Joseph Story: Amendments to the Constitution

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Amendments to the ConstitutionSec. 1851.Sec. 1852.Sec. 1853.Sec. 1854.Sec. 1855.Sec. 1856.Sec. 1857.Sec. 1858.Sec. 1859.Sec. 1860.Sec. 1861.Sec. 1862.Sec. 1863.Sec. 1864.Sec. 1865.Sec. 1866.Sec. 1867.Sec. 1868.Sec. 1869.Sec. 1870.Sec. 1871.Sec. 1872.Sec. 1873.Sec. 1874.Sec. 1875.Sec. 1876.Sec. 1877.Sec. 1878.Sec. 1879.Sec. 1880.Sec. 1881.Sec. 1882.Sec. 1883.Sec. 1884.Sec. 1885.Sec. 1886.Sec. 1886.Sec. 1887.Sec. 1888.Sec. 1889.Sec. 1890.Sec. 1891.Sec. 1892.Sec. 1893.Sec. 1894.Sec. 1895.Sec. 1896.Sec. 1897.Sec. 1898.Sec. 1899.Sec. 1900.Sec. 1901.Sec. 1902. FOOTNOTES
   1. Vol. I., B. 3, ch. 2.
   2. 2 Amer. Museum, 423, 424, 425; Id. 435; Id. 534; Id. 540, 543, 546; Id. 553.
   3. The Federalist, No. 8; 3 Amer. Museum, 78, 79; Id. 559.
   4. The Federalist, No. 84.
   5. Mr. Chancellor Kent has given an exact, though succinct history of the bills of rights, both in the mother country and the colonies, in 2 Kent's Comm. Lect. 24.
   6. 1 Lloyd's Debates, 430, 431, 432.
   7. The Federalist, No. 84.
   8. 1 Lloyd's Debates, 433, 437.
   9. The Federalist, No. 84. See 1 Lloyd's Debates, 428, 429, 430; 3 Amer. Museum, 559.
   10. It had, beyond all question, extraordinary influence in the convention; for upon a motion being made to appoint a committee to prepare a bill of rights, the proposition was unanimously rejected. Journal of Convention, p. 369. This fact alone shows, that it was at best deemed a subject of doubtful propriety; and that it formed no line of distinction between any of the parties in the convention. There will be found considerable reasoning on the subject in the debates in congress on the amendments proposed in 1729. See 1 Lloyd's Debates, 414 to 426; Id. 426 to 447.
   11. 2 Kent's Comm. Lect. 24, p. 6, (2d edition, p. 9,) and note Ibid.; 1 Lloyd's Debates, 431, 432.
   12. This whole subject is treated with great felicity and force by Mr. Chancellor Kent in his Commentaries; and the whole lecture will reward a most diligent perusal. 2 Kent's Comm. Lect. 24.
   13. 1 Lloyd's Debates, 429, 430, 431, 432.
   14. See Magna Charta, ch. 29; Bill of Rights, 1688; 5 Cobbettes Parl. Hist. p. 110.
   15. 1 Lloyd's Debates, 431, 432, 433, 434.
   16. 1 Kent's Comm. Lect. 94, p. 5, 6, (2d edition, p. 8); 1 Lloyd's Debates, 429, 430, 431.
   17. Mr. Madison, 1 Lloyd's Deb. 431.
   18. Ibid.
   19. Constitution, 9th Amendment; 1 Lloyd's Deb. 433.
   20. The Federalist, No. 84. See also 2 Elliot's Deb. 65, 160, 243, 330, 331, 334, 344, 345, 346; l Jefferson's Corresp. 64; 2 Jefferson's Corresp. 274, 291, 344, 443, 459; 1 Tuck. Black. Comm. App. 308; 2 Amer. Museum, 334, 378, 424, 540; 3 Amer. Museum, 548, 559; 1 Loyd's Deb. 423 to 437; 5 Marshall's Life of Washington, ch. 3, p. 207 to 210.
   21. See 5 Marshall's Life of Washington, ch. 3, p. 207 to 210.-- Congress, in the preamble to these amendments, use the following language: "The conventions of a number of the states having at the time of adopting the constitution expressed a desire, in order to prevent misconstruction, or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best ensure the beneficent ends of its institution, etc. etc." l Tuck. Black. Comm. App. 269.
   22. 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; Bynkershaeck, 2 P.J. Lib. 2, ch. 18; Woodeson's Elem. Lect. 3, p. 49; Burlemaqui, Pt. 1, ch. 3, p. 171, and Montesq. B. 24, ch. 1 to ch. 8, ch. 14 to ch. 16, B. 25, ch. 1, 9, 10, 11, 12.
   23. See Burlemaqui, Pt. 3, ch. 3, p. 171, etc.; 4 Black. Comm. 43.
   24. 2 Kent's Comm. Lect. 34, p. 35 to 37; Rawle on Const. ch. 10, p. 121, 122.
   25. Montesq. Spirit of Laws, B. 24, ch. 3.
   26. Montesq. Spirit of Laws, B. 24, ch. 5.
   27. See 2 Lloyd's Deb. 195, 196.
   28. Virginia Bill of Rights, 1 Tuck. Back. Comm. App. 296; 2 Tuck. Black. Comm. App. note G. p. 10, 11.
   29. Lord King's Life of Locke, p. 373.
   30. 2 Lloyd's Deb. 195.
   31. 4 Black. Comm. 41 to 59.
   32. Ante, Vol. I. § 53, 72, 74.
   33. See 4 Black. Comm. 43 to 59.
   34. "Entirely"! Should he not have said, never free from the scourge, as more conformable to historical truth?
   35. 4 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 10 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 pretended to intercede, and pray in behalf of the convicted heretic, ut eltra mortis periculum sentantis circum eum moderaturt 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.
   36. 4 Black. Comm. 51, 52.
   37. 1 Black. Comm. 58.
   38. 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, etc. See also 4 Jefferson's Corresp. 103, 104; Jefferson's Notes on Virginia, 264 to 270; 1 Tuck. Black. Comm. App. 296.
   39. 2 Lloyd's Debates, 195, 196, 197. -- "The sectarian spirit," said the late Dr. Curtis, "is uniformly selfish, proud, and unfeeling." (Edinburgh Review, April, 1832, p. 125.)
   40. 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.
   41. 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.
   42. 1 Tuck. Black. Comm. App. 297 to 299; 2 Tuck. Black. Comm. App. II; 2 Kent's Comm. Lect. 24, p. 16 to 26.
   43. Rawle on Const. ch. 10, p. 19.3, 124; 2 Kent's Comm. Lect. 34, p. 16 to 26; De Lolme, B. 2, ch. 12, 13; 2 Lloyd's Deb. 197, 198.
   44. 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.)
   45. See Comyn's Dig. Parliament, G. 9.
   46. 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 guy 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 t fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends."
   47. De Lolme, B. 2, ch. 12, 291 to 297.
   48. 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 effect to go farther. The celebrated defence of Mr. Erakine, 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 or men in office, and the mea-sures of government, the ease 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 nowhere 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.
   49. 2 Tuck. Black. Comm. App. 20; 1 Tuck. Black. Comm. App. 298, 299.
   50. 2 Tuck. Black. Comm. App. 28 to 30; 1 Tuck. Black. Comm. App. 298, 299.
   51. 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 94.)
   52. Ibid.
   53. 1 Kent's Comm. Lect. 94, (2d edition, p. 17 to 24.) See also Rawle on Const. ch. 10, p. 123, 124.
   54. Act of 14th July, 1798, ch. 91.
   55. 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 legislature, in favour of the constitutionality of the law, have never been retracted. See Vol. III. § 1288, 1289, and note.
      * [Ed. Note: So numbered in the original text.]
   56. See 2 Lloyd's Debates, 197, 198, 199.
   57. 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.
   58. 1 Tucker's Black. Comm. App. 299.
   59. 1 Tucker's Black. Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd's Debates, 219, 220.
   60. 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.
   61. 5 Cobbett's Parl. Hist. p. 110; 1 Black. Comm. 143, 144.
   62. 1 Tucker's Black. Comm. App. 300.
   63. 2 Cabbett's Parl. Hist. 375; Rawle on Const. ch. 10, p. 126, 127; 1 Tueker's Black. Comm. App. 300, 301; 2 Lloyd's Debates, 223.
   64. And see Ex parte Burford, 3 Cranch, 447; 2 Lloyd's Deb. 226, 227.
   65. Money v. Leach, 3 Burr, 1743; 4 Black. Comm. 291, 292, and note ibid. See also 15 Hansard's Pad. 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.^a 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.^b 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 accomplice; 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 the written law!!" Thus, the constitution is to be wholly disregarded, because Mr. Jefferson has no confidence 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.
   a. 4 Jefferson's Corresp. 149, 151.
   b. Ex parte Bollman & Swartout, 4 Cranch, 75 to 136.
   66. See Ex parte Burford, 3 Cranch, 447.
   67. 5 Cobbett's Parl. Hist. 110.
   68. 2 Elliot's Debates, 845.
   69. See 2 Lloyd's Debates, 225, 226; 3 Elliot's Debates, 345.
   70. Rawle on Const. ch. 10, p. 130, 131.
   71. 4 Black. Comm. 17. See De Lolme, B. 2, ch. 16, p. 366, 367, 368, 369.
   72. See Barker v. The People, 3 Cowen's R. 686; James v. Commonwealth, 12 Sergeant and Rawle's R. 220. See Barton v. Mayor of Baltimore, 7 Peters's R. (1833.)
   73. See ante, Vol. I. § 448; The Federalist, No. 83.
   74. The Federalist, No. 84; ante, Vol. III. § 1852 to 1857; 1 Lloyd's Debates, 433, 437; 1 Tucker's Black. Comm. App. 307, 308.
   75. See 1 Tucker's Black. Comm. App. 307, 308, 309.
   76. 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 fall and fair discussion, was given up by them, and the system allowed to retain its present form. 2 Lloyd's Debates, 234.
   77. 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.
   78. Confederation, Article 2, ante Vol. I. § 230.
   79. The Federalist, No. 33, 38, 42, 44; ante Vol. I. § 269.
   80. McCulloch v. Maryland, 4 Wheat. R. 406, 407; ante VoL I. § 433,
   81. The Federalist, No. 82 See also Mr. Hume's Essays, Vol. I. Essay on the Rise of Arts and Sciences.