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can only be accomplished by a general paramount judiciary.” Mr. Maclane, in answer to Mr. Spencer, said,
“Can any security arises from declaring we have a right to what belongs to us * Where is the necessity for such a declaration ? Hs we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained 2 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.” “
Mr. Spencer answered, - w
“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. * 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 2’” 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 right, which are not given up, remains with the States; ” or, as he in another place adds, that, as the security of these rights in the Confederation remained with the States under the Constitution, they would remain with the people. As the 10th article of the amendments embraces the idea as expressed by Mr. Spencer, we do not perceive how the conclusion can be avoided, that these inalienable rights, of which the Declaration of Independence speaks, are fairly and properly secured to the people. We have, therefore, only to suppose the negro a man, and one of the people, – and in what other light can he be considered 2 — and the conclusion is inevitable : he is a freeman, and the Constitution guarantees to him his freedom.
* Elliot's Reports, vol. iii. p. 147.
This 10th article of the amendments to the Constitution has a great deal of meaning to it, — more, we suspect, than usually meets the eye. It was one of those amendments brought forward in the Massachusetts convention, to answer the objections made by different members of that convention, — that, in adoption of the Constitution, that they might not bemade to consent to bar ter away the rights of the State or the individual rights of any man. Such being the fact, are not all laws that have been made by congress or the States — if any have been made having in view the personal subjection of one man to another, without the consent of that other—against not only the spirit, but the very letter, of the Constitution ? A higher tribunal than oursself must decide.
Mr. Iredell observed, “The honorable gentleman said it was very extraordinary that the convention should not have taken the trouble to make an addition of five or six lines, to secure the trial by jury in civil cases. Sir, if, by the addition, not only of five or six lines, but of five or six hundred lines, this invaluable object could have been secured, I should have thought the convention criminal in omitting it; and, instead of meriting the thanks of their country, as I think they now do, they might justly have met with resentment and indignation. I am persuaded the omission arose from the real difficulties of the case.”"
He thought the gentleman could not point out how it could have been done under the circumstances. Different States had different laws. “ Union was absolutely necessary. Every thing could be agreed upon, except the regulation of trial by jury in civil cases. They were all anxious to establish it on the best footing, but found they could fix upon no permanent rule that was not liable to great objections and difficulties. As the convention could not agree among themselves, they concluded the States would not.” They therefore left the subject for legislation, supposing it would be safe in the hands of the representatives of the people. But they had secured a trial by jury in criminal cases; this being so, is it possible a man can be punished in the United States without crime 2 and, if he commits a crime, must he not have a jury trial before punishment 2 Those who make an assertion in the affirmative are bound to show that, under this article in the Constitution, it can be done.
* Elliot's Reports, vol. iii. p. 148.
Mr. Bloodworth observed, “The answer of the gentleman did not convince him. He saw no reason why they did not secure a jury trial in civil cases as well as in criminal; and there being different laws in different States did not produce in his mind any satisfactory reasons; that there were as different laws in one case as in the other.” “If it has been possible to secure it in criminal cases, notwithstanding the diversity concerning it, why has it not been possible to secure it in civil cases 2 I wish this to be cleared up. By its not being provided for, it is expressly provided against. I still see a necessity for a bill of rights.”
Mr. Iredell answered these objections by saying that, in different States, “admiralty and equity cases” were decided without jury, and it was thought these States would not agree to alter their course; that the great means for tyranny was by criminal prosecutions, and therefore congress had guarded this point, and he thought there could be no danger.
Mr. Iredell, speaking of the last clause of the 4th section, said,
“He begged leave to explain this clause. In some of the Northern States, they had emancipated their slaves. If any of our slaves go there, and remain there a certain. time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States; and, to prevent it, this clause is in
* Elliot's Reports, vol. iii. p. 150. * Idem, vol. iii. p. 152.