815. BILL OF RIGHTS, The Constitution and.—
I do not like [in the Federal Constitution]
first, the omission of a bill of
rights, providing clearly and without the aid
of sophisms for freedom of religion, freedom
of the press, protection against standing
armies, restriction against monopolies, the
eternal and unremitting force of the habeas
corpus laws, and trials by jury in all matters
of fact triable by the laws of the land, and
not by the law of nations. To say, as Mr.
Wilson does, that a bill of rights was not
necessary, because all is reserved in the case
of the General Government which is not
given, while in the particular ones, all is
given which is not reserved, might do for the
audience to whom it was addressed; but it is
surely a gratis dictum, opposed by strong inferences
from the body of the instrument, as
well as from the omission of the clause of
our present confederation, which had declared
that in express terms. It was a hard conclusion
to say, because there has been no uniformity
among the States as to the cases triable
by jury, because some have been so incautious
as to abandon this mode of trial,
therefore the more prudent States shall be
reduced to the same level of calamity. It
would have been much more just and wise to
have concluded the other way, that as most
of the States had judiciously preserved this
palladium, those who had wandered should
be brought back to it, and to have established
general right instead of general wrong. [48]
Let
me add that a bill of rights is what the people
are entitled to against every government on
earth, general or particular; and what no
just government should refuse or rest on inferences.—
To James Madison. Washington ed. ii, 329.
Ford ed., iv, 476.
(P.
Dec. 1787)
