CH. XLIV.] AMENDMENTS--BILL OF RIGHTS. 713
AMENDMENTS TO THE CONSTITUTION.
§ 1851. We have already had occasion to take notice of some of the
amendments made to the constitution, subsequent to its adoption, in the
progress of our review of the provisions of the original instrument. The
present chapter will be devoted to a consideration of those, which have not
fallen within the scope of our former commentaries.
§ 1852. It has been already ,stated, that many objections
were taken to
the constitution, not only on account of its actual provisions, but also on
account of its deficiencies and omissions.1 Among the latter, none were
proclaimed with more zeal, and pressed with more effect, than the want of a
bill of rights. This, it was said, was a fatal defect; and sufficient of
itself to bring on the ruin of the republic.2 To this objection several
answers were given; first, that the constitution did in fact contain many
provisions in the nature of a bill of rights, if the whole constitution was
not in fact a bill of rights; secondly, that a bill of rights was in its
nature more adapted to a monarchy, than to a government, professedly
founded upon the will of the people, and executed by their immediate
representatives and agents; and, thirdly, that a formal bill of rights,
beyond what was contained in it, was wholly unnecessary, and might even be
1 Vol. I., B. 3, ch. 2.
2 2 Amer. Museum, 423, 424, 425; Id. 435; Id. 534; Id. 540, 543, 546; Id.
3 The Federalist, No. 8; 3 Amer. Museum, 78, 79; Id. 559.
714 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1853. The first answer was supported by reference to the
clauses in the
constitution, providing for the judgment in cases of impeachment; the
privilege of the writ of habeas corpus; the trial by jury in criminal
cases; the definition, trial, and punishment of treason; the prohibition of
bills of attainder, ex post facto laws, laws impairing the obligation of
contracts, laws granting titles of nobility, and laws imposing religious
tests. All these were so many declarations of rights for the protection of
the citizens, not exceeded in value by any, which could possibly find a
place in any bill of rights.1
§ 1854. Upon the second point it was said, that bills of
rights are in
their origin stipulations between kings and their subjects, abridgments of
prerogative in favour of privilege, and reservations of rights not
surrendered to the prince. Such was Magna Charta obtained by the barons,
sword in hand, of King John. Such were the subsequent confirmations of that
charter by succeeding princes. Such was the petition of right assented to
by Charles the First in the beginning of his reign. Such, also, was the
declaration of rights presented by the lords and commons to the prince of
Orange in 1688, and afterwards put into the form of an act of parliament,
called the bill of rights.2 It is evident, therefore, that according to its
primitive signification, a bill of rights has no application to
constitutions professedly founded upon the power of the people, and
executed by persons, who are immediately chosen by them to execute their
will. In our
1 The Federalist, No. 84.
2 Mr. Chancellor Kent has given an exact, though succinct history of the
hills of fights, both in the mother country and the colonies, in 2 Kent's
Comm. Lect. 24.
CH. XLIV.] AMENDMENTS--BILL OF RIGHTS. 715
country, in strictness, the people surrender nothing; and as they retain
every thing, they have no need of particular reservations.1 "We, the
people of the United States, to secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this constitution for
the United States of America"-is a better recognition of popular rights,
than volumes of those aphorisms, which make a principal figure in several
of our state bills of rights, and which would sound much better in a
treatise of ethics, than in a constitution of government.2
§ 1855. Upon the third point, it was said, that a minute
particular rights was certainly far less applicable to a constitution,
designed to regulate the general political concerns of the nation, than to
one, which had the regulation of every species of personal and private
concerns. But (it was added) the argument might justly be carried further.
It might be affirmed, that a bill of rights, in the sense and extent,
which is contended for, was not only wholly unnecessary, but might even be
dangerous. Such a bill would contain various exceptions to powers not
granted; and on this very account might afford a colourable pretext to
claim more than was granted.3 For why (it might be asked) declare, that
things shall not be done, which there is no power to do? Why, for
instance, that the liberty of the press shall not be restrained, when no
power is given, by which restrictions may be imposed? It is true, that
upon sound reasoning a declaration of this sort could not fairly be
construed to imply a regulating power; but it
1 1 Lloyd's Debates, 430, 431, 432.
2 The Federalist, No. 84.
3 1 Lloyd's Debates, 433, 437.
716 CONSTITUTION OF THE U. STATES. [BOOK III.
might be seized upon by men disposed to usurpation, in order to furnish a
plausible pretence for claiming the power. They might urge with a
semblance of reason, that the constitution ought not to be charged with the
absurdity of providing against an abuse of an authority, which was not
given; and that the provision against restraining the liberty of the press,
afforded a clear implication, that a right to prescribe proper regulations
concerning it, was intended to be vested in the national government.
§ 1856. It was further added, that in truth the
constitution itself was,
in every rational sense, and to every useful purpose, a bill of rights for
the Union. It specifies, and declares the political privileges of the
citizens in the structure and administration of the government. It defines
certain immunities and modes of proceeding, which relate to their personal,
private, and public rights and concerns. It confers on them the
unalienable right of electing their rulers; and prohibits any tyrannical
measures, and vindictive prosecutions. So, that, at best, much of the
force of the objection rests on mere nominal distinctions, or upon a desire
to make a frame of government a code to regulate rights and remedies.1
§ 1857. Although it must be conceded, that there is much
in this reasoning,2 it cannot in
1 The Federalist, No. 84. See 1 Lloyd's Debates, 428, 429, 430; 3 Amer.
2 It had, beyond all question, extraordinary influence in the convention;
for upon a motion being made to appoint a committee to prepare a bill of
rights, the proposition was unanimously rejected. Journal of Convention,
p. 369. This fact alone shows, that it was at best deemed a subject of
doubtful propriety; and that it formed no line of distinction between any
of the parties in the convention. There will be found considerable
reasoning on the subject in the debates in congress on the amendments
proposed in 1729. See 1 Lloyd's Debates, 414 to 426; Id. 426 to 447.
CH. XLIV.] AMENDMENTS--BILL OF RIGHTS. 717
candour be admitted to be wholly satisfactory, or conclusive on the
subject. It is rather the argument of an able advocate, than the reasoning
of a constitutional statesman. In the first place, a bill of rights (in
the very sense of this reasoning) is admitted in some cases to be
important; and the constitution itself adopts, and establishes its
propriety to the extent of its actual provisions. Every reason, which
establishes the propriety of any provision of this sort in the
constitution, such as a right of trial by jury in criminal cases, is, pro
tanto, proof, that it is neither unnecessary nor dangerous. It reduces the
question to the consideration, not whether any bill of rights is necessary,
but what such a bill of rights should properly contain. That is a point
for argument, upon which different minds may arrive at different
conclusions. That a bill of rights may contain too many enumerations, and
especially such, as more correctly belong to the ordinary legislation of a
government, cannot be doubted. Some of our state bills of rights contain
clauses of this description, being either in their character and
phraseology quite too loose, and general, and ambiguous; or covering
doctrines quite debatable, both in theory and practice; or even leading to
mischievous consequences, by restricting the legislative power under
circumstances, which were not foreseen, and if foreseen, the restraint
would have been pronounced by all persons inexpedient, and perhaps unjust.1
Indeed, the rage of theorists to make constitutions a vehicle for the
conveyance of their own crude, and visionary aphorisms of government,
1 2 Kent's Comm. Lect. 24, p. 6, (2d edition, p. 9,) and note Ibid.; 1
Lloyd's Debates, 431, 432.
718 CONSTITUTION OF THE U. STATES. [BOOK III.
to be guarded against with the most unceasing vigilance.1
§ 1858. In the next place, a bill of rights is important,
and may often be
indispensable, whenever it operates, as a qualification upon powers,
actually granted by the people to the government.2 This is the real ground
of all the hills of rights in the parent country, in the colonial
constitutions and laws, and in the state constitutions. In England, the
bills of rights were not demanded merely of the Crown, as withdrawing a
power from the royal prerogative; they were equally important, as
withdrawing power from parliament. A large proportion of the most valuable
of the provisions in Magna Charta, and the bill of rights in 1688, consists
of a solemn recognition, of limitations upon the power of parliament; that
is, a declaration, that parliament ought not to abolish, or restrict those
rights. Such are the right of trial by jury; the right to personal liberty
and private property according to the. law of the land; that the subjects
ought to have a right to bear arms; that elections of members of parliament
ought to be free; that freedom of speech and debate in parliament ought not
to be impeached, or questioned elsewhere; and that excessive bail ought not
to be required, nor excessive fines imposed, nor cruel or unusual
punishments inflicted.3 Whenever, then, a general power exists, or is
granted to a government, which may in its actual exercise or abuse be
dangerous to the people, there seems a peculiar
1 This whole subject is treated with great felicity and force by Mr.
Chancellor Kent in his Commentaries; and the whole lecture will reward a
most diligent perusal. 2 Kent's Comm. Lect. 24.
2 1 Lloyd's Debates, 429, 430, 431, 432.
3 See Magna Charta, ch. 29; Bill of Rights, 1688; 5 Cobbettes Parl. Hist.
CH. XLIV.] AMENDMENTS--BILL OF RIGHTS. 719
propriety in restricting its operations, and in excepting from it some at
least of the most mischievous forms, in which it may be likely to be
abused. And the very exception in such cases will operate with a silent,
but irresistible influence to control the actual abuse of it in other
§ 1859. In the next place, a bill of rights may be
important, even when it
goes beyond powers supposed to be granted. It is not always possible to
foresee the extent of the actual reach of certain powers, which are given
in general terms. They may be construed to extend (and perhaps fairly) to
certain classes of cases, which did not at first appear to be within them.
A bill of rights, then, operates, as a guard upon any extravagant or undue
extension of such powers. Besides; (as has been justly remarked,) a bill
of rights is of real efficiency in controlling the excesses of party
spirit. It serves to guide, and enlighten public opinion, and to render it
more quick to detect, and more resolute to resist, attempts to disturb
private rights. It requires more than ordinary hardihood and audacity of
character, to trample down principles, which our ancestors have consecrated
with reverence; which we imbibed in our early education; which recommend
themselves to the judgment of the world by their truth and simplicity; and
which are constantly placed before the eyes of the people, accompanied with
the imposing force and solemnity of a constitutional sanction. Bills of
rights are a part of the muniment of freemen, showing their title to
protection; and they become of increased value, when placed under the
protection of an inde-
1 1 Lloyd's DebateR, 431, 432, 433, 434.
720 CONSTITUTION OF THE U. STATES. [BOOK III.
pendent judiciary instituted, as the appropriate guardian of the public and
private rights of the citizens.1
§ 1860. In the next place, (it has been urged with much
bill of rights is an important protection against unjust and oppressive
conduct on the part of the people themselves. In a government modified,
like that of the United States, (said a great statesman,2) the great danger
lies rather in the abuse of the community, than of the legislative body.
The prescriptions in favour of liberty ought to be levelled against that
quarter, where the greatest danger lies, namely, that which possesses the
highest prerogative of power. But this is not found in the executive or
legislative departments of government; but in the body of the people,
operating by the majority against the minority. It may be thought, that all
paper barriers against the power of the community are too weak to be worthy
of attention. They are not so strong, as to satisfy all, who have seen and
examined thoroughly the texture of such a defence. Yet, as they have a
tendency to impress some degree of respect for them, to establish the
public opinion in their favour, and to rouse the attention of the whole
community, it may be one means to control the majority from those acts, to
which they might be otherwise inclined.3
§ 1861. In regard to another suggestion, that the
affirmance of certain
rights might disparage others, or might lead to argumentative implications
in favour of other powers, it might be sufficient to say, that such a
course of reasoning could never be sustained upon any solid basis; and it
could never furnish any just
1 1 Kent's Comm. Lect. 94, p. 5, 6, (2d edition, p. 8); 1 Lloyd's Debates,
429, 430, 431.
2 Mr. Madison, 1 Lloyd's Deb. 431.
CH. XLIV.] AMENDMENTS--BILL OF RIGHTS. 721
ground of objection, that ingenuity might pervert, or usurpation overleap,
the true sense. That objection will equally lie against all powers,
whether large or limited, whether national or state, whether in a bill of
rights, or in a frame of government. But a conclusive answer is, that such
an attempt may be interdicted, (as it has been,) by a positive declaration
in such a bill of rights, that the enumeration of certain rights shall not
be construed to deny or disparage others retained by the people.1
§ 1862. The want of a bill of rights, then, is not either
an unfounded or
illusory objection. The real question is not, whether every sort of right
or privilege or claim ought to be affirmed in a constitution; but whether
such, as in their own nature are of vital importance, and peculiarly
susceptible of abuse, ought not to receive this solemn sanction.
Doubtless, the want of a formal bill of rights in the constitution was a
matter of very exaggerated declamation, and party zeal, for the mere
purpose of defeating the constitution.2 But so far as the objection was
well founded in fact, it was right to remove it by subsequent amendments;
and congress have (as we shall see) accordingly performed the duty with
most prompt and laudable diligence.3
1 Constitution, 9th Amendment; 1 Lloyd's Deb. 433.
2 The Federalist, No. 84. See also 2 Elliot's Deb. 65, 160, 243, 330,
331, 334, 344, 345, 346; l Jefferson's Corresp. 64; 2 Jefferson's Corresp.
274, 291, 344, 443, 459; 1 Tuck. Black. Comm. App. 308; 2 Amer. Museum,
334, 378, 424, 540; 3 Amer. Museum, 548, 559; 1 Loyd's Deb. 423 to 437; 5
Marshall's Life of Washington, ch. 3, p. 207 to 210.
3 See 5 Marshall's Life of Washington, ch. 3, p. 207 to 210.-- Congress,
in the preamble to these amendments, use the following language: "The
conventions of a number of the states having at the time of adopting the
constitution expressed a desire, in order to prevent mis-
722 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1863. Let us now enter upon the consideration of the
it will be found, principally regard subjects properly belonging to a bill
§ 1864. The first is, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition government for a redress of
§ 1865. And first, the prohibition of any establishment of
the freedom of religious opinion and worship.
How far any government has a right to interfere in matters touching
religion, has been a subject much discussed by writers upon public and
political law. The right and the duty of the interference of government,
in matters of religion, have been maintained by many distinguished authors,
as well those, who were the warmest advocates of free governments, as
those, who were attached to governments of a more arbitrary character.1
Indeed, the right of a society or government to interfere in matters of
religion will hardly be contested by any persons, who believe that piety,
religion, and morality are intimately connected with the well being of the
state, and indispensable to the administration of civil justice. The
construction, or abuse of its powers, that further declaratory and
restrictive clauses should be added; and as extending the ground of public
confidence in the government will best ensure the beneficent ends of its
institution, &c. &c." l Tuck. Black. Comm. App. 269.
1 See Grotius, B. 2, ch. 20, 44 to 51; Vattell, B. 1, ch. 12, § 125, 126;
Hooker's Ecclesiastical Polity, B. 5, § 1 to 10; Bynkershaeck, 2 P.J. Lib.
2, ch. 18; Woodeson's Elem. Lect. 3, p. 49; Burlemaqui, Pt. 1, ch. 3, p.
171, and Montesq. B. 24, ch. 1 to ch. 8, ch. 14 to ch. 16, B. 25, ch. 1, 9,
10, 11, 12.
CH. XLIV.] FREEDOM OF RELIGION. 723
the great doctrines of religion, the being, and attributes, and providence
of one Almighty God; the responsibility to him for all our actions, founded
upon moral freedom and accountability; a future state of rewards and
punishments; the cultivation of all the personal, social, and benevolent
virtues; -- these never can be a matter of indifference in any well ordered
community.1 It is, indeed, difficult to conceive, how any civilized
society can well exist without them. And at all events, it is impossible
for those, who believe in the truth of Christianity, as a divine
revelation, to doubt, that it is the especial duty of government to foster,
and encourage it among all the citizens and subjects. This is a point
wholly distinct from that of the right of private judgment in matters of
religion, and of the freedom of public worship according to the dictates of
§ 1866. The real difficulty lies in ascertaining the
limits, to which
government may righttnlly go in fostering and encouraging religion. Three
cases may easily be supposed. One, where a government affords aid to a
particular religion, leaving all persons free to adopt any other; another,
where it creates an ecclesiastical establishment for the propagation of the
doctrines of a particular sect of that religion, leaving a like freedom to
all others; and a third, where it creates such an establishment, and
excludes all persons, not belonging to it, either wholly, or in part, from
any participation in the public honours, trusts, emoluments, privileges,
and immunities of the state. For instance, a government may simply
declare, that the Christian religion shall be the religion of the state,
1 See Burlemaqui, Pt. 3, ch. 3, p. 171, &c.; 4 Black. Comm. 43.
724 CONSTITUTION OF THE U. STATES. [BOOK III.
and shall be aided, and encouraged in all the varieties of sects belonging
to it; or it may declare, that the Catholic or Protestant religion shall be
the religion of the state, leaving every man to the free enjoyment of his
own religious opinions; or it may establish the doctrines of a particular
sect, as of Episcopalians, as the religion of the state, with a like
freedom; or it may establish the doctrines of a particular sect, as
exclusively the religion of the state, tolerating others to a limited
extent, or excluding all, not belonging to it, from all public honours,
trusts, emoluments, privileges, and immunities.
§ 1867. Now, there will probably be found few persons in
this, or any
other Christian country, who would deliberately contend, that it was
unreasonable, or unjust to foster and encourage the Christian religion
generally, as a matter of sound policy, as well as of revealed truth. In
fact, every American colony, from its foundation down to the revolution,
with the exception of Rhode Island, (if, indeed, that state be an
exception,) did openly, by the whole course of its laws and institutions,
support and sustain, in some form, the Christian religion; and almost
invariably gave a peculiar sanction to some of its fundamental doctrines.
And this has continued to be the case in some of the states down to the
present period, without the slightest suspicion, that it was against the
principles of public law, or republican liberty.1 Indeed, in a republic,
there would seem to be a peculiar propriety in viewing the Christian
religion, as the great, basis, on which it must rest for its support and
permanence, if it be, what it has ever been deemed by
1 2 Kent's Comm. Lect. 34, p. 35 to 37; Rawle on Const. ch. 10, p. 121, 122.
CH. XLIV.] FREEDOM OF RELIGION. 725
its truest friends to be, the religion of liberty. Montesquieu has
remarked, that the Christian religion is a stranger to mere despotic power.
The mildness so frequently recommended in the gospel is incompatible with
the despotic rage, with which a prince punishes his subjects, and exercises
himself in cruelty.1 He has gone even further, and affirmed, that the
Protestant religion is far more congenial with the spirit of political
freedom, than the Catholic. "When," says he, "the Christian religion, two
centuries ago, became unhappily divided into Catholic and Protestant, the
people of the north embraced the Protestant, and those of the south still
adhered to the Catholic. The reason is plain. The people of the north
have, and will ever have, a spirit of liberty and independence, which the
people of the south have not. And, therefore, a religion, which has no
visible head, is more agreeable to the independency of climate, than that,
which has one."2 Without stopping to inquire, whether this remark be well
founded, it is certainly true, that the parent country has acted upon it
with a severe and vigilant zeal; and in most of the colonies the same rigid
jealousy has been maintained almost down to our own times. Massachusetts,
while she has promulgated in her BILL OF RIGHTS the importance and
necessity of the public support of religion, and the worship of God, has
authorized the legislature to require it only for Protestantism. The
language of that bill of rights is remarkable for its pointed affirmation
of the duty of government to support Christianity, and the reasons for it.
"As," says the
1 Montesq. Spirit of Laws, B. 24, ch. 3.
2 Montesq. Spirit of Laws, B. 24, ch. 5.
726 CONSTITUTION OF THE U. STATES. [BOOK III.
third article, "the happiness of a people, and the good order and
preservation of civil government, essentially depend upon piety, religion,
and morality; and as these cannot be generally diffused through the
community, but by the institution of the public worship of God, and of
public instructions in piety, religion, and morality; therefore, to promote
their happiness and to secure the good order and preservation of their
government the people of this Commonwealth have a right to invest their
legislature with power to authorize, and require, and the legislature shall
from time to time authorize and require, the several towns, parishes, &c.
&c. to make suitable provision at their own expense for the institution of
the public worship of God, and for the support and maintenance of public
protestant teachers of piety, religion, and morality, in all cases where
such provision shall not be made voluntarily." Afterwards there follow
provisions, prohibiting any superiority of one sect over another, and
securing to all citizens the free exercise of religion.
§ 1868. Probably at the time of the adoption of the
constitution, and of
the amendment to it, now under consideration, the general, if not the
universal, sentiment in America was, that Christianity ought to receive
encouragement from the state, so far as was not incompatible with the
private rights of conscience, and the freedom of religious worship. An
attempt to level all religions, and to make it a matter of state policy to
hold all in utter indifference, would have created universal
disapprobation, if not universal indignation.1
1 See 2 Lloyd's Deb. 195, 196.
CH. XLIV.] FREEDOM OF RELIGION. 727
§ 1869. It yet remains a problem to be solved in human affairs,
any free government can be permanent, where the public worship of God, and
the support of religion, constitute no part of the policy or duty of the
state in any assignable shape. The future experience of Christendom, and
chiefly of the American states, must settle this problem, as yet new in the
history of the world, abundant, as it has been, in experiments in the
theory of government.
§ 1870. But the duty of supporting religion, and especially
religion, is very different from the right to force the consciences of
other men, or to punish them for worshipping God in the manner, which, they
believe, their accountability to him requires. It has been truly said, that
"religion or the duty we owe to our Creator, and the manner of discharging
it, can be dictated only by reason and conviction, not by force or
violence,"1 Mr. Locke himself, who did not doubt the right of government
to interfere in matters of religion, and especially to encourage
Christianity, at the same time has expressed his opinion of the right of
private judgment, and liberty of conscience, in a manner becoming his
character, as a sincere friend of civil and religious liberty. "No man, or
society of men," says he, "have any authority to impose their opinions or
interpretations on any other, the meanest Christian; since, in matters of
religion, every man must know, and believe, and give an account for
himself."2 The rights of conscience are, indeed, beyond the just reach of
any human power. They are given by God, and cannot be encroached upon by
human authority, without
1 Virginia Bill of Rights, 1 Tuck. Back. Comm. App. 296; 2 Tuck. Black.
Comm. App. note G. p. 10, 11.
2 Lord King's Life of Locke, p. 373.
728 CONSTITUTION OF THE U. STATES. [BOOK III.
a criminal disobedience or, the precepts or natural, as well as o.r
§ 1871. The real object of the amendment was, not to
less to advance Mahometanism, or Judaism, or infidelity, by prostrating
Christianity; but to exclude all rivalry among Christian sects, and to
prevent any national ecclesiastical establishment, which should give to an
hierarchy the exclusive patronage of the national government. It thus cut
off the means of religious persecution, (the vice and pest of former ages,)
and of the subversion of the rights of conscience in matters of religion,
which had been trampled upon almost from the days of the Apostles to the
present age.1 The history of the parent country had afforded the most
solemn warnings and melancholy instructions on this head;2 and even
NewEngland, the land of the persecuted puritans, as well as other colonies,
where the Church of England had maintained its superiority, would furnish
out a chapter, as full of the darkest bigotry and intolerance, as any,
which could be found to disgrace the pages of foreign annals.3 Apostacy,
heresy, and nonconformity had been standard crimes for public appeals, to
kindle the flames of persecution, and apologize for the .most atrocious
triumphs over innocence and virtue.4
§ 1872. Mr. Justice Blackstone, after having spoken with a
of the abuses in the Romish church respecting heresy; and, that
Christianity had be on deformed by the demon of persecution upon the
continent, and that the island of Great Britain had
1 2 Lloyd's Deb. 195.
2 4 Black. Comm. 41 to 59.
3 Ante, Vol. I. § 53, 72, 74.
4 See 4 Black. Comm. 43 to 59.
CH. XLIV.] FREEDOM. OF RELIGION. 729
not been entirely free from the scourge,1 defends the final enactments
against nonconformity in England, in the following set phrases, to which,
without any material change, might be justly applied his own sarcastic
remarks upon the conduct of the Roman ecclesiastics in punishing heresy.2
"For nonconformity to the worship of the church," (says he,) "there is much
more to be pleaded than for the former, (that is, reviling the ordinances
of the church,) being a matter of private conscience, to the scruples of
which our present laws have shown a very just, and Christian indulgence.
For undoubtedly all persecution and oppression of weak consciences, on the
score of religious persuasions, are highly unjustifiable upon every
principle of natural reason, civil liberty, or sound religion. But care
must be taken not to carry this indulgence into such extremes, as may
endanger the national church. There is always a difference to be made
1 "Entirely"! Should he not have said, never free from the scourge, as
more conformable to historical truth?
2 4 Black. Comm. 45. 46. -- His words are: "It is true, that the
sanctimonious hypocrisy of the Canonists went, at first, no further, than
enjoining penance, excommunication, and ecclesiastical deprivation for
heresy, though afterwards they proceeded 10 imprisonment by the ordinary,
and confiscation of goods in pios usus. But in the mean time they had
prevailed upon the weakness of bigotted princes to make the civil power
subservient to their purposes, by making heresy not only a temporal, but
even a capital offence; the Romish Ecclesiastics determining, without
appeal, whatever they pleased, to be heresy, and shifting off to the
secular arm the odium and the drudgery of executions, with which they
themselves were too tender and delicate to intermeddle. Nay, they pretended
to intercede, and pray in behalf of the convicted heretic, ut eltra mortis
periculum sentantis circum eum moderaturt well knowing, at the same time,
that they were delivering the unhappy victim to certain death." 4 Black.
Comm. 45, 46. Yet the learned author, in the same breath, could calmly
vindicate the outrageous oppressions of the Church of England upon
Catholics and Dissenters with the unsuspecting satisfaction of a bigot.
730 CONSTITUTION OF THE U. STATES. [BOOK III.
toleration and establishment."1 Let it be remembered, that at the very
moment, when the learned commentator was penning these cold remarks, the
laws of England merely tolerated protestant dissenters in their public
worship upon certain conditions, at once irritating and degrading; that the
test and corporation acts excluded them from public and corporate offices,
both of trust and profit; that the learned commentator avows, that the
object of the test and corporation acts was to exclude them from office, in
common with Turks, Jews, heretics, papists, and other sectaries;2 that to
deny the Trinity, however conscientiously disbelieved, was a public
offence, punishable by fine and imprisonment; and that, in the rear of all
these disabilities and grievances, came the long list of acts against
papists, by which they were reduced to a state of political and religious
slavery, and cut off from some of the dearest privileges of mankind.3
§ 1873. It was under a solemn consciousness of the. dangers from
ecclesiastical ambition, the bigotry of spiritual pride, and the
intolerance of sects, thus exemplified in our domestic, as well as in
foreign 'annals, that it was deemed advisable to exclude from the national
government all power to act upon the subject.4 The situation, too, of the
1 4 Black. Comm. 51, 52.
2 1 Black. Comm. 58.
3 1 Black. Comm. 51 to 59. -- Mr. Tucker, in his Commentaries on
Blackstone, has treated the whole subject in a manner of most marked
contrast to that of Mr. J. Blackstone. His ardour is as strong, as the
coolness of his adversary is humiliating, on the subject of religious
liberty. 2 Tuck. Black. Comm. App. Note G.p. 3, &c. See also 4 Jefferson's
Corresp. 103, 104; Jefferson's Notes on Virginia, 264 to 270; 1 Tuck.
Black. Comm. App. 296.
4 2 Lloyd's Debates, 195, 196, 197. -- "The sectarian spirit," said the
late Dr. Curtis, "is uniformly selfish, proud, and unfeeling." (Edinburgh
Review, April, 1832, p. 125.)
CH. XLIV.] LIBERTY OF THE PRESS. 731
equally proclaimed the policy, as Well as the necessity of such an
exclusion. In some of the states, episcopalians constituted the
predominant sect; in others, presbyterians; in others, congregationalists;
in others, quakers; and in others again, there was a close numerical
rivalry among contending sects. It was impossible, that there should not
arise perpetual strife, and perpetual jealousy on the subject of
ecclesiastical ascendancy, if the national government were left free to
create a religious establishment. The only security was in extirpating the
power. But this alone would have been an imperfect security, if it had not
been followed up by a declaration of the right of the free exercise of
religion, and a prohibition (as we have seen) of all religious tests.
Thus, the whole power over the subject of religion is left exclusively to
the state governments, to be acted upon according to their own sense of
justice, and the state constitutions; and the Catholic and the Protestant,
the Calvinist and the Armenian, the Jew and the. Infidel, may sit down at
the common table of the national councils, without any inquisition into
their faith, or mode of worship.1
§ 1874. The next clause of the amendment respects the
liberty of the
press. "Congress shall make no law abridging the freedom of speech, or of
the press."2 That this amendment was intended to secure to every citizen an
absolute right to speak, or write, or print, whatever he might please,
without any responsibility, public or private, therefor, is a supposition
too wild to
1 See 2 Kent's Comm. Lect. 24, (2d edition, p. 35 to 37); Rawle on Const.
ch. 10, p. 121, 122; 2 Lloyd's Deb. 195. See also Vol. II. § 621.
2 In the convention a proposition was moved to insert in the constitution
a clause, that "the liberty of the press shall be inviolably preserved;"
but it was negatived by a vote of six states against five. Journal of
Convention, p. 377.
732 CONSTITUTION OF THE U. STATES. [BOOK III.
be indulged by any rational man. This would be to allow to every citizen a
right to destroy, at his pleasure, the reputation, the peace, the property,
and even the personal safety of every other citizen. A man might, out of
mere malice and revenge, accuse another of the most infamous crimes; might
excite against him the indignation of all his fellow citizens by the most
atrocious calumnies; might disturb, nay, overturn all his domestic peace,
and embitter his parental affections; might inflict the most distressing
punishments upon the weak, the timid, and the innocent; might prejudice all
a man's civil, and political, and private rights; and might stir up
sedition, rebellion, and treason even against the government itself, in the
wantonness of his passions, or the corruption of his heart. Civil society
could not go on under such circumstances. Men would then be obliged to
resort to private vengeance, to make up for the deficiencies of the law;
and assassinations, and savage cruelties, would be perpetrated with all the
frequency belonging to barbarous and brutal communities. It is plum, then,
that the language of this amendment imports no more, than that every man
shall have a right to speak, write, and print his opinions upon any subject
whatsoever, without any prior restraint, so always, that he does not injure
any other person in his fights, person, property, or reputation;1 and so
always, that he does not thereby disturb the public peace, or attempt to
subvert the government.2 It is neither more nor less, than an expansion of
the great doctrine, recently
1 1 Tuck. Black. Comm. App. 297 to 299; 2 Tuck. Black. Comm. App. II; 2
Kent's Comm. Lect. 24, p. 16 to 26.
2 Rawle on Const. ch. 10, p. 19.3, 124; 2 Kent's Comm. Lect. 34, p. 16 to
26; De Lolme, B. 2, ch. 12, 13; 2 Lloyd's Deb. 197, 198.
CH. XLIV.] LIBERTY OF THE PRESS. 733
brought into operation in the law of libel, that every man shall be at
liberty to publish what is true, with good motives and for justifiable
ends. And with this reasonable limitation it is not only right in itself,
but it is an inestimable privilege in a free government. Without such a
limitation, it might become the scourge of the republic, first denouncing
the principles of liberty, and then, by rendering the most virtuous
patriots odious through the terrors of the press, introducing despotism in
its worst form.
§ 1875. A little attention to the history of other
countries in other ages
will teach us the vast importance of this right. It is notorious, that,
even to this day, in some foreign countries it is a crime to speak on any
subject, religious, philosophical, or political, what is contrary to the
received opinions of the government, or the institutions of the country,
however laudable may be the design, and however virtuous may be the motive.
Even to animadvert upon the conduct of public men, of rulers, or
representatives, in terms of the strictest truth and courtesy, has been,
and is deemed, a scandal upon the supposed sanctity of their stations and
characters, subjecting the party to grievous punishment. In some countries
no works can be printed at all, whether of science, or literature, or
philosophy, without the previous approbation of the government; and the
press has been shackled, and compelled to speak only in the timid language,
which the cringing courtier, or the capricious inquisitor, should license
for publication. The Bible itself, the common inheritance not merely of
Christendom, but of the world, has been put exclusively under the control
of government; and not allowed to be seen, or heard, except in a language
unknown to the common inhabitants of the country.
734 CONSTITUTION OF THE U. STATES. [BOOK III.
To publish a translation in the vernacular tongue, has been in former times
a flagrant offence.
§ 1876. The history of the jurisprudence of England, (the
most free and
enlightened of all monarchies,) on this subject, will abundantly justify
this statement. The art of printing, soon after its introduction, (we are
told,) was looked upon, as well in England, as in other countries, as
merely a matter of state, and subject to the coercion of the crown. It was
therefore regulated in England by the king's proclamations, prohibitions,
charters of privilege, and licenses, and finally by the decrees of the
court of Star Chamber; which limited the number of printers, and of
presses, which each should employ, and prohibited new publications, unless
previously approved by proper licensers. On the demolition of this odious
jurisdiction, in 1641, the long parliament of Charles the First, after
their rupture with that prince, assumed the same powers, which the Star
Chamber exercised, with respect to licensing books; and during the
commonwealth, (such is human frailty, and the love of power, even in
republics!) they issued their ordinances for that purpose, founded
principally upon a Star Chamber decree, in 1637. After the restoration of
Charles the Second, a statute on the same subject was passed, copied, with
some few alterations, from the parliamentary ordinances. The act expired
in 1679, and was revived and continued for a few years after the revolution
of 1688. Many attempts were made by the government to keep it in force;
but it was so strongly resisted by parliament, that it expired in 1694, and
has never since been revived.1 To this
1 4 Black. Comm. 152, note; 2 Tucker's Black. Comm. App. Note G. p. 12,
13; De Lolme, B. 2, ch. 12, 13; 2 Kent's Comm. Lect. 24, (2d edition, p.
17, 18, 19.)
CH. XLIV.] LIBERTY OF THE PRESS. 735
very hour the liberty of the press in England stands upon this negative
foundation. The power to restrain it is dormant, not dead. It has never
constituted an article of any of her numerous bills of rights; 'and that of
the revolution of 1688, after securing other civil and political
privileges, left this without notice, as unworthy of care, or fit for restra
§ 1877. This short review exhibits, in a striking light,
progress of opinion in favour of the liberty of publishing and printing
opinions in England, and the frail and uncertain tenure, by which it has
been held. Down to this very day it is a contempt of parliament, and a high
breach of privilege, to publish the speech of any member of either house,
without its consent.1 It is true, that it is now silently established by
the course of popular opinion to be innocent in practice, though not in
law. But it is notorious, that within the last fifty years the publication
was connived at, rather than allowed; and that for a considerable time the
reports were given in a stealthy manner, covered up under the garb of
speeches in a fictitious assembly.
§ 1878. There is a good deal of loose reasoning on the
subject of the
liberty of the press, as if its inviolability were constitutionally such,
that, like the king of England, it could do no wrong, and was free from
every inquiry, and afforded a perfect sanctuary for every abuse; that, in
short, it implied a despotic sovereignty to do every sort of wrong, without
the slightest accountability to private or public justice. Such a notion
is too extravagant to be held by any sound constitutional lawyer, with
regard to the rights and duties belonging to governments generally, or to
the state gov-
1 See Comyn's Dig. Parliament, G. 9.
736 CONSTITUTION OF THE U. STATES. [BOOK III.
ernments in particular. If it were admitted to be correct, it might be
justly affirmed, that the liberty of the press was incompatible with the
permanent existence of any free government. Mr. Justice Blackstone has
remarked, that the liberty of the press, properly understood, is essential
to the nature of a free state; but, that this consists in laying, no
previous restraints upon publications, and not in freedom from censure for
criminal matter, when published. Every freeman has an undoubted right to
lay what sentiments he pleases before the public; to forbid this is to
destroy the freedom of the press. But, if he publishes what is improper,
mischievous, or illegal, he must take the consequences of his own temerity.
To subject the press to the restrictive power of a licenser, as was
formerly done before, and since the revolution (of 1688), is to subject all
freedom of sentiment to the prejudices of one man, and make him the
arbitrary and infallible judge of all controverted points in learning,
religion, and government. But to punish any dangerous or offensive
writings, which, when published, shall, on a fair and impartial trial, be
adjudged of a pernicious tendency, is necessary for the preservation of
peace and. good order, of government and religion, the only solid
foundations of civil liberty. Thus, the will of individuals is still left
free; the abuse only of that free will is the object of legal punishment.
Neither is any restraint hereby laid upon freedom of thought or inquiry;
liberty of private sentiment is still left;the disseminating, or making
public of bad sentiments, destructive of the ends of society, is the crime,
which society corrects. A man may be allowed to keep poisons in his
closet; but not publicly to vend them as cordials. And after some
additional reflections, he concludes with this memorable
CH. XLIV.] LIBERTY OF THE PRESS. 737
sentence: "So true will it be found, that to censure the licentiousness, is
to maintain the liberty of the press."1
§ 1879. De Lolme states the same view of the subject; and,
liberty of the press, as understood by all England, is the right to publish
without any previous restraint, or license; so, that neither the courts of
justice, nor other persons, are authorized to take notice of writings
intended for the press; but are confined to those, which are printed. And,
in such cases, if their character is questioned, whether they are lawful,
or libellous, is to be tried by a jury, according to due proceedings at
law.2 The noblest patriots of England, and the most distinguished friends
of liberty, both in parliament, and at the bar, have never contended for a
total exemption from responsibility, but have asked only, that the guilt or
innocence of the publication should be ascertained by a trial by jury.3
1 1 Black. Comm. 152, 153; Rex v. Burdett, 4 Barn. & Ald. R. 95.-- Mr.
Justice Best in Rex v. Burdett, (4 Barn. & Ald. R. 95, 132,) said "my
opinion of the liberty of the press is, that every man ought to be
permitted to instruct his fellow subjects; that every man may fearlessly
advance guy new doctrines, provided he does so with proper respect to the
religion and government of the country; that he may point out errors in the
measures of public men; but, he must not impute criminal conduct to them.
The liberty of the press cannot be carried to this extent, without
violating another equally sacred right, the right of character. This right
can only be attacked in a court of justice, where the party attacked. has t
fair opportunity of defending himself. Where vituperation begins, the
liberty of the press ends."
2 De Lolme, B. 2, ch. 12, 291 to 297.
3 See also Rex v. Burdett, 4 Barn. & Ald. 95. -- The celebrated act of
parliament of Mr. Fox, giving the right to the jury, in trials for libels,
to judge of the whole matter of the charge, and to return a general
verdict, did not effect to go farther. The celebrated defence of Mr.
Erakine, on the trial of the Dean of St. Asaph, took the same ground. Even
Junius, with his severe and bitter assaults upon established au-
738 CONSTITUTION OF THE U. STATES. [BOOK III
§ 1880. It would seem, that a very different view of the subject
by a learned American commentator, though it is not, perhaps, very easy to
ascertain the exact extent of his opinions. In one part of his
disquisitions, he seems broadly to contend, that the security of the
freedom of the press requires, that it should be exempt, not only from
previous restraint by the executive, as in Great Britain; but, from
legislative restraint also; and that this exemption, to be effectual, must
be an exemption, not only from the previous inspection of licensers, but
from the subsequent penalty of laws.1 In other places, he seems as
explicitly to admit, that the liberty of the press does not include the
right to do injury to the reputation of another, or to take from him the
enjoyment of his rights or property, or to justify slander and calumny upon
him, as a private or public man. And yet it is added, that every
individual certainly has a right to speak, or publish his sentiments on the
measures of government. To do this without restraint,
thority and doctrines, stopped here. "The liberty of the press," (said
he,) "is the palladium of all the civil, political, and religious rights of
an Englishman, and the right of juries to return a general verdict in all
cases whatsoever, is an essential part of our constitution." "The laws of
England, provide as effectually, as any human laws can do, for the
protection of the subject in his reputation, as well as in his person and
property. If the characters of private men are insulted, or injured, a
double remedy is open to them, by action and by indictment." -- "With
regard to strictures upon the characters or men in office, and the measures
of government, the ease is a little different. A considerable latitude
must be allowed in the discussion of public affairs, or the liberty of the
press will be of no benefit to society." But he no where contends for the
right to publish seditious libels; and, on the contrary, through his whole
reasoning he admits the duty to punish those, which are really so.
1 2 Tuck. Black. Comm. App. 20; 1 Tuck. Black. Comm. App. 298, 299.
CH. XLIV.] LIBERTY OF THE PRESS. 739
control, or fear of punishment for of doing, is that which constitutes the
genuine freedom of the press.1 Perhaps the apparent contrariety of these
opinions may arise from mixing up, in the same disquisitions, a discussion
of the right of the state governments, with that of the national
government, to interfere in cases of this sort, which may stand upon very
different foundations. Or, perhaps, it is meant to be contended, that the
liberty of the press, in all cases, excludes public punishment for public
wrongs; but not civil redress for private wrongs, by calumny and libels.
§ 1881. The true mode of considering the subject is, to
examine the case
with reference to a state government, whose constitution, like that, for
instance, of Massachusetts, declares, that "the liberty of the press is
essential to the security of freedom in a state; it ought not, therefore,
to be restrained in this commonwealth." What is the true interpretation of
this clause? Does it prohibit the legislature from passing any laws, which
shall control the licentiousness of the press, or afford adequate
protection to individuals, whose private comfort, or good reputations are
assailed, and violated by the press? Does it stop the legislature from
passing any laws to punish libels and inflammatory publications, the object
of which is to excite sedition against the government, to stir up
resistance to its laws, to urge on conspiracies to destroy it, to create
odium and indignation against virtuous citizens, to compel them to yield up
their rights, or to make them the objects of popular
1 2 Tuck. Black. Comm. App. 28 to 30; 1 Tuck. Black. Comm. App. 298, 299.
740. CONSTITUTION OF THE U. STATES. [BOOK III.
vengeance? Would such a declaration in Virginia (for she has, on more than
one occasion, boldly proclaimed, that the liberty of the press ought not to
be restrained,) prohibit the legislature from passing laws to punish a man,
who should publish, and circulate writings, the design of which avowedly is
to excite the slaves to general insurrection against their masters, or to
inculcate upon them the policy of secretly poisoning, or murdering them?
In short, is it contended, that the liberty of the press is so much more
valuable, than all other rights in society, that the public safety, nay the
existence of the government itself is to yield to it? Is private redress
for libels and calumny more important, or more valuable, than the
maintenance of the good order, peace, and safety of society? It would be
difficult to answer these questions in favour of the liberty of the press,
without at the same time declaring, that such a licentiousness belonged,
and could belong only to a despotism; and was utterly incompatible with the
principles of a free government.
§ 1882. Besides: -- What is meant by restraint of the
press, or an
abridgment of its liberty? If to publish without control, or
responsibility be its genuine meaning; is not that equally violated by
allowing a private compensation for damages, as by a public fine? Is not a
man as much restrained from doing a thing by the fear of heavy damages, as
by public punishment? Is he not often as severely punished by one, as by
the other? Surely, it can make no difference in the case, what is the
nature or extent of the restraint, if all restraint is prohibited. The
legislative power is just as much prohibited from one mode, as from
another. And it may be asked, where is the
CH. XLIV.] LIBERTY OF THE PRESS. 741
ground for distinguishing between public and private amesnability for the
wrong? The prohibition itself states no distinction. It is general;it is
universal. Why, then, is the distinction attempted to be made? Plainly,
because of the monstrous consequences flowing from such a doctrine. It
would prostrate all personal liberty, all private peace, all enjoyment of
property, and good reputation. These are the great objects, for which
government is instituted; and, if the licentiousness of the press must
endanger, not only. these, but all public rights and public liberties, is
it not as plain, that the right of government to punish the violators of
them (the only mode of redress, which it can pursue) flows from the primary
duty of self-preservation? No one can doubt the importance, in a free
government, of a right to canvass the acts of public men, and the tendency
of public measures, to censure boldly the conduct of rulers, and to
scrutinize closely the policy, and plans of the government. This is the
great security of a free government. If we would preserve it, public
opinion must be enlightened; political vigilance must be inculcated; free,
but not licentious, discussion must be encouraged. But the exercise of a
right is essentially different from an abuse of it. The one is no
legitimate inference from the other. Common sense here promulgates the
broad doctrine, sic utere tuo, ut non alienurn laedas; so exercise your own
freedom, as not to infringe the rights of others, or the public peace and
§ 1883. The doctrine laid down by Mr. Justice Blackstone,
liberty of the press, has not been repudiated (as far as is known) by any
solemn decision of any of the state courts, in respect to their own
municipal jurisprudence. On the contrary,
742 CONSTITUTION OF THE U. STATES. [BOOK III.
it has been repeatedly affirmed in several or the states, notwithstanding
their constitutions, or laws recognize, that "the liberty or the press
ought not to be restrained," or more emphatically, that "the liberty of the
press shall be inviolably maintained." This is especially true in regard to
Massachusetts, South-Carolina, and Louisiana.1 Nay; it has farther been
held, that the truth of the facts is not alone sufficient to justify the
publication, unless it is done from good motives, and for justifiable
purposes, or, in other words, on an occasion, (as upon the canvass of
candidates for public office,) when public duty, or private right requires
it.2 And the very circumstance, that, in the constitutions of several other
states, provision is made for giving the truth in evidence, in prosecutions
for libels for official conduct, when the matter published is proper for
public information, is exceedingly strong to show, how the general law is
understood. The exception establishes in all other cases the propriety of
the doctrine. And Mr. Chancellor Kent, upon a large survey of the whole
subject, has not scrupled to declare, that "it has become a constitutional
principle in this country, that every citizen may freely speak, write, and
publish his sentiments on all subjects, being responsible for the abuse of
that right; and, that no law can rightfully be passed, to restrain, or
abridge the freedom of the press."3
§ 1884. Even with these reasonable limitations, it is not
opinion among European states
1 Commonwealth v. Clap, 4 Mass. R. 163; Commonwealth v. Blanding, 3 Pick.
R. 304: The State v. Lehre, 2 Rep. Const. Court, 809 ; 2 Kent's Comm. Lect.
24, (2d edition, p. 17 to 94.)
3 1 Kent's Comm. Lect. 94, (2d edition, p. 17 to 24.) See also Rawle on
Const. ch. 10, p. 123, 124.
CH. XLIV.] LIBERTY OF THE PRESS. 743
men of high character and extensive attainments, that the liberty of the
press is incompatible with the permanent existence of any free government;
nay, of any government at all. That, if it be true, that free governments
cannot exist without it, it is quite as certain, that they cannot exist
with it. In short, that the press is a new element in modern society; and
likely, in a great measure, to control the power of armies, and the
sovereignty of the people. That it works with a silence, a cheapness, a
suddenness, and a force, which may break up, in an instant, all the
foundations of society, and. move public opinion, like a mountain torrent,
to a general desolation of every thing within its reach.
§ 1885. Whether the national government possesses a power
to pass any law,
not restraining the liberty of the press, but punishing the licentiousness
of the press, is a question of a very different nature, upon which the
commentator abstains from expressing any opinion. In 1798, Congress,
believing that they possessed a constitutional authority for that purpose,
passed an act, punishing all unlawful combinations, and conspiracies, to
oppose the measures of the government, or to impede the operation of the
laws, or to intimidate and prevent any officer of the United States from
undertaking, or executing his duty. The same act further provided, for a
public presentation, and punishment by fine, and imprisonment, of all
persons, who should write, print, utter, or publish any false, scandalous,
and malicious writing, or writings against the government of the United
States, or of either house of congress, or of the president, with an intent
to defame them, or bring them into contempt, or disrepute, or to excite
against them the hatred of the good people of the United States; or to
excite them to oppose any
744 CONSTITUTION OF THE U. STATES. [BOOK III.
law, or act of the president, in pursuance of law of his.constitutional
powers; or to resist, or oppose, or defeat any taw; or to aid, encourage,
or abet any hostile designs of any foreign nation against the United
States. And the same act authorized the truth to be given in evidence on
any such prosecution; and the jury, upon the. trial, to determine the law
and the fact, as in other cases.1
§ 1886. This act was immediately assailed, as
unconstitutional, both in
the state legislatures, and the courts of law, where prosecutions were
pending. Its constitutionality was deliberately affirmed by the courts of
law; and in a report made by a committee of congress. It was denied by a
considerable number of the states; but affirmed by a majority. It became
one of the most prominent points of attack upon the existing
administration; and the appeal thus made was, probably, more successful
with the people, and more consonant with the feelings of the times, than
any other made upon that occasion. The act, being limited to a short
period, expired by its own limitation, in March, 1801; and has never been
renewed. It has continued, down to this very day, to be a theme of
reproach with many of those, who have since succeeded to power.2
1 Act of 14th July, 1798, ch. 91.
2 The learned reader will find the subject discussed at large in many of
the pamphlets of that day, and especially in the Virginia Report., and.
Resolutions of the Virginia Legislature, in December, 1798, and January,
1800; in the Report of a Committee of congress on the Alien and, Sedition
laws, on the 25th of February, 1799; in the Resolutions of the legislatures
of Massachusetts and Kentucky, in 1799; in Bayard's Speech on the Judiciary
act, in 1802; in Addison's charges to the grand jury, in Pennsylvania,
printed with his Reports; in 2 Tucker's Black. Comm. App. note G.p. 11 to
30. It is surprising, with what facility men
CH. XLIV.] RIGHT OF PETITION. 745
§ 1886. The remaining clause secures "the right of the people
assemble and to petition the government for a redress of grievances."
§ 1887. This would seem unnecessary to be expressly
provided for in a
republican government, since it results from the very nature of its
structure and institutions. It is impossible, that it could be practically
denied, until the spirit of liberty had wholly disappeared, and the people
had become so servile and debased, as to be unfit to exercise any of the
privileges of freemen.1
§ 1888. The provision was probably borrowed from the
declaration of rights
in England, on the revolution of 1688, in which the right to petition the
king for a redress of grievances was insisted on; and the right to petition
parliament in the like manner has been provided for, and guarded by
statutes passed before, as well as since that period.2 Mr. Tucker has
indulged himself in a disparaging criticism upon the phraseology of this
clause, as savouring too much of that style of condescension, in which
favours are supposed to be
glide into the opinion, that a measure is universally deemed
unconstitutional, because it is so in their own opinion, especially if it
has become unpopular. It has been often asserted, by public men, as the
universal sense of the nation, that this act was unconstitutional; and that
opinion has been promulgated recently, with much emphasis, by distinguished
statesmen; as we have already had occasion to notice. What the state of
public and professional opinion on this subject now is, it is, perhaps,
difficult to determine. But it is well known, that the opinions then
deliberately given by many professional men, and judges, and legislature,
in favour of the constitutionality of the law, have never been retracted.
See Vol. Iii. § 1288, 1289, and note.
l See 2 Lloyd's Debates, 197, 198, 199.
2 See 1 Black. Comm. 143; 5 Cobbett's Parl'y. Hist. p. 109, 110; Rawle on
Const. ch. 10, p. 124; 3 Amer. Museum, 420; 2 Kent's Comm. Lect. 24, p. 7,
746 CONSTITUTION OF THE U. STATES. [BOOK III.
granted.1 But this seems to be quite overstrained; since it speaks the
voice of the people in the language of prohibition, and not in that of
affirmance of a right, supposed to be unquestionable, and inherent.
§ 1889. The next amendment is: "A well regulated militia
to the security of a free state, the right of the people to keep and bear
arms shall not be infringed."
§ 1890. The importance of this article will scarcely be
doubted by any
persons, who have duly reflected upon the subject. The militia is the
natural defence of a free country against sudden foreign invasions,
domestic insurrections, and domestic usurpations of power by rulers. It is
against sound policy for a free people to keep up large military
establishments and standing armies in time of peace, both from the enormous
expenses, with which they are attended, and the facile means, which they
afford to ambitious and unprincipled rulers, to subvert the government, or
trample upon the rights of the people. The right of the citizens to keep
and bear arms has justly been considered, as the palladium of the liberties
of a republic; since it offers a strong moral check against the usurpation
and arbitrary power of rulers; and will generally, even if these are
successful in the first instance, enable the people to resist and triumph
over them.2 And yet, though this truth would seem so clear, and the
importance of a well regulated militia would seem so undeniable, it cannot
be disguised, that among the American people there is a growing
indifference to any system of militia discipline, and a strong disposition,
from a sense of its burthens, to be rid
1 1 Tucker's Black. Comm. App. 299.
2 1 Tucker's Black. Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2
Lloyd's Debates, 219, 220.
CH. XLIV.] QUARTERING SOLDIERS. 747
of all regulations. How it is practicable to keep the people duly armed
without some organization, it is difficult to see. There is certainly no
small danger, that indifference may lead to disgust, and disgust to
contempt; and thus gradually undermine all the protection intended by this
clause of our national bill of rights.1
§ 1891. A similar provision in favour of protestants (for
to them it is
confined) is to be found in the bill of rights of 1688, it being declared,
"that the subjects, which are protestants, may have arms for their defence
suitable to their condition, and as allowed by law."2 But under various
pretences the effect of this provision has been greatly narrowed; and it is
at present in England more nominal than real, as a defensive privilege.3
§ 1892. The next amendment is: "No soldier shall in time of
quartered in any house, without the consent of the owner, nor in time of
war, but in a manner to be prescribed by law."
§ 1893. This provision speaks for itself. Its plain object
is to secure
the perfect enjoyment of that great right of the common law, that a man's
house shall be his own castle, privileged against all civil and military
intrusion. The billeting of soldiers in time of peace upon the people has
been a common resort of arbitrary princes, and is full of inconvenience and
peril. In the
1 It would be well for Americans to reflect upon the passage in Tacitus,
(Hist. IV. ch. 74): "Nam neque quies sine armis, neque arma,sine
stipendiis, neque stipendia sine tributis, haberi queunt." Is there any
escape from a large standing army, but in a well disciplined militia? There
is much wholesome instruction on this subject in 1 Black. Comm. ch. 13, p.
408 to 417.
2 5 Cobbett's Parl. Hist. p. 110; 1 Black. Comm. 143, 144.
3 1 Tucker's Black. Comm. App. 300.
748 CONSTITUTION OF THE U. STATES. [BOOK III.
petition of right (4 Charles I.), it Was declared by parliament to be a
§ 1894. The next amendment is: "The right of the people to
be secure in
their persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated; and no warrants shall issue, but. upon
probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or things. to be
§ 1895. This provision seems indispensable to the full
enjoyment of the
rights of personal security, personal liberty, and private property. It is
little more. than the affirmance of a great constitutional doctrine of the
common law. And its introduction into the amendments was doubtless
occasioned by the strong sensibility excited, both in England and America,
upon the subject of general warrants almost upon the eve of the American
Revolution. Although special warrants upon complaints under oath, stating
the crime, and the party by name, against whom the accusation is made, are
the only legal warrants, upon which an arrest can be made according to the
law of England;2 yet a practice had obtained in the secretaries' office
ever since the restoration, (grounded on some clauses in the acts for
regulating the press,) of issuing general warrants to take up, without
naming any persons in particular, the authors, printers, and publishers of
such obscene, or seditious libels, as were particularly specified in the
warrant. When these acts expired, in 1694, the same practice was continued
in every reign, and under every administration, except the four last years
of Queen Anne's
1 2 Cabbett's Parl. Hist. 375; Rawle on Const. ch. 10, p. 126, 127; 1
Tueker's Black. Comm. App. 300, 301; 2 Lloyd's Debates, 223.
2 And see Ex parte Burford, 3 Cranch, 447; 2 Lloyd's Deb. 226, 227.
CH. XLIV.] GENERAL WARRANTS. 749
reign, down to the year 1763. The general warrants, so issued, in general
terms authorized the officers to apprehend all persons suspected, without
naming, or describing any person in special. In the year 1763, the
legality of these general warrants was brought before the King's Bench for
solemn decision; and they were adjudged to be illegal, and void for
1 Money v. Leach, 3 Burr, 1743; 4 Black. Comm. 291, 292, and note ibid.
See also 15 Hansard's Pad. Hist. 1398 to 1418, (1764); Bell v. Clapp, 10
John. R. 263; Sailly v. Smith, 11 John. R. 500; 1 Tucker's Black. Comm.
App. 301; Rawle on Const. ch. 10, p. 127. -- It was on account of a
supposed repugnance to this article, that a vehement opposition was made to
the alien act of 1798, ch. 75, which authorized the president to order all
such aliens, as he should judge dangerous to the peace and safety of the
United States, or have reasonable grounds to suspect of any treasonable, or
secret machinations against the government to depart out of the United
States; and in case of disobedience, punished the refusal with
imprisonment. That law having long since passed away, it is not my design
to enter upon the grounds, upon which its constitutionality was asserted or
denied. But the learned reader will find ample information on the subject
in the report of a committee of congress, on the petitions for the repeal
of the alien and sedition laws, 25th of February, 1799; the report and
resolutions of the Virginia legislature of 7th of January, 1800; Judge
Addison's charges to the grand jury in the Appendix to his reports; and 1
Tucker's Black. Comm. App. 301 to 304; Id. 306. See also Vol. III. § 1288,
1289, and note.
Mr. Jefferson has entered into an elaborate defence of the right and duty
of public officers to disregard, in certain cases, the injunctions of the
law, in a letter addressed to Mr. Colvin in 1810.* On that occasion, he
justified a very gross violation of this very article by General Wilkinson,
(if, indeed, he did not authorize it,) in the seizure of two American
citizens by military force, on account of supposed treasonable conspiracies
against the United States, and transporting them, without any warrant, or
order of any civil authority, from New-Orleans to Washington for trial.
They were both discharged from custody at Washington by the Supreme Court,
upon a full hearing of the case.+ Mr. Jefferson reasons out the whole case,
and assumes, without the slightest hesitation, the positive guilt of the
parties. His language is: "Under these circumstances, was he (General
Wilkinson) justifiable (1.) in seizing notorious conspirators? On this
there can be but
* 4 Jefferson's Corresp. 149, 151.
+ Ex parte Bollman & Swartout, 4 Cranch, 75 to 136.
750 CONSTITUTION OF THE U. STATES. [BOOK III.
A warrant, and the complaint, on which the same is founded, to be legal,
must not only state the name of the party, but also the time, and place,
and nature of the offence with reasonable certainty.1
§ 1896. The next amendment is: "Excessive bail shall not be
excessive fines imposed; nor cruel and unusual punishments inflicted."
This is an exact transcript of a clause in the bill of rights, framed at
the revolution of 1688.2 The provision would seem to be wholly unnecessary
in a free government, since it is scarcely possible, that any department of
such a government should authorize, or justify such atrocious conduct.3 It
was, however, adopted, as an admonition to all departments of the national
government, to warn them against such violent proceedings, as had taken
place in England in the arbitrary reigns of some of the Stuarts.4 In those
two opinions; one, of the guilty, and their accomplice; the other, that of
all honest men!! (2.) In sending them to the seat of government, when the
written law gave them a right to trial by jury? The danger of their
rescue, of their continuing their machinations, the tardiness and weakness
of the law, apathy of the judges, active patronage of the whole tribe of
lawyers, unknown disposition of the juries, an hourly expectation of the
enemy, salvation of the city, and of the Union itself, which would have
been convulsed to its centre, had that conspiracy succeeded; all these
constituted a law of necessity and self-preservation; and rendered the
salus populi supreme over the written law!!" Thus, the constitution is to
be wholly disregarded, because Mr. Jefferson has no confidence in judges,
or juries, or laws. He first assumes the guilt of the parties, and then
denounces every person connected with the courts of justice, as unworthy of
trust. Without any warrant or lawful authority, citizens are dragged from
their homes under military force, and exposed to the perils of a long
voyage, against the plain language of this very article; and yet three
years after they are discharged by the. Supreme Court, Mr. Jefferson uses
this strong language.
1 See Ex parte Burford, 3 Cranch, 447.
2 5 Cobbett's Parl. Hist. 110.
3 2 Elliot's Debates, 845.
4 See 2 Lloyd's Debates, 225, 226; 3 Elliot's Debates, 345.
CH. XLIV.] NON-ENUMERATED POWERS. 751
times, a demand of excessive bail was often made against persons, who were
odious to the court, and its favourites; and on failing to procure it, they
were committed to prison.1 Enormous fines and amercements were also
sometimes imposed, and cruel and vindictive punishments inflicted. Upon
this subject Mr. Justice Blackstone has wisely remarked, that sanguinary
laws are a bad symptom of the distemper of any state, or at least of its
weak constitution. The laws of the Roman kings, and the twelve tables of
the Decemviri, were full of cruel punishments; the Porcian law, which
exempted all citizens from sentence of death, silently abrogated them all.
In this period the republic flourished. Under the emperors severe laws were
revived, and then the empire fell.2
§ 1897. It has been held in the state courts, (and the
point does not seem
ever to have arisen in the courts of the United States,) that this clause
does not apply to punishments inflicted in a state court for a crime
against such state; but that the prohibition is addressed solely to the
national government, and operates, as a restriction upon its powers.3
§ 1898. The next amendment is: "The enumeration in the
certain rights shall not be construed to deny, or disparage others retained
by the people." This clause was manifestly introduced to prevent any
perverse, or ingenious misapplication of the well known maxim, that an
affirmation in particular cases implies a negation in all others; and e
1 Rawle on Const. ch. 10, p. 130, 131.
2 4 Black. Comm. 17. See De Lolme, B. 2, ch. 16, p. 366, 367, 368, 369.
3 See Barker v. The People, 3 Cowen's R. 686; James v. Commonwealth, 12
Sergeant and Rawle's R. 220. See Barton v. Mayor of Baltimore, 7 Peters's
752 CONSTITUTION OF THE U. STATES. [BOOK III.
a negation in particular cases implies, an affirmation in all others.1 The
maxim, rightly understood, is perfectly sound and safe; but it has often
been strangely forced from its natural meaning into the support of the most
dangerous political heresies. The amendment was undoubtedly suggested by
the reasoning of the Federalist on the subject of a general bill of
§ 1899. The next and last amendment is: "The powers not
delegated to the
United States by the constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people."
§ 1900. This amendment is a mere affirmation of what, upon
reasoning, is a necessary rule of interpreting the constitution. Being an
instrument of limited and enumerated powers, it follows irresistibly, that
what is not conferred, is withheld, and belongs to the state authorities,
if invested by their constitutions of government respectively in them; and
if not so invested, it is retained BY THE PEOPLE, as a part of their
residuary sovereignty.3 When this amendment was before congress, a
proposition was moved, to insert the word "expressly" before "delegated,"
so as to read "the powers not expressly delegated to the United States by
the constitution," &c. On that occasion it was remarked, that it is
impossible to confine a government to the exercise of express powers.
There must necessarily be admitted powers by implication, unless the
constitution descended to the most minute details.4 It is a general
principle that all corporate
1 See ante, Vol. I. § 448; The Federalist, No. 83.
2 The Federalist, No. 84; ante, Vol. III. § 1852 to 1857; 1 Lloyd's
Debates, 433, 437; 1 Tucker's Black. Comm. App. 307, 308.
3 See 1 Tucker's Black. Comm. App. 307, 308, 309.
4 Mr. Madison added, that he remembered the word "expressly" had been
moved in the Virginia Convention by the opponents to the ratifi-
CH. XLIV.] POWERS NOT DELEGATED. 753
bodies possess all powers incident to a corporate capacity, without being
absolutely expressed. The motion was accordingly negatived.1 Indeed, one
of the great defects of the confederation was, (as we have already seen,)
that it contained a clause, prohibiting the exercise of any power,
jurisdiction, or right, not expressly delegated.2 The consequence was,
that congress were crippled at every step of their progress; and were often
compelled by the very necessities of the times to usurp powers, which they
did not constitutionally possess; and thus, in effect to break down all the
great barriers against tyranny and oppression.3
§ 1901. It is plain, therefore, that it could not have been
of the framers of this amendment to give it effect, as an abridgment of any
of the powers granted under the constitution, whether they are express or
implied, direct or incidental. Its sole design is to exclude any
interpretation, by which other powers should be assumed beyond those, which
are granted. All that are granted in the original instrument, whether
express or implied, whether direct or incidental, are left in their
original state. All powers not delegated, (not all powers not expressly
delegated,) and not prohibited, are reserved.4 The attempts, then, which
have been made from time to time, to force upon this language an abridging,
or restrictive influence, are utterly unfounded in any just rules of
interpreting the words,
cation; and after a fall and fair discussion, was given up by them, and the
system allowed to retain its present form. 2 Lloyd's Debates, 234.
1 2 Lloyd's Deb. 243, 244; McCulloh v. Maryland, 4 Wheat. R. 407; Martin
v. Hunter, 1 Wheat. R. 325; Houston v. Moore, 5 Wheat. R. 49; Anderson v.
Dunn, 6 Wheat. R. 225, 226.
2 Confederation, Article 2, ante Vol. I. § 230.
3 The Federalist, No. 33, 38, 42, 44; ante Vol. I. § 269.
4 McCulloh v. Maryland, 4 Wheat. R. 406, 407; ante VoL I. § 433,
754 CONSTITUTION OF THE U. STATES. [BOOK III.
or the sense of the instrument. Stripped of the ingenious disguises, in
which they are clothed, they are neither more nor less, than attempts to
foist into the text the word "expressly;" to qualify, what is general, and
obscure, what is clear, and defined. They make the sense of the passage
bend to the wishes and prejudices of the interpreter; and employ criticism
to support a theory, and not to guide it. One should suppose, if the
history of the human mind did not furnish abundant proof to the contrary,
that no reasonable man would contend for an interpretation founded neither
in the letter, nor in the spirit of an instrument. Where is controversy to
end, if we desert both the letter and the spirit? What is to become of
constitutions of government, if they are to rest, not upon the plain import
of their words, but upon conjectural enlargements and restrictions, to suit
the temporary passions and interests of the day? Let us never forget, that
our constitutions of government are solemn instruments, addressed to the
common sense of the people and designed to fix, and perpetuate their rights
and their liberties. They are not to be frittered away to please the
demagogues of the day. They are not to be violated to gratify the ambition
of political leaders. They are to speak in the same voice now, and for
ever. They are of no man's private interpretation. They are ordained by
the will of the people; and can be changed only by the sovereign command of
§ 1902. It has been justly remarked, that the erection of a new
government, whatever care or wisdom may distinguish the work, cannot fail
to originate questions of intricacy and nicety; and these may in a
particular manner be expected to flow from the establishment of a
constitution, founded upon the total, or
CH. XLIV.] POWERS NOT DELEGATED. 755
partial incorporation of a number of distinct sovereignties. Time alone
can mature and perfect so compound a system; liquidate the meaning of all
the parts; and adjust them to each other in a harmonious and consistent
1 The Federalist, No. 82 See also Mr. Hume's Essays, Vol. I. Essay on the
Rise of Arts and Sciences.