BENJAMIN RUSH: I believe, Mr. President, that of all the treaties which have ever been made, William Penn's was the only one, which was contracted without parchment; and I believe, likewise, it is the only one that has ever been faithfully adhered to. As it has happened with treaties, so, sir, has it happened with bills of rights, for never yet has one been made which has not, at some period or other, been broken. The celebrated Magna Charta of England was broken over and over again, and these infractions gave birth to the Petition of Rights. If, indeed, the government of that country has not been violated for the last hundred years, as some writers have said, it is not owing to charters or declarations of rights, but to the balance which has been introduced and established in the legislative body. The constitution of Pennsylvania, Mr. President, is guarded by an oath; which everyman employed in the administration of the public business is compelled to take; and yet, sir, examine the proceedings of the Council of Censors and you will find innumerable instances of the violation of that constitution, committed equally by its friends andenemies. In truth then, there is no security but in a pure and adequate representation; the checks and all the other desiderata of government are nothing but political error without it, and with it, liberty can never be endangered. While the Honorable Convention, who framed this system, were employed in their work, there are many gentlemen who can bear testimony that my only anxiety was upon the subject representation; and when I beheld a legislature constituted of three branches, and in so excellent a manner, either directly or indirectly elected by the people and amenable to them, I confess, sir, that here I cheerfully reposed all my hopes and confidence of safety. Civilians having taught us, Mr. President, that occupancy was the origin of property, I think, it may likewise be considered as the origin of liberty; and as we enjoy all our natural rights from a preoccupany, antecedent to the social state, in entering into that state, whence shall they be said to be derived? Would it not be absurd to frame a formal declaration that our natural rights are acquired from ourselves, and would it not be a more ridiculous solecism to say, that they are the gift of those rulers whom we have created, and who are invested by us with every power they possess? Sir, I consider it as an honor to the late Convention that this system has not been disgraced with a bill of rights; though I mean not to blame or reflect upon those states which have encumbered their constitutions with that idle and superfluous instrument. One would imagine however, from the arguments of the opposition that this government was immediately to be administered by foreigners, strangers to our habits and opinions, and unconnected with our interests and prosperity. These apprehensions, sir, might have been excused while we were contending with Great Britain; but, at this time, they are applicable to all governments, as well as that under consideration; and the arguments of the honorable members are, indeed, better calculated for an Indian council fire than the meridian of this refined and enlightened Convention.1
Yeates: The objections hitherto offered to this system, Mr. President, may, I think, be reduced to these general heads: first, that there is no bill of rights, and secondly, that the effect of the proposed government will be a consolidation, and not a confederation of the states. Upon the first head, it appears to me, that great misapprehension has arisen, from considering the situation of Great Britain to be parallel to the situation of this country, whereas the difference is so essential that a bill of rights, which was there both useful and necessary, becomes here at once useless and unnecessary. In England power (by what means it signifies little) was established paramount to that of the people, and the only way which they had to secure the remnant of their liberties was, on every opportunity, to stipulate with that power for the uninterrupted enjoyment of certain enumerated privileges. But our case is widely different, and we find that, upon the opinion of this difference, seven of the thirteen United States have not added a bill of rights to their respective constitutions.
Nothing, indeed, seems more clear to my judgment than this, that in our circumstances, every power which is not expressly given is, in fact, reserved. But it is asked, as some rights are here expressly provided for, why should not more? In truth, however, the writ of habeas corpus and the trial by jury in criminal cases cannot be considered as a bill of rights, but merely as a reservation on the part of the people and a restriction on the part of their rulers; and I agree with those gentlemen who conceive that a bill of rights, according to the ideas of the opposition, would be accompanied with considerable difficulty and danger; for, it might be argued at a future day by the persons then in power-you undertook to enumerate the rights which you meant to reserve, the pretension which you now make is not comprised in that enumeration, and, consequently, our jurisdiction is not circumscribed.2