CHAPTER X.

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 commerce.

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 Constitution.

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 XIV. 3

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. 7

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 objections.

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 United States.

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 power.

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 forgotten.

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 fort.

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 was expedient.

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 alone intended.

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 general government.

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. 14

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 to them.

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, 1809.

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. c. 60.

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. 627.


Next | Previous | Contents | Text Version