This provision applies to tribunals established under a provisional government. Scott v. Billgerry, 40 Miss. 119.

A territorial statute prohibiting a trial by jury in actions at law, where the amount involved exceeds twenty dollars, is void. Webster v. Reid, 11 How. 437; S. C. Morris, 467; Whallon v. Bancroft, 4 Minn. 109.

A territorial statute allowing a verdict to be rendered upon the agreement of three-fourths of the jurors is void. Kleinschmidt v. Dunphy, I Mont. 118.

This provision does not prevent a territorial legislature from extending the right of jury trial to cases at law involving less than twenty dollars. Whallon v. Bancroft, 4 Minn. 109.

Had the terms been that "the trial by jury shall be preserved," it might have been contended that they were imperative and could not be dispensed with. But the words are that " the right of trial by jury shall be preserved," which place it on the foot of a lex pro se introducta, and the benefit of it may therefore be relinquished. Bank v. Okely, 4 Wheat. 235; U. S. v. Rathbone, 2 Paine, 578; Parsons v. Armor, 3 Pet. 415.

Whenever a party is concluded by his own act, and held to have waived any right or privilege, such act should not be left doubtful, but should be plain and explicit. Every reasonable presumption should be made against the waiver, especially when it relates to a right or privilege deemed so valuable as to be secured by the Constitution. U. S. v. Rathbone, 2 Paine, 578.

The second clause is a substantial and independent clause, and applies to cases of Federal cognizance coming into the Federal courts from the State courts. Justices v. Murray, 9 Wall. 274.

ARTICLE VIII.

1. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This amendment was intended only for Congress and the Federal courts, and does not extend to the State governments, which are left at liberty to regulate their own criminal codes as they may deem proper, without reference to the laws or Constitution of the United States. James V. Comm. 12 S. & R. 220; Barker v. People, 3 Cow. 686.

The Supreme Court can not, on a writ of habeas corpus, revise the sentence of an inferior court in a criminal case, on the ground that the fine imposed was excessive. Ex parte Tobias Watkins, 7 Pet. 568.

ARTICLE IX.

1. The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE X.

1. 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.

This amendment omits the word "expressly," contained in the articles of confederation, thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one government or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. McCulloch v. State, 4 Wheat. 316; George v. Concord, 45 N. H. 434.

Under the Constitution all possible powers must be found in the Federal Government or the States, or else they remain among those reserved rights which the people have retained, as not essential to be vested in any government. That which is forbidden to the States is not necessarily in the Federal Government, because it may be among the reserved powers. But if that which is essential to government is prohibited to one, it must, of necessity, be found in the other, and a prohibition in such a case on the one side is equivalent to a grant on the other. Van Husan v. Kanouse, 13 Mich. 303.

The Government can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. Martin v. Hunter, I Wheat. 304; S. C. 4 Munf. 1.

The principle that the Government is a government of limited powers, is misapplied when an attempt is made to use it to restrict the right to exercise a power expressly given. It is of value when the inquiry is whether a power has been conferred, but of no avail to strip a power given, in general terms, of any of its attributes. The powers of the Federal Government are limited in number, not in their nature. A power vested in Congress is as ample as it would be if possessed by any other legislature. It is not enlarged or diminished by the character of its possessor. Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465.

The United States is a government, and consequently a body politic and corporate, capable of attaining the objects for which it was created by the means which are necessary for their attainment. It requires no argument to prove that one of the means by which some of these objects are to be accomplished is contract. The Government, therefore, is capable of contracting, and its contracts may be made in the name of the United States. The capacity of the United States to contract is coextensive with the powers and duties of government. Every contract which subserves to the performance of a duty may be rightfully made. U. S. v. Maurice, 2 Brock. 96.

The Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. Comm. v. Dennison, 24 How. 66.

Prohibitions on the States are not to be enlarged by construction. Anderson v. Baker, 23 Md. 531.

When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed not from the people of America, but from the people of the several States, and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. Sturges v. Crowninshield, 4 Wheat.

122.

The Constitution was not intended to furnish the corrective for every abuse of power which may be committed by State governments. The interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the only security against unwise legislation, where there is no contract. Providence Bank v. Billings, 4 Pet. 514.

The power to direct and regulate the mode of selling by citizens of the State, and within its own territories, is one of the acknowledged powers of the State governments. It is in virtue of this power that all laws respecting hawkers, peddlers, auctioneers and others are made. Comm. v. Kimball, 41 Mass. 359.

There is nothing in the Constitution which forbids the legislature of a State to exercise judicial functions. Satterlee v. Matthewson, 2 Pet. 380.

The establishing courts of justice, the appointment of judges, and the making regulations for the administration of justice within each State according to its laws, on all subjects not intrusted to the Federal Government,

are the peculiar and exclusive province and duty of the State legislatures. Calder v. Bull, 3 Dall. 386; s. c. 2 Root, 350; Lapsley v. Brashears, 4 Litt. 47.

There is no constitutional objection to the exercise of the power to make a binding contract by a State. It necessarily exists in the sovereignty. A denial of this is a denial of State sovereignty. It takes from the State a power essential to the discharge of its functions as sovereign. If it does not possess the attribute, it could not communicate it to others. There is no power possessed by it more essential than this. Through the instrumentality of contracts, the machinery of government is carried on. Money is borrowed and obligations given for payment. Contracts are made with individuals, who give bonds to the State. State Bank v. Knoop, 16 How. 369; Ohio Trust Co. v. Debolt, 16 How. 416; S. C. 1 Ohio St. 563; Boston & L. R. R. Co. v. Salem & L. R. R. Co. 68 Mass. I.

The power to regulate suffrage in a State, and to determine who shall or shall not be a voter, belongs exclusively to the State itself. The right of suffrage at a State election is a State right, a franchise conferrable only by the State, which Congress can neither give nor take away. Huber v. Reily, 53 Penn. 112.

Every State has the right to determine the status or domestic and social condition of the persons domiciled within its territory, except in so far as the powers of the States in this respect are restrained or duties and obligations imposed upon them by the Constitution. Strader v. Graham, 10 How. 82.

The several State legislatures retain all the powers of legislation delegated to them by the State constitutions which are not expressly taken away by the Constitution of the United States. Calder v. Bull, 3 Dall. 386; s. c. 2 Root, 350; Comm. v. Kimball, 41 Mass. 359; People v. Naglee, I Cal. 231.

The Constitution makes no provision for protecting the citizens of the respective States in their religious liberties. This is left to the State constitutions and laws. There is no inhibition, in this respect, imposed by the Constitution on the States. Permoli v. Municipality, 3 How. 589.

The several States, for all purposes except those of a national character embraced in the Constitution, are foreign to and independent of each other. Buckner v. Finley, 2 Pet. 586; Bank v. Daniel, 12 Pet. 33; Augusta v. Earle, 13 Pet. 520; Dodge v. Woolsey, 18 How. 350.

[The following amendment was proposed at the second session of the third Congress. 1 Stat. 22.]

ARTICLE XI.

1. The judicial power of the United States 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.

There is nothing in the Constitution to deprive a State court of the jurisdiction over suits against a State which it possessed before the Constitution was adopted. Garr v. Bright, 1 Barb. Ch. 157.

This amendment applied to past as well as future cases. Hollingsworth v. Virginia, 3 Dall. 378.

1

The mere suggestion of title in a State to property in the possession of an individual, does not arrest the proceedings or prevent the court from looking into the suggestion and examining the validity of the title. U. S. v. Peters, 5 Cranch, 115.

This amendment is, of necessity, limited to those suits in which a State is a party on the record. Osborn v. Bank, 9 Wheat. 738; U. S. v. Peters, 5 Cranch, 115; Davis v. Gray, 16 Wall. 203; U. S. v. Bright, Bright. 19: Olmstead's Case, Bright. 9; Swasey v. N. C. R. R. Co. 1 Hughes, I; S. C. 71 N. C. 571.

By a suit commenced by an individual against a State, is meant process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court, and the prosecution of that suit is its continuance. Cohens v. Virginia, 6 Wheat. 264.

A suit is the prosecution of some demand in a court of justice. To commence a suit is to demand something by the institution of process in a court of justice, and to prosecute the suit is, according to the common acceptation of language, to continue that demand. Cohens v. Virginia, 6 Wheat. 264.

The amendment was intended for those cases, and for those only, in which some demand against a State is made by an individual in the Federal courts. Cohens v. Virginia, 6 Wheat. 264.

A writ of error prosecuted by a citizen against his own State, is not within the prohibition. Cohens v. Virginia, 6 Wheat. 264.

Where a State obtains a judgment against an individual, and the court rendering such judgment overrules a defense set up under the Constitution