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stitution direct trials to be by jury? It is required in our bill of rights, which is not a part of the constitution. Does any security arise from hence? Have you a jury when a judgment is obtained on a replevin bond, or by default? Have you a jury when a motion is made for the commonwealth against an individual; or when a motion is made by one joint obligor against another, to recover sums paid as security ? Our courts decide in all these cases, without the intervention of a jury; yet they are all civil
cases. The bill of rights is merely recommendatory. Were it otherwise, the consequence would be, that many laws which are found convenient, would be unconstitutional. What does the government before you say? Does it exclude the legislature from giving a trial by jury in civil cases ? If it does not forbid its exclusion, it is on the same footing on which your state government stands now. The legislature of Virginia
does not give a trial by jury where it is not necessary. But gives it wherever it is thought expedient. The federal legislature will do so too, as it is formed on the same principles.
The honorable gentleman says, that unjust claims will be made, and the defendant had better pay them than go to the supreme court. Can you suppose such a disposition in one of your citizens, as that to oppress another man, he will incur great expenses ? What will he gain by an unjust demand? Does a claim establish a right ? He must bring his witnesses to prove his claim. If he does not bring his witnesses, the expenses must fall upon him. Will he go on a calculation that the defendant will not defend it, or cannot produce a witness? Will he incur a great deal of expense, from a dependence on such a chance? Those who know human nature, black as it is, must know that mankind are too well attached to their interest to run such a risk. I conceive that this power is absolutely necessary, and not dangerous; that should it be attended by little inconveniences, they will be altered, and that they can have no interest in not altering them.
Is there any real danger ? When I compare it to the exercise of the same power in the government of Virginia, I am persuaded there is not. The federal government has no other motive, and has every reason of doing right, which the members of our state legislature have. Will a man on the Eastern Shore, be sent to be tried in Kentucky; or a man from Kentucky be brought to the Eastern Shore to have his trial ? A government by doing this would destroy itself. I am convinced, the trial by jury will be regulated in the manner most advantageous to the community.
DELIVERED IN THE CONVENTION OF VIRGINIA, JUNE 24th, 1788.
The resolution of Mr. Wythe being under consideration, which
proposed, “ That the committee should ratify the constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress, which should first assemble under the constitution, to be acted upon according to the mode prescribed therein ;" Mr. Henry thus addressed the convention.
MR. CHAIRMAN, The proposal of ratification is premature. The importance of the subject requires the most mature deliberation. The honorable member must forgive me for declaring my dissent from it, because, if I understand it rightly, it admits that the new system is defective and most capitally: for immediately after the proposed ratification, there comes a declaration, that the paper before you is not intended to violate any of these three great rights—the liberty of religion, liberty of the press, and the trial by jury. What is the inference, when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to be retained : religion, freedom of the press, and jury trial. Will not the ratification carry every thing, without excepting these three things? Will not all the world pronounce, that we
intended to give up all the rest? Every thing it speaks of, by way of rights, is comprised in these three things. Your subsequent amendments, only go to these three amendments. Lfeel myself distressed, because the necessity of securing our personal rights, seems not to have pervaded the minds of men: for many other valuable things are omitted. For instance: general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized; any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred, may be searched and ransacked by the strong hand of power. We have infinitely more reason to dread general warrants here, than they have in England; because there, if a person be confined, liberty may be quickly obtained by the writ of habeas corpus. But here, a man living many hundred miles from the judges, may rot in prison before he can get that writ.
Another most fatal omission is, with respect to standing armies. In your bill of rights of Virginia, they are said to be dangerous to liberty, and it tells you, that the proper defence of a free state consists in militia; and so I might go on to ten or eleven things of immense consequence secured in your bill of rights, concerning which that proposal is silent. Is that the Janguage of the bill of rights in England ? Is it the language of the American bill of rights, that these three rights, and these only, are valuable? Is it the language of men going into a new government? Is it not necessary to speak of those things before you go into a compact? How do these three things stand ? As one of the parties, we declare we do not mean to give them up. This is very dictatorial; much more so, than the conduct which proposes alterations as the condition of adoption. In a compact, there are two parties--one accepting, and another proposing. As
a party, we propose that we shall secure these three things; and before we have the assent of the other contracting party, we go into the compact, and leave these things at their mercy. What will be the consequence? Suppose the other states will call this dictatorial : they will say, Virginia has gone into the government, and carried with her certain propositions, which she says, ought to be concurred in by the other states. They will declare, that she has no right to dictate to other states the conditions on which they shall come into the union. According to the honorable member's proposal, the ratification will cease to be obligatory unless they accede to these amendments. We have ratified it. You have committed a violation, they will say. They have not violated it. We say we will go out of it. You are then reduced to a sad dilemma; to give up these three rights, or leave the government. This is worse than our present confederation, to which we have hitherto adhered honestly and faithfully. We shall be told we have violated it
, because we have left it for the infringement and violation of conditions, which they never agreed to be a part
of the ratification. The ratification will be complete. The proposal is made by one party. We, as the other, accede to it, and propose the security of these three great rights; for it is only a proposal. In order to secure them, you are left in that state of fatal hostility, which I shall as much deplore as the honorable gentleman. I exhort gentlemen to think seriously, before they ratify this constitution, and persuade themselves that they will succeed in making a feeble effort to get amendments after adoption. With respect to that part of the proposal, which says, that every power not granted, remains with the people; it must be previous to adoption, or it will involve this country in inevitable destruction. To talk of it, as a thing subsequent, not as one of your unalienable rights, is leaving it to the casual opinion of the Congress who shall take up
the consideration of that matter. They will not