against him, to point out the contradictions or defects of their testimony, and to counteract it by properly introducing and applying his own. Hence the importance, we might say the right, of having the aid of men educated and accustomed to manage criminal trials, to whose knowledge and experience he may safely commit the conduct of his defence. Will it be believed, that even at this day, in England, a person indicted of any capital crime, (except treason by express statute,) is not allowed the benefit of counsel except to address the court on a question of law? Two benevolent efforts have been recently made in the house of commons to procure this right to such defendants, but being opposed by the whole force of government, they have both failed.

The protection of the individual against all unnecessary severity in the prosecution of justice characterizes the greatest part of the fifth amendment.

At common law, there are two modes of instituting such prosecutions, one of which is by an information, filed by the officer who represents the public on his own judgment and discretion, which if unadvisedly or corruptly done, may subject an innocent individual to very causeless pain and expense. The other is by an indictment, which is prepared by the same officer, and sent to a grand jury, or it may indeed be done by the grand jury themselves, in both of which cases, witnesses are carefully examined on the part of the public, and the accused is not put on his trial unless at least twelve grand jurymen on their oaths, (or affirmations,) find that there is sufficient cause for it. In this article it is expressly declared, that no person except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger, shall be held to answer for a capital or otherwise infa

mous crime, unless on a presentment or indictment of a grand jury, and in no case shall he be compelled to be a witness against himself.

That no one shall be subject for the same offence, to be twice put in jeopardy of life or limb, which is also provided, is perhaps too narrow-no one after a full trial and a fair acquittal, ought to be subjected to another trial for the same offence, whether it be great or small, and such indeed is the settled rule of law. The plea of a former acquittal is a complete bar to every subsequent prosecution for the same offence. It follows from all the antecedent precautions, that "no one ❝can be deprived of life, liberty, or property, without "due process of law," and the repetition of this declaration is only valuable as it exhibits the summary of the whole, and the anxiety that it should never be forgotten.

But one part of the clause, connected with the last mentioned, requires more particular explanation.

In some countries when the public interest may occasionally require that private property should be appropriated to public purposes, the sovereign makes use of it without ceremony. In others, it cannot be taken from the individual on any terms without his own consent. A middle line is the correct course. A perverse and obstinate individual might otherwise impede or wholly prevent measures of the most cogent necessity for the public benefit, in which his own would be included. The people by declaring that "private pro"perty shall not be taken for public use without just 66 compensation," have agreed that in such cases and on such terms it may be taken. Of the necessity the legislature is the only judge; it does not rest with the judicial power to determine whether the public exigence was such as to require it: great inconveniences

might ensue from their assuming such a right. For example, a particular piece of ground might appear to the legislature a suitable site for a fort in time of danger, and if they proceeded in a legal manner to vest the right to the ground in the public, it would not be competent for the judiciary to decide that a better spot might have been chosen, or that there was no necessity for any fort. Thus the property of an individual may be legally transferred against his will to the state, but the legislature has no power to transfer the property of A. to B. although it may appear more beneficial to the state that B. should have it. (59) The just compensation spoken of, should be ascertained by a jury impartially selected, and should be paid in money, the universal representative and common standard of value. (60)

Here we close this part of our view of the constitution.

In the restrictions on the legislative power, we perceive two great principles, the security of the people's rights, and the preservation of the entire national system. We have noticed those parts which necessarily exclude the action of the states on the same subjects, but it will also be proper to insert those express restrictions on the states which are found in the constitution, amounting to relinquishments of so much of the state sovereignties as the people conceived it best to transfer to the people, union.

"No state shall enter into any treaty, alliance, or "confederation, nor into any agreement or compact "with another state or with a foreign power." If literally construed, this restriction would be total and absolute, and yet, as between states, some compacts

(59) Vanhorn's lessee v. Dorrance, 2 Dall. 384.

(60) Ibid.

certainly may be constitutionally made. Thus when a large river forms a boundary between two states, a compact in regard to the exercise of jurisdiction on the river, or in respect to its fisheries, or its islands, would be lawful. And perhaps the true construction of this clause is, that political compacts in any form are alone intended.

If a state has received a particular injury from a foreign power, it is not to give way to the natural impulse of granting "letters of marque and reprisal,” for this would invade an essential attribute of the general government. The power "to coin money, emit bills of credit, and make any thing but gold and silver a tender in the payment of debts," is likewise withdrawn from them, although not withheld from the United States.

The restrictions of passing bills of attainder and ex post facto laws, and granting titles of nobility, is common to both, but the express prohibition of passing laws impairing the obligation of contracts is confined to the separate states, and it may, as already noticed, be inquired why it was not extended to the United States. Before an answer is given, an explanation of the sense in which the term contract is here to be expounded, drawn from the highest authority, will be useful.

By contracts we are to understand every executed agreement, whether between individuals or between individuals and a state, by which a right is vested, and every executory agreement which confers a right of action, or creates a binding obligation in relation to subjects of a valuable nature, such as may be asserted in a court of justice; but it does not comprehend the political relations of a government and its citizens; civil institutions which must be liable to change with

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circumstances, and to be modified by ordinary legislation, those which deeply concern the public, and which to preserve good government, the public judgment must control. (61)

The plenitude of power possessed by a state legislature, to which every thing that is not reserved is granted, and the temptations to an erroneous exercise of this power which sometimes occur, render express restrictions, if not absolutely necessary, at least very useful, but the legislature of the United States can have no such power, unless it is expressly granted to them.

A system of bankruptcy impairs the obligation of contracts, when it releases the party from the necessity of performing them; but congress is expressly invested with this power in regard to bankruptcy. It is an enumerated, and not an implied one, and in no other form can the obligation of contracts be impaired by them. A system of bankruptcy is practically limited to two objects, the relief of honest insolvency and the equal distribution of the remnants of property among the creditors. The United States therefore, possess no vague and indefinite power, that may be exercised to the prejudice of individuals among themselves, or the exaltation of the public authority over private rights.

The remaining restrictions have already been generally noticed, but will here be transcribed to close the subject.

No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its in

(61) 6 Cranch, p. 136. 4 Wheaton, p. 627.

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