It is said, that when the people make a constitution, and delegate powers that all powers not delegated
by them to those who govern is reserved in the people; and that the people, in the present
case, have reserved in themselves, and in their state governments, every right and power
not expressly given by the federal constitution to those who shall administer the national
government.
It is said, on the other hand, that the people, when they make a constitution, yield all power
not expressly reserved to themselves.
The truth is, in either case, it is mere matter of opinion, and men usually take either side
of the argument, as will best answer their purposes: But the general presumption being,
that men who govern, will, in doubtful cases, construe laws and constitutions most favourably
for encreasing their own powers; all wise and prudent people, in forming constitutions,
have drawn the line, and carefully described the powers parted with and the powers reserved.
By the state constitutions, certain rights have been reserved in the people; or rather,
they have been recognized and established in such a manner, that state legislatures
are bound to respect them, and to make no laws infringing upon them.
The state legislatures are obliged to take notice of the bills of rights of their respective
states.
The bills of rights, and the state constitutions, are fundamental compacts only between those
who govern, and the people of the same state.
In the year 1781 the people of the United States make a federal constitution, which
is a fundamental compact between them and their federal rulers; these rulers, in the
nature of things, cannot be bound to take notice of any other compact.
It would be absurd for them, in making laws, to look over thirteen, fifteen, or twenty
state constitutions, to see what rights are established as fundamental, and must not be
infringed upon, in making laws in the society.
It is true, they would be bound to do it if the people, in their federal compact, should
refer to the state constitutions, recognize all parts not inconsistent with the federal
constitution, and direct their federal rulers to take notice of them accordingly; but this
is not the case, as the plan stands proposed at present; and it is absurd, to suppose so
unnatural an idea is intended or implied, I think my opinion is not only founded in
reason, but I think it is supported by the report of the convention itself.
If there are a number of rights established by the state constitutions, and which will
remain sacred, and the general government is bound to take notice of them—it must
take notice of one as well as another; and if unnecessary to recognize or establish one
by the federal constitution, it would be unnecessary to recognize or establish another by it.
If the federal constitution is to be construed so far in connection with the state constitutions,
as to leave the trial by jury in civil causes, for instance, secured; on the same principles
it would have left the trial by jury in criminal causes, the benefits of the writ of habeas
corpus, &c. secured; they all stand on the same footing; they are the common rights of
Americans, and have been recognized by the state constitutions: But the convention found
it necessary to recognize or re-establish the benefits of that writ, and the jury trial
in criminal cases.
As to EXPOST FACTO laws, the convention has done the same in one case, and gone further
in another.
It is part of the compact between the people of each state and their rulers, that no EXPOST
FACTO laws shall be made.
But the convention, by Art.
I Sect.
10 have put a sanction upon this part even of the state compacts.
In fact, the 9th and 10th Sections in Art.
1. in the proposed constitution, are no more nor less, than a partial bill of rights; they
establish certain principles as part of the compact upon which the federal legislators
and officers can never infringe.
It is here wisely stipulated, that the federal legislature shall never pass a bill of attainder,
or EXPOST FACTO law; that no tax shall be laid on articles exported, &c.
The establishing of one right implies the necessity of establishing another and similar
one.
On the whole, the position appears to me to be undeniable, that this bill of rights ought
to be carried farther, and some other principles established, as a part of this fundamental
compact between the people of the United States and their federal rulers.
It is true, we are not disposed to differ much, at present, about religion; but when
we are making a constitution, it is to be hoped, for ages and millions yet unborn, why
not establish the free exercise of religion, as a part of the national compact.
There are other essential rights, which we have justly understood to be the rights of
freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath,
and not issued with due caution, for searching and seizing men's papers, property, and
persons.
The trials by jury in civil causes, it is said, varies so much in the several states,
that no words could be found for the uniform establishment of it.
If so the federal legislation will not be able to establish it by any general laws.
I confess I am of opinion it may be established, but not in that beneficial manner in which
we may enjoy it, for the reasons beforementioned.
When I speak of the jury trial of the vicinage, or the trial of the fact in the neighbourhood,—I
do not lay so much stress upon the circumstance of our being tried by our neighbours: in this
enlightened country men may be probably impartially tried by those who do not live very near them:
but the trial of facts in the neighbourhood is of great importance in other respects.
Nothing can be more essential than the cross examining witnesses, and generally before
the triers of the facts in question.
The common people can establish facts with much more ease with oral than written evidence;
when trials of facts are removed to a distance from the homes of the parties and witnesses,
oral evidence becomes intolerably expensive, and the parties must depend on written evidence,
which to the common people is expensive and almost useless; it must be frequently taken
ex-parte, and but very seldom leads to the proper discovery of truth.
The trial by jury is very important in another point of view.
It is essential in every free country, that common people should have a part and share
of influence, in
the judicial as well as in the legislative department.
To hold open to them the offices of senators, judges, and offices to fill which an expensive
education is required, cannot answer any valuable purposes for them; they are not in a situation
to be
brought forward and to fill those offices; these, and most other offices of any considerable
importance, will be occupied by the few.
The few, the well born, &c. as Mr. Adams calls them, in judicial decisions as well as in
legislation, are generally disposed, and very naturally too, to favour
those
of
their
own description. …
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