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 dif ferent. 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. may be considered as a great power of attorney, under

'Elliot's Reports, vol. iii. p. 131.

It

which no power can be exercised but what is expressly given." 1

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,

2

"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."

992

He then went on further to argue in favor of abill of rights, in opposition to Mr. Iredell, and, as reasons, he said,

"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

1 Elliot's Reports, vol. iii. p. 135. 2 Idem, vol. iii. p. 139.

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."

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."

"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." 1

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.

can only be accomplished by a general paramount ju diciary."

Mr. Maclane, in answer to Mr. Spencer, said,

-

"Can any security arise from declaring we have a right to what belongs to us? Where is the necessity for such a declaration? If we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained? If congress should make a law beyond the powers and the spirit of the Constitution, should we not say to congress, 'You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt.'" 2

Mr. Spencer answered,

"The gentleman last up misunderstood him. He did not object to the caption of the Constitution, but he instanced it to show that the United States were not, merely as States, the object of the Constitution; but that the laws of congress were to operate on individuals, and not upon States. He then continued, I do not mean to contend that the laws of the general government should not operate on individuals. I before observed that this was necessary, as laws could not be put into execution against States without the agency of the sword; which, instead of answering the end of government, would destroy it. I endeavored to show that, as the government was not to operate against States, but against individuals, the rights of individuals ought to be properly secured. In order to constitute this security

Elliot's Reports, vol. iii. p. 145. 2 Idem, vol. iii. p. 145.

it appears to me there ought to be such a clause in the Constitution as there was in the Confederation, expressly declaring that every power, jurisdiction, and right, which are not given up, remains with the States. Such a clause would render a bill of rights unnecessary. But, as there is no such clause, I contend that there should be a bill of rights, ascertaining and securing the great rights of the States and people."'

Observe this language. The government of the United States was not to operate on States, but on individuals. By this means, it avoids the clashing which might frequently take place between a superior and a subordinate government. The laws of congress operating upon the individual, and not upon the State, there is no danger of opposition, saving when a State undertakes to protect its people in their opposition to the laws of the general government, as was attempted to be done by South Carolina, in her nullification acts.

Congress, as is here conceded, has power over the individual; and, if so, we will ask, what were the rights contended for that he should retain? what were "the rights of the individual," which "ought to be property secured?" We know of none, saving those inalienable rights spoken of in the Declaration of Independence, and which Mr. Spencer thought ought to be secured by a bill of rights, or, what he thought would amount to the same thing, "a clause in the Constitution, as there was in the Confederation, expressly declaring every power, jurisdiction, and

'Elliot's Reports, vol. iii. p. 147.