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Commentaries on the Constitution of the United States - Bruce Frohnen, The American Republic: Primary Sources 
The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002).
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Commentaries on the Constitution of the United States
Joseph Story (1779–1845) was born in Marblehead, Massachusetts, a stronghold of Federalist sentiment. Nonetheless, he was a committed supporter of the Democratic-Republican Party. Elected to the House of Representatives before he had reached the age of thirty, at thirty-one he was named to the Supreme Court by President James Madison. Here he continued an established career publishing commentaries on American law and, in 1833, wrote the highly influential Commentaries on the Constitution of the United States. Despite Story’s commitment to the Democratic-Republicans—long held to be the party of states’ rights—he consistently upheld a reading of the Constitution emphasizing the supremacy of the central government and the requirements for well-ordered liberty. In this selection he discusses the context and limits of rights protected by several of the Constitution’s first ten amendments.
Commentaries on the Constitution of the United States
Amendments to the Constitution
. . . §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.2 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 rightfully 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 govern-ment 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.3 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.4 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.”5 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 Common wealth 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.6
§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,”7 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.”8 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 of the precepts of natural, as well as of 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.9 The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head;10 and even New-England, 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.11 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.12
§1872. Mr. Justice Blackstone, after having spoken with a manly freedom of the abuses in the Romish church respecting heresy; and, that Christianity had been deformed by the demon of persecution upon the continent, and that the island of Great Britain had not been entirely free from the scourge,13 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.14 “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.”15 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;16 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.17
§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.18 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 Arminian, 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.19
§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.”20 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 plain, 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 rights, person, property, or reputation;21 and so always, that he does not thereby disturb the public peace, or attempt to subvert the government.22 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.23 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 restraint.
§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.24 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 governments 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.”25
§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.26 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.27
§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.28 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 so doing, is that which constitutes the genuine freedom of the press.29 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 Viriginia (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 alienum 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 of the states, notwithstanding their constitutions, or laws recognize, that “the liberty of 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.30 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.31 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.”32
§1884. Even with these reasonable limitations, it is not an uncommon opinion among European statesmen 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 law; 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.33
§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.34
§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.35
§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.36 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.37 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.38 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.39
§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.”40 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.41
§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 billetting 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.42
§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;43 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.44 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.45
§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 1688.46 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.47 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.48 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.49 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.50
§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.51
§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 é converso, that a negation in particular cases implies an affirmation in all others.52 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.53
§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.54 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 con-stitution descended to the most minute details.55 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.56 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.57 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.58
§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.59 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 lberties. 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.60
[1. ] See Grotius, B. 2, ch. 20, § 44 to 51; Vattell, B. 1, ch. 12, § 125, 126; Hooker’s Ecclesiastical Polity, B. 5, § 1 to 10; Bynkershoeck, 2 P. J. Lib. 2, ch. 18; Woodeson’s Elem. Lect. 3, p. 49; Burlemaqui, Pt. 3, ch. 3, p. 171, and Montesq. B. 24, ch. 1 to ch. 8, ch. 14 to ch. 16, B. 25, ch. 1, 2, 9, 10, 11, 12.
[2. ] See Burlemaqui, Pt. 3, ch. 3, p. 171, &c.; 4 Black. Comm. 43.
[3. ] 2 Kent’s Comm. Lect. 34, p. 35 to 37; Rawle on Const. ch. 10, p. 121, 122.
[4. ] Montesq. Spirit of Laws, B. 24, ch. 3.
[5. ] Montesq. Spirit of Laws, B. 24, ch. 5.
[6. ] See 2 Lloyd’s Deb. 195, 196.
[7. ] Virginia Bill of Rights, 1 Tuck. Black. Comm. App. 296; 2 Tuck. Black. Comm. App. note G. p. 10, 11.
[8. ] Lord King’s Life of Locke, p. 373.
[9. ] Lloyd’s Deb. 195.
[10. ] 4 Black. Comm. 41 to 59.
[11. ] Ante, Vol. I. § 53, 72, 74.
[12. ] See 4 Black. Comm. 43 to 59.
[13. ] “Entirely”! Should he not have said, never free from the scourge, as more conformable to historical truth?
[14. ] Black. Comm. 45, 46.—His words are: “It is true, that the sanctimonious hypocrisy of the Canonists went, at first, no further, than enjoining penance, excommunication, and ecclesiastical deprivation for heresy, though afterwards they proceeded to imprisonment by the ordinary, and confiscation of goods in pios usus. But in the mean time they had prevailed upon the weakness of bigotted princes to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offence; the Romish Ecclesiastics determining, without appeal, whatever they pleased, to be heresy, and shifting off to the secular arm the odium and the drudgery of executions, with which they themselves were too tender and delicate to intermeddle. Nay, they presented to intercede, and pray in behalf of the convicted heretic, ut citra mortis periculum sententia circum eum moderatur, well knowing, at the same time, that they were delivering the unhappy victim to certain death.” 4 Black. Comm. 45, 46. Yet the learned author, in the same breath, could calmly vindicate the outrageous oppressions of the Church of England upon Catholics and Dissenters with the unsuspecting satisfaction of a bigot.
[15. ] 4 Black. Comm. 51, 52.
[16. ] 1 Black. Comm. 58.
[17. ] 1 Black. Comm. 51 to 59.—Mr. Tucker, in his Commentaries on Blackstone, has treated the whole subject in a manner of most marked contrast to that of Mr. J. Blackstone. His ardour is as strong, as the coolness of his adversary is humiliating, on the subject of religious liberty. 2 Tuck. Black. Comm. App. Note G. p. 3, &c. See also 4 Jefferson’s Corresp. 103, 104; Jefferson’s Notes on Virginia, 264 to 270; 1 Tuck. Black. Comm. App. 296.
[18. ] 2 Lloyd’s Debates, 195, 196, 197.—“The sectarian spirit,” said the late Dr. Currie, “is uniformly selfish, proud, and unfeeling.” (Edinburgh Review, April, 1832, p. 125.)
[19. ] See 2 Kent’s Comm. Lect. 24, (2d edition, p. 35 to 37); Rawle on Const. ch. 10, p. 121, 122; 2 Lloyd’s Deb. 195. See also Vol. II. § 621.
[20. ] In the convention a proposition was moved to insert in the constitution a clause, that “the liberty of the press shall be inviolably preserved;” but it was negatived by a vote of six states against five. Journal of Convention, p. 377.
[21. ] Tuck. Black. Comm. App. 297 to 299; 2 Tuck. Black. Comm. App. 11; 2 Kent’s Comm. Lect. 24, p. 16 to 26.
[22. ] Rawle on Const. ch. 10, p. 123, 124; 2 Kent’s Comm. Lect. 24, p. 16 to 26; De Lolme, B. 2, ch. 12, 13; 2 Lloyd’s Deb. 197, 198.
[23. ] 4 Black. Comm. 152, note; 2 Tucker’s Black. Comm. App. Note G. p. 12, 13; De Lolme, B. 2, ch. 12, 13; 2 Kent’s Comm. Lect. 24, (2d edition, p. 17, 18, 19.)
[24. ] See Comyn’s Dig. Parliament, G. 9.
[25. ] 1 Black. Comm. 152, 153; Rex v. Burdett, 4 Barn. & Ald. R. 95.— Mr. Justice Best in Rex v. Burdett, (4 Barn. & Ald. R. 95, 132,) said “my opinion of the liberty of the press is, that every man ought to be permitted to instruct his fellow subjects; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country; that he may point out errors in the measures of public men; but, he must not impute criminal conduct to them. The liberty of the press cannot be carried to this extent, without violating another equally sacred right, the right of character. This right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends.”
[26. ] De Lolme, B. 2, ch. 12, 291 to 297.
[27. ] See also Rex v. Burdett, 4 Barn. & Ald. 95.—The celebrated act of parliament of Mr. Fox, giving the right to the jury, in trials for libels, to judge of the whole matter of the charge, and to return a general verdict, did not affect to go farther. The celebrated defence of Mr. Erskine, on the trial of the Dean of St. Asaph, took the same ground. Even Junius, with his severe and bitter assaults upon established authority and doctrines, stopped here. “The liberty of the press,” (said he,) “is the palladium of all the civil, political, and religious rights of an Englishman, and the right of juries to return a general verdict in all cases whatsoever, is an essential part of our constitution.” “The laws of England, provide as effectually, as any human laws can do, for the protection of the subject in his reputation, as well as in his person and property. If the characters of private men are insulted, or injured, a double remedy is open to them, by action and by indictment.”—“With regard to strictures upon the characters of men in office, and the measures of government, the case is a little different. A considerable latitude must be allowed in the discussion of public affairs, or the liberty of the press will be of no benefit to society.” But he no where contends for the right to publish seditious libels; and, on the contrary, through his whole reasoning he admits the duty to punish those, which are really so.
[28. ] 2 Tuck. Black. Comm. App. 20; 1 Tuck. Black. Comm. App. 298, 299.
[29. ] 2 Tuck. Black. Comm. App. 28 to 30; 1 Tuck. Black. Comm. App. 298, 299.
[30. ]Commonwealth v. Clap, 4 Mass. R. 163; Commonwealth v. Blanding, 3 Pick. R. 304; The State v. Lehre, 2 Rep. Const. Court, 809; 2 Kent’s Comm. Lect. 24, (2d edition, p. 17 to 24.)
[31. ] Ibid.
[32. ] 1 Kent’s Comm. Lect. 24, (2d edition, p. 17 to 24.) See also Rawle on Const. ch. 10, p. 123, 124.
[33. ] Act of 14th July, 1798, ch. 91.
[34. ] The learned reader will find the subject discussed at large in many of the pamphlets of that day, and especially in the Virginia Report, and Resolutions of the Virginia Legislature, in December, 1798, and January, 1800; in the Report of a Committee of congress on the Alien and Sedition laws, on the 25th of February, 1799; in the Resolutions of the legislatures of Massachusetts and Kentucky, in 1799; in Bayard’s Speech on the Judiciary act, in 1802; in Addison’s charges to the grand jury, in Pennsylvania, printed with his Reports; in 2 Tucker’s Black. Comm. App. note G. p. 11 to 30. It is surprising, with what facility men glide into the opinion, that a measure is universally deemed unconstitutional, because it is so in their own opinion, especially if it has become unpopular. It has been often asserted, by public men, as the universal sense of the nation, that this act was unconstitutional; and that opinion has been promulgated recently, with much emphasis, by distinguished statesmen; as we have already had occasion to notice. What the state of public and professional opinion on this subject now is, it is, perhaps, difficult to determine. But it is well known, that the opinions then deliberately given by many professional men, and judges, and legislatures, in favour of the constitutionality of the law, have never been retracted. See Vol. III. § 1288, 1289, and note.
[35. ] See 2 Lloyd’s Debates, 197, 198, 199.
[36. ] See 1 Black. Comm. 143; 5 Cobbett’s Parl’y. Hist. p. 109, 110; Rawle on Const. ch. 10, p. 124; 3 Amer. Museum, 420; 2 Kent’s Comm. Lect. 24, p. 7, 8.
[37. ] 1 Tucker’s Black. Comm. App. 299.
[38. ] 1 Tucker’s Black. Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd’s Debates, 219, 220.
[39. ] It would be well for Americans to reflect upon the passage in Tacitus, (Hist. IV. ch. 74): “Nam neque quies sine armis, neque arma sine stipendiis, neque stipendia sine tributis, haberi queunt.” Is there any escape from a large standing army, but in a well disciplined militia? There is much wholesome instruction on this subject in 1 Black. Comm. ch. 13, p. 408 to 417.
[40. ] 5 Cobbett’s Parl. Hist. p. 110; 1 Black. Comm. 143, 144.
[41. ] 1 Tucker’s Black. Comm. App. 300.
[42. ] 2 Cobbett’s Parl. Hist. 375; Rawle on Const. ch. 10, p. 126, 127; 1 Tucker’s Black. Comm. App. 300, 301; 2 Lloyd’s Debates, 223.
[43. ] And see Ex parte Burford, 3 Cranch, 447; 2 Lloyd’s Deb. 226, 227.
[44. ]Money v. Leach, 3 Burr, 1743; 4 Black. Comm. 291, 292, and note ibid. See also 15 Hansard’s Parl. Hist. 1398 to 1418, (1764); Bell v. Clapp, 10 John. R. 263; Sailly v. Smith, 11 John. R. 500; 1 Tucker’s Black. Comm. App. 301; Rawle on Const. ch. 10, p. 127.—It was on account of a supposed repugnance to this article, that a vehement opposition was made to the alien act of 1798, ch. 75, which authorized the president to order all such aliens, as he should judge dangerous to the peace and safety of the United States, or have reasonable grounds to suspect of any treasonable, or secret machinations against the government to depart out of the United States; and in case of disobedience, punished the refusal with imprisonment. That law having long since passed away, it is not my design to enter upon the grounds, upon which its constitutionality was asserted or denied. But the learned reader will find ample information on the subject in the report of a committee of congress, on the petitions for the repeal of the alien and sedition laws, 25th of February, 1799; the report and resolutions of the Virginia legislature of 7th of January, 1800; Judge Addison’s charges to the grand jury in the Appendix to his reports; and 1 Tucker’s Black. Comm. App. 301 to 304; Id. 306. See also Vol. III. § 1288, 1289, and note.
Mr. Jefferson has entered into an elaborate defence of the right and duty of public officers to disregard, in certain cases, the injunctions of the law, in a letter addressed to Mr. Colvin in 1810. (4 Jefferson’s Corresp. 149, 151) On that occasion, he justified a very gross violation of this very article by General Wilkinson, (if, indeed, he did not authorize it,) in the seizure of two American citizens by military force, on account of supposed treasonable conspiracies against the United States, and transporting them, without any warrant, or order of any civil authority, from New-Orleans to Washington for trial. They were both discharged from custody at Washington by the Supreme Court, upon a full hearing of the case. (Ex parte Bollman & Swartout, 4 Cranch, 75 to 136) Mr. Jefferson reasons out the whole case, and assumes, without the slightest hesitation, the positive guilt of the parties. His language is: “Under these circumstances, was he (General Wilkinson) justifiable (1.) in seizing notorious conspirators? On this there can be but two opinions; one, of the guilty, and their accomplices; the other, that of all honest men!!! (2.) In sending them to the seat of government, when the written law gave them a right to trial by jury? The danger of their rescue, of their continuing their machinations, the tardiness and weakness of the law, apathy of the judges, active patronage of the whole tribe of lawyers, unknown disposition of the juries, an hourly expectation of the enemy, salvation of the city, and of the Union itself, which would have been convulsed to its centre, had that conspiracy succeeded; all these constituted a law of necessity and self-preservation; and rendered the salus populi supreme over thewrittenlaw!!!” Thus, the constitution is to be wholly disregarded, because Mr. Jefferson has no cofidence in judges, or juries, or laws. He first assumes the guilt of the parties, and then denounces every person connected with the courts of justice, as unworthy of trust. Without any warrant or lawful authority, citizens are dragged from their homes under military force, and exposed to the perils of a long voyage, against the plain language of this very article; and yet three years after they are discharged by the Supreme Court, Mr. Jefferson uses this strong language.
[45. ] See Ex parte Burford, 3 Cranch, 447.
[46. ] 5 Cobbett’s Parl. Hist. 110.
[47. ] 2 Elliot’s Debates, 345.
[48. ] See 2 Lloyd’s Debates, 225, 226; 3 Elliot’s Debates, 345.
[49. ] Rawle on Const. ch. 10, p. 130, 131.
[50. ] 4 Black. Comm. 17. See De Lolme, B. 2, ch. 16, p. 366, 367, 368, 369.
[51. ] See Barker v. The People, 3 Cowen’s R. 686; James v. Commonwealth, 12 Sergeant and Rawle’s R. 220. See Barron v. Mayor of Baltimore, 7 Peters’s R. (1833.)
[52. ] See ante, Vol. I. § 448; The Federalist, No. 83.
[53. ] The Federalist, No. 84; ante, Vol. III. § 1852 to 1857; 1 Lloyd’s Debates, 433, 437; 1 Tucker’s Black. Comm. App. 307, 308.
[54. ] See 1 Tucker’s Black. Comm. App. 307, 308, 309.
[55. ] Mr. Madison added, that he remembered the word “expressly” had been moved in the Virginia Convention by the opponents to the ratification; and after a full and fair discussion, was given up by them, and the system allowed to retain its present form. 2 Lloyd’s Debates, 234.
[56. ] 2 Lloyd’s Deb. 243, 244; McCulloh v. Maryland, 4 Wheat. R. 407; Martin v. Hunter, 1 Wheat. R. 325; Houston v. Moore, 5 Wheat. R. 49; Anderson v. Dunn, 6 Wheat. R. 225, 226.
[57. ] Confederation, Article 2, ante Vol. I. § 230.
[58. ] The Federalist, No. 33, 38, 42, 44; ante Vol. I. § 269.
[59. ]McCulloh v. Maryland, 4 Wheat. R. 406, 407; ante Vol. I. § 433.
[60. ] The Federalist, No. 82. See also Mr. Hume’s Essays, Vol. I. Essay on the Rise of Arts and Sciences.