chapter 65: amendments to the constitution
§ 1851. We have already had occasion to take notice of some of the amendments made to the constitution, subsequent to its adoption, in the progress of our review of the provisions of the original instrument. The present chapter will be devoted to a consideration of those, which have not fallen within the scope of our former commentaries.
§ 1852. It has been already ,stated, that many objections were taken to the constitution, not only on account of its actual provisions, but also on account of its deficiencies and omissions. 1 Among the latter, none were proclaimed with more zeal, and pressed with more effect, than the want of a bill of rights. This, it was said, was a fatal defect; and sufficient of itself to bring on the ruin of the republic. 2 To this objection several answers were given; first, that the constitution did in fact contain many provisions in the nature of a bill of rights, if the whole constitution was not in fact a bill of rights; secondly, that a bill of rights was in its nature more adapted to a monarchy, than to a government, professedly founded upon the will of the people, and executed by their immediate representatives and agents; and, thirdly, that a formal bill of rights, beyond what was contained in it, was wholly unnecessary, and might even be dangerous. 3
§ 1853. The first answer was supported by reference to the clauses in the constitution, providing for the judgment in cases of impeachment; the privilege of the writ of habeas corpus; the trial by jury in criminal cases; the definition, trial, and punishment of treason; the prohibition of bills of attainder, ex post facto laws, laws impairing the obligation of contracts, laws granting titles of nobility, and laws imposing religious tests. All these were so many declarations of rights for the protection of the citizens, not exceeded in value by any, which could possibly find a place in any bill of rights. 4
§ 1854. Upon the second point it was said, that bills of rights are in their origin stipulations between kings and their subjects, abridgments of prerogative in favour of privilege, and reservations of rights not surrendered to the prince. Such was Magna Charta obtained by the barons, sword in hand, of King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the petition of right assented to by Charles the First in the beginning of his reign. Such, also, was the declaration of rights presented by the lords and commons to the prince of Orange in 1688, and afterwards put into the form of an act of parliament, called the bill of rights. 5 It is evident, therefore, that according to its primitive signification, a bill of rights has no application to constitutions professedly founded upon the power of the people, and executed by persons, who are immediately chosen by them to execute their will. In our
country, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations. 6 "We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America"-is a better recognition of popular rights, than volumes of those aphorisms, which make a principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics, than in a constitution of government. 7
§ 1855. Upon the third point, it was said, that a minute detail of particular rights was certainly far less applicable to a constitution, designed to regulate the general political concerns of the nation, than to one, which had the regulation of every species of personal and private concerns. But (it was added) the argument might justly be carried further. It might be affirmed, that a bill of rights, in the sense and extent, which is contended for, was not only wholly unnecessary, but might even be dangerous. Such a bill would contain various exceptions to powers not granted; and on this very account might afford a colourable pretext to claim more than was granted. 8 For why (it might be asked) declare, that things shall not be done, which there is no power to do? Why, for instance, that the liberty of the press shall not be restrained, when no power is given, by which restrictions may be imposed? It is true, that upon sound reasoning a declaration of this sort could not fairly be construed to imply a regulating power; but it
might be seized upon by men disposed to usurpation, in order to furnish a plausible pretence for claiming the power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against an abuse of an authority, which was not given; and that the provision against restraining the liberty of the press, afforded a clear implication, that a right to prescribe proper regulations concerning it, was intended to be vested in the national government.
§ 1856. It was further added, that in truth the constitution itself was, in every rational sense, and to every useful purpose, a bill of rights for the Union. It specifies, and declares the political privileges of the citizens in the structure and administration of the government. It defines certain immunities and modes of proceeding, which relate to their personal, private, and public rights and concerns. It confers on them the unalienable right of electing their rulers; and prohibits any tyrannical measures, and vindictive prosecutions. So, that, at best, much of the force of the objection rests on mere nominal distinctions, or upon a desire to make a frame of government a code to regulate rights and remedies. 9
§ 1857. Although it must be conceded, that there is much intrinsic force in this reasoning, 10 it cannot in
candour be admitted to be wholly satisfactory, or conclusive on the subject. It is rather the argument of an able advocate, than the reasoning of a constitutional statesman. In the first place, a bill of rights (in the very sense of this reasoning) is admitted in some cases to be important; and the constitution itself adopts, and establishes its propriety to the extent of its actual provisions. Every reason, which establishes the propriety of any provision of this sort in the constitution, such as a right of trial by jury in criminal cases, is, pro tanto, proof, that it is neither unnecessary nor dangerous. It reduces the question to the consideration, not whether any bill of rights is necessary, but what such a bill of rights should properly contain. That is a point for argument, upon which different minds may arrive at different conclusions. That a bill of rights may contain too many enumerations, and especially such, as more correctly belong to the ordinary legislation of a government, cannot be doubted. Some of our state bills of rights contain clauses of this description, being either in their character and phraseology quite too loose, and general, and ambiguous; or covering doctrines quite debatable, both in theory and practice; or even leading to mischievous consequences, by restricting the legislative power under circumstances, which were not foreseen, and if foreseen, the restraint would have been pronounced by all persons inexpedient, and perhaps unjust. 11 Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires
to be guarded against with the most unceasing vigilance. 12
§ 1858. In the next place, a bill of rights is important, and may often be indispensable, whenever it operates, as a qualification upon powers, actually granted by the people to the government. 13 This is the real ground of all the hills of rights in the parent country, in the colonial constitutions and laws, and in the state constitutions. In England, the bills of rights were not demanded merely of the Crown, as withdrawing a power from the royal prerogative; they were equally important, as withdrawing power from parliament. A large proportion of the most valuable of the provisions in Magna Charta, and the bill of rights in 1688, consists of a solemn recognition, of limitations upon the power of parliament; that is, a declaration, that parliament ought not to abolish, or restrict those rights. Such are the right of trial by jury; the right to personal liberty and private property according to the. law of the land; that the subjects ought to have a right to bear arms; that elections of members of parliament ought to be free; that freedom of speech and debate in parliament ought not to be impeached, or questioned elsewhere; and that excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. 14 Whenever, then, a general power exists, or is granted to a government, which may in its actual exercise or abuse be dangerous to the people, there seems a peculiar
propriety in restricting its operations, and in excepting from it some at least of the most mischievous forms, in which it may be likely to be abused. And the very exception in such cases will operate with a silent, but irresistible influence to control the actual abuse of it in other analogous cases. 15
§ 1859. In the next place, a bill of rights may be important, even when it goes beyond powers supposed to be granted. It is not always possible to foresee the extent of the actual reach of certain powers, which are given in general terms. They may be construed to extend (and perhaps fairly) to certain classes of cases, which did not at first appear to be within them. A bill of rights, then, operates, as a guard upon any extravagant or undue extension of such powers. Besides; (as has been justly remarked,) a bill of rights is of real efficiency in controlling the excesses of party spirit. It serves to guide, and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights. It requires more than ordinary hardihood and audacity of character, to trample down principles, which our ancestors have consecrated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are a part of the muniment of freemen, showing their title to protection; and they become of increased value, when placed under the protection of an inde-
pendent judiciary instituted, as the appropriate guardian of the public and private rights of the citizens. 16
§ 1860. In the next place, (it has been urged with much earnestness,) a bill of rights is an important protection against unjust and oppressive conduct on the part of the people themselves. In a government modified, like that of the United States, (said a great statesman, 17 ) the great danger lies rather in the abuse of the community, than of the legislative body. The prescriptions in favour of liberty ought to be levelled against that quarter, where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in the executive or legislative departments of government; but in the body of the people, operating by the majority against the minority. It may be thought, that all paper barriers against the power of the community are too weak to be worthy of attention. They are not so strong, as to satisfy all, who have seen and examined thoroughly the texture of such a defence. Yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favour, and to rouse the attention of the whole community, it may be one means to control the majority from those acts, to which they might be otherwise inclined. 18
§ 1861. In regard to another suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favour of other powers, it might be sufficient to say, that such a course of reasoning could never be sustained upon any solid basis; and it could never furnish any just
ground of objection, that ingenuity might pervert, or usurpation overleap, the true sense. That objection will equally lie against all powers, whether large or limited, whether national or state, whether in a bill of rights, or in a frame of government. But a conclusive answer is, that such an attempt may be interdicted, (as it has been,) by a positive declaration in such a bill of rights, that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. 19
§ 1862. The want of a bill of rights, then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, and peculiarly susceptible of abuse, ought not to receive this solemn sanction. Doubtless, the want of a formal bill of rights in the constitution was a matter of very exaggerated declamation, and party zeal, for the mere purpose of defeating the constitution. 20 But so far as the objection was well founded in fact, it was right to remove it by subsequent amendments; and congress have (as we shall see) accordingly performed the duty with most prompt and laudable diligence. 21
§ 1863. Let us now enter upon the consideration of the amendments, which, it will be found, principally regard subjects properly belonging to a bill of rights.
§ 1864. The first is, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances."
§ 1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.
How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character.1 Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of
the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; -- these never can be a matter of indifference in any well ordered community. 23 It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience.
§ 1866. The real difficulty lies in ascertaining the limits, to which government may righttnlly go in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honours, trusts, emoluments, privileges, and immunities of the state. For instance, a government may simply declare, that the Christian religion shall be the religion of the state,
and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honours, trusts, emoluments, privileges, and immunities.
§ 1867. Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty. 24 Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great, basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by
its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty. 25 He has gone even further, and affirmed, that the Protestant religion is far more congenial with the spirit of political freedom, than the Catholic. "When," says he, "the Christian religion, two centuries ago, became unhappily divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain. The people of the north have, and will ever have, a spirit of liberty and independence, which the people of the south have not. And, therefore, a religion, which has no visible head, is more agreeable to the independency of climate, than that, which has one." 26 Without stopping to inquire, whether this remark be well founded, it is certainly true, that the parent country has acted upon it with a severe and vigilant zeal; and in most of the colonies the same rigid jealousy has been maintained almost down to our own times. Massachusetts, while she has promulgated in her BILL OF RIGHTS the importance and necessity of the public support of religion, and the worship of God, has authorized the legislature to require it only for Protestantism. The language of that bill of rights is remarkable for its pointed affirmation of the duty of government to support Christianity, and the reasons for it. "As," says the
third article, "the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through the community, but by the institution of the public worship of God, and of public instructions in piety, religion, and morality; therefore, to promote their happiness and to secure the good order and preservation of their government the people of this Commonwealth have a right to invest their legislature with power to authorize, and require, and the legislature shall from time to time authorize and require, the several towns, parishes, &c. &c. to make suitable provision at their own expense for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily." Afterwards there follow provisions, prohibiting any superiority of one sect over another, and securing to all citizens the free exercise of religion.
§ 1868. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. 27
§ 1869. It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.
§ 1870. But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that "religion or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence," 28 Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, at the same time has expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. "No man, or society of men," says he, "have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself." 29 The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without
a criminal disobedience or, the precepts or natural, as well as o.r revealed religion.
§ 1871. The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. 30 The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; 31 and even NewEngland, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals. 32 Apostacy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the .most atrocious triumphs over innocence and virtue. 33
§ 1872. Mr. Justice Blackstone, after having spoken with a manly freedom of the abuses in the Romish church respecting heresy; and, that Christianity had be on deformed by the demon of persecution upon the continent, and that the island of Great Britain had
not been entirely free from the scourge, 34 defends the final enactments against nonconformity in England, in the following set phrases, to which, without any material change, might be justly applied his own sarcastic remarks upon the conduct of the Roman ecclesiastics in punishing heresy. 35 "For nonconformity to the worship of the church," (says he,) "there is much more to be pleaded than for the former, (that is, reviling the ordinances of the church,) being a matter of private conscience, to the scruples of which our present laws have shown a very just, and Christian indulgence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may endanger the national church. There is always a difference to be made between
toleration and establishment." 36 Let it be remembered, that at the very moment, when the learned commentator was penning these cold remarks, the laws of England merely tolerated protestant dissenters in their public worship upon certain conditions, at once irritating and degrading; that the test and corporation acts excluded them from public and corporate offices, both of trust and profit; that the learned commentator avows, that the object of the test and corporation acts was to exclude them from office, in common with Turks, Jews, heretics, papists, and other sectaries; 37 that to deny the Trinity, however conscientiously disbelieved, was a public offence, punishable by fine and imprisonment; and that, in the rear of all these disabilities and grievances, came the long list of acts against papists, by which they were reduced to a state of political and religious slavery, and cut off from some of the dearest privileges of mankind. 38
§ 1873. It was under a solemn consciousness of the. dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign 'annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. 39 The situation, too, of the different states
equally proclaimed the policy, as Well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife, and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the. Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship. 40
§ 1874. The next clause of the amendment respects the liberty of the press. "Congress shall make no law abridging the freedom of speech, or of the press." 41 That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to
be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen. A man might, out of mere malice and revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn all his domestic peace, and embitter his parental affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; might prejudice all a man's civil, and political, and private rights; and might stir up sedition, rebellion, and treason even against the government itself, in the wantonness of his passions, or the corruption of his heart. Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance, to make up for the deficiencies of the law; and assassinations, and savage cruelties, would be perpetrated with all the frequency belonging to barbarous and brutal communities. It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation; 42 and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. 43 It is neither more nor less, than an expansion of the great doctrine, recently
brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty, and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form.
§ 1875. A little attention to the history of other countries in other ages will teach us the vast importance of this right. It is notorious, that, even to this day, in some foreign countries it is a crime to speak on any subject, religious, philosophical, or political, what is contrary to the received opinions of the government, or the institutions of the country, however laudable may be the design, and however virtuous may be the motive. Even to animadvert upon the conduct of public men, of rulers, or representatives, in terms of the strictest truth and courtesy, has been, and is deemed, a scandal upon the supposed sanctity of their stations and characters, subjecting the party to grievous punishment. In some countries no works can be printed at all, whether of science, or literature, or philosophy, without the previous approbation of the government; and the press has been shackled, and compelled to speak only in the timid language, which the cringing courtier, or the capricious inquisitor, should license for publication. The Bible itself, the common inheritance not merely of Christendom, but of the world, has been put exclusively under the control of government; and not allowed to be seen, or heard, except in a language unknown to the common inhabitants of the country.
To publish a translation in the vernacular tongue, has been in former times a flagrant offence.
§ 1876. The history of the jurisprudence of England, (the most free and enlightened of all monarchies,) on this subject, will abundantly justify this statement. The art of printing, soon after its introduction, (we are told,) was looked upon, as well in England, as in other countries, as merely a matter of state, and subject to the coercion of the crown. It was therefore regulated in England by the king's proclamations, prohibitions, charters of privilege, and licenses, and finally by the decrees of the court of Star Chamber; which limited the number of printers, and of presses, which each should employ, and prohibited new publications, unless previously approved by proper licensers. On the demolition of this odious jurisdiction, in 1641, the long parliament of Charles the First, after their rupture with that prince, assumed the same powers, which the Star Chamber exercised, with respect to licensing books; and during the commonwealth, (such is human frailty, and the love of power, even in republics!) they issued their ordinances for that purpose, founded principally upon a Star Chamber decree, in 1637. After the restoration of Charles the Second, a statute on the same subject was passed, copied, with some few alterations, from the parliamentary ordinances. The act expired in 1679, and was revived and continued for a few years after the revolution of 1688. Many attempts were made by the government to keep it in force; but it was so strongly resisted by parliament, that it expired in 1694, and has never since been revived. 44 To this
very hour the liberty of the press in England stands upon this negative foundation. The power to restrain it is dormant, not dead. It has never constituted an article of any of her numerous bills of rights; 'and that of the revolution of 1688, after securing other civil and political privileges, left this without notice, as unworthy of care, or fit for restra int.
§ 1877. This short review exhibits, in a striking light, the gradual progress of opinion in favour of the liberty of publishing and printing opinions in England, and the frail and uncertain tenure, by which it has been held. Down to this very day it is a contempt of parliament, and a high breach of privilege, to publish the speech of any member of either house, without its consent. 45 It is true, that it is now silently established by the course of popular opinion to be innocent in practice, though not in law. But it is notorious, that within the last fifty years the publication was connived at, rather than allowed; and that for a considerable time the reports were given in a stealthy manner, covered up under the garb of speeches in a fictitious assembly.
§ 1878. There is a good deal of loose reasoning on the subject of the liberty of the press, as if its inviolability were constitutionally such, that, like the king of England, it could do no wrong, and was free from every inquiry, and afforded a perfect sanctuary for every abuse; that, in short, it implied a despotic sovereignty to do every sort of wrong, without the slightest accountability to private or public justice. Such a notion is too extravagant to be held by any sound constitutional lawyer, with regard to the rights and duties belonging to governments generally, or to the state gov-
ernments in particular. If it were admitted to be correct, it might be justly affirmed, that the liberty of the press was incompatible with the permanent existence of any free government. Mr. Justice Blackstone has remarked, that the liberty of the press, properly understood, is essential to the nature of a free state; but, that this consists in laying, no previous restraints upon publications, and not in freedom from censure for criminal matter, when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. But, if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done before, and since the revolution (of 1688), is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and. good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left;the disseminating, or making public of bad sentiments, destructive of the ends of society, is the crime, which society corrects. A man may be allowed to keep poisons in his closet; but not publicly to vend them as cordials. And after some additional reflections, he concludes with this memorable
sentence: "So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press." 46
§ 1879. De Lolme states the same view of the subject; and, indeed, the liberty of the press, as understood by all England, is the right to publish without any previous restraint, or license; so, that neither the courts of justice, nor other persons, are authorized to take notice of writings intended for the press; but are confined to those, which are printed. And, in such cases, if their character is questioned, whether they are lawful, or libellous, is to be tried by a jury, according to due proceedings at law. 47 The noblest patriots of England, and the most distinguished friends of liberty, both in parliament, and at the bar, have never contended for a total exemption from responsibility, but have asked only, that the guilt or innocence of the publication should be ascertained by a trial by jury. 48
§ 1880. It would seem, that a very different view of the subject was taken by a learned American commentator, though it is not, perhaps, very easy to ascertain the exact extent of his opinions. In one part of his disquisitions, he seems broadly to contend, that the security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but, from legislative restraint also; and that this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws. 49 In other places, he seems as explicitly to admit, that the liberty of the press does not include the right to do injury to the reputation of another, or to take from him the enjoyment of his rights or property, or to justify slander and calumny upon him, as a private or public man. And yet it is added, that every individual certainly has a right to speak, or publish his sentiments on the measures of government. To do this without restraint,
control, or fear of punishment for of doing, is that which constitutes the genuine freedom of the press. 50 Perhaps the apparent contrariety of these opinions may arise from mixing up, in the same disquisitions, a discussion of the right of the state governments, with that of the national government, to interfere in cases of this sort, which may stand upon very different foundations. Or, perhaps, it is meant to be contended, that the liberty of the press, in all cases, excludes public punishment for public wrongs; but not civil redress for private wrongs, by calumny and libels.
§ 1881. The true mode of considering the subject is, to examine the case with reference to a state government, whose constitution, like that, for instance, of Massachusetts, declares, that "the liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in this commonwealth." What is the true interpretation of this clause? Does it prohibit the legislature from passing any laws, which shall control the licentiousness of the press, or afford adequate protection to individuals, whose private comfort, or good reputations are assailed, and violated by the press? Does it stop the legislature from passing any laws to punish libels and inflammatory publications, the object of which is to excite sedition against the government, to stir up resistance to its laws, to urge on conspiracies to destroy it, to create odium and indignation against virtuous citizens, to compel them to yield up their rights, or to make them the objects of popular
vengeance? Would such a declaration in Virginia (for she has, on more than one occasion, boldly proclaimed, that the liberty of the press ought not to be restrained,) prohibit the legislature from passing laws to punish a man, who should publish, and circulate writings, the design of which avowedly is to excite the slaves to general insurrection against their masters, or to inculcate upon them the policy of secretly poisoning, or murdering them? In short, is it contended, that the liberty of the press is so much more valuable, than all other rights in society, that the public safety, nay the existence of the government itself is to yield to it? Is private redress for libels and calumny more important, or more valuable, than the maintenance of the good order, peace, and safety of society? It would be difficult to answer these questions in favour of the liberty of the press, without at the same time declaring, that such a licentiousness belonged, and could belong only to a despotism; and was utterly incompatible with the principles of a free government.
§ 1882. Besides: -- What is meant by restraint of the press, or an abridgment of its liberty? If to publish without control, or responsibility be its genuine meaning; is not that equally violated by allowing a private compensation for damages, as by a public fine? Is not a man as much restrained from doing a thing by the fear of heavy damages, as by public punishment? Is he not often as severely punished by one, as by the other? Surely, it can make no difference in the case, what is the nature or extent of the restraint, if all restraint is prohibited. The legislative power is just as much prohibited from one mode, as from another. And it may be asked, where is the
ground for distinguishing between public and private amesnability for the wrong? The prohibition itself states no distinction. It is general;it is universal. Why, then, is the distinction attempted to be made? Plainly, because of the monstrous consequences flowing from such a doctrine. It would prostrate all personal liberty, all private peace, all enjoyment of property, and good reputation. These are the great objects, for which government is instituted; and, if the licentiousness of the press must endanger, not only. these, but all public rights and public liberties, is it not as plain, that the right of government to punish the violators of them (the only mode of redress, which it can pursue) flows from the primary duty of self-preservation? No one can doubt the importance, in a free government, of a right to canvass the acts of public men, and the tendency of public measures, to censure boldly the conduct of rulers, and to scrutinize closely the policy, and plans of the government. This is the great security of a free government. If we would preserve it, public opinion must be enlightened; political vigilance must be inculcated; free, but not licentious, discussion must be encouraged. But the exercise of a right is essentially different from an abuse of it. The one is no legitimate inference from the other. Common sense here promulgates the broad doctrine, sic utere tuo, ut non alienurn laedas; so exercise your own freedom, as not to infringe the rights of others, or the public peace and safety.
§ 1883. The doctrine laid down by Mr. Justice Blackstone, respecting the liberty of the press, has not been repudiated (as far as is known) by any solemn decision of any of the state courts, in respect to their own municipal jurisprudence. On the contrary,
it has been repeatedly affirmed in several or the states, notwithstanding their constitutions, or laws recognize, that "the liberty or the press ought not to be restrained," or more emphatically, that "the liberty of the press shall be inviolably maintained." This is especially true in regard to Massachusetts, South-Carolina, and Louisiana. 51 Nay; it has farther been held, that the truth of the facts is not alone sufficient to justify the publication, unless it is done from good motives, and for justifiable purposes, or, in other words, on an occasion, (as upon the canvass of candidates for public office,) when public duty, or private right requires it. 52 And the very circumstance, that, in the constitutions of several other states, provision is made for giving the truth in evidence, in prosecutions for libels for official conduct, when the matter published is proper for public information, is exceedingly strong to show, how the general law is understood. The exception establishes in all other cases the propriety of the doctrine. And Mr. Chancellor Kent, upon a large survey of the whole subject, has not scrupled to declare, that "it has become a constitutional principle in this country, that every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and, that no law can rightfully be passed, to restrain, or abridge the freedom of the press." 53
§ 1884. Even with these reasonable limitations, it is not an uncommon opinion among European states
men of high character and extensive attainments, that the liberty of the press is incompatible with the permanent existence of any free government; nay, of any government at all. That, if it be true, that free governments cannot exist without it, it is quite as certain, that they cannot exist with it. In short, that the press is a new element in modern society; and likely, in a great measure, to control the power of armies, and the sovereignty of the people. That it works with a silence, a cheapness, a suddenness, and a force, which may break up, in an instant, all the foundations of society, and. move public opinion, like a mountain torrent, to a general desolation of every thing within its reach.
§ 1885. Whether the national government possesses a power to pass any law, not restraining the liberty of the press, but punishing the licentiousness of the press, is a question of a very different nature, upon which the commentator abstains from expressing any opinion. In 1798, Congress, believing that they possessed a constitutional authority for that purpose, passed an act, punishing all unlawful combinations, and conspiracies, to oppose the measures of the government, or to impede the operation of the laws, or to intimidate and prevent any officer of the United States from undertaking, or executing his duty. The same act further provided, for a public presentation, and punishment by fine, and imprisonment, of all persons, who should write, print, utter, or publish any false, scandalous, and malicious writing, or writings against the government of the United States, or of either house of congress, or of the president, with an intent to defame them, or bring them into contempt, or disrepute, or to excite against them the hatred of the good people of the United States; or to excite them to oppose any
law, or act of the president, in pursuance of law of his.constitutional powers; or to resist, or oppose, or defeat any taw; or to aid, encourage, or abet any hostile designs of any foreign nation against the United States. And the same act authorized the truth to be given in evidence on any such prosecution; and the jury, upon the. trial, to determine the law and the fact, as in other cases. 54
§ 1886. This act was immediately assailed, as unconstitutional, both in the state legislatures, and the courts of law, where prosecutions were pending. Its constitutionality was deliberately affirmed by the courts of law; and in a report made by a committee of congress. It was denied by a considerable number of the states; but affirmed by a majority. It became one of the most prominent points of attack upon the existing administration; and the appeal thus made was, probably, more successful with the people, and more consonant with the feelings of the times, than any other made upon that occasion. The act, being limited to a short period, expired by its own limitation, in March, 1801; and has never been renewed. It has continued, down to this very day, to be a theme of reproach with many of those, who have since succeeded to power. 55
§ 1886. The remaining clause secures "the right of the people peaceably to assemble and to petition the government for a redress of grievances."
§ 1887. This would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions. It is impossible, that it could be practically denied, until the spirit of liberty had wholly disappeared, and the people had become so servile and debased, as to be unfit to exercise any of the privileges of freemen.1
§ 1888. The provision was probably borrowed from the declaration of rights in England, on the revolution of 1688, in which the right to petition the king for a redress of grievances was insisted on; and the right to petition parliament in the like manner has been provided for, and guarded by statutes passed before, as well as since that period. 56 Mr. Tucker has indulged himself in a disparaging criticism upon the phraseology of this clause, as savouring too much of that style of condescension, in which favours are supposed to be
granted. 57 But this seems to be quite overstrained; since it speaks the voice of the people in the language of prohibition, and not in that of affirmance of a right, supposed to be unquestionable, and inherent.
§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. 58 And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid
of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. 59
§ 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law."2 But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege. 60
§ 1892. The next amendment is: "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."
§ 1893. This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion. The billeting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril. In the
petition of right (4 Charles I.), it Was declared by parliament to be a great grievance. 61
§ 1894. The next amendment is: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue, but. upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things. to be seized."
§ 1895. This provision seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more. than the affirmance of a great constitutional doctrine of the common law. And its introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution. Although special warrants upon complaints under oath, stating the crime, and the party by name, against whom the accusation is made, are the only legal warrants, upon which an arrest can be made according to the law of England; 62 yet a practice had obtained in the secretaries' office ever since the restoration, (grounded on some clauses in the acts for regulating the press,) of issuing general warrants to take up, without naming any persons in particular, the authors, printers, and publishers of such obscene, or seditious libels, as were particularly specified in the warrant. When these acts expired, in 1694, the same practice was continued in every reign, and under every administration, except the four last years of Queen Anne's
reign, down to the year 1763. The general warrants, so issued, in general terms authorized the officers to apprehend all persons suspected, without naming, or describing any person in special. In the year 1763, the legality of these general warrants was brought before the King's Bench for solemn decision; and they were adjudged to be illegal, and void for uncertainty. 63
A warrant, and the complaint, on which the same is founded, to be legal, must not only state the name of the party, but also the time, and place, and nature of the offence with reasonable certainty.1
§ 1896. The next amendment is: "Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted." This is an exact transcript of a clause in the bill of rights, framed at the revolution of 1688. 64 The provision would seem to be wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct. 65 It was, however, adopted, as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts. 66 In those
times, a demand of excessive bail was often made against persons, who were odious to the court, and its favourites; and on failing to procure it, they were committed to prison. 67 Enormous fines and amercements were also sometimes imposed, and cruel and vindictive punishments inflicted. Upon this subject Mr. Justice Blackstone has wisely remarked, that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the Decemviri, were full of cruel punishments; the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished. Under the emperors severe laws were revived, and then the empire fell. 68
§ 1897. It has been held in the state courts, (and the point does not seem ever to have arisen in the courts of the United States,) that this clause does not apply to punishments inflicted in a state court for a crime against such state; but that the prohibition is addressed solely to the national government, and operates, as a restriction upon its powers. 69
§ 1898. The next amendment is: "The enumeration in the constitution of certain rights shall not be construed to deny, or disparage others retained by the people." This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and e converso, that
a negation in particular cases implies, an affirmation in all others. 70 The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights. 71
§ 1899. The next and last amendment is: "The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
§ 1900. This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty. 72 When this amendment was before congress, a proposition was moved, to insert the word "expressly" before "delegated," so as to read "the powers not expressly delegated to the United States by the constitution," &c. On that occasion it was remarked, that it is impossible to confine a government to the exercise of express powers. There must necessarily be admitted powers by implication, unless the constitution descended to the most minute details. 73 It is a general principle that all corporate
bodies possess all powers incident to a corporate capacity, without being absolutely expressed. The motion was accordingly negatived.1 Indeed, one of the great defects of the confederation was, (as we have already seen,) that it contained a clause, prohibiting the exercise of any power, jurisdiction, or right, not expressly delegated. 74 The consequence was, that congress were crippled at every step of their progress; and were often compelled by the very necessities of the times to usurp powers, which they did not constitutionally possess; and thus, in effect to break down all the great barriers against tyranny and oppression. 75
§ 1901. It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgment of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted. All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved. 76 The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words,
or the sense of the instrument. Stripped of the ingenious disguises, in which they are clothed, they are neither more nor less, than attempts to foist into the text the word "expressly;" to qualify, what is general, and obscure, what is clear, and defined. They make the sense of the passage bend to the wishes and prejudices of the interpreter; and employ criticism to support a theory, and not to guide it. One should suppose, if the history of the human mind did not furnish abundant proof to the contrary, that no reasonable man would contend for an interpretation founded neither in the letter, nor in the spirit of an instrument. Where is controversy to end, if we desert both the letter and the spirit? What is to become of constitutions of government, if they are to rest, not upon the plain import of their words, but upon conjectural enlargements and restrictions, to suit the temporary passions and interests of the day? Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and for ever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people.
§ 1902. It has been justly remarked, that the erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may in a particular manner be expected to flow from the establishment of a constitution, founded upon the total, or
partial incorporation of a number of distinct sovereignties. Time alone can mature and perfect so compound a system; liquidate the meaning of all the parts; and adjust them to each other in a harmonious and consistent whole. 77