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would give security to individuals it would add to the general strength.” "
He objected, in this speech, to the powers of the Supreme Court, and to that clause which gives this court jurisdiction in cases of controversies between individuals of different States. On this subject he said, –
“Nothing can be more oppressive than the cognizance with respect to controversies between citizens of different States. In all cases of appeal, those persons who are able to pay had better pay down in the first instance, though it be unjust, than to be at such a dreadful expense by going such a distance to the Supreme Federal Court.””
He observed, some of the other “States had proposed amendments to this clause, and that he thought, by admitting this clause, it would render the country entirely unhappy”—“inconsistent to the happiness of the people to admit these two clauses. The State courts are sufficient to decide the common controversies of the people, without distressing them by being carried to such far distant tribunals.”
Mr. Spraight said, in answer, there was no disagreement in the convention respecting these two clauses: he said the convention wished to separate as much as, possible the judiciaries of the States and of the general government, and “consult the ease and convenience of the people. The gentleman objects to the cognizance of all cases in law and equity arising under the Constitution and the laws of the United States. This objection is very astonishing. When any government is established, it ought to have power to enforce its laws, or else it might as well have no power: what but that is the use of a judiciary 2 The gentleman, from his profession, must know that no government can exist without a judiciary to enforce its laws, by distinguishing the disobedient from the rest of the people, and imposing sanctions for securing the execution of the laws.” " Mr. McDowall, speaking of the importance of having a jury trial secured to the people, and finding in civil cases it was not secured in the last resort, though in criminal cases it was, supposed a case of a man's going from Georgia to Philadelphia, there to have a suit tried, and then asked,—
* Elliot's Reports, vol. iii. p. 127, * Idem, vol. iii. p. 127.
“And can it be justly determined without the benefit of trial by jury 2 These are things which have justly alarmed the people. What made the people revolt from Great Britain * The trial by jury, that great safeguard of liberty, was taken away, and a stamp duty was laid upon them. This alarmed them, and led them to fear greater oppressions would take place.””
Mr. Spraight said,
“The convention did not forget the trial by jury; the subject took up a considerable time to investigate it. It was impossible to make one uniform regulation for all the States, or that would include all cases where it would be necessary. It would be impossible for one expression to embrace the whole. There are a number of equity and maritime cases in some of the States, in which jury trials are not used. Had the convention said that all cases should be tried by a jury, equity and maritime
! Elliot's Reports, vol. iii. p. 128. * Idem, vol. iii. p. 131.
cases would have been included. It was therefore left to the legislature to say in what cases it should be used; and, as the trial by jury is in full force in the State courts, we have the fullest security.” "
Mr. Iredell explained the cause of the jury trial being left as it was ; congress does not say it shall or shall not be used ; but left the subject somewhat open to be governed by usage. He also explained why there was no bill of rights to the Constitution, and said, -
“With regard to a bill of rights, this is a notion originating in England, where no written Constitution is to be found, and the authority of their government is derived from the most remote antiquity: “Magna Charta itself is no constitution, but a solemn instrument, ascertaining certain rights of individuals, by the legislature for the time being, and every article of which the legislature may at any time alter.’.... Our Constitution was different. Congress by it was given certain specific powers, and what was not given was reserved to the States or the individual : there could, therefore, be no general expression of rights.
“Had their constitution been fixed and certain, a bill of rights would have been useless; for the constitution would have shown plainly the extent of that authority which they were disputing about. Of what . use can a bill of rights be in this Constitution, when the people expressly declare how much power they do give, and consequently retain all they do not It is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under
! Elliot's Reports, vol. iii. p. 131.
which no power can be exercised but what is expressl y given.”
Mr. Spencer, in the quotation that follows, thinks that congress has to do with the individual; he thought the Constitution ought to be amended so as to read that all that was not given up should be reserved to the States; then it would supersede the necessity of a bill of rights; otherwise there ought to be one; and then went on to say,
“The States do not act in their political capacities, but the government is proposed for individuals. The very caption of the Constitution shows this to be the case. The expression “we the people of the United States’ shows this government is intended for individuals; there ought, then, to be a bill of rights. I am ready to acknowledge congress ought to have the power of executing its laws. Heretofore, because all the laws of the Confederation were binding on the States in their individual capacities, courts had nothing to do with them ; but now the thing is entirely different. The laws of congress will be binding on individuals, and those things which concern individuals will be brought properly before the courts.”
He then went on further to argue in favor of a bill of rights, in opposition to Mr. Iredell, and, as reasons, he said, - w
“There are certain human rights that ought not to be given up, and which ought, in some manner, to be secure. With respect to these great essential rights, no latitude ought to be left. They are the most inestimable gifts of the Creator, and therefore ought not to be destroyed, but ought to be secured. They ought to be secured to individuals in consideration of other rights which they give up to support society.”
* Elliot's Reports, vol. iii. p. 135. * Idem, vol. iii. p. 139.
He also spoke of the trial by jury, and, among other observations, said,
“Every person who is acquainted with the nature of . liberty need not be informed of the importance of this trial. Juries are called the bulwarks of our rights and liberty; and no country can be enslaved so long as those cases which effect their lives and property are to be decided in a great measure by the consent of twelve honest, disinterested men, taken from the respectable body of yeomanry. It is highly improper that any clause which regards the security of the trial by jury should be in any way doubtful.”
Further on he said,
“I ask the gentleman what benefit would be received in the suit by having a jury trial in the court below, when the verdict is set aside in the Supreme Court.”"
Mr. Davie spoke in answer to Mr. Spencer, and in favor of the Constitution as reported, and said, – . “That the powers of the judiciary should extend as far as legislation; that there was but two ways for government to carry its laws into effect, — one by the sword, the other by the judiciary; that the latter was to be preferred; ” and, in conclusion, said, – “It is necessary that the Constitution should be carried into effect, that the laws should be executed, justice equally done to all in the community, and treaties observed. These ends
* Elliot's Reports, vol. iii. p 140.