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other hand, there is weight due to the consideration, that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private right. It requires more than ordinary hardiness and audacity of character, to trample down principles which our ancestors cultivated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are part of the muniments of freemen, showing their title to protection, and they become of increased value when placed under the protection of an independent judiciary, instituted as the appropriate guardian of private right. Care, however, is to be taken in the digest of these declaratory provisions, to confine the manual to a few plain and un- 9 exceptionable principles. We weaken greatly the force of them, if we encumber the constitution, and perhaps embarrass the future operations and more enlarged experience of the legislature, with a catalogue of ethical and political aphorisms, which, in some instances, may reasonably be questioned, and in others justly condemned. a
• The following instances may be mentioned as illustrations of the questionable nature of some of these declaratory provisions :
Thus, several of the state constitutions, as those of New-Hampshire, Massachusetts, Vermont, North Carolina, Ohio, Indiana and Illinois, have made it an article in their bill of rights, that the people have a right, not only to apply to the legislature by petition, or remonstrance, but to “in. struct their representatives.” If, by this, be meant that they may give to their representatives wholesome advice or information, it is a palpable truth, and quite a harmless article ; but if it be intended to declare, that the people of a town, or county, or district, may give binding instructions to their immediate delegates, and to which they must conform without any exer
In the revision of the constitution of New York, in
1821, the declaration of rights was considerably 11* enlarged; and yet *the most comprehensive, and
the most valuable and effectual of its provisions,
cise of their own discretion, in like manner as an agent or attorney in private business is bound by the directions of his principal, it would then render useless all discussion and deliberation in the legislature. This would be repugnant to the theory of government, which suppuses that the representatives are to meet and consult together for the common welfare, and to have a regard, in the making of laws, to the greatest general good, and to make the local views and interest of a part of the community subordinate to the general interest of the whole. The principle of the English common law, applicable to the members of the British house of commons, is deemed to be the true doctrine on this subject. Though chosen by a particular county or borough, the member, when elected and returned, serves for the whole realm. “When you choose a member," said Mr. Burke to the electors of Bristol, in 1774,“ he is not a member of Bristol, but he is a member of parliament.” The end of his election is not particular, but general ; not barely to advantage his constituents, but for the common weal; and he is not bound to take and follow the advice of his constituents upon any particular point, unless he thinks it proper and prudent so to do. (4 Inst. 14. 1 Blacks. Com. 159.) The representative (to use again the language of Burke) owes to his constituents, not his industry only but, his judgment; and he betrays, instead of serving them, if he sacrifices it to their opinion. The people cannot debate in their collective capacity. They can only de. liberate and make laws by their representatives; and in the ordinary course of human affairs, the exercise of their sovereignty, and the means of their safety, will consist in the discreet selection of the rulers who are to administer the government of their choice. The earliest assertion of this impor. tant and undoubted constitutional principle, that each member of the house of commons was deputed to serve, not only for his immediate constituents, but for the whole kingdom, was, according to Mr. Hallam, (Constitutional History of England, vol. i. p. 352.) made in parliament, in 1571.
So it is declared, in some of the state constitutions, as Maryland, North Carolina, and Tennessee, that “monopolies are contrary to the genius of a free government, and ought not to be allowed.” This would seem to restrain the legislature from granting any exclusive privilege, even for a limted time, and prevent them from encouraging the introduction and prosecution of hazardous and expensive experiments in some art, science, or business, calculated to be extensively useful. “A temporary monopoly of that kind,” says Doctor Adam Smith, (Inquiry into the Wealth of Nations,
were to be found in the original constitution of 1777,as it was digested by some master statesman, in the midst of the tempest of war and invasion. It was declared, a that no authority should be exercised over the people or members of the state, on any pretence whatever, but such as should be derived from, and granted by them; and that trial by jury, as formerly used, should remain invio
vol ï. p. 272,) "may be vindicated upon the same principles, upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author.” If the principle be correct, that all monopolies are contrary to the genius of a free state, it would condemn the power given to congress to secure to authors and inventors the exclusive right to their writings and discoveries, and which species of monopoly is deemed to be exceedingly just and useful. Again ; it is made an article in the declaration of rights, in the constitution of Illinois, that “there shall be no other banks or moneyed institutions in the state, but those already provided by law, except a state bank and its branches.” This is too general and too indefinite a restraint upon the exercise of the legislative discretion, and the subject seems scarcely of sufficient importance to have been classed among the “ general, great, and essential principles of liberty and free government.” In a commercial state, it would lead to the loss of many useful moneyed establishments, or what is more probable, it would be a temptation to efforts to elude the force of the article by evasive constructions. So, the provision in the declaration of rights in the constitution of Mississippi, that “no citizen shall be prevented from emigrating on any pretence whaterer," seems to be stated in terms too strong and unqualified, and it would require some latitude of interpretation to prevent the unjust application of the injunction to the case of persons emigrating with the fraudulent design of avoiding the payment of debt, or the discharge of a known duty, as the relief of bail or security. It is declared, in the constitution of Ohio, that “ every association of persons, being regularly formed, and having given themselves a name, may, on application to the legislature, be entitled to letters of incorporation to enable them to hold estates, real and personal, for the support of their schools, academies, colleges, universities and other purposes.” The provision is too indefinitely expressed, and relates to a case of ordinary legislative discretion, and if literally carried into execution, it would be productive of great inconvenience. It does not seem to be de. serving of a place among " the essential principles of liberty aud free government to be forever unalterably established.”
· Constitution of 1777, art. 1. 13. 41.
late for ever; and that no bills of attainder should be passed, and no new courts instituted, but such as should proceed according to the course of the common law; and that no member of the state should be disfranchised, or deprived of any of his rights or privileges under the constitution, unless by the law of the land, or the judgment of his peers. Several of the early state constitutions had no formal bill of rights inserted in them; and experience teaches us, that the most solid basis of public safety, and the most certain assurance of the uninterrupted enjoyment of our personal rights and liberties, consists, not so much in bills of rights, as in the skilful organization of the government, and its aptitude, by means of its structure and genius, and the spirit of the people which pervades it, to produce wise laws, and a pure, firm, and intelligent administration of justice. I shall devote the remainder of the present lecture to
examine more particularly the right of personal se*12 curity and *personal liberty, and postpone the con
sideration of the right of private property until we arrive at another branch of our inquiries.
(1.) Of the right of personal security.
The right of personal security is guarded by provisions which have been transcribed into the constitutions in this country from magna charta, and other fundamental acts of the English parliament, and it is enforced by additional and more precise injunctions. The substance of the provisions is, that no person, except on impeachment, and in cases arising in the military and naval service, shall be held to answer for a capital, or otherwise infamous crime, or for any offence above the common law degree of petit larceny, unless he shall have been previously charged on the presentment or indictment of a grand jury;a that no
In the case of The State v. Hardie, 1 Battle N. C. Rep. 42, it was held that an information in the nature of a quo warranto to try the right to
person shall be subject, for the same offence, to be twice put in jeopardy of life or limb; a nor shall he be compelled,
a franchise, was in the nature of a civil remedy, and not within the prov. ince of a bill of rights, that no freeman should be put to answer for any criminal charge, but by indictment, &c. But in New Hampshire the attorney-general may ex-officio, and in his discretion, file an information in all cases of offences and misdemeanors not capital or infamous. The State v. Dover, 9 N. H. Rep. 468 ; and this seems to be the law also in the states of Maine and Massachusetts. The State v. Kittery, 5 Greenleaf, 254. Commonwealth v. Waterborough, 5 Mass. Rep. 259. The Constitution of New York does not require an indictment in all criminal cases, for it excepts petit larceny; nor does it require trial by jury in cases of petit larceny and of other offences not infamous, as in cases of vagrants, disor. derly persons, &c., for the trial by jury had not been previously used in such cases. Duffy v. The People, 6 Hill, 75. In Ohio also it is held that the Legislature may direct the mode of redress, untrammeled by the constitutional provision of indictment or presentment as to offences criminal or infamous, when the offences are but quasi criminal, as Sabbath break. ing, selling spirituous liquors contrary to law, and many other misdemeanors, which may be given to the jurisdiction of justices of the peace, mayors, &c. Markle v. Akron, 14 Ohio Rep. 489. These summary convictions are in derogation of the common law, without indictment or trial by jury, and are construed strictly, and rest for their validity on statute provisions. There must be a record of the proceeding and an information or charge, and notice to the party, and a conviction, judgment, and execution. A review founded on the record may be had by habeas corpus or certiorari. The People v. Phillips, N. Y. C. Court. See N. Y. Legal Observer for April, 1847, p. 130.
• This prohibition as to putting a party twice in jeopardy, is in the constitution of the United States, and it has been deemed, by Mr. Justice Story, to mean that no person shall be tried a second time, for the same offence, after a trial by a competent and regular jury, upon a good indictment, whether there be a verdict of acquittal or conviction. A new trial cannot therefore be granted in a capital case, after a verdict regularly rendered upon a sufficient indictment, but it may where the jury has been discharged from giving a verdict, for then the party has not been put in jeopardy. United States v. Gibert, 2 Sumner, 19. But in opposition to this opinion, it has been adjudged by Mr. Justice McLean, in an equally elaborate opinion in the case of the United States v. Koen, 1 McLean's Rep. 429, that the courts of the United States have a constitutional power to grant new trials in capital as well as in other criminal cases. With respect to the right to discharge a jury in a capital case when they cannot agree upon a