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assembling of the new Congress, amendments were proposed and speedily ratified, which consist in a series of negations of ány assumed power to perform certain enumerated acts. These express denials of the existence of certain attributes in the general government, constitute our national bill of rights, and apply to each department, and to all classes of officials. They are contained in the first eight articles of the amendments.
§ 229. The following is the substance of these important restraints.
No form of religion shall be established, nor shall the free exercise of religion be prohibited. The freedom of the press or of speech shall not be abridged. The right of the people peaceably to assemble, and to petition the government shall not be curtailed. Art. I.
The right of the people to bear and keep arms shall not be infringed. Art. II.
Soldiers shall not, in time of peace, be quartered in houses without the consent of the owners, nor in time of war, except in the manner prescribed by law. Art. III.
Unreasonable searches and seizures of persons, houses, papers, and effects are forbidden. No warrant shall be issued except upon probable cause, supported by oath, and particularly describing the place to be searched, and the persons or things to be seized.
Art. IV. No person shall be held to answer for a capital or otherwise 1 The meaning and effect of this provision was very much considered in the recent Utah case of Reynolds v. United States, 98 U. S. 145. The defendant being indicted for bigamy in Utah, under U. S. Rev. Sts. $ 5352, relied for his defence upon the ground that the practice of polygo amy was a part of his religious belief ; but in an interesting opinion by Waite, C. J., it was held that, if true, it was no defence for a violation of the criminal code. And after a historical review of this provision, and citations from Jefferson's works, he says, • From that day [i. e. Dec., 1788] to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.” P. 165. ED.
infamous crime, unless on a presentment or indictment of a grand jury, 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. No person shall be subject, for the same offence, to be put twice in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Art. V.
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; and must be informed of the nature and cause of the accusation; and must be confronted with the witnesses against him ; and may have compulsory process to obtain his own witnesses; and may have the assistance of counsel in his defence. Art. VI.
The trial by jury shall be preserved in suits at common law, where the value in controversy shall exceed twenty dollars. Art. VII.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Art. VIII.
$ 230. The separate states have also adopted constitutions which contain these or similar limitations upon the local governments. It is a fact, therefore, that the entire legislative and administrative power of the whole country, whether wielded
1 Suits against the government are not suits at common law within the true meaning of this article. The government cannot be sued except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. McElrath v. United States, 102 U. S. 426. Therefore the Act of March 3, 1863, which authorizes the Court of Claims, without the intervention of a jury, to hear and determine claims against the government, and also any set-off, counter-claim, claim for damages, or other demand on the part of the government against the claimant, does not violate the seventh amendment of the Constitution. McElrath v. United States, supra. Ed.
2 Other restrictions and limitations have since been imposed, the substance of which is stated hereafter. ED.
by the nation or by the states, is subject to restraints of the same general nature as those expressed in these clauses, and the rights and liberties of the people are guarded at all hands against encroachments from any source, as much as is consistent with the safety of the nation. It is true that the same construction may not be given to a provision identical in language, in all the states ; the same exercise of governmental power may be regarded in one commonwealth as in accordance with, and in another as opposed to, the Bill of Rights which forms a part of both constitutions. This is a result which must flow from the delegation of functions to bodies politic that are in a measure independent of each other.
To whom are these negative Provisions addressed ?
$ 231. The first inquiry which suggests itself, and which I shall proceed to answer, is, upon whom are the provisions of the United States Constitution just quoted, binding; to whom are they addressed ? They are expressed in the most general language; do they therefore restrain the states as well as the nation ? or are they only applicable to the latter ? This question has not often arisen in a practical form, for as the state constitutions, with few exceptions, have contained the whole of these muniments of individual liberty, their legislatures have been restrained by their own organic laws, if not by that of the nation. But the question may easily assume a very practical form and become of paramount importance. A state whose constitution contains limitations similar to those found in the fundamental law of the nation, may, through its legislative, administrative, and judicial departments, put an interpretation upon these provisions which is oppressive to its own inhabitants and destructive of their liberties. Could these inhabitants appeal to the national authorities, and bring these negations of the national Constitution to bear upon the local government ?
Or the state may abolish these restrictions in its own organic law, and, so far as itself is concerned, leave its government free to act at pleasure. There is certainly a growing feeling that the methods of administering justice both in civil and criminal cases, which we have borrowed from our English ancestors, are too cumbersome, and are as often hindrances as helps to the right. It has been suggested that the interests of the public would be advanced by abolishing the grand jury, and trial by jury, and introducing the more severe methods which are used in the continental nations of Europe. If public opinion in any state should become ripe for such a change, could that state so amend its own constitution as to abolish all of this time-honored procedure, and allow a person to be held to answer for a capital or otherwise infamous offence, without a presentment or indictment of a grand jury? Could the state deprive the accused of the trial by jury, or compel him to be a witness against himself ? Could the state take the private property of its inhabitants without making just compensation ? or deprive them of life, liberty, or property, without due process of law? or impose excessive fines, or inflict cruel and unusual punishments ? Some of the assumptions contained in this series of questions may well be called impossible ; but others are certainly within the range of probability.
$ 232. The answer is that the general linitations contained in the United States Constitution, and which have been quoted, have reference only to the national government, and do not apply to the several states. They were not intended as restrictions upon the powers of the local commonwealths, but only upon the various departments which administer the public affairs of the entire nation, and which were created by the organic law. So far, then, as the states do not infringe upon express provisions in the Constitution specially addressed to them, or upon those implied in the whole scope of that instrument and in the grants of power to the general government, they may regulate their own internal economy as seems best to themselves. The United States are forbidden either by the legislative, executive, or judicial departments, to deprive a person of any of the immunities and privileges guarded by the Bill of Rights. The states may, in respect to their own inhabitants, if consistent with their own organic laws, infringe upon them all.
$ 233. This construction of the Constitution is supported by the judgments both of the national and the local courts. In the case of Barron v. The Mayor of Baltimore 1 the Supreme Court of the United States gave an authoritative interpretation to these clauses. The facts, it is true, applied only to one provision, that which forbids the taking of private property
, for public use without just compensation. The plaintiff claimed that the city of Baltimore had taken his property for public use without just compensation, and that a statute of the Maryland legislature aụthorizing the act was void as being opposed to the negative clause of the United States Constitution already quoted. The reasoning of the court is equally applicable to all these general provisions of the Bill of Rights. C. J. Marshall says: “The plaintiff contends that the case comes within that clause of the fifth amendment to the Constitution, which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state as well as that of the United States. The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers to be conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the in strument itself, not of distinct governments, framed by differ ent persons, and for different purposes. If these propositions
17 Pet. 243.