right of trial by jury shall be preserved; and Trial by no fact, tried by a jury, shall be otherwise jury. re-examined in any court of the United States, than according to the rules of the common law." The right of trial by jury, in all criminal cases, had been secured by the Constitution, as originally framed; but so highly was this right esteemed by the people, that they were unwilling to allow the possibility of its being encroached upon, even in civil cases; and, therefore added this amendment. The latter part of it is to prevent the infringement of this right, by the judges taking upon themselves, in any case, the power to decide upon matters of fact, which have been settled by a jury. The only proper mode of re-examining such questions, is by submitting them to another jury, by means of a new trial. The common law, referred to in this, and other parts of the Constitution, is the common law of England, whence, in a great measure, the principles of American jurisprudence are derived. nishments. The eighth Article declares, "excessive Bail-fines bail shall not be required, nor excessive cruel pu fines imposed; nor cruel and unusual punishments inflicted." What shall be deemed "excessive bail," or "excessive fines," must, of course, be left to the discretion of those whose duty it is to decide upon such .questions, as it depends upon the particular circumstances of each case; since the bail or the fine which would be excessive in one case, would be extremely moderate in anAll that could be done, therefore, was to declare, by these general terms, that bail is to be taken and fines imposed for the nishments. The Bail-fines purposes of justice, not as means of opprescruel pu- sion. The amount which will effect this object, must be determined by the proper judge, or court, in each particular case. prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion. Reserved rights. Authority ment limited. of govern The ninth and tenth Articles show the jealousy with which the people regarded the new government, and the care with which they guarded against any unauthorized extension of its power. The ninth is, "the enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others, retained by the people." It is not to be supposed, that the people have retained only those rights which are expressly reserved to them in the Constitution, but all, which they have not, by that instrument, granted to the government. tenth is a repetition of the same sentiment in a different form, with the additional reservation of the rights of the separate States. "The powers not delegated to the United States, by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively, or to the people." These are important articles, and express the sense of the people, on points of the highest consequence. The In the first place, they declare the limited authority of the national government, and leave no pretence for the doctrine that it has a right to do whatever it may think condu su ment limit cive to the general welfare, whether author- Authority ized by the Constitution, or not. The " of governpreme sovereignty," in the sense in which ed. that phrase is used by jurists, resides in the people of the United States, not in the government; and, to them, recourse must be had, in the last resort, when the limited authority of government fails. But it is to be borne in mind, at the same time, that the people of the United States intended to invest the general government with all the powers necessary for managing the affairs of a great nation; and this ultimate resort is only to be recurred to, for the purpose of enlarging, or altering the powers of government, when necessary; the people do not, in any other way, interfere with its operations. powers ex But, though the government is limited by But not to the Constitution, it is not confined to those pressly powers, expressly granted by the words of granted. that instrument. As was observed in a former part of this treatise, the Constitution necessarily uses general language, and mentions the great objects to be effected, without descending into the details of the means by which this is to be done. Almost every express grant of power includes others which are incident to it, and necessary for its proper exercise. That such is the meaning of the Constitution, is further obvious, from the omission of the word "expressly," in the tenth article.* By the first article of the former confederation, the States reserved every power ❝ not expressly delegated to the United States in * McCulloch v. The State of Maryland, 4 Wheat. 407. But not to Congress assembled." The people had felt powers ex- the evils arising from this restriction, in the pressly granted.. weakness of Congress, and its inability to State governments do not possess all powers reserved. execute the powers undoubtedly confided to it; and, therefore, omitted the word "expressly," in this article, which was introduced for the avowed purpose of prescribing bounds to the authority of the new govern ment. Another observation suggested by these two articles, is that the State governments are not the depositories of all powers not delegated to the Union. Certain rights are "retained by the people," and the powers not delegated are "reserved to the States respectively, or to the people." The State governments, as well as that of the Union, are created by the people, for certain specific purposes; they are limited by their respective Constitutions, and cannot rightfully exercise any power not granted to them. Whenever, therefore, they go beyond the limits of their authority, to interfere with the general government, it is as much a violation of the will of their constituents, as if the federal government should usurp powers not granted to it. The people of the United States, acting as one nation, have formed the one; and the same people, acting in their respective States, have erected the others; and, given to each, powers for the attainment of the objects for which each was designed. These objects are, in a great degree, distinct, and require distinct spheres of operation; but where they come in contact, the general good requires, and the people have declared, that the general government must prevail. Ex cept in the cases authorized by the Constitution, neither has a right to interfere with the other. A few years after the adoption of the Con- Restriction stitution, the States became dissatisfied with upon the judiciary. that part of it, which subjected them to be sued by individuals, in the federal courts ; and the third Congress, during its second session, proposed an amendment, declaring that the judicial power of the Union 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 subjects of any foreign State. This was ratified by the requisite number of States, and so became a part of the Constitution. This limitation was noticed while treating of the extent of the judiciary power, and it is unnecessary here to say more, than that this limitation applies only to suits brought against a State by individuals; a State may still be sued in the federal courts, by another State, or by a foreign nation. The last amendment was added in the year Voting for President 1803, in consequence, as already mentioned, and Vice of the state of the votes for Mr. Jefferson and President. Colonel Burr. The same thing was likely to happen frequently, since, in the division of parties, two candidates would be selected on each side, and all the votes of each party would probably be given to the same individuals. This amendment was, therefore, adopted, changing the mode of electing the President and Vice President, principally, by making it necessary for the electors to de |