1. As to the want of a declaration of rights. The introduction of
these in England, from which the idea was originally taken, was in
consequence of usurpations of the Crown, contrary, as was conceived, to
the principles of their government. But there no original constitution
is to be found, and the only meaning of a declaration of rights in
that country is, that in certain particulars specified, the Crown had
no authority to act. Could this have been necessary had there been a
constitution in being by which it could have been clearly discerned
whether the Crown had such authority or not? Had the people, by a
solemn instrument, delegated particular powers to the Crown at the
formation of their government, surely the Crown, which in that case
could claim under that instrument only, could not have contended for
more power than was conveyed by it. So it is in regard to the new
Constitution here: the future government which may be formed under that
authority certainly cannot act beyond the warrant of that authority.
As well might they attempt to impose a King upon America, as go one
step in any other respect beyond the terms of their institution. The
question then only is, whether more power will be vested in the future
government than is necessary for the general purposes of the union.
This may occasion a ground of dispute—but after expressly defining
the powers that are to be exercised, to say that they shall exercise
no other powers (either by a general or particular enumeration) would
seem to me both nugatory and ridiculous. As well might a Judge when he
condemns a man to be hanged, give strong injunctions to the Sheriff
that he should not be beheaded.(67)
2. As to the common law, it is difficult to know what is meant by that
part of the objection. So far as the people are now entitled to the
benefit of the common law, they certainly will have a right to enjoy it
under the new Constitution until altered by the general legislature,
which even in this point has some cardinal limits assigned to it.
What are most acts of Assembly but a deviation in some degree from
the principles of the common law? The people are expressly secured
(contrary to Mr. Mason’s wishes) against _ex post facto_ laws; so that
the tenure of any property at any time held under the principles of
the common law, cannot be altered by any future act of the general
legislature. The principles of the common law, as they now apply,
must surely always hereafter apply, except in those particulars in
which express authority is given by this constitution; in no other
particulars can the Congress have authority to change it, and I
believe it cannot be shown that any one power of this kind given
is unnecessarily given, or that the power would answer its proper
purpose if the legislature was restricted from any innovations on the
principles of the common law, which would not in all cases suit the
vast variety of incidents that might arise out it.