CHAPTER XXIX.. The Amendments.

THE AMENDMENTS.

We have now considered the constitution about as it was presented to the states for ratification. Judging by our own affection for the noble instrument we would expect to learn that it was ratified promptly and unanimously. But, as a matter of fact, much hard work was required on the part of its friends to secure its ratification. Its every provision had to be explained and justified. Probably the most able exposition was made by Hamilton, Madison and Jay, in a series of papers entitled, "The Federalist."

One of the greatest objections urged against the constitution was that it did not guarantee sufficiently the rights of individuals. It will be remembered in this connection that the principal grievance against England, as expressed in the Declaration of Independence, was that personal rights had not been respected; and that, in consequence, the first form of government organized after independence, The Articles of Confederation, gave the general government no power to reach individuals. Experience showed this to have been a mistake, and the constitution authorizes the general government to execute its laws directly, enabling it to hold individuals responsible. On account of this re-enlargement of power, many people honestly feared that the new government might trespass upon personal rights as England had done. And several states at the time of ratifying suggested the propriety of so amending the constitution as to remove these fears.

In accordance with these recommendations, amendments were proposed at the first session of congress. The house of representatives proposed seventeen, to twelve of which the senate agreed. Only ten, however, were ratified by the legislatures of three-fourths of the states. They are, of course, the first ten among those that follow. It was decided by the same congress that the amendments should not be incorporated into the main body of the constitution, but should be appended to it as distinct articles. They have, however, the same force as the original constitution.

ARTICLE I.

FREEDOM OF RELIGION, OF SPEECH, AND OF ASSEMBLY.

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 or grievances.

The chief purpose for which many of the early settlers came to America was that they might "worship God according to the dictates of their own conscience." Hence their descendants put first among the individual rights to be protected, this freedom of religion. But this provision does not authorize any one to commit crime in the name of religion.

The only limitation upon speech in this country is that the rights of others be respected. Any one may think as he pleases upon any subject, and may freely express his opinion, provided that in doing so he does not trespass upon the rights of others.

It would seem that under a republican form of government this right might be assumed to be secure. The provision is meant to "make assurance doubly sure." History had shown the necessity of such precaution.

ARTICLE II.

RIGHT TO BEAR ARMS.

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.

It should not be the policy of a republic to keep a large standing army. An army is expensive, it takes so many men from productive industries, and it is dangerous to liberty--it may from its training become the instrument of tyranny.

But a republic must have defenders against foes foreign or domestic. A well-trained militia may be depended upon to fight with valor against a foreign foe, and may at the same time serve as a check upon usurpation.

For definition of militia, see page 162.

ARTICLE III.

QUARTERING SOLDIERS.

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 described by law.

To "quarter" soldiers in any house is to allot them to it for food and shelter.

This, it will be remembered, was one of the grievances of the colonies. This quartering of soldiers had been, and indeed is in some countries to this day, a mode of watching and worrying persons for whom officers of the government entertained suspicion or ill will.

ARTICLE IV.

SECURITY AGAINST UNWARRANTED SEARCHES.

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, as well as the preceding provision, recognizes the maxim, "A man's house is his castle." It prevents the issuance of general warrants.

ARTICLE V.

SECURITY TO LIFE, LIBERTY AND PROPERTY.

_No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war, or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

For information in regard to the method of conducting criminal trials, see Division I.

The necessity here for prompt and exact obedience to orders is so urgent, that summary methods of trial must be permitted.

For information regarding trial by court martial, see appendix, page 338.

That is, when a jury has rendered its verdict and judgment has been pronounced, the accused cannot be compelled to submit to another trial on the same charge. But if the jury disagrees and fails to bring in a verdict, he may be tried again.

Accused persons used to be tortured for the purpose of extorting from them a confession of guilt.

In a despotism, the lives, liberty and property of the people are at the command of the ruler, subject to his whim. For an illustration of the method of securing private property for public use, see page 18.

ARTICLE VI.

RIGHTS OF ACCUSED PERSONS.

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The importance of this provision is likely to be underestimated. Says Montesquieu, "Liberty consists in security. This security is never more attacked than in public and private accusations. It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends." And Lieber, in his very able work on Civil Liberty and Self-Government, says, "A sound penal trial is invariably one of the last fruits of political civilization, partly because it is one of the most difficult of subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society.... It is one of the most difficult things in all spheres of action to induce irritated power to limit itself."

Besides the guarantees of the constitution, Lieber mentions the following as characteristic of a sound penal trial: the person to be tried must be present (and, of course, living); every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must be guilty or not guilty; [Footnote: In some countries the verdict may leave a stigma upon an accused person, against whom guilt cannot be proven. Of this nature was the old verdict, "not proven."] the punishment must be in proportion to the offense, and in accordance with common sense and justice; and there must be no injudicious pardoning power, which is a direct interference with the true government of law.

Most, if not all but the last, of the points mentioned by Dr. Lieber are covered by that rich inheritance which we have from England, that unwritten constitution, the common law. The question of how best to regulate the pardoning power is still unsettled.

He may have his trial at the next term of court, which is never very remote. But the accused may, at his own request, have his trial postponed.

Publicity is secured by the keeping of official records to which all may have access, by having an oral trial, by the admission of spectators to the court room, and by publication of the proceedings in the newspapers.

For the mode of securing the "impartial jury," see page 63.

It is provided in the body of the constitution (III., 2, 3,) that criminal trial shall be by jury, and in the state where the crime was committed. This amendment makes the further limitation that the trial shall be in the district where the crime was committed, so a person accused of crime cannot be put to the trouble and expense of transporting witnesses a great distance.

The nature of the accusation is specified in the warrant and in the indictment, both of which, or certified copies of them, the accused has a right to see.

Not only do the witnesses give their evidence in the presence of the accused, but he has also the right to cross-examine them.

But for this "compulsory process" (called a subpoena), persons entirely guiltless might be unable to produce evidence in their own behalf. The natural desire of people to "keep out of trouble" would keep some knowing the circumstances of the case from giving their testimony, and others would be afraid to speak up for one under a cloud and with all the power of the government arrayed against him.

The accused may plead his own cause, or he may engage a lawyer to do it for him. If he is too poor to employ counsel, the judge appoints a lawyer to defend him, whose services are paid for out of the public treasury.

From the foregoing, it will be seen that great care is exercised to give a person accused of crime full opportunity to defend himself. And it must be remembered in this connection that it is a principle of our jurisprudence that the burden of proof lies upon the government. That is, the accused is to be deemed innocent until he is proved guilty. We prefer that a number of guilty persons should escape punishment rather than that one innocent person should suffer.

ARTICLE VII.

JURY TRIAL IN COMMON LAW SUITS.

In suits at common law, where the amount in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law.

The meaning of this expression is difficult of explanation, but it covers most ordinary lawsuits. From the fact that a jury in criminal cases has already been guaranteed (III., 2, 3, and Am. VI.), it may be assumed that this provision is intended to cover civil suits.

Among the "rules of common law" are these: 1. All suits are tried before a judge and a jury, the jury determining the facts in the case and the judge applying the law. 2. The facts tried by a jury can be re-examined only by means of a new trial before the same court or one of the same jurisdiction.

The purpose of this provision is to preserve the jury trial as a real defense against governmental oppression. In the Supreme Court there is no jury; the trials are by the court. If questions of fact could be reviewed or re-examined by such a court on appeal the protection now given by the jury would be nullified.

ARTICLE VIII.

EXCESSIVE BAILS, FINES AND PUNISHMENTS FORBIDDEN.

Excessive bail shall not he required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Having enjoyed the protection of this and similar provisions for so many years, we can hardly appreciate their value. It must be borne in mind that those who "ordained and established" the constitution had been abused in just these ways, and that in this provision they provided against a real danger.

ARTICLE IX.

UNSPECIFIED PERSONAL RIGHTS PRESERVED.

The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Certain rights which governments are prone to trample on have been mentioned in the preceding provisions. But not all of the personal rights could be enumerated. Hence this provision covering those unnamed.

ARTICLE X.

THE UNITED STATES GOVERNMENT ONE OF LIMITED POWERS.

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.

This provision gives a rule for interpreting the constitution. "It is important as a security against two opposite tendencies of opinion, each of which is equally subversive of the true import of the constitution. The one is to imply all powers, which may be useful to the national government, which are not expressly prohibited; and the other is, to deny all powers to the national government which are not expressly granted." [Footnote: Story] The United States is "a government of limited powers," and has only such implied powers as are necessary to carry out the express powers. On the other hand, a state has all powers not denied to it by the state or federal constitutions.

Pertinent Questions.

What is the general purpose of the first ten amendments? Do they restrict the general government or the state governments, or both? When and how were these amendments proposed? When and how ratified? What three limitations to the power of amendment does the constitution contain?

Is there any "established" or state church in the United States? How do you suppose that this came about? Are we as a people indifferent to religion? Can a person say what he pleases? Can he publish whatever opinions he pleases? What is slander? Libel? Why should these last two questions be asked here? Petition whom? What's the good of petitioning? What petitions did you learn about at the beginning of this study? Can soldiers in the regular army petition? Why? Has the "right of petition" ever been denied in this country?

Wherein is a standing army dangerous to liberty? Is this true of the navy? How is a "well-regulated militia" a check upon usurpation of authority? Does Amendment II. authorize you to keep a revolver? To carry it in your pocket? How often is the army mentioned in the Declaration of Independence, and what is said?

What are the objections to "quartering" soldiers in a private house? Does the amendment protect tenants? Why the exception in the amendment? What mention of quartering soldiers in the Declaration of Independence?

Get and read a warrant of arrest. A search warrant. Has a warrant always been needed as authority for arrest? Are arbitrary arrests, searches and seizures permitted in any civilized countries today?

What is a capital crime? An infamous crime? A presentment? An indictment? A grand jury? How do the proceedings of a grand jury compare with those of a petit jury? Why the differences? Why the exception in the first clause of the amendment? Can a convicted and sentenced person ask for a new trial? Under what other circumstances can persons be tried again? In what connections have you heard of private property being taken for public use.

Taking each guarantee in the sixth amendment, show the wrongs which an accused person, presumably innocent, would suffer if the provision were not recognized or that guarantee removed.

Find out all you can about common law. What is meant by a civil suit as distinguished from a criminal suit? What is meant by a case in equity? When an appeal is taken what is subject to re-examination? What is not? Why?

What conditions determine the just amount of bail? Of fines? What cruel punishments have you heard or read of as being administered by public authority? When and where were such punishments not "unusual"? Was the eighth amendment necessary? What limit is there to things which "The People" may do? To the powers of the United States government? To those of a State government?

Find the history behind each provision in the ten amendments. From what country did we obtain the notions that the rights here preserved belong to freemen? From under what other country could the Colonies have come ready to be the United States as we love it, or from what other country could we have inherited such notions?

Since these ten amendments are intended for the protection of individuals against governmental oppression, it will be an excellent scheme now for the student to arrange in the form of a tabulation the various directions in which such protection is guaranteed by the constitution as amended. The following is simply suggestive:

I. From Legislative Oppression.--1. Thought; 2. Expression; 3. Bills of Attainder; 4. Ex post facto laws; 5. Social distinctions; 6. Assembly; 7. Petition.

II. From Executive Oppression.-1. Military; 2. Searches and seizures; 3. Life, Liberty, or Property; 4. Suspension of Habeas Corpus.

III. From Judicial Oppression.-1. Before trial: arrest, bail, information as to accusation, time of trial; 2. During trial: publicity, jury, evidence, counsel, punishment; 3. After trial: retrial; 4. Treason.

IV. From State oppression.

ARTICLE XI.

LIMITING THE JURISDICTION of UNITED STATES COURTS.

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Equity is hard to define. According to Aristotle it is "the rectification of the law, when, by reason of its universality, it is deficient." Blackstone says, "Equity, in its true and genuine meaning, is the soul and spirit of all law.... Equity is synonymous with justice." It is the province of law to establish a code of rules whereby injustice may be prevented, and it may therefore be said that all law is equitable. "In a technical sense, the term equity is applied to those cases not specifically provided for by positive law." (See page 208; also Dole's Talk's About Law, page 502.)

According to III. 2, a state could be sued for a debt the same as an individual, and shortly after the adoption of the constitution several of them were sued for debts incurred during the Revolutionary War. Pride and poverty both prompted the states to desire immunity from such suits. Hence the adoption of this amendment. (See page 209.)

A non-resident secures the payment of a debt due from a state in the same way as a resident--by legislative appropriation.

ARTICLE XII.

MODE OF CHOOSING THE PRESIDENT AND VICE-PRESIDENT.

The amendment has been discussed in connection with Article II. of the constitution, pages 184-6.

ARTICLE XIII.

ABOLITION OF SLAVERY.

1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

This amendment, one of the "first fruits" of the Civil War, put an end to slavery in the United States. The wording was taken, almost verbatim, from the Ordinance of 1787.

ARTICLE XIV.

MISCELLANEOUS RECONSTRUCTION PROVISIONS.