That system of law which has been admired and has protected us and our ancestors is excluded by that system. Added to this, we adopted a Bill of Rights. By this Constitution some of the best barriers of human rights are thrown away. Is there not an additional reason to have a Bill of Rights? By the ancient common law the trial of all facts is decided by a jury of impartial men from the immediate vicinage. This paper speaks of different juries from the common law in criminal cases; and in civil controversies excludes trial by jury altogether. There is, therefore, more occasion for the supplementary check of a Bill of Rights now than then. Congress, from their general powers, may fully go into the business of human legislation. They may be legislative in criminal cases, from treason to the lowest offence-petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our Bill of Rights?-"that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Are you not, therefore, now calling on those gentlemen who are to compose Congress to prescribe trials and define punishments without this control? Will they find sentiments there similar to this Bill of Rights? You let them loose; you do more -you depart from the genius of your country. That paper tells you that the trial of crimes shall be by jury, and held in the State where the crime shall have been committed. Under this extensive provision, they may proceed in a manner extremely dangerous to liberty; a person accused $5—Vol. VI.—Orations

may be carried from one extremity of the State to another, and be tried not by an impartial jury of the vicinage, acquainted with his character and the circumstances of the fact, but by a jury unacquainted with both, and who may be biased against him. Is not this sufficient to alarm men? How different is this from the immemorial practice of your British ancestors and your own! I need not tell you that, by the common law, a number of hundreders were required on a jury, and that afterward it was sufficient if the jurors came from the same county. With less than this the people of England have never been satisfied. That paper ought to have declared the common law in force.

ment.

In this business of legislation, your members of Congress will lose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your Declaration of Rights. What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishBut Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain and Germany-of torturing, to extort a confession of crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone. And can any man think it troublesome, when we can, by a small interference, prevent our rights from being lost? If you will, like the Virginian government, give them knowledge of the extent of the rights retained by the people, and the powers of them

selves, they will, if they be honest men, thank you for it. Will they not wish to go on sure grounds? But if you leave them otherwise, they will not know how to proceed; and, being in a state of uncertainty, they will assume rather than give up powers of implication.

A Bill of Rights may be summed up in a few words. What do they tell us? That our rights are reserved. Why not say so? Is it because it will consume too much paper? Gentlemen's reasoning against a Bill of Rights does not satisfy me. Without saying which has the right side, it remains doubtful. A Bill of Rights is a favorite thing with the Virginians and the people of the other States likewise. It may be their prejudice, but the government ought to suit their geniuses; otherwise, its operation will be unhappy. A Bill of Rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute. In the present Constitution they are restrained from issuing general warrants to search suspected places, or seize persons not named, without evidence of the commission of a fact, etc. There was certainly some celestial influence governing those who deliberated on that Constitution; for they have, with the most cautious and enlightened circumspection, guarded those indefeasible rights which ought ever to be held sacred! The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a Bill of Rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, everything you eat, drink, and wear. They ought to be restrained

within proper bounds. With respect to the freedom of the press, I need say nothing; for it is hoped that the gentlemen who shall compose Congress will take care to infringe as little as possible the rights of human nature. This will result from their integrity. They should, from prudence, abstain from violating the rights of their constituents. They are not, however, expressly restrained. But whether they will intermeddle with that palladium of our liberties or not, I leave you to determine.

LIBERTY OR EMPIRE?

DELIVERED IN THE VIRGINIA CONVENTION, JUNE 5, 1788

HAT, sir, is the genius of democracy?

WH

Let me

read that clause of the Bill of Rights of Virginia which relates to this:

"CLAUSE III. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community. Of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate or contrary to those purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”

This, sir, is the language of democracy-that a majority of the community have a right to alter government when found to be oppressive. But how different is the genius

of your new Constitution from this! How different from the sentiments of freemen, that a contemptible minority can prevent the good of the majority! If, then, gentlemen standing on this ground are come to that point, that they are willing to bind themselves and their posterity to be oppressed, I am amazed and inexpressibly astonished. If this be the opinion of the majority, I must submit; but to me, sir, it appears perilous and destructive. I cannot help thinking so. Perhaps it may be the result of my age. These may be feelings natural to a man of my years, when the American spirit has left him, and his mental powers, like the members of the body, are decayed. If, sir, amendments are left to the twentieth, or tenth part of the people of America, your liberty is gone forever. We have heard that there is a great deal of bribery practiced in the House of Commons in England, and that many of the members raise themselves to preferments by selling the rights of the whole of the people. But, sir, the tenth part of that body cannot continue oppressions on the rest of the people. English liberty is, in this case, on a firmer foundation than American liberty. It will be easily contrived to procure the opposition of one-tenth of the people to any alteration, however judicious. The honorable gentleman who presides told us that, to prevent abuses in our government, we will assemble in convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, sir! we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; and you have no longer an aristocratical, no longer a democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in