14

Rights

CHAPTER 14|Document 28

John Smilie, Pennsylvania Ratifying Convention

I expected, Mr. President, that the honorable gentleman [James Wilson] would have proceeded to a full and explicit investigation of the proposed system, and that he would have made some attempts to prove that it was calculated to promote the happiness, power and general interests of the United States. I am sorry that I have been mistaken 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 the people of this state have the sole, exclusive and inherent right of governing and regulating the internal police of the same.

"That all power being originally inherent in, and consequently derived from the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

"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 rights 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 and] 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 communicate some of the reasons (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 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 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.

The Founders' Constitution
Volume 1, Chapter 14, Document 28
http://press-pubs.uchicago.edu/founders/documents/v1ch14s28.html
The University of Chicago Press

McMaster, John Bach, and Stone, Frederick D., eds. Pennsylvania and the Federal Constitution, 1787--1788. Lancaster: Published for the Subscribers by the Historical Society of Pennsylvania, 1888.

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