deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Article the eighth. In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defence. Article the ninth. . . . In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined, in any Court of the United States, than according to the rules of the common law. Article the tenth. . . . Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Article the eleventh. . . . The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Article the twelfth. . . . The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.1 Mr. Madison, who is to be regarded not merely as the father of the Constitution but as the initiator of the amendments to that instrument, had proposed that the amendments themselves should not only modify the sense of the Constitution, but that they should be incorporated in the text in lieu of the rejected matter. But fortunately the view prevailed that the text of the instrument should be preserved inviolate, and that the amendments, in the form of articles, should be added to its text. It is perhaps also of interest to add that the amendments, reasonable and acceptable in themselves, proposed by the opponents of the Constitution but rejected by the majority of the Convention of Pennsylvania called to consider that instrument, are alleged to have been the source of Mr. Madison's propositions.2 Of the twelve amendments submitted to the States, the first two failed for lack of the required majority, but the remaining ten were adopted and form the first ten amendments to the Constitution of the United States. Submitted as they were by the first Congress under the Constitution and adopted within two years thereafter, they can be considered as the authoritative and contemporaneous interpretation of the States of the Union in the matter of their relation to the government of the Union, which the States had created by vesting it with certain powers whereof they divested themDocumentary History, Vol. II, pp. 321-4. 2 They are fifteen in number, and are remarkable as containing the substance of the ten amendments afterwards added to the Constitution. Similarity so marked can not be accidental. There is much reason, therefore, to believe that when Mr. Madison, in 1789, drew up the amendments for the House of Representatives, he made use of those offered by the minority of the Convention of Pennsylvania. See Pennsylvania and the Federal Constitution, McMaster and Stone ed., 1888, p. 19. The text of the amendments is to be found on pp. 321-3 of that volume. Powers not to the States selves. The ten amendments are in their entirety limitations upon the general power of the Government. The ninth and tenth cannot be too often. pondered by those who would understand the nature of the more perfect Union created by the Constitution, and who would like to see something of the kind obtain in the society of nations. They are therefore quoted: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (Article IX.) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (Article X.) It is believed that there would have been little opposition within and without the Federal Convention to a bill of rights composed of the matters included within the first ten amendments, which are themselves in the nature of a bill of rights. It is not too much to say that, if such a course had been taken, opposition to the Constitution would have been largely disarmed, if not rendered wholly powerless. The truth of the matter seems to be that, as always happens in an international conference, the discussions moved in a leisurely way at the beginning; that, in the course of its sessions, propositions were made and discussed in such numbers as to impede progress; and that, in the closing days of the session, the members, in sheer desperation to do something to justify their calling and to adjourn within a reasonable period, became excited, not to say irascible; and that they rejected measures which they would otherwise have adopted, on the ground that they were unnecessary or that their adoption would unduly prolong the session, notwithstanding the fact that, if unnecessary, it would not hurt to adopt them, especially as their adoption would tranquilize the minds of their proposers. Mr. Mason's proposal for a bill of rights,—and perhaps as the framer of the Virginian Bill of Rights he appeared to his colleagues a trifle obsessed with its importance,-received scant consideration, made, as it was, in the closing days. On September 12th Mr. Mason stated that “he wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose-It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours." 1 The Convention, however, made short shrift of the proposal, and after other observations in the nature of remarks, the proposal made by Mr. Gerry of Massachusetts and seconded by Mr. Mason was negatived by ten of the eleven States, with Massachusetts abstaining. The spirit of the Convention at this time is perhaps best shown by the 'Documentary History, Vol. III, p. 734. action of the Convention on the 15th, when a proposal was made that an address should be prepared to the people to accompany the Constitution, inasmuch, as stated by its proposer, as "the people had been accustomed to such on great occasions, and would expect it on this." To this proposal Mr. Rutledge of South Carolina objected, "on account of the delay it would produce and the impropriety of addressing the people before it was known whether Congress would approve and support the plan." The motion was rejected by a vote of six States to four, with North Carolina abstaining.1 Many years after the adjournment of the Convention, Mr. Madison, speaking of the method of electing the President, said, in a letter dated August 23, 1823, addressed to Mr. George Hay: As the final arrangement of it took place in the latter stage of the Session, it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies, tho' the degree was much less than usually prevails in them.2 The general view on the subject of a bill of rights, at least the view of the moderate reformers, is best expressed by Washington in a letter to Lafayette, dated April 28, 1788, in which he says: There was not a member of the convention, I believe, who had the least objection to what is contended for by the advocates for a Bill of Rights and Trial by Jury. The first, where the people evidently retained every thing, which they did not in express terms give up, was considered nugatory . . and, as to the second, it was only the difficulty of establishing a mode, which should not interfere with the fixed modes of any of the States, that induced the convention to leave it as a matter of future adjustment.3 Writing many years after the event, Mr. Madison himself used the following language in a letter dated November 27, 1830, addressed to Mr. Andrew Stevenson, which states better than any amount of argument Mr. Mason's case: 8 Besides the restrictive & explanatory amendments to the text of the Constitution it may be observed, that a long list was premised under the name and in the nature of "Declarations of Rights"; all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number & nature of the amendments proposed to be made specific & integral parts of the Constitutional text. No less than seven States, it appears, concurred in adding to their rati 1 Ibid., Vol. iii, p. 749. The Writings of James Madison, Hunt ed., Vol. ix, p. 147. Ford, The Writings of George Washington, Vol. ii, p. 256; Sparks, Vol. ix, pp. 357-8. Value of fications a series of amendments, wch, they deemed requisite. Of these amendments, nine were proposed by the Convention of Massachusetts, five by that of S. Carolina, twelve by that of N. Hampshire, twenty by that of Virginia, thirty-three by that of N. York, twenty-six by that of N. Carolina, twenty-one by that of R. Island. Here are a majority of the States, proposing amendments, in one instance thirty-three by a single State; all of them intended to circumscribe the powers granted to the General Government, by explanations, restrictions or prohibitions.1 Experience has shown that the amendments to the Constitution, in substance though not in form a Bill of Rights, were not useless. They have been frequently invoked on appropriate occasions, and they have been the subject of many appeals to the Supreme Court. They are, we believe universal truths and therefore susceptible of universal application; and indeed but yesterday they were weighed and found not wanting by a distinguished Secretary of War, who restated them with slight changes, and additions, and prescribed them for the government of the Philippines in 1900. Thus Mr. Root said in his instructions approved by the President on April 7, 1900: It is evident that the most enlightened thought of the Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short time command universal assent. Upon every division and branch of the government of the Philippines, therefore, must be imposed these inviolable rules: That no person shall be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for the same offense, or be compelled in any criminal case to be a witness against himself; that the right to be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be passed abridging the freedom of speech or of the press, or the rights of the people peaceably to assemble and petition the Government for a redress of grievances; that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed.2 1 Writings of Madison, Vol. ix, pp. 421–2. Elihu Root, The Military and Colonial Policy of the United States, Robert Bacon and J. B. Scott ed., pp. 291–2. And in the case of Kepner v. United States (195 U. S., 100, 123–4), decided by the Supreme Court in 1903, Mr. Justice Day, speaking of these instructions, thus comments upon them: These words are not strange to the American lawyer or student of constitutional history. They are the familiar language of the Bill of Rights, slightly changed in form, but not in substance, as found in the first nine amendments to the Constitution of the United States, with the omission of the provision preserving the right to trial by jury and the right of the people to bear arms, and adding the prohibition of the Thirteenth Amendment against slavery or involuntary servitude except as a punishment for crime, and that of Art. 1, §9, to the passage of bills of attainder and ex post facto laws. These principles were not taken from the Spanish law; they were carefully collated from our own Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life and liberty. Convention In interpreting the Constitution it must always be borne in mind that, State while the intent of the framers of that instrument is important, as showing the meaning which they ascribed to it, the greatest weight must be given to the proceedings in the State Conventions ratifying the Constitution and to the first ten amendments which are, as already stated, in the nature of an authoritative and contemporaneous interpretation put upon the Constitution by three-fourths and more of the States in the exercise of their rights under the Constitution. It is believed that these principles of interpretation, constituting as they do a perfect canon of construction, have never been better The First Ten stated than by Mr. Madison, who would have been supposed to be inclined. to favor the views of the framers, because of his membership in the Convention and his authorship of the Notes in which their views are preserved, to the detriment of the authority of the State conventions. Thus, Mr. Madison said: 1 But, after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond. the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.1 As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be pre James Madison in the House of Representatives. Annals of Congress, Fourth Congress, First Session, p. 776. Amendments |