In the first constitutions of the states, adopted just before or immediately after independence, and in nearly all the state constitutions adopted later, either during the Revolutionary period or subsequently, a special enumeration is made of rights of the people which are not to be infringed by the government set up by the constitution. These enumerations are sometimes called "declarations of rights" and sometimes "bills of rights." But whether introduced by any such formal title, or embodied without separate designation, they are intended as, and constitute, distinct limitations on the powers of the state government. The terms "declaration of rights" and "bill of rights" are borrowed from English history, the instrument known as the Declaration of Rights having been promulgated by Parliament in 1688, and presented to William and Mary, who were jointly succeeding to the throne of England, in consequence of the dethronement of James II by Parliament and the exclusion of his heirs from the succession. The Bill of Rights was adopted by Parliament and approved by William and Mary in the year 1689, as a statement of some of the fundamental principles which should be recognized by them in the administration of the government. It recites the grievances which had already been set forth in the Declaration of Rights, and declares, among other things, that the power to suspend or dispense with the laws, or the execution thereof, is illegal; that money can be levied only by act of Parliament; that the right to petition shall be preserved; that standing armies shall not be raised or kept within the kingdom in time of peace without the consent of Parliament; that the right to bear arms and freedom of speech and of the press shall be protected; that excessive bail shall not be required, nor cruel or unusual punishments inflicted, etc. The corresponding declarations or bills of rights found in the various state constitutions include similar declarations, and others more fundamental and pertinent. They are, of course, not uniform as to the subjects to which they relate; but in most of them are important guaranties of jury trial, procedure according to due process of law, guaranties of personal and property rights, freedom of speech and of the press, and the like. So far as these provisions have been the subject of subsequent judicial controversy, they will be hereafter referred to.

It may also be noticed as a matter of constitutional history that, even before the adoption of state constitutions, the rights of the people of the colonies to the guaranties of personal liberty found in the English Declaration of Rights had been frequently asserted, as, for instance, in the Declaration adopted by the first Continental Congress, and in the Declaration of Independence.

The federal constitution, as originally adopted, contained some express limitations on the states, such as that " no state shall make anything but gold and silver coin a legal tender in the payment of debts; emit bills of credit; . . . pass any bill of attainder or ex post facto law, or law impairing the obligation of contracts " (Art. I, § 10), and also some limitations which are general in their terms, such as that the privilege of the writ of habeas corpus shall not be suspended; no bill of attainder or ex post facto law shall be passed; and no tax or duty shall be laid on exports (Art. I, §9). It is evident that these general limitations are on the federal government, and not on the states, so far as the states are not mentioned; for it would have been useless to provide in section 10 that no state shall pass any bill of attainder or ex post facto law, if the general provision in section 9 that no bill of attainder or ex post facto law shall be passed was intended to be applicable to the states as well as the federal government. Therefore the rule of construction has been that general limitations in the federal constitution are applicable to the federal government only, and not to the states, unless the states are expressly referred to (Barron v. Baltimore). But these limitations in the federal constitution, as originally adopted, were not broad enough in their scope to constitute a bill of rights in any proper sense.

Of the ten amendments adopted soon after the constitution went into effect the first eight contain provisions analogous to those usually found in the bills of rights of the state constitutions. Without now enumerating or discussing the provisions of these amendments in detail, it is sufficient to say that they relate to freedom of religion; right to bear arms; the quartering of soldiers in time of peace; protection against searches and seizures except upon warrant duly issued; procedure in criminal cases; and the right to trial by jury in civil cases. It is clear, from the history of the discussion which led to their adoption and the arguments presented in support thereof, that they relate to the federal government, and not to the governments of the states; that is to say, when it is provided that the right of people to bear and keep arms shall not be infringed, it is intended to say that the government of the United States shall not interfere with that right; and likewise, when it is provided that no person shall be held to answer for a capital or otherwise infamous crime, unless on the presentment or indictment of a grand jury, it is intended that indictment shall be necessary in the federal courts, in cases for infraction of federal law, no reference being made, either expressly or by implication, to procedure in the state courts in criminal cases; and further, when it is said that in suits at common law, the right of trial by jury shall be preserved, the states are not thereby restrained from providing for trials without a jury in state courts. The first eight amendments to the federal constitution are therefore to be interpreted as limitations on the federal power, and in no sense as having reference to the power of the states. Indeed, for all practical purposes it would have been unnecessary to embody such provisions in the federal constitution, for similar provisions were at that time found in the constitutions of most of the states. But when it was sought to change some of the state constitutions, so as to provide for trial of accused persons on criminal charges, made in some other method than by indictment, it became very material to determine whether the states were in this respect restricted by the provisions of the federal constitution, and it was definitely settled by the decision of the Supreme Court of the United States in the case of Hurtado v. California (1884) that, so long as no express limitations on state power were violated, the states might, for their own tribunals, adopt any provisions as to procedure in criminal cases that they should think wise or expedient. (See below, ch. xlii.)

It has been argued that the adoption of Amendment XIV, in which it is provided that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, rendered the first eight articles of amendment to the federal constitution binding on the states, the theory being that these articles enumerated privileges and immunities which, by Amendment XIV, the states were prohibited from abridging. But this argument has not been sustained; and in Maxwell'v. Dow, and Twining v. New Jersey the construction originally adopted, that the first eight articles of amendment are in the nature of a bill of rights with reference to the federal government and the federal government alone, has been adhered to.

One question, however, remains unsettled, and that is whether the first eight amendments to the federal constitution apply to legislation by or proceedings in the courts of territories or territorial possessions of the United States. To understand the difficulties surrounding the solution of this question, it must be borne in mind that the federal constitution was adopted by the people of the original thirteen states, and that it evidently contemplates and is drawn with reference to a federal government, the subjects of which are citizens of states. As has already been pointed out (see above, § 16), the powers of the federal government as to citizens of states are limited. But Congress is given authority to make " all needful rules and regulations respecting the territory or other property belonging to the United States" (Const. Art. IV, § 3,¶ 2). And under this grant of power it has been held that Congress can create territorial governments, and provide at its discretion for the government of territory of the United States in which no territorial government has been provided for. (See below, ch. xxxii.) Those who live within the limits of such organized or unorganized territory, and not within the limits of states, are governed entirely by the federal government, or territorial governments created by it. Further, it is to be noticed that, so far as the first eight amendments relate to procedure in courts, they apply to the federal courts, properly speaking, that is, to the courts created in pursuance of Article III of the constitution, and not to the courts of the states. Now whether these eight amendments apply to territorial or other courts created directly or indirectly under the authority of Congress to legislate for the territories, has been a subject of much controversy. On the one hand it has been said that the constitution was evidently not drawn with any special reference to permanent possession by the United States of territory not incorporated into states; and on the other hand that the constitution as a whole is a limitation on the power of Congress exercised for any purpose. It has recently been decided by the Supreme Court of the United States, however, that the provisions as to the right of jury trial in civil cases, and by inference other provisions found in the first eight amendments, are not applicable to procedure in courts created under Act of Congress for the government of the Philippine Islands (Dorr v. United States). The conclusion reached in that case warrants the general statement that the limitations as to methods of procedure are not applicable in proceedings before territorial courts, save so far as they may have been made applicable by act of Congress.

The last three amendments to the federal constitution are very different in their scope and purposes from those of the first eight. Amendment XIII, prohibiting slavery or involuntary servitude, is applicable, not only to the federal government, but also to state governments and to individuals as well; by its language it reaches into every place within the United States or subject to its jurisdiction. Amendment XV, prohibiting the denial or abridgment of the right to vote on account of race, color, or previous condition of servitude, expressly applies to both the federal and state governments. Amendment XIV contains various provisions, some of them expressly applicable to the states, others to both the federal and state governments. These three articles are not in any proper sense a portion of the bill of rights of the federal constitution.