Wednesday, May 29, 2013

"certain particular rights are plainly declared or recognized, as natural, legal, and subsisting rights of the people"

§ 439. This was afterwards distinctly avowed to the South Carolinians by General Charles Cotesworth Pinckney. He said, "Such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace when a large part of our property consists in men who are actually born slaves."1 Amid all the sophistry that was wasted to reconcile the people of the North to the omission of a bill of rights, and to obliterate the fact that it was through the influence of slavery, here is a plain and honest statement of the exact truth; and it is the only instance where the truth on this subject was boldly and explicitly stated, responsibly vouched, and placed on record, so that to this day it can be seen and produced in evidence.

§ 440. Two of the proposed Articles2 were rejected; but the other ten were ratified by the legislatures of three-fourths of the States, and constitute the first ten of the Amendments now making a part of the Constitution. In these, certain particular rights are plainly declared or recognized, as natural, legal, and subsisting rights of the people, and so made their constitutional rights. They become a part of the supreme law of the land, and so bind the government, and all subordinate governments, — every body, in fact, owing allegiance to the Constitution.1

1 4 Elliot's Debates, 316.
2 The second of the original series was in these words: "No law varying the. compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened." When these were proposed, the Union consisted of eleven States only. Three of the eleven — viz., Massachusetts, Connecticut, and Georgia — have never acted on any of them. Before the others had all acted, the number of States had increased to fourteen, by the accession of Rhode Island, North Carolina, and Vermont, so that eleven, instead of nine, were required for their adoption. At this juncture, and before the admission of Kentucky increased the number to fifteen, it was found that eleven States had adopted the ten Amendments, leaving out the other two. The one above recited was negatived by Rhode Island, New York, New Jersey, and Pennsylvania, while agreeing to the rest; and only New Hampshire, Vermont, Delaware, Maryland, Virginia, North Carolina, and South Carolina agreed to this with the other ten. Thus seven States only have ratified this Amendment, and it has not since been taken up for consideration or re.consideration by any of the other States.

§ 441. The opinion of the Court, per Mr. Chief Justice Spencer, says, "The Article in question [fifth Amendment] does extend to all judicial tribunals in the United States, whether constituted by the Congress of the United States or the States individually. The provision is general in its nature and unrestricted in its terms; and the sixth Article of the Constitution declares, that that Constitution shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding. These general and comprehensive expressions extend the provisions of the Constitution of the United States to every Article which is not confined, by the subject-matter, to the national government, and is equally applicable to the States."2 —" The legislature of this State is as much bound by this [fifth Amendment] provision in the Constitution of the United States, as they would be were it contained in our own Constitution."1 In the case of Houston v. Moor, 5 Wheat. Rep., Mr. Justice Johnson said, " In cases affecting life or member, there is [in the fifth Amendment] an express restraint upon the exercise of the punishing power. But it is a restriction which operates equally upon both [i.e., national and State] governments." Mr. Chief Justice Marshall said,2 "The Constitution of the United States was made for the whole people of the Union, and is equally binding upon all the courts and all the citizens." Mr. Chief Justice Taney said,3 "The Constitution of the United States, and every Article and clause in it, is a part of the law of every State in the Union, and is the paramount law."i
1 See People v. Goodwin, 18 John R., 187. 2 Ibid.

§ 442. These rights are :—
1. The free exercise of religion, without any legal establishment thereof.
2. The freedom of speech and of the press.
3. The right to assemble and petition the government.5
4. The right to keep and bear arms.8
1 Case of Dart. Coll., p. 59, per Jer. Mason, arguendo.
2 In Farmers' & Mechanics' Bank, v. Smith, 6 Wheat. Rep., 181.
• Prigg's Case, 16 Peters' Rep., 628.
* e. con., see Barker v. the People, 3 Cowen's R., 686; James v. Commonwealth, 12th Sergeant & Rawle's R., 220; Barron v. Baltimore, 7 Peters' Rep., 243. * In Article I. 6 In Article II.
5. To exemption from having soldiers quartered in his house, unless by law in time of war.:
6. To security from unreasonable searches and seizures and illegal warrants.2
7. To exemption from trial for infamous crime, unless on indictment by a grand jury, or in army or navy.
8. To exemption from more than one trial for the same offence.
9. To exemption from being a witness against himself in a criminal case.
10. To life, liberty, and property, till deprived by due process of law.
11. To just compensation for property taken for public use.8
12. In criminal cases, to distinct accusation, speedy public trial, impartial jury of the State where committed, witness personally present in Court, his own witnesses and counsel.4
13. To trial by jury in civil suits at commonlaw.5
14. To exemption from excessive bail or fines, and cruel or unusual punishments.8
15. The mention of particular rights not to disparage others not mentioned.7
16. A reserved right to all powers not delegated to the State or general governments.8 ,
1 Article III. » In Article IV. » In Article V.
* In Article VI. « In Article VII. • In Article VIII.
» Article IX. 8 in Article X.

- Judge Timothy Farrar, [MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. By TIMOTHY FARRAR, LL.D. Veritatem--"expellas furca, tamen usque recurret."--Horace. "Litera scripts manet." THIRD EDITION REVISED. With An Appendix. BOSTON: LITTLE, BROWN, AND COMPANY. 1872. Pg. 279-288] (The Hon. Timothy Farrar of New Ipswich, N.H. was a judge of the Court of Common Pleas, and vice president and director of the New England Historical and Genealogical Society. He also wrote the Review of the Dred Scott Decision)

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