10. The eighth amendment provides, that excessive bail shall not be required. This is supposed to be intended to prevent the requiring of excessive or unreasonable bail, in cases of bailable criminal charges only. There is however no reason, why it may not extend to cases, where the defendant in a civil action, is held to bail for an unreasonable amount for the purpose of oppression. It seems however to be a direction for magistrates, and not either for the legislature or for sheriffs, &c. Where a prisoner charged with a bailable offence, is brought before a court or magistrate having authority to hold him to bail, or to let him go upon his giving bail, by what rule is he to be guided in settling the amount to be required, agreeably to the spirit of the consitution? The design of bail is either to relieve a prisoner in custody for a bailable offence, from imprisonment, upon his giving sufficient caution or security for his appearance at court, at the proper time to take his trial; or, it is to compel a person at large to give such security, under the alternative of being committed to prison till his trial comes on. To relieve from imprisonment and to secure the appearance of the accused, are therefore the two objects, which the magistrate is to have in view; but, where both cannot be obtained, the former must yield to the latter. The magistrate here has a right to use a proper discretion. It is obvious, if the person accused, being released on bail, sees fit to abscond, his recognizance will be forfeited, and his bail be held responsible for the amount. If therefore, previously to his going off, he should deposit a sum of money with his bail, sufficient to indemnify them against the forfeiture of the recognizance or bail bond, the purpose of justice will be eluded, so long as he keeps himself out of the jurisdiction of the court, and yet the bail will be held harmless. Where the crime charged therefore is of an odious or infamous nature, and the evidence strong, and the person accused is rich, or has opulent parents or influential friends, the highest bonds should always be required. So, if he is a transient person, high bail should be required; otherwise he may deposit a sufficient sum of money with some one to induce him to procure bail for him, and then abscond. But, where the crime is not of an infamous nature, where the evidence is slight, and yet not suffi

ciently so to warrant the discharge of the person accused; if he is poor, &c. &c. the lightest bonds should be required.

The eighth amendment also prohibits excessive fines. This is a direction to the legislatures as well as to the courts and to magistrates. If therefore a law should be passed, imposing a ruinous fine upon an inconsiderable offence, or otherwise wholly disproportioned to the magnitude of it, it would be inconsistent with the spirit of this amendment. So, where a crime is punishable by fine and imprisonment, at the discretion of the judge, this discretion is a reasonable discretion, i. e. the best exercise of his honest judgment, and must not be confounded either with whim, caprice, or vindictive feelings. A man's farm or stock in trade, ought never to be made a sacrifice, to the ruin of himself and the distress of his family, but, if necessary to make an example, he should rather be imprisoned for a longer period, and a more moderate fine be imposed. For similar reasons, if a law should be passed, requiring a specified and very heavy fine to be imposed in all cases of crimes of any particular class, and allowing the judge no discretion, though the offence in some cases might be very slight, it cannot be doubted that such a law would be contrary to the spirit of the constitution.

No express restriction is laid in the constitution, upon the power of imprisoning for crimes. But, as it is forbidden to demand unreasonable bail, which merely exposes the individual concerned, to imprisonment in case he cannot procure it; as it is forbidden to impose unreasonable fines, on account of the difficulty the person fined would have of paying them, the default of which would be punished by imprisonment only, it would seem, that imprisonment for an unreasonable length of time, is also contrary to the spirit of the constitution. Thus in cases where the courts have a discretionary power to fine and imprison, shall it be supposed, that the power to fine is restrained, but the power to imprison is wholly unrestricted by it? In the absence of all express regulations on the subject, it would surely be absurd to imprison an individual for a term of years, for some inconsiderable offence, and consequently it would seem, that a law imposing so severe a punishment

must be contrary to the intention of the framers of the constitution.

Under the same amendment the infliction of cruel and unusual punishments, is also prohibited. The various barbarous and cruel punishments inflicted under the laws of some other countries, and which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending asunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution. Yet the statute books of some of the states, are disgraced by laws justly chargeable with barbarity. Is not whipping a punishment sufficiently severe of itself, when required to be inflicted on the naked back, without the savage direction that, the stripes should be well laid on?' Is not the punishment of death sufficient? Must the atrocious spirit of revenge be gratified, by having the culprit burned alive?

11. In the fifth amendment will be found a prohibition to take private property for public use, without just compensation. It would seem no more than justice in any such case, to estimate the property taken, at its fair value at that time, with the usual rate of interest on that amount, until the time of paying for it; this being the nearest approximation that can be made, to the actual detriment which the owner has sustained. Where the legislature do any act of this kind, it cannot of itself constitutionally determine the amount of compensation. See 2 Dal. 304.

There are some other rights, which are reserved to the people, though not mentioned in the general constitution. Among these is the right of self-defence, in cases where the danger is so imminent, that the person in jeopardy, may suffer irreparable injury, if he waits for the protection of the laws. It is true, if he survives, the justice of society will afford him such separation as its own power permits; but he is not bound to submit to this alternative; and as the compact between him and society is mutual, if society is unable to protect him, his natural right revives to protect himself. See ante, p. 40.

Another right, reserved to the people though not mentioned in the constitution, is that of expatriation. Every citizen who has not entered into an express compact with the government by swearing allegiance, may leave the country and dissolve all ties with it but those of gratitude and affection, at pleasure. This right is acknowledged indirectly by the constitution; for otherwise, it would not have established a rule of naturalization, by which aliens who desert their native country, may become citizens and patriots here. See ante, p. 43.

The people also according to the democratic theory, have a right to alter their constitution and frame of government, as they please, if unanimous. This right is inalienable; no express stipulation can deprive them of it. It is true, that a mode of amending the constitution is pointed out in it: but, as this mode of amendment is only agreed upon by the people of the United States, as a safe and convenient one; the same authority, if substantially unanimous, may abolish the whole constitution and the mode of amendment, and adopt whatever form of government they see fit. This however is the right of revolutionizing, which however it may be viewed in the abstract, if taken in connexion with its concomitant circumstances and attendant consequences, viz. the unsettled state of all laws and institutions; the base and profligate practices of ambitious men to mislead the people; the insecurity of property of life itself, and the extreme improbability, that a people who have been so foolish as to abolish a tolerable government, on account of some theoretical defects, will have sufficient wisdom to adopt a better, should cause a case, where such right may be exercised with propriety, to be regarded as potentia remotissima, an incredible supposition. See ante, p. 55.

An important right, and one which is expressly reserved to the people, in the constitution, is that of assembling peaceably.

This is one of the strongest safeguards, against any usurpation or tyrannical abuse of power, so long as the people collectively have sufficient discernment to perceive what is best for the public interest, and individually have independence enough, to express an opinion in opposition to a popular but designing leader. But, if they are ignorant or misinformed in this respect, the exercise of this right will be pernicious, if

their rulers are governed by any expression of the sentiments of such of them as see fit to exercise it; and will be useless, if they are not at all influenced by it.

This right includes not only a right to assemble in order to petition for a removal of grievances, but also a right to assemble for the purpose of deliberating upon public measures. For, it cannot be supposed that they have a right to assemble for the purpose of petitioning only, when a short consultation may perhaps be sufficient to convince them, either that their is no grievance at all; or, that it is unavoidable; or, that it will remedy itself; &c. &c. any of which will be sufficient to satisfy the people, that an application to congress on the subject, would be superfluous or useless.

The proper occasion for the exercise of this right would seem to be, where a law has a different operation from what congress intends, and is oppressive in any respect, either to the people in general; or, to any particular class of them; or, to the inhabitants of any particular state, district, territory, or section of the country. In any such case, those persons who suffer the inconvenience or grievance, may well send a petition or remonstrance to congress on the subject. But then it should be subscribed by those only who belong to the suffering class or district. For, the object of it must be to show to congress the true state of the case, and in this way to let congress perceive the impolicy of the law and the necessity of its repeal. But, if signed by petitioners or remonstrants, who have no interest in it, and who know nothing about its consequences from personal experience, it will be a mere attempt to impose upon congress. For, it is not the mere opinions of those who suffer no grievance, which are wanted, nor theories, however ingenious, but the results of experience.

For the same reason, when different classes of citizens suffer different grievances from a particular public measure, each class should remonstrate separately, and state only the real grievances which it suffers, itself, without noticing those which it supposes other classes to suffer. For, of these, those other. classes are the best judges, who can petition for themselves if they think it expedient. Nether should their petitions or remonstrances be filled with lectures or disquisitions on specula