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lence. The people of the State of New York, in the preamble to its Constitution, return grateful thanks to Almighty God for their freedom, and simply declare that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in the State to all mankind.”
Free religion, free speech, free press, free schools, and free assemblages make a free people.
Article 11.—“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." This is both declaratory and restrictive, and really amends section 8, Article I., unamended Constitution, which provides for the organizing, arming, and disciplining the militia, and for the governing such part of them as may be employed in the service of the United States, and which reserves to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.' The amendment restrains Congress from disarming the militia, as well as the people of the several States. The people would not have a great standing army for the use of a Cromwell or a Cæsar. A small body of regular troops for frontier and special use were enough for the general agent of the States.
Articles III. and IV. prohibit interference with the property rights and personal rights of individuals, by quartering soldiers in time of peace in any house without the consent of the owner, or in time of war unlawfully, and also protects the people from unreasonable searches and seizures. It is proper to say that soldiers of the United States should not be quartered on the soil of any State without the express consent of the legislature of such State in time of peace. Such sol. diers may pass through a State to the reservations of the United States at all times.
Articles V. and VI. declare the sanctity of indictment by grand jury, and the right to a speedy and public trial in all criminal prosecutions by an impartial jury of the State and district wherein the crime shall have been committed, the accused person to be informed of the nature and cause of the accusation, to be confronted with witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. The word “district” is an amendment to section 3, Article III., original or unamended Constitution. An accused person could be indicted and tried anywhere in a State until this amendment was ratified. A fruitless effort was made by a citizen of the District of Columbia to extradite a prominent New York editor for criminal libel. The ground assumed before a Federal tribunal was that a newspaper is published in any State, city, or district in which it circulates.
In Article V. it is provided that no person “shall be compelled in any criminal case to be a witness against himself.” It had been largely held that this exemption applied to accused persons, but the Supreme Court of the United States, in January, 1892, decided that it also applied to witnesses. In a case before the United States Circuit Court, Judge Gresham presiding, Charles Counselman, a witness, refused to answer whether he had received special railroad freight rates in violation of the Inter-State Commerce law. Judge Gresham held the refusal as contempt, and the Supreme Court overruled his decision.
Article VII., which is both declaratory and restrictive, ordains that “in suits at common law, where the value 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 reëxamined in any court of the United States than according to the rules of the common law.”
Article VIII. prohibits excessive bail and fines and cruel and unusual punishment, whether by the governments of the several States or the United States.
Article IX. declares that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And Article X. declares that “The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Delegated powers, which are never permanent, are necessarily enumerated; undelegated or reserved powers are permanent, and need no enumeration. Enumerated powers are to be strictly construed. Ungranted powers are the residuary mass of natural, legal, and political rights.
Article XI. is purely judicial. It abrogates the original amenability of sovereign States to private suit. Article III., section 2, of the unamended Constitution says: “The judicial power shall extend to all cases of law and equity ... between a State and citizens of another State, ... or between a State or the citizens thereof, and foreign States, citizens, and subjects.” The amendment of 1798, which is restrictive and mandatory, declares that “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 sub
jects of any foreign state.” “The inhibition,” says Kent, "applies only to citizens or subjects, and does not extend to suits by a State, or foreign states or powers.” Note the decentralization: “one of the United States.”
Are there examples of State exemption ?
Yes. In Chisholm vs. Georgia, 2 Dall. 419, the Supreme Court of the United States rendered judgment against the State. Such was the public alarm that the Supreme Court, in Hollingsworth vs. Virginia, 3 Dall. 378, decided that the amendment related back so as to dismiss every suit which had been instituted against a State. In the Iowa original package decision of the same tribunal, in 1891, the court delivered a centralized opinion, but public pressure forced Congress to pass an act which enabled the court to give a decentralized opinion by deciding said act to be constitutional. But it is a poor subterfuge and a bad precedent to preserve the reserved powers of Iowa and the other States by congressional legislation.
By the Virginia Act of May 12, 1887, passed at the special session, the Commonwealth's attorney in each county, city, or town where the proceeding is, as well as the attorney-general in the cases therein described, is directed, upon complaint of