The history of these amendments, as it is contained in Story's Commentaries, will be found in the footnote to this section.1* For the Constitution and Amendments in full see pp. 519, et seq., post. § 39. 1 "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. "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 happiness. 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 be confronted with the witnesses against him; that freedom 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 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 reexaminable 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. "Besides these, there were other defects relied 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 pro § 40. Congress compared, as to powers in national matters, with Parliament of Great Britain.-To the author, it seems as though Congress, being the only medium of action hibition of members of Congress | state that they believed that some 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 exercised by Congress and by the States. of the objections to the Constitution existed only in imagination, and that others derived their sole support from an erroneous construction of that instrument. 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 "Many of these objections found their way into the amendments, which, simultaneously with the ratification, were adopted in many of the State conventions. With the view of carrying into effect popular will, and also of disarming 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 became incorporated into the Constitution. It is a curious fact, how ever, 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. "It is perhaps due to the latter to about prerogatives and privileges. in those respects, must, as to national matters committed to it, possess powers co-ordinate with those of the Parliament of Great Britain, and that the possession of such powers cannot in any way tend to produce the dangerous results predicted by Mr. Harrison. It is England's boast that the Anglo-Saxon heritage of personal freedom is nowhere so thoroughly protected as it is in Great Britain; there are, however, no written limitations upon Parliamentary action of any kind-in fact, Parliament, being the mouthpiece of the people, is necessarily supreme. The notes to section 11 of this chapter show that the sovereignty of the British Constitution is lodged, as declared by Blackstone, in Parliament; Professor Chase's note on this statement in his American edition of Blackstone's Com\ mentaries, which is appended to this section, shows the difference between an act of Congress and an act of Parlia ment as to matters which are covered by the Constitution;1 But here the government is the government of the people; all its officers are their officers, and they can exercise no right 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 mass of ungranted powers, or find an appropriate place in the laws and institutions of each particular State. "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 secured; 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 several 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 wisdom and patriotism." 1 Story's Com. on the Cons. of the U. S. 5th ed. §§ 300 -305, pp. 217-220. See also Thorpe's Constitutional History of the United States, vol. 2, chap. VI, p. 199, et seq. $ 40. 1 There is a fundamental difference between the power and authority of the legislative branch of the Government in England and in the United States. The English Par the same difference cannot exist, however, as to matters which are lodged generally in the National Government or which it possesses not by delegation but as the attributes of sovereignty of a national government. Blackstone, however, and other writers upon the fundamental law of England, trace the British Constitution, unwritten as it is, from the earliest sources, showing that personal liberty and personal rights are amply protected from legislative aggression, and that no person can be deprived of them in any manner whatsoever. Undoubtedly the Supreme Court of the United States can be entrusted with the protection of personal rights of Americans, and of the inhabitants of any territory under the jurisdiction of the United States, to the same extent that the English courts can be trusted with the similar protection of citizens and subjects of Great Britain. § 41. Simultaneous development of nationality and limitations by fundamental principles of natural and healthy growth. The simultaneous development of the two theories of complete nationality and sovereignty, and of the limitation of congressional action in regard to national matters by liament is not limited, as regards is upon previous acts of Parliathe scope and extent and subject- ment, upon custom and tradition, matter of legislation, by a written is subject to change and modificaconstitution defining and restrict- tion by other acts of Parliament, ing its powers, and its enactments though it is undoubtedly true, that therefore constitute the supreme it has, by force of precedent, and law of the land and are absolutely by the natural effect of ordinary binding upon the courts, which usage upon the habits and ideas have no option but to appropriately of people, great controlling and reenforce them. It is for this reason strictive power upon the course of that Parliament is sometimes said legislation. But in the United to be "omnipotent." What is States, legislation is uniformly conspoken of as the " English Consti- trolled by written constitutions tution" embraces the body or sys- adopted by the people in their tem of laws, rules, principles and sovereign capacity. The United established usages, upon which is States Constitution limits and debased the organization of the Gov. fines the powers of Congress, and ernment, the relation of its various is also binding upon the legisladepartments or branches to each tures of the several States, so that other, and the nature of their func- their enactments cannot violate its tions, and in accordance with provisions. The legislation of the which the administration of the States is also further controlled by Government is regularly conducted. the special Constitution which each But this Constitution, based as it has adopted. To the courts is com fundamental principles, has up to the present time inured to the advantage and mutual benefit alike of the powers that govern, and of the people who are governed; this same development will undoubtedly continue in the spirit of AngloSaxon liberty without danger to the personal rights of individuals, or the enactment of any such grotesque legislation as is feared by the ex-President; in this respect it must be remembered that the combined action of the three departments of the American Government is always subject to the control of the people by the frequent recurrence of elections; the reversal or repeal of congressional action always follows when it appears that the legislation enacted is not in accord with the spirit of liberty as it is understood by the people, who must eventually be the sole judges as to whether or not the powers of sovereignty lodged in the National Government, great as they are, are being properly exercised. Not until the spirit of the people changes can Congress act with the spirit of despotism. If, however, the minds of the American people can ever become so perverted as to favor despotism in any form, that degeneracy will be reflected in Congress, and no constitutional provisions, or fundamental principles of liberty, will suffice to prevent the enactment of legislation which will accord with the popular sentiment as to those matters which are wholly within the domain of the National Government, and therefore under the control of the people themselves. No such danger exists to-day; let us hope that it never will exist. mitted the power and duty of determining whether particular enactments are in conformity with Constitutional provisions; and if it is adjudged that they are not, such laws are pronounced null and void, either in whole or in part (Civil Rights cases, 109 U. S. 3; Baldwin vs. Franks, 120 U. S. 678; Duryee vs. Mayor of N. Y. 96 N. Y. 477). This is not, however, done by the courts of their own motion, but only in the 70 course of decision of actually litigated causes in which the Constitutionality of the statute is essentially involved. But all statutes not in conflict with the provisions of the Constitution of the State or of the United States are as supreme and absolute, within their appropriate sphere, as the acts of the English Parliament." Chase's Blackstone (3d ed.), p. 15, note. |