The revenue laws of the United States contain many clauses of questionable authority by which revenue officers are entitled to search and seize books and papers of merchants and private citizens, and the question is not yet fully determined whether such inquisitorial proceedings and seizures are not, both in spirit and in letter, repugnant to this provision of the Constitution.

That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, is again a transcript of a clause of the Bill of Rights of the Revolution of 1688. This clause operates as a restriction upon the powers of the United States courts alone, and not upon the State courts.

The various amendments have from time to time been the subject of judicial decision, but the most important of the amendments are the last two of the first eleven, which are to the effect that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Were it not for this clause it might have been argued with considerable plausibility, that as the people saw fit, by amendments, to incorporate into the Constitution, a Bill of Rights, whatever they failed to preserve or mention they ceased to have. This provision was made to guard

against the evil suggested in the Federalist when it gave a reason why the Constitution had not given a Bill of Rights, because the reservation of powers without a Bill of Rights was larger than the reservation of powers with a Bill of Rights.

The next and last amendment of the first eleven is that the powers not delegated to the United States by the Constitution, nor prohibited to it by the Constitution, are reserved to the States respectively or to the people. This is a rule of interpretation of the Constitution which probably would have been followed by the courts without this express declaration. The Constitution is an instrument declaring limited and enumerated powers, and, therefore, whatever power is not given is withheld; but the declaration has been productive of much good, and took the matter of whether the United States is a government of merely delegated powers out of the range of controversy.

One great step in advance, however, must here be noted between the old Articles of Confederation and the Constitution of the United States, inasmuch as here the expression is "the powers not delegated to the United States by the Constitution," and in the Articles of Confederation it was powers not expressly delegated or prohibited." Therefore, as a large proportion of the powers ex

ercised by Congress arises from powers which it derives by necessary implication from the powers expressly conferred, the United States government differs in that respect from the Government under the Articles of Confederation, inasmuch as that had no power which had not been specially conferred, and therefore had no powers by implication. Hence it was crippled at every turn because the organic law which constituted it did not in express terms confer the right to pass a particular bill

CHAPTER V.

THE POST-CONSTITUTIONAL HISTORY OF THE UNITED

STATES.

THE foregoing chapters give a succinct statement of the provisions of the Constitution and of the leading questions that have been decided under that instrument. An understanding, however, of the institutional history of the United States would be incomplete if the political and constitutional questions entering into politics from the time of the adoption of the Constitution down to the present day were not sketched, in however superficial and rapid a form. The political divisions of parties in the United States unquestionably exerted a very strong influence upon judicial decisions and the interpretation of the provisions of the Constitution of the United States. There is an unconscious influence exercised by public opinion upon the minds of those who are called upon to decide finally constitutional questions, which is neither corrupt nor sinister, but which causes a written constitution to approximate more closely

to an unwritten one, like that of England, by making the written word bend and yield to the necessities of the hour, as a large and influential majority may determine, and that without constitutional amendment. The limits of this book do not permit so analytical a survey of the whole field as to show in detail the influence and pressure of public opinion upon the Supreme Court of the United States and the gradual yielding of the court to the pressure of that opinion, or the influence of the opinions held by the members of the court on political subjects upon their decisions as a court. The reader must make those applications for himself when the story of the political parties in the United States shall have been told.

It will be remembered that the Constitution came into existence under an almost irresistible pressure of necessity either to disestablish the Government of the United States and to leave each State free as an independent sovereignty to make such alliances as it might see fit-because the Articles of Confederation proved but a rope of sand—or to organize a Government clothed with sufficient power to enforce obedience to its laws; with power to assess and collect revenue, with power to make war, treaties of peace and foreign alliances, and having both towards the States and as against foreign nations all the attri