Wilson: Mr. President, we are repeatedly called upon to give some reason why a bill of rights has not been annexed to the proposed plan. I not only think that inquiry is at this time unnecessary and out of order, but I expect, at least, that those who desire1
us to show why it was omitted will furnish some arguments to show that it ought to have been inserted; for the proof of the affirmative naturally falls upon them. But the truth is, sir, that this circumstance, which has since occasioned so much clamor and debate, never struck the mind of any member in the late Convention till, I believe, within three days of the dissolution of that body, and even then, of so little account was the idea, that it passed off in a short conversation, without introducing a formal debate, or assuming the shape of a motion. For, sir, the attempt to have thrown into the national scale an instrument in order to evince that any power not mentioned in the Constitution was reserved would have been spurned at as an insult to the common understanding of mankind. In civil government it is certain that bills of rights are unnecessary and useless, nor can I conceive whence the contrary notion has arisen. Virginia has no bill of rights, and will it be said that her constitution was the less free?
John Smilie: I beg leave to observe, Mr. President that although it has not been inserted in the printed volume of state constitutions, yet I have been assured by Mr. Mason that Virginia has a bill of rights.
James Wilson: I do not rely upon the information of Mr. Mason or of any other gentleman on a question of this kind, but I refer to the authenticity of the volume which contains the state constitutions, and in that Virginia has no bill of rights. But, sir, has South Carolina no security for her liberties? That state has no bill of rights. Are the citizens of the eastern shore of the Delaware more secured in their freedom or more enlightened on the subject of government than the citizens of the western shore? New Jersey has no bill of rights; New York has none; Connecticut has none, and Rhode Island has none. Thus, sir, it appears from the example of other states, as well as from principle, that a bill of rights is neither an essential nor a necessary instrument in framing a system of government, since liberty may exist and be as well secured without it. But it was not only unnecessary, but on this occasion, it was found impracticable; for who will be bold enough to undertake to enumerate all the rights of the people? And when the attempt to enumerate them is made, it must be remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted. So it must be with a bill of rights, and an omission in stating the powers granted to the government is not so dangerous as an omission in recapitulating the rights reserved by the people. We have already seen the origin of Magna Charta, and tracing the subject still further, we find the Petition of Rights claiming the liberties of the people, according to the laws and statutes of the realm, of which the Great Charter was the most material; so that here again recourse is had to the old source from which their liberties are derived, the grant of the king. It was not till the Revolution that the subject was placed upon a different footing, and even then the people did not claim their liberties as an inherent right, but as the result of an original contract between them and the sovereign. Thus, Mr. President, an attention to the situation of England will show that the conduct of that country in respect to bills of rights cannot furnish an example to the inhabitants of the United States, who by the Revolution have regained all their natural rights and possess their liberty neither by grant nor contract. In short, sir, I have said that a bill of rights would have been improperly annexed to the federal plan, and for this plain reason, that it would imply that whatever is not expressed was given, which is not the principle of the proposed Constitution.
John Smilie: The arguments which have been urged, Mr. President, have not, in my opinion, satisfactorily shown that a bill of rights would have been an improper, nay, that it is not a necessary appendage to the proposed system. As it has been denied that Virginia possesses a bill of rights, I shall on that subject only observe, that Mr. Mason, a gentleman certainly of great information and integrity, has assured me that such a thing does exist, and I am persuaded, I shall be able at a future period to lay it before the Convention. But, sir, the State of Delaware has a bill of rights, and I believe one of the honorable members (Thomas M'Kean) who now contests the necessity and propriety of that instrument, took a very conspicuous part in the formation of the Delaware government. It seems however that the members of the Federal Convention were themselves convinced, in some degree, of the expediency and propriety of a bill of rights, for we find them expressly declaring that the writ of habeas corpus and the trial by jury in criminal cases shall not be suspended or infringed. How does this indeed agree with the maxim that whatever is not given is reserved? Does it not rather appear from the reservation of these two articles that everything else, which is not specified, is included in the powers delegated to the government? This, sir, must prove the necessity of a full and explicit declaration of rights; and when we further consider the extensive, the undefined powers vested in the administrators of this system, when we consider the system itself as a great political compact between the governors and the governed, a plain, strong, and accurate criterion by which the people might at once determine when, and in what instance, their rights were violated is a preliminary without which this plan ought not to be adopted. So loosely, so inaccurately are the powers which are enumerated in this Constitution defined, that it will be impossible, without a test of that kind, to ascertain the limits of authority and to declare when government has degenerated into oppression. In that event the contest will arise between the people and the rulers. "You have exceeded the powers of your office, you have oppressed us" will be the language of the suffering citizens. The answer of the government will be short: "We have not exceeded our power; you have no test by which you can prove it." Hence, sir, it will be impracticable to stop the progress of tyranny, for there will be no check but the people, and their exertions must be futile and uncertain; since it will be difficult indeed, to communicate to them the violation that has been committed, and their proceedings will be neither systematical nor unanimous. It is said, however, that the difficulty of framing a bill of rights was insurmountable; but, Mr. President, I cannot agree in this opinion. Our experience, and the numerous precedents before us, would have furnished very sufficient guide. At present there is no security, even for the rights of conscience, and under the sweeping force of the sixth Article every principle of a bill of rights, every stipulation for the most sacred and invaluable privileges of man, are left at the mercy of government.
Robert Whitehill: I differ, sir, from the honorable member from the city as to the impropriety or necessity of a bill of rights. If indeed the Constitution itself so well defined the powers of the government that no mistake could arise, and we were well assured that our governors would always act right, then we might be satisfied without an explicit reservation of those rights with which the people ought not, and mean not to part. But, sir, we know that it is the nature of power to seek its own augmentation, and thus the loss of liberty is the necessary consequence of a loose or extravagant delegation of authority. National freedom has been, and will be the sacrifice of ambition and power, and it is our duty to employ the present opportunity in stipulating such restrictions as are best calculated to protect us from oppression and slavery. Let us then, Mr. President, if other countries cannot supply an adequate example, let us proceed upon our own principles, and with the great end of government in view, the happiness of the people, it will be strange if we err. Government we have been told, sir, is yet in its infancy; we ought not therefore to submit to the shackles of foreign schools and opinions. In entering into the social compact, men ought not to leave their rulers at large, but erect a permanent landmark by which they may learn the extent of their authority, and the people be able to discover the first encroachments on their liberties. But let us attend to the language of the system before us. "We the people of the United States" is a sentence that evidently shows the old foundation of the Union is destroyed, the principle confederation excluded, and a new unwieldy system of consolidated empire is set up upon the ruins of the present compact between the states. Can this be denied? No, sir; it is artfully indeed, but it is incontrovertibly, designed to abolish the independence and sovereignty of the states individually, an event which cannot be the wish of any good citizen of America, and therefore it ought to be prevented, by rejecting the plan which is calculated to produce it. What right indeed have we in the manner here proposed to violate the existing Confederation? It is declared that the agreement of nine states shall be sufficient to carry the new system into operation, and, consequently, to abrogate the old one. Then, Mr. President, four of the present confederated states may not be comprehended in the compact; shall we sir, force these dissenting states into the measure? The consequences of that attempt are evidently such as no man can either justify or approve. But reverse the idea—would not those states have a fair pretext to charge the rest with an unconstitutional and unwarrantable abandonment of the nature and obligation of the Union of 1776? And having shown sufficient reason why they could not accede to the proposed government, would they not still be entitled to demand a performance of the original compact between the states? Sir, these questions must introduce a painful anticipation of the confusion, contest, and a civil war, which, under such circumstances, the adoption of the offered system must produce. It will be proper perhaps to review the origin of this business. It was certainly, Mr. President, acknowledged on all hands, that an additional share of power for federal purposes ought to be delegated to Congress, and with a view, to inquire how far it was necessary to strengthen and enlarge the jurisdiction of that body, the late Convention was appointed under the authority, and by legislative acts, of the several states. But, how, sir, did the Convention act upon this occasion? Did they pursue the authority which was given to them? By the State of Pennsylvania that authority was strictly defined in the following words:
"And the said Thomas Mifflin, Robert Morris, George Clymer, Jared Ingorsoll, Thomas Fitzsimons, James Wilson and Governeur Morris, esqrs. or .any four of them are hereby constituted and appointed deputies from this state, with powers to meet such deputies as may be appointed and authorised by the other states to assemble in the said convention at the city aforesaid, and to join with them in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the federal constitution fully adequate to the exigencies of the union; and in reporting such act or acts for that purpose, to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same."
Thus, sir, it appears that no other power was given to the delegates from this state (and I believe the power given by the other states was of the same nature and extent) than to increase in a certain degree the strength and energy of Congress, but it never was in the contemplation of any man that they were authorized to dissolve the present Union, to abrogate the state sovereignties, and to establish one comprehensive government, novel in its structure, and, in its probable operation, oppressive and despotic. Can it then be said that the late Convention did not assume powers to which they had no legal title? On the contrary, sir, it is clear that they set aside the laws under which they were appointed, and under which alone they could derive any legitimate authority, they arrogantly exercised any powers that they found convenient to their object, and, in the end, they have overthrown that government which they were called upon to amend in order to introduce one of their own fabrication.