Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.
From: The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
CHAPTER VI: Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.
In the formation of the federal constitution, it was judged best, on the whole, though there was considerable difference of opinion in relation to the subject, not to introduce into it any bill of rights. The reason for excluding it, was principally, because, it was thought, that if no bill of rights was inserted, all rights and liberties not relinquished to the general government, in the constitution, either in express terms, or by necessary implication, would be considered as retained by the people; while, on the other hand, if a bill of rights were introduced in the constitution, and any right or liberty chanced to be omitted in the enumeration, such right or liberty so omitted, would be considered as relinquished to the general government, by implication. Some of the members of the state conventions, however, and particularly of the Virginia convention, where this subject was thoroughly discussed, were strongly in favor of a bill of rights, and some of the amendments, which were afterwards made to the constitution in consequence of the strenuous efforts of those members, contain in express terms a reservation to the people, of certain rights and liberties, which it would be difficult to show congress had any right to interfere with, independently of such reservation. These rights, however, were very properly reserved to the people in express terms, for the purpose of avoiding, as much as practicable, all doubts in relation to the subject. For the same reason, two clauses were inserted among these amendments, declaring in substance, that powers not delegated by the constitution are retained; and, that a partial enumeration of rights should not be construed to deny or disparage rights not contained in it. In a state of nature, the rights of an individual might be summed up in a single expression, viz, that he had a right to do whatever he had a power given him by nature to do, provided he violated no precept of religion, and was guilty of no wrong to others. But, in the innumerable relations of organized society, though all a man’s rights may be summed up in a manner almost as brief, viz, that he is restrained by no law or duty from doing anything which does not violate any rule of religion or morality, and which does not infringe any of the positive laws or institutions of society; yet, it will be best in order to furnish a more distinct and clear idea of these rights, to take a review of the more important of them separately. For this purpose, since no particular order is observed in the constitution, none needs be observed here.
1. Religious Freedom. Under the first amendment of the constitution, congress is prohibited from ‘making any law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The reason of this prohibition may be traced in part, to the general spirit of toleration, which prevails throughout the United States. It is not a necessary conclusion however, that all the various sects are thus tolerant; but, as the population is divided into a great number of different sects, no single one of which constitutes a majority of the whole, it would be vain for any particular sect, to encourage thoughts of being established as the religion of the whole union. As therefore, there is no probability that any particular sect will ever be able to gain an ascendancy in this country by means of political power; and as unprofitable contests for that object, would create rancorous disputes among those sects, and tend to bring the general cause of Christianity into disesteem with the feeble minded, and give an occasion to the adversary, it has been thought best to provide for a general toleration of religion. The power to make regulations in regard to religion, therefore, must remain in the people of the United States; and though at first sight it might seem, that the citizens of each state might authorize their state rulers to impose religious restraints, yet, as this would interfere with Art. IV, Sect. 2, of the Federal Constitution, it seems that it cannot constitutionally be done.
2. Freedom of speech and of the press. By the same amendment congress is prohibited from passing any law. abridging the freedom of speech or of the press. These two rights are not further noticed here, being made the subject of chapter II, in part II.
3. The right of the citizens to bear arms. The second amendment to the constitution, declares, that ‘the right of the people to keep and bear arms, shall not be infringed.’ The reason assigned in the amendment for this restriction on the power of congress, is sufficient to show its true construction. This reason is, ‘because a well regulated militia is necessary to the security of a free state.’ Certainly, it is impossible to provide any other mode of defence which shall be at the same time so safe so cheap, and so effectual as that of a well organized militia. For, every able bodied man, with the exception of those who are exempted because they are engaged in the discharge of other public duties, is bound to assist in the public defence; and consequently, with the exception of the small number referred to, the number of the whole militia of the United States, is limited only by that of its effective citizens.
The chief excellence of the militia system, is that every citizen at a moment’s warning becomes a soldier; and when the exigency is over, at a moment’s warning retires again to the calm and usual pursuits and occupations of peace. To repel a sudden invasion of a foreign enemy; to put down a domestic insurrection at its first commencement; to protect the country from any attempt to usurp power by persons not confided with it, are occasions, in which the policy of the militia system is very apparent. Another advantage, which however is not quite so obvious, is the assistance which it is always ready to lend the civil arm of the government; in preserving domestic peace and tranquility; in the execution of the process of the law; and in suppressing the tumults and riots and other disorders of the less informed citizens, when under the influence of their own unruly passions, whether excited by some unfortunate occasion, or exasperated by the false reasonings or representations of designing and unprincipled leaders or declaimers. The influence of the militia system in these last cases, is less perceived by the orderly citizens, because it is so much felt by those whose irregularity of conduct can only be restrained by the consciousness of a superior controlling power, which they cannot withstand, and therefore will not attempt to provoke.
Their inefficiency in the field against a regular army, arises from, and is consequently in direct proportion with the following circumstances; viz; want of military skill and experience, in the officers; want of respect for their superiors, and of a spirit of subordination, in the private soldiers. The officers are unable to teach; the privates will not learn. The officers neither know how to command, nor how to enforce obedience. The privates will neither submit nor obey. The whole results in a total disregard of discipline, a want of confidence in their officers, and a distrust of themselves and of each other. These defects however may be remedied by drilling and exercising under officers, who have had an opportunity of seeing service. .
There is but little danger that the militia will betray their country. There may be traitors among them; but having their own interests to protect, and being in reality the country itself, it would be absurd to suppose that they would ever betray themselves. It is true, that they may ruin themselves by acting under erroneous views of their own interests. But this is incident to human nature.
4. The quartering of soldiers. It is provided in the third amendment of the constitution, 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.’ This provision is important to the comfort of the citizens. When soldiers are quartered on the inhabitants of a place without their consent, it gives rise to many abuses and impositions on the part of the soldiers, and a great deal of ill will on the part of the citizens. To live at free quarters, is little else than making booty and pillage of every thing, at discretion. In a state of war, the exigencies of military service may frequently require that soldiers may be quartered on the inhabitants. To leave the regulation of this matter to the discretion of the commander in chief of an army, would be to subject the persons and property of the citizens to the risk of outrage, insult and violence, without any other means of redress than such as depend on his arbitrary will. The citizens have prudently guarded themselves as far as practicable, by requiring that this subject shall be regulated by law.
5. Under the 4th amendment, the persons, houses, papers and effects of the people are secured from unreasonable arrests, seizures and searches. No warrants therefore shall issue but upon probable cause supported by oath, etc. By these provisions all general warrants, for searching or seizing persons, property, or papers, without particularly describing the object of such process, are made unconstitutional. The propriety of securing the liberties of the citizens in these respects, is manifest from the arbitrary and tyrannical use of general warrants which has frequently been resorted to in Great Britain.
6. The 5th amendment declares, that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, &c. etc. One of the principal objects of this provision, was to exempt persons who belong neither to the army or navy of the United States from trials by a court martial, or other tribunals not known to the common law, which might be erected by the legislature. It furnishes an important barrier or safeguard, on the part of the people, against any acts of violence, imposition or oppression which may be practiced upon them in war or peace, by military commanders, either by direct outrage, or by subjecting them to summary trials and convictions before officers under their command, and consequently more or less under their influence, by the most odious and least to be depended upon of all trials, that by court martial. This however will prove inadequate to protect individuals, whenever the people become so infatuated as to connive at acts of arbitrary power in popular leaders. For, such leaders, depending on the weakness or sottishness of the multitude to overlook, perhaps to applaud, all acts of tyranny or oppression committed on individuals, so long as a pretence is held out, that they are done for the public good, without considering that no individual can be oppressed without at the same time threatening the liberty and safety of all, will be very much inclined to trample on any obstacles which may stand in the way of their ambition, however the rights t)f others may be sacrificed in consequence. But, if the people have the good sense to consider, that the greater the power of the offender, the more necessity there must always be to bring him to justice; and that no public services whatever are a sufficient warrant for the violation of the laws of the country and the rights and liberties of the citizens, and sustain the decisions of the tribunals of justice in assertion of those rights by an open avowal of such sentiments, there will never be any danger of a loss of freedom from any such usurpation of unconstitutional power.
7. The same amendment provides, that no man shall be compelled to give evidence against himself. This provision forbids the enactment of laws, which shall authorize the infliction of torture, imprisonment, or any other means of coercion, in order to compel an accused person to confess his guilt, and is in perfect accordance with the principles of the common law, which excludes, as incompetent, all evidence of confessions, extorted either by threats or promises of favor made by persons acting judicially, or officially.
8. The same amendment provides, that ‘no person shall be deprived of life, liberty or property without due process of law, &c. Sic. This clause seems not to be aimed so much at the tyrannical conduct of persons in power, acting under an usurped authority, as to prevent congress or the legislatures of the states from intrusting a power over the lives or the liberties of the citizens to public officers in command, and from confiscating the estates of individuals without the formality of trial, by mere unprincipled acts of legislation. Bills of attainder are prohibited in the constitution, in Section ix, Article 1. Even this prohibition, it seems, is not wholly superfluous. Before the adoption of the constitution, a man by the name of Phillips was attainted by a bill of the legislature of Virginia, and was executed under it.
9. Under amendment sixth, the accused shall enjoy the right to a speedy and public trial, &c. &c. These just and humane provisions, are made to prevent the possibility of unfairness or oppression, from being practised upon the humblest or most obnoxious individual in society. An accused person cannot now be detained in prison, as otherwise he might be, from year to year, at the discretion of the court or the public prosecutor, but has a right to demand a trial at the regular time, and cannot justly or constitutionally be deprived of it, or delayed without sufficient cause. If there is no substantial reason for delay, he must either be tried or discharged without trial. If any other rule were adopted, he might be kept in perpetual imprisonment, under one pretence or other. The absence of material witnesses on the part of the prosecutor, is not of itself a sufficient cause for putting off the trial, unless it appears also, that the public prosecutor has made every reasonable exertion to procure their attendance, and that he will probably be able to do so at the next regular term. Neither will it be a sufficient cause for delay even then, if the prisoner is willing to admit that the absent witness will testify in the manner the prosecutor states in his affidavit he expects him to testify; or, if the person accused can produce the record of the conviction of such absent person, of any crime that renders his testimony inadmissible in a court of justice. Neither ought the indisposition of the public prosecutor, to be considered as a sufficient reason for putting off a trial, where the accused party is suffering imprisonment in the mean time. The liberty of the citizen ought not to depend one moment on the health of the public prosecutor. If any of the jurymen are not impartial, &c., if they have any personal interest in the result of the trial; if they have expressed a decided opinion as to the guilt or innocence of the prisoner, they ought to be taken from the jury either on the challenge of the prisoner, or that of the public prosecutor, or, on the challenge of the juror himself; in order that justice may be done to the public as well as to the accused party.
The prisoner must also be tried in the district where the crime is charged to have been committed. This is provided, in order that he may not be liable to be oppressed by being taken away among strangers, who, not being acquainted with his previous character, would derive their first impressions with regard to it, from the nature of the accusation itself.
It may not be amiss here, to suggest, that an innocent person accused of a crime, should be very cautious in the voluntary relinquishment of any formality, which the law require to be complied with in criminal trials. All those formalities are directed for the purpose of protecting innocence from the possibility of an unjust conviction. They are all grounded on some sufficient reason, though that reason may not always appear, or may not be applicable to every case. They ought not to be so numerous or so hard to be complied with, as to prevent the conviction of guilt itself, it is true, but they cannot be liable to this exception, since notwithstanding the strict observance of them, the innocent sometimes are convicted.
The case is easily conceivable, that a person perfectly innocent, may, from the force of concurring circumstances publicly known, be generally believed to be guilty of the crime of which he is accused; and the court as well as the jury and the witnesses, may be so satisfied of it, and of j the plenary proof which it is expected to adduce against him, that the unfortunate individual may be considered as virtually condemned in the minds of all, even before the trial is commenced. It is here that the wisdom and humanity of these requirements and technical formalities are most manifest. For, if they are strictly observed, the court and jury, however strong their prepossessions may possibly be against the prisoner, if they pay ordinary attention to the proceedings, will not fail to perceive whether there is or is not sufficient legal evidence of the prisoner’s guilt, and then if he is really innocent, he can never be convicted except from one of those errors or mistakes, which it is incident to the imperfection of human nature sometimes to commit.
The prisoner must be acquainted with the precise nature of the accusation, so that he may know what to defend. This notice must be given him seasonably, so that he may have a reasonable time to prepare for his defence, and procure the attendance of his witnesses. This he is entitled to process, to compel, and of this right congress cannot constitutionally deprive a prisoner. He is also entitled to the assistance of counsel in all criminal cases. In capital ones, if the prisoner is unable to retain counsel at his own charge, it is the humane and invariable practice of the court to assign him such as he requests, and to the honor of the legal profession, it is due to remark, that the task is seldom if ever declined without sufficient reason, and when undertaken is discharged with a disinterested zeal and ardor, which always secures to the prisoner a fair trial; though it has sometimes overshot the mark and defeated the purposes of justice, by procuring the acquittal of undoubted guilt, contrary to both law and testimony.
10. The eighth amendment provides, that excessive bail shall not be required. This is supposed to be intended to prevent the requiring of excessive or unreasonable bail, in cases of bailable criminal charges only. There is however no reason, why it may not extend to cases, where the defendant in a civil action, is held to bail for an unreasonable amount for the purpose of oppression. It seems however to be a direction for magistrates, and not either for the legislature or for sheriffs, &tc. Where a prisoner charged with a bailable offence, is brought before a court or magistrate having authority to hold him to bail, or to let him go upon his giving bail, by what rule is he to be guided in settling the amount to be required, agreeably to the spirit of the constitution? The design of bail is either to relieve a prisoner in custody for a bailable offence, from imprisonment, upon his giving sufficient caution or security for his appearance at court, at the proper time to take his trial; or, it is to compel a person at large to give such security, under the alternative of being committed to prison till his trial comes on. To relieve from imprisonment and to secure the appearance of the accused, are therefore the two objects, which the magistrate is to have in view; but, where both cannot be obtained, the former must yield to the latter. The magistrate here has a right to use a proper discretion. It is obvious, if the person accused, being released on bail, sees fit to abscond, his recognizance will be forfeited, and his bail be held responsible for the amount. If therefore, previously to his going off, he should deposit a sum of money with his bail, sufficient to indemnify them against the forfeiture of the recognizance or bail bond, the purpose of justice will be eluded, so long as he keeps himself out of the jurisdiction of the court, and yet the bail will be held harmless. Where the crime charged therefore is of an odious or infamous nature, and the evidence strong, and the person accused is rich, or has opulent parents or influential friends, the highest bonds should always be required. So, if he is a transient person, high bail should be required; otherwise he may deposit a sufficient sum of money with some one to induce him to procure bail for him, and then abscond. But, where the crime is not of an infamous nature, where the evidence is slight, and yet not sufficiently so to warrant the discharge of the person accused; if he is poor, he. &tc. the lightest bonds should be required.
The eighth amendment also prohibits excessive fines. This is a direction to the legislatures as well as to the courts and to magistrates. If therefore a law should be passed, imposing a ruinous fine upon an inconsiderable offence, or otherwise wholly disproportioned to the magnitude of it, it would be inconsistent with the spirit of this amendment. So, where a crime is punishable by fine and imprisonment, at the discretion of the judge, this discretion is a reasonable discretion, i. e. the best exercise of his honest judgment, and must not be confounded either with whim, caprice, or vindictive feelings. A man’s farm or stock in trade, ought never to be made a sacrifice, to the ruin of himself and the distress of his family, but, if necessary to make an example, he should rather be imprisoned for a longer period, and a more moderate fine be imposed. For similar reasons, if a law should be passed, requiring a specified and very heavy fine to be imposed in all cases of crimes of any particular class, and allowing the judge no discretion, though the offence in some cases might be very slight, it cannot be doubted that such a law would be contrary to the spirit of the constitution.
No express restriction is laid in the constitution, upon the power of imprisoning for crimes. But, as it is forbidden to demand unreasonable bail, which merely exposes the individual concerned, to imprisonment in case he cannot procure it; as it is forbidden to impose unreasonable fines, on account of the difficulty the person fined would have of paying them, the default of which would be punished by imprisonment only, it would seem, that imprisonment for an unreasonable length of time, is also contrary to the spirit of the constitution. Thus in cases where the courts have a discretionary power to fine and imprison, shall it be supposed, that the power to fine is restrained, but the power to imprison is wholly unrestricted by it? In the absence of all express regulations on the subject, it would surely be absurd to imprison an individual for a term of years, for some inconsiderable offence, and consequently it would seem, that a law imposing so severe a punishment must be contrary to the intention of the framers of the constitution.
Under the same amendment the infliction of cruel and unusual punishments, is also prohibited. The various barbarous and cruel punishments inflicted under the laws of some other countries, and which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending asunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution. Yet the statute books of some of the states, are disgraced by laws justly chargeable with barbarity. Is not whipping a punishment sufficiently severe of itself, when required to be inflicted on the naked back, without the savage direction that, the stripes should be ‘well laid on?’ Is not the punishment of death sufficient? Must the atrocious spirit of revenge be gratified, by having the culprit burned alive?
11. In the fifth amendment will be found a prohibition to take private property for public use, without just compensation. It would seem no more than justice in any such case, to estimate the property taken, at its fair value at that time, with the usual rate of interest on that amount, until the time of paying for it; this being the nearest approximation that can be made, to the actual detriment which the owner has sustained. Where the legislature do any act of this kind, it cannot of itself constitutionally determine the amount of compensation. See 2 Dal. 304.
There are some other rights, which are reserved to the people, though not mentioned in the general constitution. Among these is the right of self-defence, in cases where the danger is so imminent, that the person in jeopardy, may suffer irreparable injury, if he waits for the protection of the laws. It is true, if he survives, the justice of society will afford him such separation as its own power permits; but he is not bound to submit to this alternative; and as the compact between him and society is mutual, if society is unable to protect him, his natural right revives to protect himself. See ante, p. 40.
Another right, reserved to the people though not mentioned in the constitution, is that of expatriation. Every citizen who has not entered into an express compact with the government by swearing allegiance, may leave the country and dissolve all ties with it but those of gratitude and affection, at pleasure. This right is acknowledged indirectly by the constitution; for otherwise, it would not have established a rule of naturalization, by which aliens who desert their native country, may become citizens and patriots here. See ante, p. 43.
The people also according to the democratic theory, have a right to alter their constitution and frame of government, as they please, if unanimous. This right is inalienable; no express stipulation can deprive them of it. It is true, that a mode of amending the constitution is pointed out in it: but, as this mode of amendment is only agreed upon by the people of the United States, as a safe and convenient one; the same authority, if substantially unanimous, may abolish the whole constitution and the mode of amendment, and adopt whatever form of government they see fit. This however is the right of revolutionizing, which however it may be viewed in the abstract, if taken in connexion with its concomitant circumstances and attendant consequences, viz. the unsettled state of all laws and institutions; the base and profligate practices of ambitious men to mislead the people; the insecurity of property—of life itself, and the extreme improbability, that a people who have been so foolish as to abolish a tolerable government, on account of some theoretical defects, will have sufficient wisdom to adopt a better, should cause a case, where such right may be exercised with propriety, to be regarded as potentia remotissima, [potential most removed] an incredible supposition. See ante, p. 55.
An important right, and one which is expressly reserved to the people, in the constitution, is that of assembling peaceably.
This is one of the strongest safeguards, against any usurpation or tyrannical abuse of power, so long as the people collectively have sufficient discernment to perceive what is best for the public interest, and individually have independence enough, to express an opinion in opposition to a popular but designing leader. But, if they are ignorant or misinformed in this respect, the exercise of this right will be pernicious, if their rulers are governed by any expression of the sentiments of such of them as see fit to exercise it; and will be useless, if they are not at all influenced by it.
This right includes not only a right to assemble in order to petition for a removal of grievances, but also a right to assemble for the purpose of deliberating upon public measures. For, it cannot be supposed that they have a right to assemble for the purpose of petitioning only, when a short consultation may perhaps be sufficient to convince them, either that their is no grievance at all; or, that it is unavoidable; or, that it will remedy itself; &,c. &,c. any of which will be sufficient to satisfy the people, that an application to congress on the subject, would be superfluous or useless.
The proper occasion for the exercise of this right would seem to be, where a law has a different operation from what congress intends, and is oppressive in any respect, either to the people in general; or, to any particular class of them; or, to the inhabitants of any particular state, district, territory, or section of the country. In any such, case, those persons who suffer the inconvenience or grievance, may well send a petition or remonstrance to congress on the subject. But then it should be subscribed by those only who belong to the suffering class or district. For, the object of it must be to show to congress the true state of the case, and in this way to let congress perceive the impolicy of the law and the necessity of its repeal. But, if signed by petitioners or remonstrants, who have no interest in it, and who know nothing about its consequences from personal experience, it will be a mere attempt to impose upon congress. For, it is not the mere opinions.of those who suffer no grievance, which are wanted, nor theories, however ingenious, but the results of experience.
For the same reason, when different classes of citizens suffer different grievances from a particular public measure, each class should remonstrate separately, and state only the real grievances which it suffers, itself, without noticing those which it supposes other classes to suffer. For, of these, those other classes are the best judges, who can petition for themselves if they think it expedient. Nether should their petitions or remonstrances be filled with lectures or disquisitions on speculative points in political economy; for, though such disquisitions may serve the purposes of making an ostentatious display of the talents or eloquence of the persons employed by the remonstrants to frame their representation or petition; in any other view, they are useless and impertinent, as it is to be presumed, that the greater number of the members of congress are acquainted with the elements of that science, and are capable of applying those elements for themselves. If remonstrances or petitions were drafted subject to these restrictions, and contained those grievances only which the petitioners really felt, it cannot be doubted that they might be of service to the public interest; because they would then give congress information which might be depended on, as to the operation of their laws, and congress might thus know the result of experience in regard to public measures, which they might previously have adopted with no better light, than such as they had borrowed from theory or analogy.
But such petitions or remonstrances should be carefully distinguished from one, which owes its origin to individuals, whose interests are concerned to procure the enactment or repeal of some particular law. For, these persons, if they happen to possess any considerable standing among the people, may very easily create a faction, by keeping their own private interests out of sight, and, at the same time calling assemblies and making great pretences of regard for the public interest, which they affect to consider to be deeply concerned. Such an occasion is greedily seized by aspiring young men to bring themselves into notice, and, if none are invited to attend the meeting as is frequently the case, but those who are ‘favorable’ to the object of it, it is very probable that every ‘patriotic’ and ‘spirited ‘ resolution will be adopted ‘ unanimously’ and that many thoughtless spectators, who attend the meeting for the mere purpose of entertainment, from hearing a descant on one side of the subject only, will be brought to believe, almost any thing which the orators and leaders see fit to assert. In this way, a few selfish individuals, if possessing, singly, only a small share of influence in society, by uniting together, and then drawing in others, who are so simple as to believe, that they have no other aim than the public good, may set on foot a faction, which may endanger the tranquility of the whole Union.
A petition or remonstrance, deriving its origin from such a source, it is obvious, can be of no service to congress while legislating for the general interest of the community; but, on the contrary, is a gross abuse.
Again: Suppose a law to be already enacted, which certain persons think will be detrimental to their interests; still, if no detriment has already followed, the time to remonstrate has not arrived. Because, they ought to take for granted, that congress has weighed the matter and its consequences deliberately, before passing the law.
When a grievance has actually taken place, it would be very proper for the persons injured, to send a remonstrance, or petition, stating facts, to congress, with a request that they might have an opportunity to verify them by testimony. Such an opportunity, it would be very proper to afford the remonstrants; but all argumentative matter should be regarded as superfluous. For, it is the business of the representatives and senators, to argue the question of general expediency, especially those, who come from the neighborhood where the remonstrants reside, or who are elected by them. But, if such senators or representatives dissent from them, and express themselves accordingly in the senate or house, the remonstrants have the regular course of redress, of choosing others. If however they cannot succeed in the attempt on account of the preponderance of another class of interests, congress will perceive at last, that the remonstrance is nothing more than the expression of a wish on the part of a minority, that their interests should supersede those of the majority; it being presumed, however, that congress is acting constitutionally.
When grievances, which are stated in a remonstrance, are verified by testimony, it is to be presumed, that congress will provide a remedy for them, if it can be done without making a sacrifice of interests, which are of more importance.
Where a grievance affects a particular class of men only, it is absurd for those to subscribe the petition or remonstrance, who do not belong to the class; or, if they do, are not sufferers by it. For example, if the grievance affects booksellers alone, it is absurd for blacksmiths, tailors, shoemakers, &tc.&tc. to subscribe the petition; because they must know that their interests are not affected, and if they subscribe it, it will be an attempt to practice a species of imposition on congress. It is on this account, that every one who subscribes a petition to congress, ought to add his trade or occupation, and if he does not, the name should be struck off.
In this way, the greater the number of remonstrants, the greater also would be the weight of the remonstrance, because it would then appear that each of them personally, felt a share of the grievance, which it was the object of the remonstrance to remove.
But, if the remonstrance is merely filled with abstractions, and plausible speculations, and ‘eloquent,’ ‘ spirited’ and ‘ patriotic,’ declamation, and subscribed by persons who do not mention their particular occupations, &c. it is odds that there is no real public grievance; but the whole probably is a scheme to overawe congress, concerted by a few influential persons, who have some private ends in view, and have drawn in the simple and unwary to subscribe what they know nothing about, and have no interest in, unless in fact it is one adverse to the remonstrance.
An attempt of this kind, however, would seldom be attended with much success, if both houses of congress always had the necessary firmness and steadiness. But, in popular governments, where men are elected to office because they are popular, the principles of those of them, whose popularity has little better foundation than watching the vane of public opinion, will seldom hold out long against a turbulent and insolent expression of the will of those, who are supposed to be the people, but, who, in fact, are merely the restless, dissatisfied, ambitious and grasping part of them.
Where any public measure is adopted by congress, which any class of citizens, or portion or district of the country considers oppressive, the first question to be settled is, whether it is constitutional or not. This the supreme court of the United States is the only constitutional tribunal, having jurisdiction to determine. The mere opinions of the majority of any convention of individuals, assembled by their own authority only, are entitled to no weight or consideration in congress. For, they are not the constitutional advisers of congress. They are not recognized as acting in any official capacity, nor have they any jurisdiction as a court. It will be sufficient therefore, for such assemblies to deliver their opinions to congress, when asked. But, if congress give them any weight, they wrong those quiet citizens, who stay at home and confine their ingenuity to the management of their own affairs, confiding, that no other class of citizens will have any greater share of public influence than themselves; but who, if they find that there is any advantage to be gained by forming conventions, and sending remonstrances to congress, will soon learn the lesson.
The next question is whether such measure is expedient? This congress is exclusively to decide. Here too, the opinions of any conventions not legally called under the authority of the United States, or of any of the states, are entitled to no weight. For, if congress is to be governed by any such opinions, the convention with which they originate, in effect becomes the congress, and congress is thus deprived of the exercise of its own power and discretion. But in fact, a remonstrance so indecorous as to express opinions to congress, and point out the path in which it ought to tread, should be lightly regarded. Further; if it comes from a majority of the people who belong to a class or district, whose interests are supposed to be peculiarly concerned, but who are in the minority in congress, it reflects great disgrace upon their representatives, as if they were unable to manage the affairs intrusted to them. Would it not be better then to send abler ones? On the other hand, if such representatives have faithfully discharged their duty to their constituents in this respect, and still are unable to convince congress, is it not apparent that the weight of reason in the minds of a majority of the members, is unfavorable to their view of the subject?
The choosing of delegates from different states in the union, to form a convention, with a view to induce congress to adopt any public measure, is a still greater abuse of the right of assembling, reserved to the people in the constitution. The organization of any such body of men, by choosing a president and secretary, he. and any high-toned resolves, &.c. which they might adopt, would tend to excite mistrust, suspicion and alarm. What would they have? For, either they are the majority, in which case their conduct is absurd; because, they may remove from office those representatives who do not act agreeably to their wishes; or, they are the minority, in which case by organizing themselves, they expect to gain some advantage of influence, which will turn the scale in their favor against the will of a majority of the people. But how is this to be done? Do they mean to extort from congress the adoption of any public measure, which to the minds of the members does not seem expedient? Do they mean to overawe by their boldness, the representatives of the people whom they are unable to convince by their arguments, when urged by their constitutional representatives in congress? But, if the members of congress, under the influence of some undefinable apprehension, should comply with the wishes of such convention, and adopt any measure not approved of by the majority of the people, they would at once violate their own consciences, and commit a breach of trust against their constituents, . If such convention should send an address to congress, containing argumentative matter to induce congress to come into their views, it would be equally impertinent and improperly directed. Such addresses ought to be made to the people. Let the people be once set right in their opinions, and there is no fear but that proper legislation will soon follow.
It is matter of regret, that individuals of respectability should ever be forward to take an active part in proceedings of this kind, which if coolly considered are certainly unwarrantable and inexpedient, because they tend to lessen the confidence of the people in their constitutional rulers. Is not the government democratic enough already? But must its deliberations be annoyed by addresses or lucubrations from conventions, originating in any thing but what they profess to originate in; perhaps the disappointed ambition of an unsuccessful candidate for office, who has no other way to attract notice, or to gain political influence and importance; perhaps in sordid interest acting through the medium of patriotism and under pretense of a disinterested regard for the welfare and prosperity of the country. Certainly such abilities might be more profitably employed in flashing imaginary powder in the daily journals, or garnishing the dull prosings of a periodical review.
It is true, there is no reason to apprehend, that men of respectability, will personally do any thing wrong. But they seem not to consider, that many rash and inconsiderate persons, seeing how far men of character are willing to venture, and having a desire to attract observation by proceeding to extremities, will not hesitate to attempt measures, that never would have been contemplated by men of sense and principle, and which these rash men would never have thought of themselves, but for the encouragement which they had received from the previous countenance and co-operation of their betters. For, it is a common misfortune, to which intelligent, influential, and wise men are exposed, who associate in any enterprise, with the rash, ignorant, or profligate, if wisdom were not excluded by the very fact, that they are always held responsible for, and usually considered the authors of every act and measure adopted by such attendants, followers or companions, however outrageous and absurd in its intentions and consequences, and although such acts or measures may have been adopted not only without the concurrence, but against the express will of such men of intelligence. Why do not these latter ask themselves then, whether it is right to call conventions of the people, and declare to (hem, that the execution of unconstitutional measures may be resisted by force; and then express to them an. opinion, that some particular public measure is unconstitutional, when the constitution has provided a regular and unexceptionable tribunal for the final decision of all such questions, and the jurisdiction of that tribunal has been formally and expressly acknowledged by all the states, by the act of adopting the constitution? For, what can naturally be expected to follow next, but the raising of armies, the secession of one or more of the states from the union, and the other consequences which usually attend insurrections and revolutions; viz. civil war and foreign alliances, and the subjugation of part of the country, either to the rest, or to strangers? Is it possible, that men of discernment and fair intentions, can be willing to hazard such consequences on matters of speculation, or where the question of right and expediency is uncertain at best, on an opinion which the majority of the people think erroneous, and which opinion is therefore so far to be presumed correct? What judgment must then be formed of those men of influence in society, who, under whatever pretext of patriotism,— under whatever show of disinterestedness, have caused an exasperation and excitement in the minds of the people, which possibly may only terminate in the dissolution of the union, and the deluging of their country with the blood of its citizens?
In some cases, however, the exercise of the right of assembling to discuss public measures, is of advantage to the people, if there are no extensive combinations formed among them for the purpose of effecting some particular object, regardless whether the measures are right or wrong. Because they have an opportunity, which is sometimes improved, of receiving useful information, from the oral communications of men of learning and experience. But, for the most part when such assemblies are called on the most unexceptionable business, they serve chiefly as occasions for haranguing the people, and exciting their passions by loud and florid declamation, delivered with the regulated and precise gesture of the academy, and with all the generous and glowing ardor of holiday patriotism. This however is a great improvement on the affrays, tumults, riots and public disturbances, which in many countries invariably attend numerous and irregular assemblies of the people. For, in this country, it is generally found, that on such occasions, the people who are assembled, instead of disgracing themselves by tearing down gaols [jails], or other public buildings, and forming turbulent mobs, having been gratified by prolix and complimentary addresses, on their patriotism, intelligence, morality, &c. &c. become comparatively mild and good humored, and vent their spleen or independence, in patriotic, spirited and vain-glorious resolves. The meeting is then dissolved; the citizens retire filled with self-applause, and glory, and deafened and wearied; the orators are complimented in the next newspaper, in which the respectability and number of those who attended the meeting, are greatly exaggerated, and the whole subsides in an unruffled calm.
In connexion with this subject, it may not be amiss to make a few observations upon the restrictions, which the constitution of the United States imposes upon the powers of the states. These restrictions may be found in Article I, Sec. 10. It has been mentioned already, ante p. 158, that no state, under the constitution, has any right ‘to enter into any [treaty, alliance or confederation,’ &c. This prohibition extends as well to an alliance, &c. with another of the United States, as to one with a foreign state. If alliances were formed between two or more states to which the rest were not parties, it would not only lead to jealousies and animosities between the confederate and preferred states, but would be wholly inconsistent with that clause in the constitution, which declares, ‘that the citizens of each state, shall be entitled to all privileges and immunities of citizens in the several states.’ On the other hand, if the several states were at liberty to form alliances, &c. with foreign powers, it would introduce foreign influence into the Union, and would supplant the predominant interest which each state is supposed to take in the general welfare of the United States, by a greater interest in the affairs of some ally, by which it might be protected at any time, if it saw fit to oppose itself to the measures of the United States.1
By the same section, ‘no state shall grant letters of marque and reprisal.’ The reason of this prohibition is, that this grant is an exercise of sovereign power, which the states do not possess. Congress alone has the power of declaring war. But if any state might grant letters of marque and reprisal, it would have the power of involving the country in a foreign war at any moment.
The States are also prohibited from coining money. This also is a sovereign power, and confided to congress alone, by the constitution of the United States. If each state had the power of coining money, it would be impossible to keep the specie currency of the Union, of the same standard, which would be a great embarrassment to commercial intercourse, and a source of various frauds. It is, without doubt, a great disadvantage to all fair dealers, in domestic manufactures, that there is not a national standard for gold and silver plate, established by law in this country, as it is in others.
No state can constitutionally emit bills of credit, or make any thing but gold and silver a lawful tender in payment of debts. There is no legal process by which a state can be compelled to redeem its bills; there is great danger, therefore, if any were issued, that they would soon depreciate; this, as is usual in such cases, would give rise to many frauds and inconveniences upon the unfortunate holders.
No state can constitutionally pass any bill of attainder. No country can be considered free, and consequently no citizen can ever be safe, where the legislature is permitted to exercise the iniquitous power of declaring a man guilty of a crime, and putting him to death without a lawful trial. The same reason will extend in a proportionate degree to the enactment of ex post facto laws generally, which the states are prohibited from passing by the constitution. This prohibition, however, extends to penal statutes only. See 3 Dal. 386.
And therefore every law which makes an action done before the framing of the law, and which was innocent when done, criminal, and punishes such action, is an expost facto law, and consequently unconstitutional. So, if it aggravates a crime, or makes it greater than it was when committed. So, if it changes the punishment, and inflicts a greater punishment than the law annexed to the crime when it was committed. So, if it alters the legal rules of evidence, and receives any testimony less than, or different from, what the law required when the offence was committed. See ibid.
No state can constitutionally pass a law, which impairs the obligation of contracts. Any law will we considered as impairing the obligation of a contract, which substitutes a mode of performance different in any respect, from what was agreed upon between the parties. As, if it authorized the discharge of the contract by a smaller sum than the contract contains; or, if it substitutes a different time when it is to be paid, or, introduces any new conditions, or dispenses with any. It is apparent, that any such substitution is virtually a cancelling of the original contract which the parties have made, and making another for them. This can never be done without their consent. See 8 Wheat. 1. 3 Wash. 313. See 1 Gal. 338. 12 Wheat. 370. See 4 Wheat. 518, 122. See also the case of the Yazoo lands, 6 Cranch. 87.
(I apologize, the last page of this chapter is damaged, it speaks some more about the constitution and a standing army and the citizen soldier, I will add this last paragraph when I can find it elsewhere)
The states are also forbidden to keep on foot any armed force in time of peace, without the consent of congress. This also is a sovereign power, which expediency requires should be exercised by the United States alone. For, if one state keeps a standing army of disciplined troops, the other state will sooner or later be compelled to do the same, the ultimate tendency of which, it is not difficult to perceive. The intention of the framers of the constitution, without doubt, was to avoid all occasions, not only of actual collision between the states, but also of jealousies and distrusts. Nor did it escape their observation, that a state prepared with a standing army, would be much less likely to yield a ready obedience to the laws of the United States, than one having nothing to rely upon, in case of resistance, but the transient and undisciplined ardor of citizen soldiers.
Continued in PART II. OF SOME PARTICULAR RIGHTS.
CHAPTER I. Of the right of suffrage and of elections.