are correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions upon their respective governments, as their wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest."

§ 234. The interpretation thus formally given by the Supreme Court of the United States is authoritative and final, and it has been repeatedly confirmed by the judgments of state tribunals. In New York it was decided by the Supreme Court in the case of Murphy v. The People,1 that a statute of that state, providing for the summary trial and conviction of a person charged with petty larceny, not being op. posed to the local constitution, was not controlled by any of the amendments to the United States Constitution. In the case of Barker v. The People,2 the subject was consid ered and decided by the Court of Errors-then the tribunal of last resort- of the same state. Barker had been indicted and convicted for the offence of sending a challenge to fight a duel. The punishment awarded by the statute was, that the party so convicted "shall be incapable of holding, or being elected to, any post of profit, trust, or emolument, civil or military, under this state." The defendant insisted that this statute was in derogation of that clause in the amendments to the United States Constitution, which forbids the infliction of cruel and unusual punishments. The court arrived at the conclusion that the provision in question only regulates the legislative and judicial action of the United States, and has no application to the punishment of crimes against a state. The same doctrine has been held by the Supreme Court of Pennsylvania in James v. The Commonwealth. It has also been decided in New York and in Connecticut, that the provisions of the amendments, declaring that no person shall be deprived of his property without due process of law, and that in suits at common law, where the amount in controversy ex12 Cow. 815.

2 3 Cow. 686.

3

8 12 S. & R. 220.

ceed twenty dollars, the trial by jury shall be preserved, are restrictive only upon the general government and its officers.1

§ 235. The rule of interpretation is thus firmly established, but the rule itself is certainly an unfortunate one. The United States, as the sovereign, as supreme over all state gov. ernments, should be able to afford complete protection to its citizens. It is not enough that this protection should be extended to citizens while abroad; it should be as powerful at home. The citizen should be guarded in the enjoyment of his civil rights of life, liberty, limb, and property, against the unequal and oppressive legislation of the states. The rule under consideration, taken in connection with another principle which I will now merely mention, effectually prevents the national courts from maintaining the rights of citizens against the encroachments of the states, so far as those rights are affected by positive restrictions. This second principle was briefly alluded to in § 144. In respect to cases arising under the Constitution and laws of the United States, the jurisdiction of the national tribunals is final and conclusive, and to their judgments the state legislatures and courts must yield. But in respect to cases arising solely under state laws, where the national Constitution is not brought in question, the jurisdiction of the United States courts is not final and conclusive, ✔ and their decisions are based upon, and follow, the expositions of those laws which have been made by the state judiciary.

§ 236. To illustrate: in a case arising under the clauses of the Constitution forbidding a state to pass bills of attainder, ex post facto laws, or laws impairing the obligation of a contract, the Supreme Court would finally and absolutely decide the question whether a given state statute was in fact opposed to these clauses, and would not be bound at all by the opinions and judgments of the state courts upon the same matter in controversy. The national government may thus give its citizens complete protection against the state legislation which is inhibited by these salutary provisions. But in a case arising 1 See also Edwards v. Elliott, 21 Wall. 532, 557; Pearson v. Yewdall, 95 U. S. 294, and many other cases to the same effect. ED.

2 See Wright v. Nagle, 101 U. S. 791.

under the clause in a state constitution which forbids a person to be deprived of life, liberty, or property without due process of law, the Supreme Court of the United States cannot pass directly and independently upon the question whether a given state statute, or a given act done under the authority of the state, is opposed to this clause, but must defer to, and be controlled by, the judgments of the courts of the same commonwealth which have settled the construction given to their own organic law. Here is plainly a vast field open for injustice and oppression by individual states, which the nation has now no means of preventing. Thus, let it be supposed that the constitution of a certain state contains clauses securing to the people the right of keeping and bearing arms; and declaring that no person shall be deprived of life, liberty, and property without due process of law. Let it also be supposed that the legislature of the same state passes statutes by which certain classes of the inhabitants say negroes are required to surrender their arms, and are forbidden to keep and bear them under certain penalties; and also statutes by which the same class of persons are required to be hired out and to labor in a certain prescribed manner, and in case of failure to comply with these regulations, these persons are declared to be vagrants, and liable to be seized, and by a summary proceeding, bound out to service for a term of years. An individual

of the class mentioned in these statutes incurs some or all of their penalties; is proceeded against. He insists that the stat utes in question are opposed to the Bill of Rights in the state constitution; the local courts settle the law against him, and hold that all this legislation is in conformity with the organic law of the commonwealth. Now, this person could obtain no redress from the national courts under the amendments to the United States Constitution which we are considering. Whatever might be the opinion of the judges, they must administer the local law as it has been administered by the local judiciary.

§ 237. This is a result which is dismaying, and a remedy is needed. Such a remedy is easy, and the question of its adoption is now pending before the people.' The first section of

1 Since this was written the amendment has been adopted, and has

the proposed fourteenth amendment to the United States Constitution is in these words: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." I consider this amendment to be by far more important than any which has been adopted since the organization of the government, except alone the one abolishing the institution of slavery. It would give the nation complete power to protect its citizens against local injustice and oppression; a power which it does not now adequately possess, but which, beyond all doubt, should be conferred upon it. Nor would this amendment interfere with any of the rights, privileges, and functions which properly belong to the individual states. When the Constitution has from the beginning contained prohibitions upon the power of the states to pass bills of attainder, ex post facto laws, or laws impairing the obligation of contracts, it is strange that a provision forbidding acts which deprive a person of life, liberty, or property, without due process of law, was not also inserted at the outset; it is more than strange that any objection can be urged against the proposition to now remedy the defect.

§ 238. The constitutional guaranties contained in the first eight amendments, being thus solely intended as barriers against any encroachments of the general government upon the liberties of the citizen, are binding with equal force upon the legislature, upon the executive, and upon the judiciary. The will of the people has spoken through their organic law, and the government which they have created, and even themselves who called that government into being, must alike bow to these declarations of right. Furthermore, as the clauses in question are mandatory and peremptory in their nature, and directed at once to each branch of the government, they require no statute of Congress, decision of judge, or act of President, to execute them, and give them binding efficacy. They given rise to much judicial investigation and interpretation, which are referred to hereafter in sections 256 a and post. ED.

execute themselves without the aid of an inferior law. Any proceeding of the government in derogation of their command would be void; any proceeding declaratory would be useless.

Examination and Discussion of these Limitations.

§ 239. I shall now proceed to discuss, in a brief manner, the meaning and nature of these several restrictions, the objects for which they were incorporated into the organic law, the dangers they were intended to guard against, and the extent of their application. It may be remarked that whatever construction is given to these clauses, will also apply to the same or similar provisions in the state constitutions.

The

1. The right of the people to keep and bear arms. object of this clause is to secure a well-armed militia. It has always been the policy of free governments to dispense, as far as possible, with standing armies, and to rely for their defence, both against foreign invasion and domestic turbulence, upon the militia. Regular armies have always been associated with despotism. But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms. But all such provisions, all such guaranties, must be construed with reference to their intent and design. This constitutional inhibition is certainly not violated by laws forbidding persons to carry dangerous or concealed weapons, or laws forbidding the accumulation of quantities of arms with the design to use them in a riotous or seditious manner. The clause is analogous to the one securing freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.

§ 240. 2. The quartering of soldiers upon private citizens is forbidden in time of peace, and only allowed in time of war when done according to law. This provision is of more his