Page images


[The following Amendments were proposed at the first session of the first Congress of the United States, which was begun and held at the city of New York, on the 4th of March, 1789, and were adopted by the requisite number of States. i Stat. 21.]

Of two constructions, either of which is warranted by the words of an amendment, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act so amended. Ex parte Cæsar Griffin, 25 Tex. Supp. 623; S. C. Chase, 364.

No limit can be imposed on the people when exercising their sovereign power in amending the Constitution. Ex parte Cæsar Griffin, 25 Tex. Supp. 623; S. C. Chase, 364.

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a Constitution for itself, and in that Constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of powers granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. Barron v. Mayor, 7 Pet. 243.

The amendments contain no expression indicating an intention to apply them to the State governments, and they can not be so applied. Barron v. Mayor, 7 Pet. 243.

All the amendments adopted by Congress at its first session, and afterwards sanctioned by the requisite number of States, were intended to apply to the General Government only, for the purpose of limiting and restricting its powers, but without any intention of limiting or controlling State legislation. Livingston v. Mayor, 8 Wend. 85; Murphy v. People, 2 Cow. 815; Jackson v. Wood, 2 Cow. 819; Livingston v. Moore, 7 Pet. 469; Barker v. People, 3 Cow. 686; Fox v. State, 5 How. 410; Comm. v. Hitchings, 71

ron v

Mass. 482; Comm. v. Pomeroy, 71 Mass. 486; James v. Comm. 12 S. &
R. 220; Bryan v. State, 4 Iowa, 349; Lincoln v. Smith, 27 Vt. 328 ; Bar-

layor, 7 Pet. 243; Withers v. Buckley, 20 How. 84; S. C. 29 Miss. 21; State v. Paul, 5 R. I. 185; State v. Shricker, 29 Mo. 265; North Mo. R. R. Co. v. Maguire, 49 Mo. 490; s. C. 20 Wall. 46; Hill v. State, 53 Geo. 472;. State v. Barnett, 3 Kans. 250; Pervear v. Commonwealth, 5 Wall. 475; Baker v. Wise, 16 Gratt. 139; State v. Millain, 3 Nev. 407; Twitchell v. Comm. 7 Wall. 321.

The prohibition in these amendments is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives Congress the power to legislate, including those portions of it remaining under territorial government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as plainly and firmly against any inroads which the Government might attempt, under the plea of implied or incidental powers. Dred Scott v. Sandford, 19 How. 393.

Congress can confer no power on any local government established by its authority to violate the provisions of the Constitution. Dred Scott v. Sandford, 19 How. 393.


1. 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 the Government for a redress of grievances.

[merged small][ocr errors]

Congress has no power to punish individuals for disturbing assemblies of peaceable citizens. That is the prerogative of the several States. It belongs to the preservation of the public peace and the fundamental rights of the people. U. S. v. Cruikshank, 92 U. S. 542; S. C. 1 Woods, 308.


1. A well regulated militia being necessary to the security of a free State, the right of the people to keep

a and bear arms shall not be infringed.

This provision is restrictive only of the powers of the Federal Government. State v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.

This amendment has no other effect than to restrict the powers of the National Government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to the several States. U.S. v. Cruikshank, 92 U.S. 542; S.C. 1 Woods, 308.

The word “arms” refers to the arms of a militiaman or soldier, and is used in its military sense. English v. State, 35 Tex. 473.

The provision does not prevent the passage of a law to prevent the carrying of concealed weapons. State v. Buzzard, 4 Ark. 18; Nunn v. State, i Geo. 243; State v. Chandler, 5 La. Ann. 489; State v. Smith, il La. Ann. 633; State v. Jumell, 13 La. Ann. 399.

A statute prohibiting the bearing of arms openly is in conflict with the Constitution, and invalid. Nunn v. State, i Geo. 243.

A statute prohibiting the carrying of dirks, daggers, slung shots, swordcanes, brass-knuckles, and bowie knives, is valid. English v. State, 35 Tex. 473.

A higher punishment may be prescribed for an unlawful assault with one of the dangerous weapons which it is lawful to carry than with another. Cockrum v. State, 24. Tex. 394.

ARTICLE III. 1. 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.

ARTICLE IV. 1. 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 persons or things to be seized.

This amendment can not affect proceedings under the authority of the States. It was not adopted with the intent to restrict the powers of the States, but to limit the power of the United States, and to prescribe fixed rules relative to searches and seizures under the authority of the National Government. Reed v. Rice, 2 J. J. Marsh. 44; Smith v. State, 1 How.71; Weimer v. Bunbury, 30 Mich. 201.

This amendment only protects those who are parties to the Constitution. Comm. v. Griffith, 19 Mass. 11.

A statute allowing a supervisor of internal revenue to issue a summons for the production of books and papers is valid. Ex parte Meador, 1 Abb. C. C. 317; Ex parte Mark Strouse, 1 Saw. 605; Stanwood v. Green, 2 Abb. C. C. 184.

This provision applies to criminal cases only. Ex parte Meador, i Abb. C. C. 317.

This provision does not prohibit a search or seizure made in attempting to execute a military order issued under a law to prevent citizens from evading a draft. Allen v. Colby, 45 N. H. 544.

A statute which authorizes the production of books and papers on a proceeding for a forfeiture under the internal revenue laws is valid. U. S. v. Distillery, 8 C. L. N. 57.

A warrant of commitment which does not state some good cause certain, supported by oath, is illegal. Ex parte Burford, 3 Cranch, 448.



Provisions for searches and seizures to aid in the collection of revenue by duties, are not repugnant to this clause. In the Matter of John R. Platt et al. 7 Ben, 261; S. C. 19 1. R. R. 132.

This article has no reference to civil proceedings for the recovery of debts of which a search warrant is not made a part. The process issued from the treasury to enforce the payment of balances due from accounting officers is termed a warrant of distress. The name bestowed upon it can not affect its constitutional validity. In substance, it is an extent authorizing a levy for the satisfaction of a debt, and as no other authority is conferred to make searches or seizures than is ordinarily embraced in every execution issued upon a recognizance, or a stipulation in the admiralty, it is not invalid because it is issued without the support of an oath or affirmation. Murray v. Hoboken Co. 18 How. 272.

An order of the war department directing the arrest without warrant of persons liable to draft is void. Ex parte Field, 5 Blatch. 63.

5 An executive officer can justify his acts by showing a regular warrant from a magistrate having jurisdiction over the subject, without showing that it was founded on a complaint under oath. It will not do to require of executive officers before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of legal process, as officers so situated would be necessarily obliged to judge for themselves, and would often judge wrong as to the lawfulness of the authority under which they are required to act. • It is a general and known principle that executive officers obliged by law to serve legal writs and processes are protected in the rightful discharge of their duty, if those precepts are sufficient in point of form, and issue from a court or magistrate having jurisdiction of the subject-matter. Sanford v. Nichols, 13 Mass. 286.

In order to protect an executive officer, it is necessary that the precept under which the officer acts in arresting the body or seizing the goods, and especially in entering a dwelling house by force, shall be lawful on the face of it. Sanford v. Nichols, 13 Mass. 286.

In the case of smuggled goods it may be difficult to describe them with minuteness, and this is not required. It is not difficult to mention the kind of goods to be searched for, or at least to describe them as having been taken out of some certain vessel, so that the officer who shall undertake such a search, may not conceive himself at liberty to rifle the house and disturb the arrangements of the family occupying it. Sanford v. Nichols, 13 Mass. 286.

A direction to search for goods, wares and merchandise without any specification of their character, quality, number, weight or any other circumstance tending to distinguish them, is not such a particular description as the Constitution requires. Sanford v. Nichols, 13 Mass. 286.

A warrant directing a search in the houses of Thomas Sanford & Co. will not justify a search in the house of Thomas Sanford. Sanford v. Nichols, 13 Mass. 286.

1. No

ARTICLE V. person

shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment (a) 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 ; nor shall any person be subject, for the same offense, to be twice put in jeopardy (6) of life or limb; nor shall be compelled in any criminal case to be a witness (c) against himself; nor be deprived of life, liberty, or property, without due process (d) of law ; nor shall private property be taken for public use (e) without just compensation.

« PreviousContinue »