Part 16 (1/2)

Chapter XLVI.

Amendments to the Const.i.tution.

--1. It is remarkable that, during a period of seventy years, the const.i.tution has received so few alterations. Although twelve articles of amendment, so called, have been adopted, only two, (the 11th and 12th,) have in any manner or degree changed any of its original provisions. Most of them, it will be seen, are merely declaratory and restrictive. As the principles which they declare were so generally acknowledged, and as the general government was a government of limited powers, having such only as were expressly authorized by the const.i.tution, the framers deemed these declarations and restrictions unnecessary. But as several of the state conventions had, at the time of adopting the const.i.tution, expressed a desire that declarations and guaranties of certain rights should be added, in order to prevent misconstruction and abuse, the first congress, at its first session, proposed twelve amendments, ten of which were ratified by the requisite number of states. Virginia, the last state necessary to make up such number, ratified December 15, 1791.

--2. Freedom in matters of religion, freedom of speech and of the press, and the right to pet.i.tion the government for the redress of grievances, guarantied in the first article, are rights so essential to civil liberty, and so evidently just, that it can hardly be presumed that congress would ever have pa.s.sed laws directly violating these rights, even though such laws had not been prohibited.

--3. The second article guaranties ”the right of people to bear arms.”

Without this right, ambitious men might, by the aid of the regular army, overthrow the liberties of the people, and usurp the powers of government.

--4. The third article declares, that ”no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” It is a principle of the common law, that ”a man's house is his own castle.”

Among the grievances enumerated in the Declaration of Independence, was one ”for quartering large bodies of armed troops” among the people of the colonies. To secure the people against intrusions of this kind, is the object of this prohibition.

--5. The fourth article guaranties ”the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But there could be no such security, if every man could, on mere pretense or suspicion of injury, obtain a warrant for arresting his neighbor or searching his premises and seizing his property. Innocent men would often be subjected to much trouble and perplexity; and unjust suspicions would be thrown upon their characters.

It is proper, therefore, that a magistrate shall not issue a warrant, unless it shall be made to appear, by the oath of the applicant or of some other person that there is probable cause.

--6. The rights guarantied by the fifth article are common law rights, and founded upon just principles. We have elsewhere stated the object of grand juries, and noticed the opinion of some, that this object is sufficiently secured by the examination before the magistrate; and, consequently, that grand juries are unnecessary. (See Chap. XIX, --8-10.) But while this article continues to be a part of the const.i.tution, grand juries in courts of the United States can not be dispensed with. It is quite proper, as is provided in this article, that, after a fair and impartial trial and an acquittal, a person should not be tried a second time. The provisions of the next article (6th) are also necessary to secure the same object--the rights of liberty and life to every citizen.

--7. The seventh article of amendment secures, in courts of the United States, ”in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury.” By suits at common law are meant those tried in the ordinary courts, as distinguished from those tried in courts of equity and courts of admiralty. This article further declares, that ”no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” That is, if a fact tried by a jury in a lower court, is carried up to a higher court for reexamination, such reexamination or new trial shall also be by jury.

--8. ”Excessive bail shall not be required, nor excessive fines imposed, nor unusual punishments inflicted.” Amend. art. 8. The object of bail and the manner in which it is given, have been stated. (Chap. XVIII.) Without the above restriction, the sum might be fixed so high as to prevent persons accused of crime from procuring the necessary sureties; whereby innocent persons might be subjected to long imprisonment before the time of trial. It is therefore properly left to the court to fix the sum, which should correspond to the aggravation of the offense. Courts have the same discretion as to the measure of punishment to be inflicted in each particular case of crime.

--9. The ninth amendment is, ”The enumeration in the const.i.tution of certain rights, shall not be construed to deny or disparage others retained by the people.” There were persons who feared that, because the const.i.tution mentioned certain rights as belonging to the people, those not mentioned might be considered as having been surrendered to the general government. This article was therefore inserted to prevent such a misconstruction of the const.i.tution.

--10. The tenth amendment is similar to the preceding. ”The powers not delegated to the United States by the const.i.tution, nor prohibited by it to the states are reserved to the states respectively, or to the people.” In other words the powers which the const.i.tution has not given to the general government, nor prohibited the states from exercising, the states or the people have reserved to themselves. So clear is it, that they retain all power which they have not in words parted with, that it seems strange to many that the insertion of such a provision should ever have been thought necessary.

--11. The eleventh amendment was proposed at the first session of the third congress, March 5, 1794, and its ratification by the const.i.tutional number of states was announced to congress by the president in a message dated January 8, 1798. This article prohibits a court of the United States from trying ”any suit in law or equity commenced or prosecuted against one of the states by citizens of another state, or by citizens or subjects of any foreign state.” This is intended to prevent a state from being sued in an original suit, by a private person, the citizen of another state.

--12. The twelfth and last amendment effects a change in the mode of electing the president and vice-president, and has been considered.

(Chap. x.x.xIX, --4.) This amendment was proposed at the first session of the eighth congress, December 12, 1803, and was adopted by the requisite number of states in 1804, according to a public notice by the secretary of state, dated the 25th of September of the same year.

Common and Statutory Law.

Chapter XLVII.

Rights of Persons. Personal Security; Personal Liberty; Religious Liberty; Liberty of Speech, and of the Press; Right of Property.

--1. Having taken a general view of the state governments and the government of the United States, and seen how wisely they are adapted to promote the general welfare and secure the blessings of liberty; we proceed to give a digest of the laws which more particularly define the rights and prescribe the duties of citizens, or by which their social and civil intercourse is to be regulated. These laws, it will be recollected, we have elsewhere called the _munic.i.p.al_ or _civil_ laws, as distinguished from the _political_ or _fundamental_ law of the state.

(Chap. III, --6.)

--2. These laws are of two kinds, the written or statute law, and the unwritten or common law. _Statute laws_ are those which are enacted by the legislature, and recorded in writing, and are usually collected and published in books. The word _statute_ is from the Latin _statuo_, to set, fix, or establish.