should have effect in the Territory which should in any manner whatever interfere with or affect private contracts or engagements previously made.[304]
The framers of the Constitution were not engaged in the same work of creating new political societies, but they were to provide for such surrenders by existing States of their present unquestioned legislative authority, as the dictates of sound policy and the evils of past experience seemed to require. When this subject was first brought forward in the Convention, the restriction was made to embrace all retrospective laws bearing upon contracts, which were supposed to be included in the term "ex post facto laws." It being ascertained, however, that the latter phrase would not, in its usual acceptation, extend to civil cases, it became necessary to consider how such cases were to be provided for, and how far the prohibition should extend. The provision of the Ordinance was regarded as too sweeping; no legislature, it was said, ever did or can altogether avoid some retrospective action upon the civil relations of parties to existing contracts, and to require it would be extremely inconvenient. At length, a description was found, which embodied the extent to which the prohibition could with propriety be carried. The legislatures of the States were restrained from passing any "law impairing the obligation of contracts";—a provision that has been found amply sufficient, and attended with the most salutary consequences, under the interpretation that has been given to it.[305]