CHARACTER OF THE AMENDMENTS.

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to Englishmen the great rights of trial by jury, freedom of the press, and liberty of conscience; and for the reason, as Madison might easily have explained, that these rights were not recognized at the time King John affixed his seal to the Great Charter. But the people of America were alarmed because the Constitution did not guard these rights; therefore, it should be amended. In some States the people had raised such a barrier, in the form of Bills of Rights, against all departments of government. On the whole, they had a salutary influence. Whether these Bills specified positive rights or defined natural rights, or laid down dogmatic maxims, they provided checks and balances which prevented one department from encroaching on another. Their great object was to limit and qualify the powers of government.1 In our government, the executive was the weakest department; therefore limitations must be leveled against the legislature. There lay the greatest danger. It had been said that barriers of this kind were unnecessary in the Federal Government because its powers were enumerated, and that all not granted by the Constitution were retained; that the Constitution, itself, was a bill of rights, the great

1 The scope and character of the Amendments are thus defined by Chief Justice Marshall, in Barron vs. The Mayor and City Council of Baltimore, 7 Peters, 250, decided in 1833:

"In almost every convention by which the Constitution was adopted amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local government. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress, and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Reaffirmed by the court in 1857, in Withers vs. Buckley et al. (the decision by Justice Daniel), 20 Howard, 89-91.

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IS A BILL OF RIGHTS NECESSARY? residuum being the rights of the people. But a clause gave to Congress the power to make all laws which shall be necessary and proper for carrying the powers of the Government into execution. This made Congress the final judge. Suppose that Congress decided to collect its revenue by general warrants; what limit was there to its action? The State constitutions forbade such warrants and the federal government should be subject to a like restraint. It was said that a Bill of Rights was unnecessary because the Constitution had not repealed the Bills which prefaced many of the State constitutions. This, however, was leaving a right on too uncertain ground. Some States had no Bill of Rights; others had Bills some of whose clauses were absolutely improper, because they limited liberty, in an arbitrary fashion. Again, a Bill of Rights was objectionable because, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not included in the enumeration, and, it might follow by implication, that those rights which were not singled out were intended to be assigned into the hands of the general government, and therefore, were insecure.

This plausible argument had many supporters, and, to guard against it, Madison brought forward as a new clause, that exceptions in the Constitution, made in favor of particular rights, should not be construed so as to diminish the just importance of other rights retained by the people, or to enlarge the powers delegated by the Constitution; but should be understood to be actual limitations of such powers, or to have been inserted merely for greater caution. He took his amendment from one sent up by the Virginia convention, and another, in similar language, proposed by the Harrisburg Conference. But were amendments necessary? They had not proved effectual

QUESTION OF REPRESENTATION.

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in the State constitutions. If incorporated in the supreme law of the land, independent tribunals of justice would construe them and thus contribute to guard the people against usurpations of power by the executive, or the legislative. The watchfulness of the State legislatures, and their jealousy and rivalry, would tend to enforce a federal Bill of Rights. Even the greatest opponents of the federal government admitted that the State legislatures were the trustworthy guardians of popular liberty.

The Constitution should be revised in its provision for the apportionment of representatives. It was the sense of the people, as shown by the ratifying conventions, that the number of representatives should be increased, but not be subject to decrease, at the will of Congress,below a minimum. Congress, as population increased, might make the House of Representatives an unwieldy number. The possibility was a dangerous defect in the instrument and ought to be remedied. Another defect was the article which left to Congress the power to fix its own compensation,-a power greatly liable to abuse. It should be impossible, that any increase should benefit the legislature that made it. The limitations forbidding the States to pass bills of attainder or ex post facto laws were eminently wise. Without doubt, there was a greater danger of the abuse of these powers by the States than by the United States; but the same might be said of other rights; therefore the limitation should include the rights of conscience, freedom of the press, and trial by jury in criminal cases. Some State constitutions contained these provisions, but the protection should be general.

As the public mind was not satisfied with the article on the judiciary, because great inconvenience might befall

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URGENCY OF AMENDMENTS.

suitors who, to obtain justice in the Supreme Court of the United States, would be forced to travel great distances upon an appeal, on an action for a small debt, the Constitution should be amended so as to declare that no appeal could be made unless the matter in controversy amounted to a minimum sum. After looking into the amendments, proposed by the conventions, Madison found several States particularly anxious that it should be declared in the Constitution that the powers not therein delegated were reserved by the several States. If the fact was as some of the conventions stated, the provision might not be superfluous. Having thus gone through his proposed amendments, he moved for their reference to a Select Committee, which might have them under consideration, get them into form and report them; meanwhile the House could proceed with other business before it.1

But many members differed with Madison as to the urgency of amendments. Jackson, of Georgia, thought that other business, particularly the revenue bill, was more pressing, and, moreover, that the advocacy of amendments was a confession from Congress of danger to the public interests which did not exist. The representatives returned to private life every two years,—a sufficient security against encroachments. Surely the people of Rhode Island were under greater danger of an abuse of power by their legislature than by Congress. As soon as Rhode Island and North Carolina joined the Union, there would be another list of amendments to consider. Why propose any while yet without experience? Perhaps the parts of the Constitution which it was proposed to alter might prove the most valuable of the whole.2 Gerry, who had given many reasons to the Federal Con

1 Annals, 453-459.

2 Annals, 460.

AMENDMENTS UNNECESSARY.

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vention for not signing the Constitution,1 now assured the House that, whatever his sentiments might have been about ratification without amendments, he believed that the salvation of America depended upon the establishment of the government, whether amended or not, but he favored entertaining the amendments, because, in this way, the confidence of North Carolina and Rhode Island might be won. As they had already declared that they could not join the Union unless certain amendments were made, to deny compliance with their wishes would leave them detached from the Union. An energetic government was needed. Why hesitate to exercise powers, lest Congress give offence? Gerry favored handing over the amendments to a Committee of the Whole, as fairest to all the States. With his usual wisdom, Roger Sherman, who with Madison and Gerry had belonged to the Federal Convention, reminded the House that the Constitution was not perfect and that either Congress nor State legislatures could make it so. "It is a wonder that there has been such unanimity in adopting it, considering the ordeal it had to undergo; and the unanimity which prevailed at its formation is equally astonishing. Amidst all the members from the twelve States present at the Federal Convention, there were only three who did not sign the instrument to attest their opinion of its goodness. Of the eleven States who have received it, the majority have ratified it without proposing a single amendment. This circumstance leads me to suppose that we shall not be able to propose any alterations that are likely to be adopted by nine States; and gentlemen, know that before the alterations take effect, they must be agreed to by the legislatures of three-fourths of the States in the Union.

1 See I, p. 593.

2 Annals, 462.