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CHAPTER III. •
GENERAL LIMITATIONS UPON THE POWERS OF THE UNITED
$ 225. Thus far, in the course of this work, I have endeavored to explain what the Constitution is, and who were its authors; then passing from this general survey to the instrument itself, have exhibited the fundamental ideas upon which the government of the United States is based, and described its outward form and structure. We now proceed to consider its powers. In explaining and illustrating the positive powers which are conferred by affirmative language of the Constitution, the natural order requires us to take up separately the Legislative, the Executive, and the Judicial. But before commencing this special investigation, there are some considerations to be submitted which affect the whole government, which apply to all departments alike.
§ 226. As has already been stated more than once, the government of the United States is one of limited powers. The people have not committed to it their own complete functions of legislation and administration. One portion they have retained dormant in their own hands; special capacities and attributes they have conferred upon the national government; the residue they have intrusted to the separate states. In order to confine their immediate agents within the proper bounds, the people have inserted in the organic law various restrictions, stated with the utmost care, so that the rights of the individual shall be guarded from the encroachments of power.
Let us now direct our attention to the limitations upon the governmental power; let us endeavor to ascertain their nature, and the extent of their negative influence.
They are of two classes. 1st. Those which are expressed in the Constitution in positive terms; and 2d. Those which are implied from the general nature of the government, and the design of the instrument by which that government is created.
$ 227. We are to examine those restraints and limitations which are imposed upon the general government and are embodied in express negative language of the Constitution. An examination of the various provisions of the organic law will disclose the fact that most of these express negative clauses apply with equal force to the Legislature, the Executive, and the Judiciary. Some, however, are confined in their operation to a single one of these departments, generally to Congress. These latter will be passed by for the present, and will be examined in those subsequent chapters which treat of the legislative, administrative, or judicial functions.
General Statement and Nature of these Limitations.
$ 228. The Constitution, as proposed by the convention and adopted by the people, contained almost none of the express, general, negative provisions which impose a limit upon the entire functions of the government. This omission of a Bill of Rights was made one of the strongest grounds of objection to that instrument during the canvas which preceded its final ratification. To meet this objection, it was urged by the authors of “The Federalist” and others, that our whole Constitution was in itself a Bill of Rights; that no arguments drawn from English history would apply to our condition ; that while the Parliament of Great Britain could do every thing, our own government had only those attributes which were granted to it; and that a denial of express powers not formally conferred, would be idle and absurd. These arguments, however, did not carry conviction, and immediately after the assembling of the new Congress, amendments were proposed and speedily ratified, which consist in a series of negations of any assumed power to perform certain enumerated acts. These express denials of the existence of certain attributes in the general government, constitute our national bill of rights, and apply to each department, and to all classes of officials. They are contained in the first eight articles of the amendments.
§ 229. The following is the substance of these important restraints.
No form of religion shall be established, nor shall the free exercise of religion be prohibited. The freedom of the press or of speech shall not be abridged. The right of the people peaceably to assemble, and to petition the government shall not be curtailed. Art. I.
The right of the people to bear and keep arms shall not be infringed. Art. II.
Soldiers shall not, in time of peace, be quartered in houses without the consent of the owners, nor in time of war, except in the manner prescribed by law. Art. III.
Unreasonable searches and seizures of persons, houses, papers, and effects are forbidden. No warrant shall be issued except upon probable cause, supported by oath, and particularly describing the place to be searched, and the persons or things to be seized. Art. IV.
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. No person shall be subject, for the same offence, to be put twice in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself ; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Art. V.
In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed ; and must be informed of the nature and cause of the accusation ; and must be confronted with the witnesses against him ; and may have compulsory process to obtain his own witnesses ; and may have the assistance of counsel in his defence. Art. VI.
The trial by jury shall be preserved in suits at common law, where the value in controversy shall exceed twenty dollars. Art. VII:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Art. VIII.
§ 230. The separate states have also adopted constitutions which contain these or similar limitations upon the local gorernments. It is a fact, therefore, that the entire legislative and administrative power of the whole country, whether wielded by the nation or by the states, is subject to restraints of the same general nature as those expressed in these clauses, and the rights and liberties of the people are guarded at all hands against encroachments from any source, as much as is consistent with the safety of the nation. It is true that the same construction may not be given to a provision identical in language, in all the states; the same exercise of governmental power may be regarded in one commonwealth as in accordance with, and in another as opposed to, the Bill of Rights which forms a part of both constitutions. This is a result which must flow from the delegation of functions to bodies politic that are in a measure independent of each other.
To whom are these negative Provisions addressed ?
$ 231. The first inquiry which suggests itself, and which I shall proceed to answer, is, upon whom are the provisions of the United States Constitution just quoted, binding; to whom are they addressed ? They are expressed in the most general language; do they therefore restrain the states as well as the nation ? or are they only applicable to the latter? This ques. tion has not often arisen in a practical form, for as the state constitutions, with few exceptions, have contained the whole of these muniments of individual liberty, their legislatures have been restrained by their own organic laws, if not by that of the nation. But the question may easily assume a very practical form and become of paramount importance. A state whose constitution contains limitations similar to those found in the fundamental law of the nation, may, through its legislative, administrative, and judicial departments, put an interpretation upon these provisions which is oppressive to its own inhabitants and destructive of their liberties. Could these inhabitants appeal to the national authorities, and bring these negations of the national Constitution to bear upon the local government ?
Or the state may abolish these restrictions in its own organic law, and, so far as itself is concerned, leave its government free to act at pleasure. There is certainly a growing feeling that the methods of administering justice both in civil and criminal cases, which we have borrowed from our English ancestors, are too cumbersome, and are as often hindrances as helps to the right. It has been suggested that the interests of the public would be advanced by abolishing the grand jury, and trial by jury, and introducing the more severe methods which are used in the continental nations of Europe. If public opinion in any state should become ripe for such a change, could that state so amend its own constitution as to abolish all of this time-honored procedure, and allow a person to be held to answer for a capital or otherwise. infamous offence, without a presentment or indictment of a grand jury? Could the state deprive the accused of the trial by jury, or compel him to be a witness against himself ? Could the state take the private property of its inhabitants without making just compensation ? or deprive them of life, liberty, or property, without due process of law ? or impose excessive fines, or inflict cruel and unusual punishments ? Some of the assumptions contained in this series of questions may well be called impossible; but others are certainly within the range of probability.
§ 232. The answer is that the general limitations contained in the United States Constitution, and which have been quoted, have reference only to the national government, and do not apply to the several states. They were not intended