Chapter XLVI.

Amendments to the Const.i.tution.

--1. It is remarkable that, during a period of seventy years, the const.i.tution has received so few alterations. Although twelve articles of amendment, so called, have been adopted, only two, (the 11th and 12th,) have in any manner or degree changed any of its original provisions. Most of them, it will be seen, are merely declaratory and restrictive. As the principles which they declare were so generally acknowledged, and as the general government was a government of limited powers, having such only as were expressly authorized by the const.i.tution, the framers deemed these declarations and restrictions unnecessary. But as several of the state conventions had, at the time of adopting the const.i.tution, expressed a desire that declarations and guaranties of certain rights should be added, in order to prevent misconstruction and abuse, the first congress, at its first session, proposed twelve amendments, ten of which were ratified by the requisite number of states. Virginia, the last state necessary to make up such number, ratified December 15, 1791.

--2. Freedom in matters of religion, freedom of speech and of the press, and the right to pet.i.tion the government for the redress of grievances, guarantied in the first article, are rights so essential to civil liberty, and so evidently just, that it can hardly be presumed that congress would ever have pa.s.sed laws directly violating these rights, even though such laws had not been prohibited.

--3. The second article guaranties "the right of people to bear arms."

Without this right, ambitious men might, by the aid of the regular army, overthrow the liberties of the people, and usurp the powers of government.

--4. The third article declares, that "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." It is a principle of the common law, that "a man's house is his own castle."

Among the grievances enumerated in the Declaration of Independence, was one "for quartering large bodies of armed troops" among the people of the colonies. To secure the people against intrusions of this kind, is the object of this prohibition.

--5. The fourth article guaranties "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But there could be no such security, if every man could, on mere pretense or suspicion of injury, obtain a warrant for arresting his neighbor or searching his premises and seizing his property. Innocent men would often be subjected to much trouble and perplexity; and unjust suspicions would be thrown upon their characters.

It is proper, therefore, that a magistrate shall not issue a warrant, unless it shall be made to appear, by the oath of the applicant or of some other person that there is probable cause.

--6. The rights guarantied by the fifth article are common law rights, and founded upon just principles. We have elsewhere stated the object of grand juries, and noticed the opinion of some, that this object is sufficiently secured by the examination before the magistrate; and, consequently, that grand juries are unnecessary. (See Chap. XIX, --8-10.) But while this article continues to be a part of the const.i.tution, grand juries in courts of the United States can not be dispensed with. It is quite proper, as is provided in this article, that, after a fair and impartial trial and an acquittal, a person should not be tried a second time. The provisions of the next article (6th) are also necessary to secure the same object--the rights of liberty and life to every citizen.

--7. The seventh article of amendment secures, in courts of the United States, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury." By suits at common law are meant those tried in the ordinary courts, as distinguished from those tried in courts of equity and courts of admiralty. This article further declares, that "no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." That is, if a fact tried by a jury in a lower court, is carried up to a higher court for reexamination, such reexamination or new trial shall also be by jury.

--8. "Excessive bail shall not be required, nor excessive fines imposed, nor unusual punishments inflicted." Amend. art. 8. The object of bail and the manner in which it is given, have been stated. (Chap. XVIII.) Without the above restriction, the sum might be fixed so high as to prevent persons accused of crime from procuring the necessary sureties; whereby innocent persons might be subjected to long imprisonment before the time of trial. It is therefore properly left to the court to fix the sum, which should correspond to the aggravation of the offense. Courts have the same discretion as to the measure of punishment to be inflicted in each particular case of crime.

--9. The ninth amendment is, "The enumeration in the const.i.tution of certain rights, shall not be construed to deny or disparage others retained by the people." There were persons who feared that, because the const.i.tution mentioned certain rights as belonging to the people, those not mentioned might be considered as having been surrendered to the general government. This article was therefore inserted to prevent such a misconstruction of the const.i.tution.

--10. The tenth amendment is similar to the preceding. "The powers not delegated to the United States by the const.i.tution, nor prohibited by it to the states are reserved to the states respectively, or to the people." In other words the powers which the const.i.tution has not given to the general government, nor prohibited the states from exercising, the states or the people have reserved to themselves. So clear is it, that they retain all power which they have not in words parted with, that it seems strange to many that the insertion of such a provision should ever have been thought necessary.

--11. The eleventh amendment was proposed at the first session of the third congress, March 5, 1794, and its ratification by the const.i.tutional number of states was announced to congress by the president in a message dated January 8, 1798. This article prohibits a court of the United States from trying "any suit in law or equity commenced or prosecuted against one of the states by citizens of another state, or by citizens or subjects of any foreign state." This is intended to prevent a state from being sued in an original suit, by a private person, the citizen of another state.

--12. The twelfth and last amendment effects a change in the mode of electing the president and vice-president, and has been considered.

(Chap. x.x.xIX, --4.) This amendment was proposed at the first session of the eighth congress, December 12, 1803, and was adopted by the requisite number of states in 1804, according to a public notice by the secretary of state, dated the 25th of September of the same year.

Common and Statutory Law.

Chapter XLVII.

Rights of Persons. Personal Security; Personal Liberty; Religious Liberty; Liberty of Speech, and of the Press; Right of Property.

--1. Having taken a general view of the state governments and the government of the United States, and seen how wisely they are adapted to promote the general welfare and secure the blessings of liberty; we proceed to give a digest of the laws which more particularly define the rights and prescribe the duties of citizens, or by which their social and civil intercourse is to be regulated. These laws, it will be recollected, we have elsewhere called the _munic.i.p.al_ or _civil_ laws, as distinguished from the _political_ or _fundamental_ law of the state.

(Chap. III, --6.)

--2. These laws are of two kinds, the written or statute law, and the unwritten or common law. _Statute laws_ are those which are enacted by the legislature, and recorded in writing, and are usually collected and published in books. The word _statute_ is from the Latin _statuo_, to set, fix, or establish.

--3. The _common law_ is not a code of written laws enacted by a legislature, but consists of rules of action which have become binding from long usage and established custom. It is said to be founded in reason and the principles of justice. The common law of England was brought over by our ancestors, and established here before the revolution. Some of the states, in their const.i.tutions, adopted after the revolution, declared it to be the law of their respective states; and it has continued to be law in all the states, and is still so considered, except such parts as have been altered or repealed by const.i.tutional or legislative enactments, or by usage.

--4. The most valuable rights protected by law are the rights of personal security and personal liberty. The right of _personal security_ is the right to be secure from injury to our persons or good names. By _personal liberty_ is meant the freedom of our bodies or persons from restraint or confinement. Provisions guarantying these rights have been incorporated into our national const.i.tution, and the const.i.tutions of the several states.

--5. The right of personal security is also protected by the law, by which a man, on showing reasonable cause of danger of personal injury, may require his adversary to be bound with sureties to keep the peace.

And for violence committed, the offender may be prosecuted in behalf of the state and punished, and is liable also to the party aggrieved in a civil suit for damages.

--6. This right is further protected by the law which permits a man to exercise the natural right of self-defense. In defending his person in case of a felonious a.s.sault, he may lawfully take the life of his a.s.sailant. This is by law p.r.o.nounced justifiable homicide, and is allowed also in defense of one's property against felonious and violent injury. But homicide (man-killing) is not justifiable in case of a private injury, nor upon the pretense of necessity when the party is not free from fault in bringing that necessity upon himself.

--7. The right to be secure in our good names, which is included in the right of personal security, is protected by the law against slander and libel. A _slander_ is a false and malicious report or statement tending to injure another in his reputation or business, and which, if true, would render him unworthy of confidence or employment; or it is the maliciously charging of another with anything by which he sustains special injury. The slander of a person by words spoken, is a civil injury, that is, an injury for which redress is to be obtained in a civil suit for damages.

--8. A slander written or printed, is called _libel_. A libel is a malicious publication in print or writing, signs or pictures, tending to expose a person to public hatred, contempt, or ridicule. And it is considered in law a publication of such defamatory writing, though communicated to a single person. A slander written or printed is likely to have a wider circulation, to make a deeper impression, and to become more injurious. A person may therefore be liable in damages for words in print or writing, for which he would not be liable if merely spoken. In case of libel, a person is not only liable to a private suit for damages, but may be indicted and tried as for other public offenses.

--9. It is a principle of English common law, that in a criminal action for libel it is immaterial whether the matter of it is true or false; and a person prosecuted for libel is not allowed, in justification, to prove to the jury the truth of his statement, since the provocation, not the falsity, is to be punished. And, whether true or false, the libelous publication is equally dangerous to the public peace, and is presumed to have been made with malicious intent.

--10. It is held--and perhaps it is the prevailing opinion--that in a civil action for damages, a libel must be false as well as scandalous, and, consequently, that the truth may be pleaded in justification. This point, however, is not fully settled. The reason for this distinction between cases of public and private prosecution, it is not easy to perceive. If it is just to inquire into the good or bad intentions of the publisher in one case, it would seem to be equally so in the other.

--11. But the common law has been materially modified and relaxed in this country. In most of the states it is provided by their const.i.tutions or by law, that the truth may be given in evidence, and if it shall appear to the jury "that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." As it may sometimes be proper to speak or publish an unfavorable truth concerning others, the principle of the above provision would seem to be founded in justice. In the state of Vermont, and perhaps in a few other states, if the party prosecuted proves the truth of his statement in any case, he is acquitted.

--12. The right of _personal liberty_ is secured by express provision of the national const.i.tution, which guaranties to every citizen "the privilege of the writ of _habeas corpus_." (Cons. U.S. art. 1, sec. 9.) The nature of this writ has been explained. (Chap. x.x.xVI, --4.) The same provision has been inserted in the state const.i.tutions. This was a common law privilege, independently of any const.i.tutional enactment. The princ.i.p.al object of the provision seems to be to take from congress and the state legislatures the power to abolish this privilege, or even to suspend it for any time, or in any case, except the particular cases mentioned.

--13. Freedom of religious opinion and worship, or liberty of conscience, is a valuable personal right, included in the term, personal liberty, and is effectually secured in this country. In England, the country of our ancestors, there is a church established and supported by the government. This is sometimes called "union of church and state."

The American people, from their love of religious freedom, have, in their const.i.tutions, expressly prohibited congress from making laws "respecting the establishment of religion, or prohibiting the free exercise thereof." (Amend. art. 1.) And the state const.i.tutions have adopted similar provisions.

--14. Another important personal right comprehended in the term personal liberty, and guarantied in the same article of the national const.i.tution, and in the state const.i.tutions, is the liberty of speech and of the press. Some of the monarchical governments of Europe prohibited the people from speaking against the sovereign or his government. Books and papers could not be published until they had been examined and approved. The persons authorized to examine the ma.n.u.scripts, were called _censors_. Hence the expression sometimes heard, "censorship of the press." To secure the liberty of speaking and publishing their sentiments freely up on all subjects, the people of this country have made express provision in their const.i.tutions; which, however, while they properly guaranty this right, leave men "responsible for its abuse," and liable to prosecution for slander or libel. (--7, 8.)

--15. The _right of property_ is the right to acquire property, and to be free in the use and enjoyment of it. To protect men in the enjoyment of this right, is one of the princ.i.p.al objects of const.i.tutions and laws.

The rights of property will const.i.tute the subject matter of several subsequent chapters of this digest of "common and statutory law." (Chap.

L, and onward.)

Chapter XLVIII.

Domestic Relations. Husband and Wife.

--1. To render a marriage contract lawful, the parties must be of sufficient age, called the age of consent; which, by the common law of the land, is fourteen years in males, and twelve in females. In some states the age of consent has been altered by statute. In Ohio, Indiana, and Michigan, it has been raised to eighteen years in males, and fourteen in females; in Illinois to seventeen and fourteen; in Wisconsin, to eighteen and fifteen.

--2. The parties must also have sufficient understanding to transact the ordinary business of life. Idiots and lunatics cannot legally contract marriage. Persons must also act freely. If the consent of either party has been obtained by force or fraud, the marriage may be declared void.

The parties must not be nearly related. The degrees of relationship at which they are forbidden to marry are in some states fixed by law; but the laws of these states on the subject are not uniform. Some states have forbidden marriages which come within what is called the Levitical degrees; but these degrees have received different interpretations.

According to the interpretation of some, the relation of uncle and niece and aunt and nephew, come within this rule.