OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE
EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF
STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS.
THE restrictions on the
powers of congress contained in the original text are few. The general
principle on which it is constructed being declared and manifest
throughout, it follows that to no purpose inconsistent with or extending
beyond that principle, can its power of legislation be carried. Yet it was
expedient in some instances to introduce positive exceptions; in some, to
qualify powers enumerated or implied, and in others to secure by explicit
declarations both the republican foundation and the equality of the states
in all points within the sphere of the general government.
The first class of these restrictions relates to commerce.
No tax or duty shall be laid on articles exported from any state.
It has been repeatedly observed, that the leading principle of the whole
Constitution is uniformity in respect to the several states, as far as it
can be obtained. The natural or artificial products of states are
different — to lay a general duty on the exports of rice or cotton,
or tobacco, would affect only the southern states; on flour or grain,
principally the central states, and on the domestic manufactures would
operate chiefly on the northern and eastern states engaged in them -yet
without this restriction perhaps it might have been done.
A restriction both as to exports and imports is subsequently extended to
the states themselves, except what may be absolutely necessary to execute
their own inspection laws; and, to prevent evasion under colour of only
securing the right of inspection, it is provided that 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 that all such laws
shall be subject to the revision and control of congress.
On the same principle it is provided in general terms, that no
preference shall be given by any regulations of commerce or revenue to the
ports of one state over those of another, nor shall vessels bound from one
state be obliged to enter, clear, or pay duties in another. A vessel
bound to or from Philadelphia, shall not be obliged to enter or pay duties
in the state of Delaware or New Jersey. It is not however probable that
congress, although unrestrained, would make such regulations.
These are all the restrictions immediately relating to commerce, but one
of some importance was omitted. The danger of introducing contagious
diseases, has suggested to commercial countries the propriety of
interposing the utmost care in regard to the admission of vessels from
suspected places. In the Mediterranean, where on account of the frequency
of the plague, the practice began, it was required that such vessels
should ride at anchor forty days without intercourse with the shore. Hence
the term quarantine has been introduced, although the limitation
of time is varied according to circumstances. The state or port at which
the vessel immediately arrives being the first in danger, has the greatest
interest in taking proper precautions according to its situations and
means of enforcing them. But the utility of such precautions escaped
notice in framing the Constitution; and Congress, with a fair construction
of its implied powers, has made suitable provisions to enable the states
to protect the health of their inhabitants, although by so doing, they
may, in some degree, be considered as partaking of the power to regulate
An important clause with which this section commences, is partly of a
commercial, and partly of a political and moral kind. It was foreseen,
that the general power to regulate commerce would include a traffic now
justly reprobated by most Christian nations, but some interests and
opinions were to be respected, and while the power to abolish the slave
trade entirely was indirectly conceded, the exercise of it till the year
1808, otherwise than by laying a tax or duty of ten dollars on each
person imported, was prohibited. Congress did not fail to avail itself
of the power, as soon as it became lawful to execute it.
The restrictions in regard to taxation and public moneys have
already been mentioned.
Reasons will be given hereafter for considering many of the
restrictions, contained in the amendments to the Constitution, as
extending to the states as well as to the United States, but the nature of
the writ of habeas corpus seems peculiarly to call for this
construction. It is the great remedy of the citizen or subject against
arbitrary or illegal imprisonment; it is the mode by which the judicial
power speedily and effectually protects the personal liberty of every
individual, and repels the injustice of unconstitutional laws or despotic
governors. After erecting the distinct government which we are
considering, and after declaring what should constitute the supreme law in
every state in the Union, fearful minds might entertain jealousies of this
great and all-controlling power, if some protection against its energies
when misdirected, was not provided by itself.
The national code in which the writ of habeas corpus was
originally found, is not expressly or directly incorporated into the
If this provision bad been omitted, the existing powers under the state
governments, none of whom are without it, might be questioned, and a
person imprisoned on a mandate of the president or other officer, under
colour of lawful authority derived from the United States, might be denied
relief. But the judicial authority, whether vested in a state judge, or a
judge of the United States, is an integral and identified capacity; and if
congress never made any provision for issuing writs of habeas corpus,
either the state judges must issue them, or the individual be without
redress. The Constitution seems to have secured this benefit to the
citizen by the description of the writ, and in an unqualified manner
admitting its efficacy, while it declares that it shall not he
suspended unless when, in case of rebellion or invasion, the public safety
shall require it. This writ is believed to be known only in countries
governed by the common law, as it is established in England; but in that
country the benefit of it may at any time be withheld by the authority of
parliament, whereas we see that in this country it cannot be suspended
even in cases of rebellion or invasion, unless the public safety shall
require it. Of this necessity the Constitution probably intends, that the
legislature of the United States shall be the judges. Charged as they are
with the preservation of the United States from both those evils, and
superseding the powers of the several states in the prosecution of the
measures they may find it expedient to adopt, it seems not unreasonable
that this control over the writ of habeas corpus, which ought only
to be exercised on extraordinary occasions, should rest with them. It is
at any rate certain, that congress, which has authorized the courts and
judges of the United States to issue writs of habeas corpus in
cases within their jurisdiction, can alone suspend their power, and that
no state can prevent those courts and judges from exercising their regular
functions, which are, however, confined to cases of imprisonment professed
to be under the authority of the United States. But the state courts and
judges possess the right of determining on the legality of imprisonment
under either authority. 1
No bill of attainder, nor ex post facto law shall be passed.
Bills of attainder are those by which a person without a judicial trial,
is declared by the legislature to be guilty of some particular crime. The
definition itself shows the atrocity of the act. Such laws are never
passed but in times of wild commotion or arbitrary misrule.
Ex post facto laws are often supposed to signify all laws having
a retrospective operation, but the technical meaning of them is more
confined. An ex post facto law is when an action is declared to be
a crime, which at the time it was done was innocent, or when it aggravates
a crime, and declares it to be greater than it was when committed, or when
it increases the punishment, or directs that different or less evidence
shall be sufficient to convict the offender; but if it softens the rigour
of the ancient law, it is not within the prohibition. 2
The Constitution does not prevent congress from passing retrospective laws
in civil cases. Why this was omitted when the states in the same
instrument are restrained from passing laws impairing the obligations of
contracts, will be hereafter explained.
No title of nobility, shall be granted by the United States, or by
any individual state. Of this there could have been but little danger.
The independent spirit of republicans leads them to contemn the vanity of
hereditary distinctions, but the residue of the clause is more important.
No person holding any office of trust or profit 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.
There cannot be too much jealousy in respect to foreign influence. The
treasures of Persia were successfully distributed in Athens; and it is now
known that in England a profligate prince and many of his venal courtiers
were bribed into measures injurious to the nation by the gold of Louis
A salutary amendment, extending the prohibition to all citizens of the
United States, and disfranchising those who infringe it, has been adopted
by some of the states; but not yet by a sufficient number. The clause in
the text is defective in not providing a specific penalty for a breach of
it. Disfranchisement, or a deprivation of all the rights of a citizen,
seems the most appropriate punishment that could be applied, since it
renders the seduction useless to those who were the authors of it, and
disgraceful to the person seduced.
Of the amendments already adopted, (for which see the appendix,) the
eight first in order fall within the class of restrictions on the
legislative power, some of which would have been implied, some are
original, and all are highly valuable. Some are also to be considered as
restrictions on the judicial power.
The constitutions of some of the states contain bills of rights; others
do not. A declaration of rights, therefore, properly finds a place in the
general Constitution, where it equalizes all and binds all.
Each state is obliged, while it remains a member of the Union, to
preserve the republican form of government in all its strength and purity.
The people of each state, by the amended constitution, pledge themselves
to each other for the sacred preservation of certain detailed principles,
without which the republican form would be impure and weak.
They will now be viewed in succession.
The first amendment prohibits congress from passing any law
respecting an establishment of religion, or preventing the free exercise
of it. It would be difficult to conceive on what possible construction
of the Constitution such a power could ever be claimed by congress. The
time has long passed by when enlightened men in this country entertained
the opinion that the general welfare of a nation could be promoted
by religious intolerance, and under no other clause could a pretence for
it be found. Individual states whose legislatures are not restrained by
their own constitutions, have been occasionally found to make some
distinctions; but when we advert to those parts of the Constitution of the
United States, which so strongly enforce the equality of all our citizens,
we may reasonably doubt whether the denial of the smallest civic right
under this pretence can be reconciled to it. In most of the governments of
Europe, some one religious system enjoys a preference, enforced with more
or less severity, according to circumstances. Opinions and modes of
worship differing from those which form the established religion, are
sometimes expressly forbidden, sometimes punished, and in the mildest
cases, only tolerated without patronage or encouragement. Thus a human
government interposes between the Creator and his creature, intercepts the
devotion of the latter, or condescends to permit it only under political
regulations. From injustice so gross, and impiety so manifest, multitudes
sought an asylum in America, and hence she ought to be the hospitable and
benign receiver of every variety of religious opinion. It is true, that in
her early provincial stage, the equality of those rights does not seem to
have been universally admitted. Those who claimed religious freedom for
themselves, did not immediately perceive that others were also entitled to
it; but the history of the stern exclusion or reluctant admission of other
sects in several of the provinces, would be an improper digression in this
work. In tracing the annals of some of the provinces, it is pleasing to
observe that in the very outset, their enlightened founders publicly
recognised the perfect freedom of conscience. There was indeed sometimes
an inconsistency, perhaps not adverted to in the occlusion of public
offices to all but Christians, which was the case in Pennsylvania, but it
was then of little practical importance. In the constitution adopted by
that state in 1776, the same inconsistency, though expressed in language
somewhat different, was retained, but in her present constitution, nothing
abridges, nothing qualifies, nothing defeats, the full effect of the
original declaration. Both the elector and the elected are entitled,
whatever their religious tenets may be, to the fullest enjoyment of
political rights, provided in the latter description, the party publicly
declares his belief in the being of a God, and a future state of rewards
and punishments. This qualification is not expressly required of an
elector, and perhaps was introduced in respect to those elected, chiefly
for the purpose of more particularly explaining the sense of a preceding
section. It is indeed to such a degree doubtful whether any can be found
so weak and depraved as to disbelieve these cardinal points of all
religions, that it can scarcely be supposed to have been introduced for
any other purpose. 4
Just and liberal principles on this subject, throw a lustre round the
Constitution in which they are found, and while they dignify the nation,
promote its internal peace and harmony. No predominant religion overpowers
another, the votaries of which are few and humble; no lordly hierarchy
excites odium or terror; legal persecution is unknown, and freedom of
discussion, while it tends to promote the knowledge, contributes to
increase the fervour of piety.
The freedom of speech and of the press forms part of the same
article, and in part relates to the same subject; it embraces all matters
of religious, moral, political, or physical discussion. Tacitus,
in gloomy meditation on the imperial despotism of Rome, exclaims, "How
rare are those happy times when men may think what they please and say
what they think." Under the denial of such rights, life is indeed of
little value. The foundation of a free government begins to be undermined
when freedom of speech on political subjects is restrained; it is
destroyed when freedom of speech is wholly denied. The press is a vehicle
of the freedom of speech. The art of printing illuminates the world, by a
rapid dissemination of what would otherwise be slowly communicated and
partially understood. This may easily be conceived, if we were to figure
to ourselves the total suppression of printing for even a short time in
this country. Our newspapers are now more numerous than such publications
are in an equal amount of population in any other part of the world.
Wherever a new settlement is formed, and every year presents many such, a
printing press is established as soon as a sufficient number of
inhabitants is collected. Information is the moral food, for which the
active American intellect ever hungers.
But the liberty of speech and of the press may be abused, and so may
every human institution. It is not, however, to be supposed that it may be
abused with impunity. Remedies will always be found while the protection
of individual rights and the reasonable safeguards of society itself form
parts of the principles of our government. A previous superintendency of
the press, an arbitrary power to direct or prohibit its publications are
withheld, but the punishment of dangerous or offensive publications, which
on a fair and impartial trial are found to have a pernicious tendency, is
necessary for the peace and order of government and religion, which are
the solid foundations of civil liberty.
The right of the people peaceably to assemble and petition
government for a redress of grievances concludes the article.
Of this right in the abstract there cannot be a doubt. To withhold from
the injured, the privilege of complaint, and to debar the rulers from the
benefit of information that may apprize them of their errors, is mutually
unjust. It may, however, be urged, that history shows how those meetings
and petitions have been abused, and we may be turned to an English
statute, which, though ill observed, is said to be still in force,
5 and which is understood to have
been founded on the mischiefs and disorders experienced from large and
tumultuous assemblies, presenting petitions for the redress of grievances
in the reign of Charles I. But besides the well known irrelevancy of the
argument from the abuse of any thing against its use, we must remember
that by requiring the assembly to be peaceable, the usual remedies of the
law are retained, if the right is illegally exercised.
The preceding article expressly refers to the powers of congress alone,
but some of those which follow are to be more generally construed, and
considered as applying to the state legislatures as well as that of the
Union. The important principles contained in them are now incorporated by
adoption into the instrument itself; they form parts of the declared
rights of the people, of which neither the state powers nor those of the
Union can ever deprive them.
A subsequent article declares, that the powers not delegated to
congress by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people. What we are
about to consider are certainly not delegated to congress, nor are they
noticed in the prohibitions to states; they are therefore reserved either
to the states or to the people. Their high nature, their necessity to the
general security and happiness will be distinctly perceived.
In the second article, it is declared, that a well regulated Militia
is necessary to the security of a free state; a proposition from which
few will dissent. Although in actual war, the services of regular troops
are confessedly more valuable; yet, while peace prevails, and in the
commencement of a war before a regular force can be raised, the militia
form the palladium of the country. They are ready to repel invasion, to
suppress insurrection, and preserve the good order and peace of
government. That they should be well regulated, is judiciously added. A
disorderly militia is disgraceful to itself, and dangerous not to the
enemy, but to its own country. The duty of the state government is, to
adopt such regulations as will tend to make good soldiers with the least
interruptions of the ordinary and useful occupations of civil life. In
this all the Union has a strong and visible interest.
The corollary, from the first position, is, that the right of the
people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any
rule of construction be conceived to give to congress a power to disarm
the people. Such a flagitious attempt could only be made under some
general pretence by a state legislature. But if in any blind pursuit of
inordinate power, either should attempt it, this amendment may be appealed
to as a restraint on both.
In most of the countries of Europe, this right does not seem to be
denied, although it is allowed more, or less sparingly, according to
circumstances. In England, a country which boasts so much of its freedom,
the right was secured to Protestant subjects only, on the revolution of
1688; and it is cautiously described to be that of bearing arms for their
defence, "suitable to their conditions, and as allowed by law."
6 An arbitrary code for the
preservation of game in that country has long disgraced them. A very small
proportion of the people being permitted to kill it, though for their own
subsistence; a gun or other instrument, used for that purpose by an
unqualified person, may be seized and forfeited. Blackstone, in whom we
regret that we cannot always trace the expanded principles of rational
liberty, observes however, on this subject, that the prevention of popular
insurrections and resistance to government by disarming the people, is
oftener meant than avowed, by the makers of forest and game laws.
This right ought not, however, in any government, to be abused to the
disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an
indictable offence, and even the carrying of arms abroad by a single,
individual, attended with circumstances giving just reason to fear that he
purposes to make an unlawful use of them, would be sufficient cause to
require him to give surety of the peace. If he refused he would be liable
to imprisonments. 8
No soldier shall in time of peace be quartered in any house without
the consent of the owner, (here the restriction is general,) nor
in time of war, but in a manner to be prescribed by law; and this must
be construed a law of the United States when the war is general, or of the
state when in the authorized exercise of the right of self-defence on the
sudden emergencies adverted to in the Constitution, immediate state
operations have become necessary. In the former case, the sole conduct of
the war is given to the general government, and it ought not to be
dependent on, or controlled by the state governments in its modes of
proceeding. In the latter, the state, relying on its own energies, is
entitled to the benefit of the same principle. The practice would be
needlessly burthensome to the people in time of peace, and by a government
having improper views, it might be rendered an indirect and odious mean of
compelling submission to improper measures. During a war, when it becomes
necessary to garrison a town, or station a body of troops for a time in a
particular place, the common interest will naturally supersede minor
By the general term soldier, we are to understand as, well the militia
in actual service as regular troops.
The following article declares, that the right of the people to be
secure in their 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, particularly describing
the place to be searched, and the persons or things to be seized.
Here again we find the general terms which prohibit all violations of
these personal rights, and of course extend both to the state and the
The term unreasonable is used to indicate that the sanction of a
legal warrant is to be obtained, before such searches or seizures are
made, but when upon probable cause, supported by oath or affirmation, such
a warrant is issued, not only may other effects, but the papers of the
accused be taken into the custody of the law.
The following part of the 6th article has more immediate reference to
the judicial proceedings of the United States, and may therefore be
considered as restraints only on the legislation of the United States.
In all criminal prosecutions, the accused shall enjoy the right of a
speedy and public trial by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law. For the better understanding of
this provision, it is proper to explain that it had already been provided
in the Constitution, 9 that the
trials of offences should be had in the state where they were
committed; but, in organizing the judiciary system, it had appeared to
congress proper to form judicial districts, and it was found
inconvenient to make them always commensurate with the boundaries of
states. Thus two districts bad been formed out of the state of
Massachusetts, and two out of Virginia. 10
By virtue of this amendment, an offence committed in that part of
Massachusetts which lay eastward of New Hampshire could only be tried in
the district of Maine. It is a wise and merciful measure. It would have
been highly oppressive to carry a mail from Norfolk, in Virginia, to take
his trial at Harrodsburg in Kentucky.
Another part of the sixth article is calculated to secure to the accused
a protection which, to those familiar only with the habits of this
country, would appear superfluous. The accused is to be informed of
the nature and cause of the accusation, to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses
in his favour, and to have the assistance of counsel in his defence.
It seems monstrous that in any country the testimony on which a person
might be convicted should be taken in his absence. Yet it is certain, that
in some places, the testimony on which a person might be convicted of the
greatest crimes was often taken without his being present, sometimes even
without his knowing who the witnesses were. The evidence thus collected
was embodied in the accusation, and he was required to defend himself
against invisible enemies. This severity has indeed been mitigated in
modern times, but it is believed to be not yet totally abolished.
A person accused ought to have all the aid of the law to his defence;
those on whose testimony he must rely, may, from intimidation or
corruption, be unwilling to assist him. The public is considered as always
having it in their power to compel the appearance of witnesses against
him. It is just that he should be armed in the like manner. No judge can
now refuse to issue process against those whom the accused shall nominate
to him — and to compel them, to enter into recognizance to appear and
testify on the trial. Circumstances may even render it necessary that he
should go further. If there is a probability that the witness will leave
the state or district before the trial comes on, it seems to be the right
of the accused to demand security for his appearance.
But with all these humane provisions, something more is wanting. The
most innocent man, pressed by the awful solemnities of a public accusation
and trial, may be incapable of supporting his own cause. He may be utterly
unfit to cross-examine the witnesses against him, to point out the defects
of their testimony, and to counteract it by properly introducing and
applying his own. Hence the importance, we might say, the right, of having
the aid of men educated and accustomed to manage criminal trials, to
whose, knowledge and skill be may safely commit the conduct of his
defence. Will it be believed, that, even at this day, in England, a person
indicted of any capital crime (unless in the case of high treason by
express statute) is not allowed the benefit of counsel, except to address
the judge on a question of law? Those observations on the facts of the
case, which, in the hands of able and experienced advocates, might secure
the acquittal of an innocent man, are wholly prohibited. The trembling
prisoner may make a fruitless effort himself, and he frequently has the
consolation to be told, that the court is his counsel, and will call the
attention of the jury to whatever may operate in his favour. An empty
fiction, which often deludes him who relies on it. Two benevolent efforts
have recently been made in the house of commons to procure this right to
such defendants, but, being opposed by the whole force of the ministerial
party, they both failed.
The protection of the individual against all unnecessary severity in the
prosecution of justice, characterizes the greatest part of the fifth, and
the whole of the eighth amendment.
The latter declares, that excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.
During the arbitrary reigns of the Stuarts in Britain, particularly of
the two last, one frequent mode of oppressing those who were obnoxious to
the court, was to cause criminal proceedings to be instituted against
them, to demand bail in extravagant sums, and on their falling to procure
it, to commit them to prison.
When the revolution took place, among other provisions demanded by the
people, and readily assented to by William III. was the clause which has
been transcribed into this amendment. If excessive bail is demanded by one
magistrate, another may moderate it on a habeas corpus, issued to
the keeper of the prison in whose custody the party is. This power is not,
however, to be abused, by reducing, the bail below a reasonable sum. In
such a case, the latter magistrate would himself be liable to a fine, if
the criminal should not appear at the appointed time.
Excessive fines constitute one mode of inflicting cruel punishments.
This restriction applies equally to the legislative and to the judicial
authority. In respect to the former, however, it is rather to be
considered in the light of a recommendation than as a condition on which
the constitutionality of the law depends. The judicial authority would not
undertake to pronounce a law void, because the fine it imposed appeared to
them excessive; and, therefore, if the legislature should commit, and
persist in, gross errors in this respect, the ultimate remedy must be
sought among the checks on the legislative power, which will hereafter be
brought into view.
The prohibition of unusual punishments applies alike, under the
qualifications already noticed, to the legislative and to the judicial
The laws of a free country seldom leave the sort of punishment to be
inflicted to the discretion of the judge, although the measure or extent
of it, as for instance the quantum of a limited fine, or the duration of a
term of imprisonment, which, by the law is not to be exceeded, is often
submitted to him. The peculiar circumstances of each case, the contrition
or general good character of the offender, may suggest and justify a
moderation of the full extent of the punishment. But a law which subjects
an offender to any sort of punishment, is unknown to our civil code. If
the law is silent in respect to the mode of punishment which is sometimes
the case when an act is prohibited in general terms, without saying more,
the court is understood to be confined to the usual moderate punishment of
fine and imprisonment, or one of them. If a fine alone is imposed,
imprisonment may be an adjunct, to enforce the payment of it.
The obligation on the legislature not to pass laws inflicting unusual
punishments must be considered as subject to some qualification. The
established forms of punishment may have proved ineffectual to prevent the
commission of some kinds of offences. We may instance the practice of
duelling, an offence against God and society, which no law has yet been
found sufficient to prevent. It would be no violation of the Constitution
if congress, within the sphere of their separate legislation, could by the
invention of some new punishment, striking at the false honour which leads
folly to the field, put an end to a custom so inhuman and absurd.
At common law there are two modes of instituting prosecutions; one of
which is by an information filed by the officer who represents the public,
on his own judgment and discretion, which, if unadvisedly or corruptly
done, may subject the individual to causeless trouble and expense. The
other is by an indictment which is prepared by the same officer, and sent
to a grand jury, or it may be done by the grand jury themselves. In both
of these cases, witnesses are carefully examined on the part of the
public, and the accused is not put on his trial unless at least twelve
grand jurymen, on their oaths or affirmations, find that there is
sufficient cause for it. In the fifth article it is expressly declared,
that no person, except in cases arising in the land or naval forces,
or in the militia when in actual service in time of war or public danger,
shall be held to answer for a capital or otherwise infamous crime, unless
on a presentment or indictment of a grand jury, and in no case shall he be
compelled to be a witness against himself.
That no one shall be subject for the same offence, to be twice put
in jeopardy of life or limb, which is also provided, is perhaps too
narrow — no one, after a full trial and a fair acquittal, ought to be
subjected to another trial for the same offence, whether it be great or
small, and such indeed is the settled rule of law. The plea of a former
acquittal, is a complete bar to every subsequent prosecution for the same
offence. It follows from all the antecedent precautions, that no one
can be deprived of life, liberty, or property, without due process of law;
and the repetition of this declaration, is only valuable, as it exhibits
the summary of the whole, and the anxiety that it should never be
But one part of the clause, connected with the last mentioned, requires
more particular explanation.
In some countries when the public interest may occasionally require that
private property should be appropriated to public purposes, the sovereign
makes use of it without ceremony. In others, it cannot be taken from the
individual on any terms without his own consent. A middle line is the
correct course. A perverse and obstinate man, might otherwise impede or
wholly prevent measures of the most cogent necessity for the public
benefit, in which his own would be included. The people by declaring, that
private property shall not be taken for public use, without just
compensation, have agreed that in such cases and on such terms it may
be taken. Of the necessity, the legislature is the only judge; it does not
rest with the judicial power to determine whether the public exigence was
such as to require it: great inconveniences might ensue from their
assuming such a right. For example, a particular piece of ground might
appear to the legislature, a suitable site for a fort in time of danger,
and if they proceeded in a legal manner to vest the right to the ground in
the public, it would not be competent for the judiciary to decide, that a
better spot might have been chosen, or that there was no necessity for any
In this manner, the property of an individual may be legally transferred
against his will to the state, but the legislature has no power to
transfer the property of A. to B. although it may appear more beneficial
to the state that B. should have it. 11
The just compensation spoken of, should be ascertained by a jury
impartially selected, and should be paid in money, the universal
representative and common standard of value. 12
Among these just and humane provisions, we observe, that trial by jury
is expressly secured in all prosecutions for offences committed on land.
Those which may have been committed on the high seas, would properly fall
within the admiralty jurisdiction, and might, consistently with its
nature, be decided without the intervention of a jury. But in conferring
on congress the power to define and to punish such offences, the right to
direct the mode of trial is granted as a necessary incident.
Offences committed on the high seas, being as already observed,
13 within the cognizance of all
nations, and the offender liable to prosecution by the power which first
apprehends him, he may consequently be subjected to a mode of trial in
which a jury is unknown. Reasons of general policy may therefore possibly
suggest the withholding the absolute right to trial by jury in such cases,
and hence, it is omitted, not only in the original text but in the
amendments. It is properly confided to congress, whose legislation on the
subject, may, as good reasons occasionly are presented, recall, abridge,
or modify the grant.
In respect to civil controversies, doubts arose in some of the state
conventions, whether the original text was sufficiently explicit. It did
not, indeed, abolish trial by jury in any case, but it was apprehended
that a positive declaration in favour of it, in civil controversies, also
Hence by the 7th amendment, it is provided, that in trials at common
law, when the value in controversy exceeds twenty dollars, the right of
trial by jury shall be preserved, and no fact, tried by a jury shall be
otherwise re-examined in any court of the United States, than according to
the rules of the common law.
By the first part of it, congress is disabled from ever taking it away;
and by the second, neither a law can be passed by them, nor a practice
adopted by the courts, to re-examine facts tried by a jury, otherwise than
according to well known and long established principles.
The word "appellate," applied in the original instrument to
the jurisdiction of the supreme court, was by some deemed ambiguous and
inconsistent with technical phraseology; an appeal is not the mode of
re-examining the decisions of common law courts, which can only be done on
a writ of error, by which the record of an inferior court is brought
before the superior one; and no facts can be inquired into, which do not
appear on the record. New trials may be granted, if sufficient cause is
shown, by the court in which the verdict is given, or, if the judgment is
reversed in the court above, a venire de novo, which is a
direction to the inferior court to summon another jury is issued, it the
case requires it, but in no other manner can the facts be re-examined. An
appeal is the process of re-examination in courts of admiralty and
chancery jurisdiction from which trial by jury is systematically excluded,
and in respect to which, no alteration is intended.
By this very proper amendment, all ambiguity is, removed, and all doubt
is satisfied. The reference to the common law, precludes the necessity of
fuller detail. The trial by jury is for ever secured on its ancient basis,
and cannot be multiplied beyond it.
Here we close this part of our view of the Constitution. In the
restrictions on the legislative power, we perceive two great principles —
the security of the people's rights, and the preservation of the great
national system. We have noticed those parts which necessarily exclude the
action of the states on the same subject; but it will also be proper to
advert to those express restrictions on the states, which amount to the
diminution or relinquishment of so much of the state sovereignty, as the
people thought it expedient to transfer to the United States.
No state shall enter into any treaty, alliance, or confederation,
nor into any agreement or compact with another state, or with a foreign
power. If literally construed, this restriction would be total and
absolute, and yet, as between states, some compacts certainly may be made.
Thus when a large river forms a boundary between two states, a compact in
regard to the exercise of jurisdiction on the river, or in respect to its
fisheries, or its islands, would be lawful. And perhaps the true
construction of this clause is, that political compacts in any form are
If a state has received a particular injury from a foreign power, it is
not to give way to the natural impulse of granting letters of marque
and reprisal, for this would invade an essential attribute of the
The power to coin money, emit bills of credit, and make any thing
but gold and silver a tender in the payment of debts, is likewise
withdrawn from them, although not withheld from the United States.
The restrictions of passing bills of attainder and ex post facto
laws, and granting titles of nobility, is common to both, but the express
prohibition of passing laws impairing the obligation of contracts is
confined to the separate states, and it may, as already noticed, be
inquired why it was not extended to the United States. Before an answer is
given, an explanation of the sense in which the term contract is here to
be expounded, drawn from the highest authority, will be useful.
By contracts we are to understand every executed agreement, whether
between individuals or between individuals and a state, by which a right
is vested, and every executory agreement which confers a right of action,
or creates a binding obligation in relation to subjects of a valuable
nature, such as may be asserted in a court of justice; but it does not
comprehend the political relations of a government and its citizens; civil
institutions which must be liable to change with circumstances, and to be
modified by ordinary legislation, those which deeply concern the public,
and which to preserve good government, the public judgment must control.
The plenitude of power possessed by a state legislature, to which every
thing that is not reserved is granted, and the temptations to an erroneous
exercise of this power which sometimes occur, render express restrictions,
if not absolutely necessary, at least very useful; but the legislature of
the United States can have no such power, unless it is expressly granted
A system of bankruptcy impairs the obligation of contracts, when it
releases the party from the necessity of performing them; but congress is
expressly invested with this power in regard to bankruptcy. It is an
enumerated, and not an implied one, and in no other form, can the
obligation of contracts be impaired by them. A system of bankruptcy is
practically limited to two objects, the relief of honest insolvency and
the equal distribution of the remnants of property among the creditors.
The United States therefore, possess no vague and indefinite power, that
may be exercised to the prejudice of individuals among themselves, or the
exaltation of the public authority over private rights.
The remaining restrictions have already been generally noticed, but will
here be transcribed to close the subject.
No state shall, without the consent of the congress, lay any imposts
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, or engage in war unless actually invaded, or in such
imminent danger as will not admit of delay.
1. See among other instances, the
case. of Commonwealth v. Smith, before Chief Justice Tilghman,
2. 3 Dallas, 386. Calder v. Bull.
3. See Dalrymple's Memoirs, vol. 2,
Mazure's late history of the Revolution of 1688, &c.
4. There are now but two states in
the union whose constitutions contain exclusive provisions in regard to
religious opinions. In Maryland, no one who does not believe in the
Christian religion can be admitted to an office of trust or profit. In
North Carolina, the same exclusion is extended to all who deny the truth
of the Protestant religion. But in every other respect than the capacity
to bold such offices, all stand on the same footing in both states.
5. 1 Bl. 143. 4 Bl. 147. Lord
Mansfield on the Trial of Lord George Gordon.
6. 1 Will. & Mary, c. 2.
7. 2 Bl. 412.
8. 3 Coke's Inst. 160. Hawkins, b. 1.
9. Art. 3. § 9.
10. Other subdivisions have since
taken place in other states: the general principle is now adverted to.
11. Vanhorn's lessee v. Dorrance,
2 Dall. 384.
12. Vanhorn's lessee v. Dorrance,
2 Dall. 384.
13. P. 102.
14. 6 Cranch, p. 136. 4 Wheaton, p.
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