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HISTORY OF THE FIRST TEN AMENDMENTS.
Since the establishment of the Government but nineteen amendments to the Constitution have been submitted by Congress, and but fifteen have been ratified by the States. Ten of these were proposed by the first Congress, one by the third, and one by the eighth, all in a period of twentyseven years.
This was followed by more than sixty years in which no amendment was ratified. Then as a result of the Civil War three additional amendments, the thirteenth, fourteenth, and fifteenth, were submitted and ratified.
The first ten amendments grew out of the fact that the Constitution did not contain a Bill of Rights. Those who contended for these amendments maintained that in all civil governments the people had certain inherent rights which should be expressed in the Constitution, and that it was the duty of the Government to protect the people in the exercise of such rights. As the Constitution contained no expression of this kind the people insisted on the adoption of certain amendments by which such rights would be secured.1
1 Mr. Justice Harlan in his elaborate dissenting opinion in Maxwell v. Dow, 176 U. S., 606, 607, said: “When the Constitution was adopted by the Convention of 1787 and placed before the people for their acceptance or rejection, many wise statesmen whose patriotism no one then questioned or now questions, earnestly objected to its acceptance upon the ground that it did not contain a Bill of Rights guarding the fundamental guarantees of life, liberty and property against the unwarranted exercise of power by the National Government. But the friends of the Constitution, believing that the failure to accept it would destroy all hope for permanent union among the people of the original States, and following the advice of Washington, who was the leader of the constitutional forces, met this objection by showing that when the Constitution had been accepted by the requisite number of States and thereby became the supreme law of the land, such amendments could be adopted as would relieve the apprehensions of those who deemed it necessary, by express provisions, to guard against the infringement by the agencies of the General Government of any of the essential rights of American freemen. This view preIn the Convention an unsuccessful attempt had been made to incorporate a Bill of Rights in the Constitution. In the debate there Mr. Williamson observed to the House, that no provision was made for juries in civil cases and suggested the necessity of it.
Mr. Gorham said, it was not possible to discriminate equity cases from those in which juries were proper. The representatives of the people might be safely trusted in this matter.
Mr. Gerry urged the necessity of juries to guard against corrupt judges, and proposed that a committee be directed to provide for securing jury trials.
Col. Mason saw the difficulty mentioned by Mr. Gorham and said that jury cases could not be specified, and that a general principle laid down, on this point would
vailed, and the implied pledge thus given was carried out by the first Congress, which promptly adopted and submitted to the people of the several States the first ten amendments. These amendments have ever since been regarded as the National Bill of Rights."
Patrick Henry said in the Virginia Convention:
"The people of England lived without a declaration of rights till the war in the time of Charles I. That King made usurpations upon the rights of the people. Those rights were, in a great measure, before that time undefined. Power and privilege then depended on implication and logical discussion. Though the declaration of rights was obtained from that King, his usurpations cost him his life. The limits between the liberty of the people, and the prerogative of the King, were still not clearly defined.
“The rights of the people continued to be violated till the Stuart family was banished, in the year 1688. The people of England magnanimously defended their rights, banished the tyrant, and prescribed to William, Prince of Orange, by the bill of rights, on what terms he should reign; and this bill of rights put an end to all construction and implication. Before this, sir, the situation of the public liberty of England was dreadful. For upwards of a century, the nation was involved in every kind of calamity, till the bill of rights put an end to all, by defining the rights of the people and limiting the King's prerogative., Give me leave to add (if I can add anything to so splendid an example) the conduct of the American people. They, sir, thought a bill of rights necessary. It is alleged that several States, in the formation of their government, omitted a bill of rights. To this I answer, that they had the substance of a bill of rights contained in their constitutions, which is the same thing. I believe that Connecticut has preserved it, by her Constitution, her royal charter, which clearly defines and secures the great rights of mankind-secures to us the great, important rights of humanity; and I care not in what form it is done." Elliot, vol. 3, 316, 317.
be sufficient. He wished the plan had been prefaced with a Bill of Rights, as it would give great quiet to the people.
Mr. Gerry concurred in this idea and moved for a committee to prepare a Bill of Rights.
Mr. Sherman favored securing the rights of the people where requisite. But the States' declarations of rights would not be repealed by the Constitution and were sufficient.
On the question for a committee to prepare a Bill of Rights the vote stood: New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, aye-5. Maryland, Virginia, North Carolina, South Carolina, and Georgia, nay -5.
Massachusetts being absent, and the vote being equal the motion was lost. In this way a Bill of Rights was omitted from the Constitution.2
It is very probable that if the Constitution had contained a Bill of Rights none of these amendments would have been suggested, but the opponents of that instrument seized upon this omission and made it the principal ground of attack in their attempt to defeat the ratification of the Constitution,
In answer to why a Bill of Rights was not inserted in the Constitution, no stronger statements have been made than those by Mr. Wilson and Mr. Hamilton, each
2 Journal, 717.
A scholarly commentator on the Constitution in referring to the loss of the motion for the establishment of a Bill of Rights, says: “As the South would not consent to a Bill of Rights, the North as is not unusual on such occasions, made a virtue of necessity, and permitted the official record to be made as it stands. But a Bill of Rights was excluded by slavery, and slavery alone.
“This was afterwards distinctly avowed to the South Carolinians by General Charles Cotesworth Pinckney. He said, 'Such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace when a large part of our property consists in men who are actually born slaves.' Amid all the sophistry that was wasted to reconcile the people of the North to the omission of a Bill of Rights, and to obliterate the fact that it was through the influence of slavery, here is a plain and honest statement of the exact truth; and it is the only instance where the truth on this subject was boldly and explicitly stated, responsibly vouched, and placed on record, so that to this day it can be seen and produced in evidence.” Farrar's Manual of the Constitution, 393, 394.
of whom was a very prominent member of the federal Convention.
When the Constitution was before the convention of Pennsylvania, Mr. Wilson speaking upon the subject of a Bill of Rights, said: “In a government consisting of enumerated powers, such as was then proposed for the United States, a Bill of Rights, which is an enumeration of the powers reserved by the people, must be a perfect or an imperfect statement of the powers and privileges reserved. To undertake a perfect enumeration of the civil rights of mankind, is to undertake a very difficult and hazardous, and perhaps an impossible task; yet if the enumeration is imperfect, all implied power seems to be thrown into the hands of the government, on subjects in reference to which the authority of government is not expressly restrained, and the rights of the people are rendered less secure than they are under the silent operation of the maxim that every power not expressly granted remains in the people. This, he stated, was the view taken by a large majority of the national Convention, in which no direct proposition was ever made, according to his recollection, for the insertion of a Bill of Rights."
Mr. Hamilton, as well as other prominent friends of the Constitution, took the position that the Constitution itself was a Bill of Rights; that while it did not contain a specific list of such rights such enumeration was not necessary, and that the instrument gave all the rights which it was necessary that the people should have. Discussing this subject in the Federalist he said:
“It has been several times truly remarked, that Bills of Rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogatives in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from King John. Such were the subse
3 Curtis' History of the Constitution, Vol. 2, 522, 523.
Mr. Wilson's memory was at fault on this point. In the Convention Mr. Gerry moved the appointment of a committee to prepare a Bill of Rights. New Hampshire, Connecticut, New Jersey, Pennsyl. vania and Delaware voted yea, 5. Maryland, Virginia, North Carolina, South Carolina and Georgia voted nay, 5. The States being equally divided the motion was lost. 5 Elliot, 538.
quent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles the First, in the beginning of his reign. Such, also, was the Declaration of Rights presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the Bill of Rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' This is a better recognition of popular rights, than volumes of those aphorisms, which make the principal figure in several of our State Bills of Rights, and which would sound much better in a treatise of ethics, than in a Constitution of Government.
“But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the Nation, than to one which has the regulation of every species of personal and private concerns. If therefore the loud clamors against the plan of the Convention, on this score, are well founded, no epithets of reprobation will be too strong for the Constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
“I go further, and affirm, that Bills of Rights, in the sense and to the extent they are contended for, are not only unnecessary, in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed ? I will not contend that such a pro