CHAPTER VI.

Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

In the formation of the federal constitution, it was judged best, on the whole, though there was considerable difference of opinion in relation to the subject, not to introduce into it any bill of rights. The reason for excluding it, was principally, because, it was thought, that if no bill of rights was inserted, all rights and liberties not relinquished to the general government, in the constitution, either in express terms, or by necessary implication, would be considered as retained by the people; while, on the other hand, if a bill of rights were introduced in the constitution, and any right or liberty chanced to be omitted in the enumeration, such right or liberty so omitted, would be considered as relinquished to the general government, by implication. Some of the members of the state conventions, however, and particularly of the Virginia convention, where this subject was thoroughly discussed, were strongly in favor of a bill of rights, and some of the amendments, which were afterwards made to the constitution in consequence of the strenuous efforts of those members, contain in express terms a reservation to the people, of certain rights and liberties, which it would be difficult to show congress had any right to interfere with, independently of such reservation. These rights, however, were very properly reserved to the people in express terms, for the purpose of avoiding, as much as practicable, all doubts in relation to the subject. For the same reason, two clauses were inserted among these amendments, declaring in substance, that powers not delegated by the constitution are retained; and, that a partial enumeration of rights should not be construed to deny or disparage rights not contained in it.

In a state of nature, the rights of an individual might be

summed up in a single expression, viz, that he had a right to do whatever he had a power given him by nature to do, provided he violated no precept of religion, and was guilty of no wrong to others. But, in the innumerable relations of organized society, though all a man's rights may be summed up in a manner almost as brief, viz, that he is restrained by no law or duty from doing anything which does not violate any rule of religion or morality, and which does not infringe any of the positive laws or institutions of society; yet, it will be best in order to furnish a more distinct and clear idea of these rights, to take a review of the more important of them separately. For this purpose, since no particular order is observed in the constitution, none needs be observed here.

6

1. Religious Freedom. Under the first amendment of the constitution, congress is prohibited from making any law respecting an establishment of religion, or prohibiting the free exercise thereof.' The reason of this prohibition may be traced in part, to the general spirit of toleration, which`prevails throughout the United States. It is not a necessary conclusion however, that all the various sects are thus tolerant ; but, as the population is divided into a great number of different sects, no single one of which constitutes a majority of the whole, it would be vain for any particular sect, to encourage thoughts of being established as the religion of the whole union. As therefore, there is no probability that any particular sect will ever be able to gain an ascendancy in this country by means of political power; and as unprofitable contests for that object, would create rancorous disputes among those sects, and tend to bring the general cause of Christianity into disesteem with the feeble minded, and 'give an occasion to the adversary,' it has been thought best to provide for a general toleration of religion. The power to make regulations in regard to religion, therefore, must remain in the people of the United States; and though at first sight it might seem, that the citizens of each state might authorize their state rulers to impose religious restraints, yet, as this would interfere with Art. IV, Sect. 2, of the Federal Constitution, it seems that it cannot constitutionally be done.

2. Freedom of speech and of the press. By the same amendment congress is prohibited from passing any law, abridging

the freedom of speech or of the press. These two rights are not further noticed here, being made the subject of chapter II, in part II.

3. The right of the citizens to bear arms. The second amendment to the constitution, declares, that 'the right of the people to keep and bear arms, shall not be infringed.' The reason assigned in the amendment for this restriction on the power of congress, is sufficient to show its true construction. This reason is, because a well regulated militia is necessary to the security of a free state.' Certainly, it is impossible to provide any other mode of defence which shall be at the same time so safe so cheap, and so effectual as that of a well organized militia. For, every able bodied man, with the exception of those who are exempted because they are engaged in the discharge of other public duties, is bound to assist in the public defence; and consequently, with the exception of the small number referred to, the number of the whole militia of the United States, is limited only by that of its effective citizens.

The chief excellence of the militia system, is that every citizen at a moment's warning becomes a soldier; and when the exigency is over, at a moment's warning retires again to the calm and usual pursuits and occupations of peace. To repel a sudden invasion of a foreign enemy; to put down a domestic insurrection at its first commencement; to protect the country from any attempt to usurp power by persons not confided with it, are occasions, in which the policy of the militia system is very apparent. Another advantage, which however is not quite so obvious, is the assistance which it is always ready to lend the civil arm of the government; in preserving domestic peace and tranquillity; in the execution of the process of the law; and in suppressing the tumults and riots and other disorders of the less informed citizens, when under the influence of their own unruly passions, whether excited by some unfortunate occasion, or exasperated by the false reasonings or representations of designing and unprincipled leaders or declaim

ers.

The influence of the militia system in these last cases, is less perceived by the orderly citizens, because it is so much felt by those whose irregularity of conduct can only be restrained by the consciousness of a superior controlling power, which

they cannot withstand, and therefore will not attempt to pro

voke.

Their inefficiency in the field against a regular army, arises from, and is consequently in direct proportion with the following circumstances; viz; want of military skill and experience, in the officers; want of respect for their superiors, and of a spirit of subordination, in the private soldiers. The officers are unable to teach; the privates will not learn. The officers neither know how to command, nor how to enforce obedience. The privates will neither submit nor obey. The whole results in a total disregard of discipline, a want of confidence in their officers, and a distrust of themselves and of each other. These defects however may be remedied by drilling and exercising under officers, who have had an opportunity of seeing service.

There is but little danger that the militia will betray their country. There may be traitors among them; but having their own interests to protect, and being in reality the country itself, it would be absurd to suppose that they would ever betray themselves. It is true, that they may ruin themselves by acting under erroneous views of their own interests. But this is incident to human nature.

The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.

It is a common practice in some parts of the United States, for individuals to carry concealed about their persons, some deadly weapon, and such as is not much used, as a regular weapon of attack or defence, in the army, as, a dirk or a loaded pistol. This cowardly and disgraceful practice, if it is really unconstitutional to restrain it by law, ought to be discountenanced by all persons who are actuated by proper feelings of humanity or a just regard for the dictates of religion. For, what does this practice in a civilized community imply? In what light does the wearer expect to be viewed? Is he under the influ

ence of unmanly timidity? Has he not sufficient courage to declare his sentiments, unless supported by the consciousness that he has a deadly weapon at hand, to which he can appeal, in case of any difficulty or quarrel? Or, is it vanity? If so, then he must frequently display his pistol or dirk. But the weapon of a soldier, worn by one who is not so, becomes the badge of a fop or coxcomb. Or, does he mean to act the part of an assassin, and gratify his temper or malignity by stabbing or shooting the first person who happens to offend him, or who is unwilling to assent to his opinions? The alarming frequency of bloody affrays attended with fatal results, in those parts of the country where this low bred practice is most prevalent, would seem to demand the interposition of the legislature, if it might constitutionally be had. However, the courts and juries may do much, if they will set their faces against it. This they may do with perfect propriety and without either violating the constitution, or overstepping any legal principle. To constitute the crime of murder, it is not necessary, that the act should arise from malice against any particular individual, it is sufficient, if it results from an unprincipled disregard of the lives of other people in general; as, if a man maliciously or wantonly rides a horse used to kick, into a crowd of people, or turns loose in the street a furious wild beast, and any one loses his life in consequence of it, it will be murder. And, there appears to be no reason, why a man, who arms himself with a deadly weapon, with an intent to use it upon the first person who offends him, and afterwards uses it upon some provocation which does not constitute a legal excuse, and kills his antagonist, should be regarded, in any other light than a murderer. There are without doubt circumstances, which may justify a man for going armed; as, if he has valuable property in his custody; or, if he is travelling in a dangerous part of the country; or, if his life has been threatened. But under other circumstances, it ought not to be tolerated or countenanc-ed; because the presence of such weapons has frequently turned a quarrel into a bloody affray, which otherwise would have terminated in angry words, or at most an inconsiderable breach of the peace.

While on this subject, it may not be amiss to suggest, that