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of Confederation, with this difference only, that though unlimited in their terms, they were in some instances checked by the want of power to carry them into effect, otherwise than by requisitions on the States. Thus presenting, as has been justly observed, the extraordinary phenomenon of declaring certain powers in the federal government absolutely ncccssary, and at the same time rendering them absolutely nugatory. 1
$ 300. (3) Another class of objections urged against the Constitution was founded upon its deficiencies and omissions. It cannot be denied that some of the objections on this head were well taken, and that there was a fitness in incorporating some provision on the subject into the fundamental articles of a free government. There were others, again, which might fairly enough be left to the legislative discretion and to the natural influences of the popular voice in a republican form of government. There were others, again, so doubtful, both in principle and policy, that they might properly be excluded from any system aiming at permanence in its securities as well as its foundations.
$ 301. Among the defects which were enumerated, none attracted more attention, or were urged with more zeal, than the want of a distinct bill of rights which should recognize the fundamental principles of a free republican government, and the right of the people to the enjoyment of life, liberty, property, and the pursuit of hajpiness. It was contended that it was indispensable that express provision should be made for the trial by jury in civil cases, and in criminal cases upon a presentment by a grand jury only; and that all criminal trials should be public, and the party bo confronted with the witnesses against him; that frecdom of speech and freedom of the press should be secured; that there should be no national religion, and the rights of conscience should be inviolable; that excessive bail should not be required, nor cruel and unusual punishments inflicted; that the people should have a right to bear arms; that persons conscientiously scrupulous should not be compelled to bear arms; that every person should be entitled of right to petition for the redress of grievances; that search-warrants should not be granted without oath, nor general warrants at all; that soldiers should not be enlisted, except for a short, limited term, and not be quartered
1 The Federalist, No. 38.
in time of peace upon private houses without the consent of the owners; that mutiny bills should continue in force for two years only; that causes once tried by a jury should not be re-examinable upon appeal, otherwise than according to the course of the common law; and that the powers not expressly delegated to the general government should be declared to be reserved to the States. In all these particulars the Constitution was obviously defective; and yet, it was contended, they were vital to the public security.' (a)
§ 302. Besides these, there were other defects relicd on, such as the want of a suitable provision for a rotation in office, to prevent persons enjoying it for life; the want of an executive council for the President; the want of a provision limiting the duration of standing armies; the want of a clause securing to the people the enjoyment of the common law;the want of security for proper elections of public officers; the want of a prohibition of members of Congress holding any public offices, and of judges holding any other offices; and finally, the want of drawing a clear and direct line between the powers to be excrcised by Congress and by the States.3
§ 303. Many of these objections found their way into the amendments, which, simultancously with the ratification, were adopted in many of the Stato conventions. With the view of carrying into effect popular will, and also of disarining the opponents of the Constitution of all reasonable grounds of complaint, Congress, at its very first session, took into consideration the amendments so proposed; and by a succession of supplementary articles provided, in substance, a bill of rights, and secured by constitutional declarations most of the other important objects thus suggested. These articles in all, twelve) were submitted by Congress to the States for their ratification, and ten of them were finally ratified by the requisite number of States, and thus
1 2 Amer. Museum, 422 to 430; Id. 435, &c.; Id. 534, &c., 536, 540, &c. 553, &c., 557; 3 Amer. Museum, 62; Id. 157; Id. 419, 420, &c.; The Federalist, No. 38.
2 Mr. Mason, 2 Amer. Museum, 534.
82 Amer. Museum, 426, 428 ; Id. 534, 537; Id. 549, 557; 3 Amer. Museum, 63 ; Id. 419, 420, &c.; 2 Pitk. Hist. 218, 267, 280, 282, 283, 284.
(a) Rives, Life of Madison, II. 607, 639; Jefferson's Works, III. 3, 13, 201; Life of Fisher Ames, I. 52, 53.
became incorporated into the Constitution." (a) It is a curious fact, however, that, although the necessity of these amendments had been urged by the enemies of the Constitution and denied by its friends, they encountered scarcely any other opposition in the State legislatures than what was given by the very party which had raised the objections. The friends of the Constitution generally supported them upon the ground of a large public policy, to quiet jealousies and to disarm resentments.
§ 304. It is perhaps due to the latter to stato that they bclieved that some of the objections to the Constitution cxisted only in imagination, and that others derived their solo support from an erroneous construction of that instrument. 3
In respect to a bill of rights, it was stated that several of the State constitutions contained none in form, and yet were not on that account thought objectionable. That it was not true that the Constitution of the United States did not, in the true sense of the terms, contain a bill of rights. It was emphatically found in those clauses which respected political rights, the guaranty of republican forms of government, the trial of crimes by jury, the definition of treason, the prohibition against bills of attainder and ex post facto laws and titles of nobility, the trial by impeachment, and the privilege of the writ of habeas corpus. That a general bill of rights would be improper in a Constitution of limited powers like that of the United States, and might even be dangerous, as by containing exceptions from powers not granted it might give rise to implications of constructive power. That in a government like ours, founded by the people and managed by the people, and especially in one of limited authority, there was no necessity of any bill of rights; for all powers not granted were reserved, and even those granted might at will be resumed or altered by the people. That a bill of rights might be fit in a monarchy, where there were struggles between the crown and the people about prerogatives and privileges. But here the government is the government of the people; all its officers are their
2 5 Marsh. Lise of Wash. 209, 210.
1 2 Pitk. Hist. 332, 334.
(a) These amendments were proposed Liso of Madison, II. 38, et seq.; Life of and rulvocatred by Mr. Mnolison, through Fisher Amos, 1. 62; Van Buren, l’olitical whosc efforts in the main their passnye Partics, 191. ct seq. ; Hainilton, History through Congress was secured. See Rives, of the Republic, IV. 23.
officers, and they can exercise no rights or powers but such as the people commit to them. In such a case the silence of the Constitution argues nothing. The trial by jury, the freedom of the press, and the liberty of conscience are not taken away, because they are not secured. They remain with the people among the inass of ungranted powers, or find an appropriate place in the laws and institutions of each particular State. 1
§ 305. Notwithstanding the force of these suggestions, candor will compel us to admit that, as certain fundamental rights were secured by the Constitution, there seemed to be an equal propriety in securing in like manner others of equal value and importance. The trial by jury in criminal cases was sccured; but this clause admitted of more clear definition and of auxiliary provisions. The trial by jury in civil cases at common law was as dear to the people, and afforded at least an equal protection to persons and property. The same remark may be made of seyeral other provisions included in the amendments. But these will more properly fall under consideration in our commentary upon that portion of the Constitution. The promptitude, zeal, and liberality with which the friends of the Constitution supported these amendments evince the good faith and sincerity of their opinions, and increase our reverence for their labors, as well as our sense of their wisdomn and patriotism. (a)
1 The Federalist, No. 84; Mr. Jay's Address; 3 Amer. Museum, 554, 559; 2 Amer. Museum, 422, 425.
(a) The Constitution was accepted and fore made us independent. Our better put in force in anticipation of, and in re. liberty, our law, our order, our union, our liance upon, the adoption of these amend. credit, our commerce, our rank among ments, and by them the instrument was the nations, our page in the great history, completed. “I dwell,” said Mr. Choate, we owe to this. Independence was the " on that time from 1780 to 1789, because work of the higher passions. The Constithat was our age of civil greatness. Then tution was the slow product of wisdom.” first we grew to be one. In that time our Lecture on Jefferson, Burr, and llamilton, nation was born. That which went be. 1858.
NATURE OF THE CONSTITUTION,
$ 306. HAVING thus sketched out a general history of the ori. gin and adoption of the Constitution of the United States, and a summary of the principal objections and difficulties which it had to encounter, we approach the point at which it may be proper to enter upon the consideration of the actual structure, organization, and powers which belong to it. Our main object will henceforth be to unfold in detail all its principal provisions, with such commentaries as may explain their import and effect, and with such illustrations, historical and otherwise, as will enable the reader fully to understand the objections which have been urged against cach of them respectively, the amendments which have been proposed to them, and the arguments which have sustained them in their present form.
§ 307. Before doing this, however, it seems necessary in the first place to bestow some attention upon several points which have attracted a good deal of discussion, and which are preliminary in their own nature; and in the next place to consider what are the true rules of interpretation belonging to the instrument.
§ 308. In the first place, what is the true nature and import of the instrument? Is it a treaty, a convention, a league, a contract, or a compact? Who are the parties to it? By whom was it made? By whom was it ratificd? What are its obligations ? By whom and in what manner may it be dissolved? Who are to decide upon the supposed infractions and violations of it? These are questions often asked, and often discussed, not merely for the purpose of theoretical speculation, but as matters of practical importance, and of earnest and even of vehement debate. The answers given to them by statesmen and jurists are often contradictory and irreconcilable with each other; and the consequences deduced from the views taken of some of them go very deep into the foundations of the government itself, and expose it, if not to utter destruction, at least to evils which threaten its existence and disturb the just operation of its powers.