the attorney should not exercise more power than was the.e given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell-or could he, without absurdity, say, ""Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other." A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, "We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them." Thus a bill of rights might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.

Mr. J. M'DOWALL. Mr. Chairman, the learned gentleman made use of several arguments to induce us to believe

that the trial by jury, in civil cases, was not in danger, and observed that, in criminal cases, it is provided that the trial is to be in the state where the crime was committed. Suppose a crime is committed at the Mississippi; the man may be tried at Edenton. They ought to be tried by the people of the vicinage; for when the trial is at such an immense distance, the principal privilege attending the trial by jury is taken away; therefore the trial ought to be limited to a district or certain part of the state. It has been said, by the gentleman from Edenton, that our representatives will have virtue and wisdom to regulate all these things. But it would give me much satisfaction, in a matter of this importance, to see it absolutely secured. The depravity of mankind militates against such a degree of confidence. I wish to see every thing fixed.

Gov. JOHNSTON. Mr. Chairman, the observations of the gentleman last up confirm what the other gentleman said. I mean that, as there are dissimilar modes with respect to the trial by jury in different states, there could be no general rule fixed to accommodate all. He says that this clause is defective, because the trial is not to be by a jury of the vicinage. Let us look at the state of Virginia, where, as long as I have known it, the laws have been executed so as to satisfy the inhabitants, and, I believe, as well as in any part of the Union. In that country, juries are summoned every day from the by-standers. We may expect less partiality when the trial is by strangers; and were I to be tried for my property or life, I would rather be tried by disinterested men, who were not biased, than by men who were perhaps intimate friends of my opponent. Our mode is different from theirs; but whether theirs be better than ours or not, is not the question. It would be improper for our delegates to impose our mode upon them, or for theirs to impose their mode upon us. The trial will probably be, in each

state, as it has been hitherto used in such state, or otherwise regulated as conveniently as possible for the people. The delegates who are to meet in Congress will, I hope, be men of virtue and wisdom. If not, it will be our own fault. They will have it in their power to make necessary regulations to accommodate the inhabitants of each state. In the Constitution, the general principles only are laid down. It will be the object of the future legislation to Congress to

make such laws as will be most convenient for the people. With regard to a bill of rights, so much spoken of, what the gentleman from Edenton has said, I hope, will obviate the objections against the want of it. In a monarchy, all power may be supposed to be vested in the monarch, except what may be reserved by a bill of rights. In England, in every instance where the rights of the people are not declared, the prerogative of the king is supposed to extend. But in this country, we say that what rights we do not give away remain with us.

Mr. BLOODWORTH. Mr. Chairman, the footing on which the trial by jury is, in the Constitution, does not satisfy me. Perhaps I am mistaken; but if I understand the thing right, the trial by jury is taken away. If the Supreme Federal Court has jurisdiction both as to law and fact, it appears to me to be taken away. The honorable gentleman who was in the Convention told us that the clause, as it now stands, resulted from the difficulty of fixing the mode of trial. I think it was easy to have put it on a secure footing. But, if the genius of the people of the United States is so dissimilar that our liberties cannot be secured, we can never hang long together. Interest is the band of social union; and when this is taken away, the Union itself must dissolve.

Mr. MACLAINE. Mr. Chairman, I do not take the interest of the states to be so dissimilar; I take them to be all nearly alike, and inseparably connected. It is impossible to lay down any constitutional rule for the government of all the different states in each particular. But it will be easy for the legislature to make laws to accommodate the people in every part of the Union, as circumstances may arise. Jury trial is not taken away in such cases where it may be found necessary. Although the Supreme Court has cognizance of the appeal, it does not follow but that the trial by jury may be had in the court below, and the testimony transmitted to the Supreme Court, who will then finally determine, on a review of all the circumstances. This is well known In our own state,

to be the practice in some of the states. indeed, when a cause is instituted in the county court, and afterwards there is an appeal upon it, a new trial is had in the superior court, as if no trial had been had before. In other countries, however, when a trial is had in an inferior court, and an appeal is taken, no testimony can be given in

the court above, but the court determines upon the circumstances appearing upon the record. If I am right, the plain inference is, that there may be a trial in the inferior courts, and that the record, including the testimony, may be sent to the Supreme Court. But if there is a necessity for a jury in the Supreme Court, it will be a very easy matter to empanel a jury at the bar of the Supreme Court, which may save great expense, and be very convenient to the people. It is impossible to make every regulation at once. Congress, who are our own representatives, will undoubtedly make such regulations as will suit the convenience and secure the liberty of the people.

Mr. IREDELL declared it as his opinion that there might be juries in the Superior Court as well as in the inferior courts, and that it was in the power of Congress to regulate it so.

Mr. KENNION in the chair.

TUESDAY, July 29, 1788.

Mr. SPENCER. Mr. Chairman, I hope to be excused for making some observations on what was said yesterday, by gentlemen, in favor of these two clauses. The motion which was made that the committee should rise, precluded me from speaking then. The gentlemen have showed much moderation and candor in conducting this business; but I still think that my observations are well founded, and that some amendments are necessary. The gentleman said, all matters not given up by this form of government were retained by the respective states. I know that it ought to be so; it is the general doctrine, but it is necessary that it should be expressly declared in the Constitution, and not left to mere construction and opinion. I am authorized to say it was heretofore thought necessary. The Confederation says, expressly, that all that was not given up by the United States was retained by the respective states. If such a clause had been inserted in this Constitution, it would have superseded the necessity of a bill of rights. But that not being the case, it was necessary that a bill of rights, or something of that kind, should be a part of the Constitution. It was observed that, as the Constitution is to be a delegation of power from the several states to the United States, a bill of rights was unnecessary. But it will be noticed that this is a different case.

SPENCER.]

153

The states do not act in their political capacities, but the government is proposed for individuals. The very caption of the Constitution shows that this is the case. The expression, "We, the people of the United States," shows that this government is intended for individuals; there ought, therefore, to be a bill of rights. I am ready to acknowledge that the 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 political 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 In the next will be brought properly before the courts.

place, all the officers are to take an oath to carry into execution this general government, and are bound to support every act of the government, of whatever nature it may be. This is a fourth reason for securing the rights of individuals. It was also observed that the federal judiciary and the courts of the states, under the federal authority, would have concurrent jurisdiction with respect to any subject that might arise under the Constitution. I am ready to say that I most heartily wish that, whenever this government takes place, the two jurisdictions and the two governments—that is, the general and the several state governments-may go hand in hand, and that there may be no interference, but that every thing may be rightly conducted. But I will never concede that it is proper to divide the business between the I have no doubt that there is wisdom 1wo different courts. enough in this state to decide the business, without the necessity of federal assistance to do our business. The worthy gentleman from Edenton dwelt a considerable time on the observations on a bill of rights, contending that they were proper only in monarchies, which were founded on different principles from those of our government; and, therefore, though they might be necessary for others, yet they were I still think that a bill of rights is not necessary for us. necessary. This necessity arises from the nature of human societies. When individuals enter into society, they give up some rights to secure the rest. There are certain human rights that ought not to be given up, and which ought in some manner to be secured. With respect to these great essential rights, no latitude ought to be left. They are the

VOL. IV.