John Smilie and Robert Whitehill
November 28, 1787
Mr. Smilie. I expected, Mr. President, that the honorable gentleman would have proceeded to a full and explicit investigation of the proposed system, and that he would have made some attempts to prove that is was calculated to promote the happiness, power and general interest of the Untied States. I am sorry that I have been mistake in this expectation, for surely the gentleman’s talents and opportunities would have enabled him to furnish considerable information upon this important subject; but I shall proceed to make a few remarks upon those words in the preamble of this plan, which he has considered of so super—excellent a quality. Compare them, Sir, with the language used in forming the state constitution, and however superior they may be to the terms of the great charter of England; still, in common candor, they must yield to the more sterling expressions employed in this act. Let these speak for themselves:
“That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are the enjoying and defending life and liberty, acquiring possessing and protecting property, and pursuing and obtaining happiness and safety.
“That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community. And that the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish government in such manner as shall be by that community judged most conducive to the public weal.”
But the gentleman takes pride in the superiority of this short preamble when compared with Magna Charta—why, sir, I hope the rights of men are better understood at this day than at the framing of that deed, and we must be convinced that civil liberty is capable of still greater improvement and extension, than is known even in its present cultivated state. True, sir, the supreme authority naturally rests in the people, but does it follow, that therefore a declaration of right would be superfluous? Because the people have a right to alter and abolish government, can it therefore be inferred that every step taken to secure that right would be superfluous and nugatory? The truth is, that unless some criterion is established by which it could be easily and constitutionally ascertained how far our governors may proceed, and by which it might appear when they transgress their jurisdiction, this idea of altering and abolishing government is a mere sound without substance. Let us recur to the memorable declaration of the 4th of July, 1776. Here it is said:
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
“We hold these truths to be self—evident; that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that when any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
Now, Sir, if in the proposed plan, the gentleman can show any similar security for the civil rights of the people, I shall certainly be relieved from a weight of objection to its adoption, and I sincerely hope, that as he has gone so far, he will proceed to communicated some of the reason (and undoubtedly they must have been powerful ones) which induced the late federal convention to omit a bill of rights, so essential in the opinion of many citizens to a perfect form of government.
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 (Mr. 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 of 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, and 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 rules: “You have exceeded the powers of your office, you have oppressed us,” will be the language of the suffering citizen. 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 a 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.
Mr. 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.
A bill of rights, Mr. President, it has been said, would not only be unnecessary, but it would be dangerous, and for this special reason, that because it is not practicable to enumerate all the rights of the people, therefore it would be hazardous to secure such of the rights as we can enumerate! Truly, Sir, I will agree that a bill of rights may be a dangerous instrument, but it is to the views and projects of the aspiring ruler, and not the liberties of the citizen. Grant but this explicit criterion, and our governors will not venture to encroach; refuse it, and the people cannot venture to complain. From the formal language of magna charta we are next taught to consider a declaration of rights as superfluous; but, Sir, will the situation and conduct of Great Britain furnish a case parallel to that of America? It surely will not be contended that we are about to receive our liberties as a grant or concession from any power upon earth; so that if we learn anything from the English charter, it is this: that the people having negligently lost or submissively resigned their rights into the hands of the crown, they were glad to recover them upon any terms; their anxiety to secure the grant by the strongest evidence will be an argument to prove, at least, the expediency of the measure, and the result of the whole is a lesson instructing us to do by an easy precaution, what will hereafter be an arduous and perhaps insurmountable task.