IN THE course of the foregoing review of the Constitution, I have
taken notice of, and endeavored to answer most of the objections
which have appeared against it. There, however, remain a few which
either did not fall naturally under any particular head or were
forgotten in their proper places. These shall now be discussed; but
as the subject has been drawn into great length, I shall so far
consult brevity as to compromise all my observations on these
miscellaneous points in a single paper.
The most considerable of the remaining objections is that the plan
of the convention contains no bill of rights. Among other answers
given to this, it has been upon different occasions remarked that
the constitutions of several of the States are in a similar
predicament. I add that New York is of the number. And yet the
opposers of the new system, in this State, who profess an unlimited
admiration for its constitution, are among the most intemperate
partisans of a bill of rights. To justify their zeal in this matter,
they allege two things: one is that, though the constitution of New
York has no bill of rights prefixed to it, yet it contains, in the
body of it, various provisions in favor of particular privileges and
rights, which, in substance, amount to the same thing; the other is,
that the Constitution adopts, in their full extent, the common and
statute law of Great Britain, by which many other rights, not
expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the
convention contains, as well as the constitution of this State, a
number of such provisions.
Independent of those which relate to the structure of the
government, we find the following: Article I, section 3, clause
7--"Judgment in cases of impeachment shall not extend further than
to removal from office, and disqualification to hold and enjoy any
office of honor, trust, or profit under the United States; but the
party convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law."
Section 9, of the same article, clause 2-- "The privilege of the
writ of habeas corpus shall not be suspended, unless when in cases
of rebellion or invasion the public safety may require it." Clause
3--"No bill of attainder or ex post facto law shall be passed."
Clause 7--"No title of nobility shall be granted by the United
States; and no person holding any office of profit or trust under
them, shall, without the consent of the Congress, accept of any
present, emolument, office, or title of any kind whatever, from any
king, prince, or foreign state." Article 3, section 2, clause
3--"The trial of all crimes, except in cases of impeachment, shall
be by jury; and such trial shall be held in the State where the said
crimes shall have been committed; but when not committed within any
State, the trial shall be at such place or places as the Congress
may by law have directed." Section 3, of the same article--"Treason
against the United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort.
No person shall be convicted of treason, unless on the testimony of
two witnesses to the same overt act, or on confession in open
court." And clause 3, of the same section--"The Congress shall have
power to declare the punishment of treason; but no attainder of
treason shall work corruption of blood, or forfeiture, except during
the life of the person attainted."
It may well be a question, whether these are not, upon the whole, of
equal importance with any which are to be found in the constitution
of this State. The establishment of the writ of habeas corpus, the
prohibition of ex post facto laws, and of TITLES OF NOBILITY, to
which we have no corresponding provision in our Constitution, are
perhaps greater securities to liberty and republicanism than any it
contains. The creation of crimes after the commission of the fact,
or, in other words, the subjecting of men to punishment for things
which, when they were done, were breaches of no law, and the
practice of arbitrary imprisonments, have been, in all ages, the
favorite and most formidable instruments of tyranny.
The observations of the judicious Blackstone, (footnote 1.) in
reference to the latter, are well worthy of recital: "To bereave a
man of life, [says he,] or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act
of despotism, as must at once convey the alarm of tyranny throughout
the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten,
is a less public, a less striking, and therefore a more dangerous
engine of arbitrary government." And as a remedy for this fatal evil
he is everywhere peculiarly emphatical in his encomiums on the
habeas corpus act, which in one place he calls "the BULWARK of the
British Constitution." (footnote 2.)
Nothing need be said to illustrate the importance of the prohibition
of titles of nobility. This may truly be denominated the
corner-stone of republican government; for so long as they are
excluded, there can never be serious danger that the government will
be any other than that of the people.
To the second--that is, to the pretended establishment of the common
and statute law by the constitution, I answer, that they are
expressly made subject "to such alterations and provisions as the
legislature shall from time to time make concerning the same." They
are therefore at any moment liable to repeal by the ordinary
legislative power, and of course have no constitutional sanction.
The only use of the declaration was to recognize the ancient law,
and to remove doubts which might have been occasioned by the
Revolution. This consequently can be considered as no part of a
declaration of rights, which under our constitutions must be
intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights are,
in their origin, stipulations between kings and their subjects,
abridgements of prerogative 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
subsequent confirmations of that charter by succeeding princes. Such
was the Petition of Right assented to by Charles I., in the
beginning of his reign. Such, also, was the Declaration of Right
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 every
thing 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." Here 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 a constitution 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 in which 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 provision would confer a regulating power; but it is evident
that it would furnish, to men disposed to usurp, a plausible
pretence for claiming that power. They might urge with a semblance
of reason, that the Constitution ought not to be charged with the
absurdity of providing against the abuse of an authority which was
not given, and that the provision against restraining the liberty of
the press afforded a clear implication, that a power to prescribe
proper regulations concerning it was intended to be vested in the
national government. This may serve as a specimen of the numerous
handles which would be given to the doctrine of constructive powers,
by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place, I
observe, that there is not a syllable concerning it in the
constitution of this State; in the next, I contend, that whatever
has been said about it in that of any other State, amounts to
nothing. What signifies a declaration, that "the liberty of the
press shall be inviolably preserved"? What is the liberty of the
press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and from
this I infer, that its security, whatever fine declarations may be
inserted in any constitution respecting it, must altogether depend
on public opinion, and on the general spirit of the people and of
the government. (footnote 3.) And here, after all, as is intimated
upon another occasion, must we seek for the only solid basis of all
our rights.
There remains but one other view of this matter to conclude the
point. The truth is, after all the declamations we have heard, that
the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in
Great Britain form its Constitution, and conversely the constitution
of each State is its bill of rights. And the proposed Constitution,
if adopted, will be the bill of rights of the Union. Is it one
object of a bill of rights to declare and specify the political
privileges of the citizens in the structure and administration of
the government? This is done in the most ample and precise manner in
the plan of the convention; comprehending various precautions for
the public security, which are not to be found in any of the State
constitutions. Is another object of a bill of rights to define
certain immunities and modes of proceeding, which are relative to
personal and private concerns? This we have seen has also been
attended to, in a variety of cases, in the same plan. Adverting
therefore to the substantial meaning of a bill of rights, it is
absurd to allege that it is not to be found in the work of the
convention. it may be said that it does not go far enough, though it
will not be easy to make this appear; but it can with no propriety
be contended that there is no such thing. It certainly must be
immaterial what mode is observed as to the order of declaring the
rights of the citizens, if they are to be found in any part of the
instrument which establishes the government. And hence it must be
apparent, that much of what has been said on this subject rests
merely on verbal and nominal distinctions, entirely foreign from the
substance of the thing.
Another objection which has been made, and which, from the frequency
of its repetition, it is to be presumed is relied on, is of this
nature: "It is improper [say the objectors] to confer such large
powers, as are proposed, upon the national government, because the
seat of that government must of necessity be too remote from many of
the States to admit of a proper knowledge on the part of the
constituent, of the conduct of the representative body." This
argument, if it proves anything, proves that there ought to be no
general government whatever. For the powers which, it seems to be
agreed on all hands, ought to be vested in the Union, cannot be
safely intrusted to a body which is not under every requisite
control. But there are satisfactory reasons to show that the
objection is in reality not well founded. There is in most of the
arguments which relate to distance a palpable illusion of the
imagination. What are the sources of information by which the people
in Montgomery County must regulate their judgment of the conduct of
their representatives in the State legislature? Of personal
observation they can have no benefit. This is confined to the
citizens on the spot. They must therefore depend on the information
of intelligent men, in whom they confide; and how must these men
obtain their information? Evidently from the complexion of public
measures, from the public prints, from correspondences with their
representatives, and with other persons who reside at the place of
their deliberations. This does not apply to Montgomery county only,
but to all the counties at any considerable distance from the seat
of government.
It is equally evident that the same sources of information would be
open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a
prompt communication which distance may be supposed to create, will
be overbalanced by the effects of the vigilance of the State
governments. The executive and legislative bodies of each State will
be so many sentinels over the persons employed in every department
of the national administration; and as it will be in their power to
adopt and pursue a regular and effectual system of intelligence,
they can never be at a loss to know the behavior of those who
represent their constituents in the national councils, and can
readily communicate the same knowledge to the people. Their
disposition to apprise the community of whatever may prejudice its
interests from another quarter, may be relied upon, if it were only
from the rivalship of power. And we may conclude with the fullest
assurance that the people, through that channel, will be better
informed of the conduct of their national representatives, than they
can be by any means they now possess of that of their State
representatives.
It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions
that affect the general liberty and prosperity, have the same
interest with those who are at a distance, and that they will stand
ready to sound the alarm when necessary, and to point out the actors
in any pernicious project. The public papers will be expeditious
messengers of intelligence to the most remote inhabitants of the
Union.
Among the many curious objections which have appeared against the
proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the
debts due to the United States. This has been represented as a tacit
relinquishment of those debts, and as a wicked contrivance to screen
public defaulters. The newspapers have teemed with the most
inflammatory railings on this head; yet there is nothing clearer
than that the suggestion is entirely void of foundation, the
offspring of extreme ignorance or extreme dishonesty. In addition to
the remarks I have made upon the subject in another place, I shall
only observe that as it is a plain dictate of common-sense, so it is
also an established doctrine of political law, that "states neither
lose any of their rights, nor are discharged from any of their
obligations, by a change in the form of their civil government."
(footnote 4.)
The last objection of any consequence, which I at present recollect,
turns upon the article of expense. If it were even true, that the
adoption of the proposed government would occasion a considerable
increase of expense, it would be an objection that ought to have no
weight against the plan.
The great bulk of citizens of America are with reason convinced,
that Union is the basis of their political happiness. Men of sense
of all parties now, with few exceptions, agree that it cannot be
preserved under the present system, nor without radical alterations;
that new and extensive powers ought to be granted to the national
head, and that these require a different organization of the federal
government--a single body being an unsafe depositary of such ample
authorities. In conceding all this, the question of expense must be
given up; for it is impossible, with any degree of safety, to narrow
the foundation upon which the system is to stand. The two branches
of the legislature are, in the first instance, to consist of only
sixty-five persons, which is the same number of which Congress,
under the existing Confederation, may be composed. It is true that
this number is intended to be increased; but this is to keep pace
with the progress of the population and resources of the country. It
is evident that a less number would, even in the first instance,
have been unsafe, and that a continuance of the present number
would, in a more advanced stage of population, be a very inadequate
representation of the people.
Whence is the dreaded augmentation of expense to spring? Once source
indicated, is the multiplication of offices under the new
government. Let us examine this a little.
It is evident that the principal departments of the administration
under the present government, are the same which will be required
under the new. There are now a Secretary of War, a Secretary of
Foreign Affairs, a Secretary for Domestic Affairs, a Board of
Treasury, consisting of three persons, a Treasurer, assistants,
clerks, etc. These officers are indispensable under any system, and
will suffice under the new as well as the old. As to ambassadors and
other ministers and agents in foreign countries, the proposed
Constitution can make no other difference than to render their
characters, where they reside, more respectable, and their services
more useful. As to persons to be employed in the collection of the
revenues, it is unquestionably true that these will form a very
considerable addition to the number of federal officers; but it will
not follow that this will occasion an increase of public expense. It
will be in most cases nothing more than an exchange of State for
national officers. In the collection of all duties, for instance,
the persons employed will be wholly of the latter description. The
States individually will stand in no need of any for this purpose.
What difference can it make in point of expense to pay officers of
the customs appointed by the State or by the United States?
Where then are we to seek for those additional articles of expense
which are to swell the account to the enormous size that has been
represented to us? The chief item which occurs to me respects the
support of the judges of the United States. I do not add the
President, because there is now a president of Congress, whose
expenses may not be far, if any thing, short of those which will be
incurred on account of the President of the United States. The
support of the judges will clearly be an extra expense, but to what
extent will depend on the particular plan which may be adopted in
regard to this matter. But upon no reasonable plan can it amount to
a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense
that may attend the establishment of the proposed government. The
first thing which presents itself is that a great part of the
business which now keeps Congress sitting through the year will be
transacted by the President. Even the management of foreign
negotiations will naturally devolve upon him, according to general
principles concerted with the Senate, and subject to their final
concurrence. Hence it is evident that a portion of the year will
suffice for the session of both the Senate and the House of
Representatives; we may suppose about a fourth for the latter and a
third, or perhaps half, for the former. The extra business of
treaties and appointments may give this extra occupation to the
Senate. From this circumstance we may infer that, until the House of
Representatives shall be increased greatly beyond its present
number, there will be a considerable saving of expense from the
difference between the constant session of the present and the
temporary session of the future Congress.
But there is another circumstance of great importance in the view of
economy. The business of the United States has hitherto occupied the
State legislatures, as well as Congress. The latter has made
requisitions which the former have had to provide for. Hence it has
happened that the sessions of the State legislatures have been
protracted greatly beyond what was necessary for the execution of
the mere local business of the States. More than half their time has
been frequently employed in matters which related to the United
States. Now the members who compose the legislatures of the several
States amount to two thousand and upwards, which number has hitherto
performed what under the new system will be done in the first
instance by sixty-five persons, and probably at no future period by
above a fourth or a fifth of that number. The Congress under the
proposed government will do all the business of the United States
themselves, without the intervention of the State legislatures, who
thenceforth will have only to attend to the affairs of their
particular State, and will not have to sit in any proportion as long
as they have heretofore done. This difference in the time of the
sessions of the State legislatures will be clear gain, and will
alone form an article of saving, which may be regarded as an
equivalent for any additional objects of expense that may be
occasioned by the adoption of the new system.
The result from these observations is that the sources of additional
expense form the establishment of the proposed Constitution are much
fewer than may have been imagined; that they are counterbalanced by
considerable objects of saving; and that while it is questionable on
which side the scale will preponderate, it is certain that a
government less expensive would be incompetent to the purposes of
the Union.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 1. Vide Blackstone's "Commentaries," vol i, p. 136.
Footnote Number 2. Vide Blackstone's "Commentaries," vol iv., p.
438.
Footnote Number 3. To show that there is a power in the Constitution
by which the liberty of the press may be affected, recourse has been
had to the power of taxation. It is said that duties may be laid
upon the publications so high as to amount to a prohibition. I know
not by what logic it could be maintained, that the declarations in
the State constitutions, in favor of the freedom of the press, would
be a constitutional impediment to the imposition of duties upon
publications by the State legislatures. It cannot certainly be
pretended that any degree of duties, however low, would be an
abridgement of the liberty of the press. We know that newspapers are
taxed in Great Britain, and yet it is notorious that the press
nowhere enjoys greater liberty than in that country. And if duties
of any kind may be laid without a violation of that liberty, it is
evident that the extent must depend on legislative discretion,
regulated by public opinion; so that, after all, general
declarations respecting the liberty of the press, will give it no
greater security than it will have without them. The same invasions
of it may be effected under the State constitutions which contain
those declarations through the means of taxation, as under the
proposed Constitution, which has nothing of the kind. It would be
quite as significant to declare that government ought to be free,
that taxes ought not to be excessive, etc., as that the liberty of
the press ought not to be restrained.
Footnote Number 4. Vide Rutherford's "Institutes," vol.ii, book II,
chapter x., sect. xiv. and xv. Vide also Grotius, book II, chapter
ix., sects. vii. and ix.
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