“To make all laws which shall be necessary and proper for carrying
into execution the _foregoing powers, and all other powers vested by
this Constitution in the United States, or in any department or office
thereof_.”
Those powers would be useless, except acts of legislation could be
exercised upon them. It was not possible for the Convention, nor is it
for any human body, to foresee and provide for all contingent cases
that may arise. Such cases must therefore be left to be provided for by
the general Legislature as they shall happen to come into existence.
If Congress, under pretence of exercising the power delegated to them,
should in fact, by the exercise of any other power, usurp upon the
rights of the different Legislatures, or of any private citizens, the
people will be exactly in the same situation as if there had been an
express provision against such power in particular, and yet they had
presumed to exercise it. It would be an act of tyranny, against which
no parchment stipulations can guard; and the Convention surely can be
only answerable for the propriety of the powers given, not for the
future virtues of all with whom those powers may be intrusted. It does
not therefore appear to me that there is any weight in this objection
more than in others. But that I may give it every fair advantage, I
will take notice of every particular injurious act of power which Mr.
Mason points out as exercisable by the authority of Congress under this
general clause.
The first mentioned is, “That the Congress may grant monopolies
in trade and commerce.” Upon examining the constitution I find it
expressly provided, “That no preference shall be given to the ports
of one State over those of another;” and that “citizens of each State
shall be entitled to all privileges and immunities of citizens in the
several States.” These provisions appear to me to be calculated for the
very purpose Mr. Mason wishes to secure. Can they be consistent with
any monopoly in trade and commerce?(75) I apprehend therefore, under
this expression must be intended more than is expressed, and if I may
conjecture from another publication of a gentleman of the same State
and in the same party of opposition, I should suppose it arose from a
jealousy of the eastern States very well known to be often expressed by
some gentlemen of Virginia. They fear, that a majority of the States
may establish regulations of commerce which will give great advantage
to the carrying trade of America, and be a means of encouraging New
England vessels rather than Old England. Be it so. No regulations can
give such advantage to New England vessels, which will not be enjoyed
by all other American vessels, and many States can build as well as
New England, though not at present perhaps in equal proportion.(76) And
what could conduce more to the preservation of the Union than allowing
to every kind of industry in America a peculiar preference! Each State
exerting itself in its own way, but the exertions of all contributing
to the common security, and increasing the rising greatness of our
country! Is it not the aim of every wise country to be as much the
carriers of their own produce as they can be? And would not this be
the means in our own of producing a new source of activity among the
people, giving to our fellow-citizens what otherwise must be given to
strangers, and laying the foundation of an independent trade among
ourselves, and of gradually raising a navy in America which, however
distant the prospect, ought certainly not to be out of our sight.
There is no great probability however that our country is likely soon
to enjoy so glorious an advantage. We must have treaties of commerce,
because without them we cannot trade to other countries. We already
have such with some nations; we have none with Great Britain, which can
be imputed to no other cause but our not having a strong respectable
government to bring that haughty nation to terms. And surely no man,
who feels for the honor of his country, but must view our present
degrading commerce with that country with the highest indignation,
and the most ardent wish to extricate ourselves from so disgraceful a
situation. This only can be done by a powerful government which can
dictate conditions of advantage to ourselves, as an equivalent for
advantages to them; and this could undoubtedly be easily done by such
a government, without diminishing the value of any articles of our own
produce; or if there was any diminution it would be too slight to be
felt by any patriot in competition with the honor and interest of his
country.
As to the constituting of new crimes, and inflicting unusual and severe
punishment, certainly the cases enumerated wherein the Congress are
empowered either to define offences, or prescribe punishments, are
such as are proper for the exercise of such authority in the general
Legislature of the Union. They only relate to “counterfeiting the
securities and current coin of the United States,” to “piracies and
felonies committed on the high seas, and offences against the law
of nations,” and to “treason against the United States.” These are
offences immediately affecting the security, the honor or the interest
of the United States at large, and of course must come within the
sphere of the Legislative authority which is intrusted with their
protection. Beyond these authorities, Congress can exercise no other
power of this kind, except in the enacting of penalties to enforce
their acts of legislation in the cases where express authority is
delegated to them, and if they could not enforce such acts by the
enacting of penalties those powers would be altogether useless, since
a legislative regulation without some sanction would be an absurd
thing indeed. The Congress having, for these reasons, a just right to
authority in the above particulars, the question is, whether it is
practicable and proper to prescribe limits to its exercise, for fear
that they should inflict punishments unusual and severe. It may be
observed, in the first place, that a declaration against “cruel and
unusual punishments” formed part of an article in the Bill of Rights at
the revolution in England in 1688. The prerogative of the Crown having
been grossly abused in some preceding reigns, it was thought proper to
notice every grievance they had endured, and those declarations went
to an abuse of power in the Crown only, but were never intended to
limit the authority of Parliament. Many of these articles of the Bill
of Rights in England, without a due attention to the difference of the
cases, were eagerly adopted when our constitutions were formed, the
minds of men then being so warmed with their exertions in the cause
of liberty as to lean too much perhaps towards a jealousy of power
to repose a proper confidence in their own government. From these
articles in the State constitutions many things were attempted to be
transplanted into our new Constitution, which would either have been
nugatory or improper. This is one of them. The expressions “unusual
and severe” or “cruel and unusual” surely would have been too vague to
have been of any consequence, since they admit of no clear and precise
signification. If to guard against punishments being too severe, the
Convention had enumerated a vast variety of cruel punishments, and
prohibited the use of any of them, let the number have been ever so
great, an inexhaustible fund must have been unmentioned, and if our
government had been disposed to be cruel their invention would only
have been put to a little more trouble. If to avoid this difficulty,
they had determined, not negatively what punishments should not be
exercised, but positively what punishments should, this must have led
them into a labyrinth of detail which in the original constitution of
a government would have appeared perfectly ridiculous, and not left a
room for such changes, according to circumstances, as must be in the
power of every Legislature that is rationally formed. Thus when we
enter into particulars, we must be convinced that the proposition of
such a restriction would have led to nothing useful, or to something
dangerous, and therefore that its omission is not chargeable as a fault
in the new Constitution. Let us also remember, that as those who are to
make those laws must themselves be subject to them, their own interest
and feelings will dictate to them not to make them unnecessarily
severe; and that in the case of treason, which usually in every country
exposes men most to the avarice and rapacity of government, care is
taken that the innocent family of the offender shall not suffer for
the treason of their relation. This is the crime with respect to which
a jealousy is of the most importance, and accordingly it is defined
with great plainness and accuracy, and the temptations to abusive
prosecutions guarded against as much as possible. I now proceed to the
three great cases: The liberty of the press, the trial by jury in civil
cases, and a standing army in time of peace.
The liberty of the press is always a grand topic for declamation,
but the future Congress will have no other authority over this than
to secure to authors for a limited time an exclusive privilege of
publishing their works.—This authority has been long exercised in
England, where the press is as free as among ourselves or in any
country in the world; and surely such an encouragement to genius is
no restraint on the liberty of the press, since men are allowed to
publish what they please of their own, and so far as this may be deemed
a restraint upon others it is certainly a reasonable one, and can be
attended with no danger of copies not being sufficiently multiplied,
because the interest of the proprietor will always induce him to
publish a quantity fully equal to the demand. Besides, that such
encouragement may give birth to many excellent writings which would
otherwise have never appeared.(77) If the Congress should exercise
any other power over the press than this, they will do it without any
warrant from this constitution, and must answer for it as for any other
act of tyranny.
In respect to the trial by jury in civil cases, it must be observed
it is a mistake to suppose that such a trial takes place in all civil
cases now. Even in the common law courts, such a trial is only had
where facts are disputed between the parties, and there are even some
facts triable by other methods. In the Chancery and Admiralty Courts,
in many of the States, I am told they have no juries at all. The States
in these particulars differ very much in their practice from each
other. A general declaration therefore to preserve the trial by jury
in all civil cases would only have produced confusion, so that the
courts afterwards in a thousand instances would not have known how to
have proceeded.—If they had added, “as heretofore accustomed,” that
would not have answered the purpose, because there has been no uniform
custom about it.—If therefore the Convention had interfered, it must
have been by entering into a detail highly unsuitable to a fundamental
constitution of government; if they had pleased some States they must
have displeased others by innovating upon the modes of administering
justice perhaps endeared to them by habit, and agreeable to their
settled conviction of propriety. As this was the case it appears
to me it was infinitely better, rather than endanger everything by
attempting too much, to leave this complicated business of detail to
the regulation of the future Legislature, where it can be adjusted
coolly and at ease, and upon full and exact information. There is no
danger of the trial by jury being rejected, when so justly a favorite
of the whole people. The representatives of the people surely can have
no interest in making themselves odious, for the mere pleasure of being
hated, and when a member of the House of Representatives is only sure
of being so for two years, but must continue a citizen all his life,
his interest as a citizen, if he is a man of common sense, to say
nothing of his being a man of common honesty, must ever be uppermost in
his mind. We know the great influence of the monarchy in the British
government, and upon what a different tenure the Commons there have
their seats in Parliament from that prescribed to our representatives.
We know also they have a large standing army. It is in the power of
the Parliament, if they dare to exercise it, to abolish the trial by
jury altogether. But woe be to the man who should dare to attempt it.
It would undoubtedly produce an insurrection, that would hurl every
tyrant to the ground who attempted to destroy that great and just
favorite of the English nation. We certainly shall be always sure of
this guard at least upon any such act of folly or insanity in our
representatives. They soon would be taught the consequence of sporting
with the feelings of a free people. But when it is evident that such
an attempt cannot be rationally apprehended, we have no reason to
anticipate unpleasant emotions of that nature. There is indeed little
probability that any degree of tyranny which can be figured to the most
discolored imagination as likely to arise out of our government, could
find an interest in attacking the trial by jury in civil cases;—and in
criminal ones, where no such difficulties intervene as in the other,
and where there might be supposed temptations to violate the personal
security of a citizen, it is sacredly preserved.
The subject of a standing army has been exhausted in so masterly a
manner in two or three numbers of the Federalist (a work which I hope
will soon be in every body’s hands) that but for the sake of regularity
in answering Mr. Mason’s objections, I should not venture upon the
same topic, and shall only presume to do so, with a reference for
fuller satisfaction to that able performance. It is certainly one of
the most delicate and proper cases for the consideration of a free
people, and so far as a jealousy of this kind leads to any degree of
caution not incompatible with the public safety, it is undoubtedly to
be commended. Our jealousy of this danger has descended to us from our
British ancestors; in that country they have a Monarch, whose power
being limited, and at the same time his prerogatives very considerable,
a constant jealousy of him is both natural and proper. The two last
of the Stuarts having kept up a considerable body of standing forces
in time of peace for the clear and almost avowed purpose of subduing
the liberties of the people, it was made an article of the bill of
rights at the revolution, “That the raising or keeping a standing army
within the kingdom in time of peace, unless it be with the consent
of Parliament, is against law;” but no attempt was made, or I dare
say even thought of, to restrain the Parliament from exercise of
that right. An army has been kept on foot annually by authority of
Parliament, and I believe ever since the revolution they have had some
standing troops; disputes have frequently happened about the number,
but I don’t recollect any objection by the most zealous patriot,
to the keeping up of any at all. At the same time, notwithstanding
the above practice of an annual vote (arising from a very judicious
caution), it is still in the power of Parliament to authorize the
keeping up of any number of troops for an indefinite time, and to
provide for their subsistence for any number of years. Considerations
of prudence, not constitutional limits to their authority, alone
restrain such an exercise of it—our Legislature however will be
strongly guarded, though that of Great Britain is without any check
at all. No appropriations of money for military services can continue
longer than two years. Considering the extensive services the general
government may have to provide for upon this vast continent, no forces
with any serious prospect of success could be attempted to be raised
for a shorter time. Its being done for so short a period, if there
were any appearance of ill designs in the government, would afford
time enough for the real friends of their country to sound an alarm,
and when we know how easy it is to excite jealousy of any government,
how difficult for the people to distinguish from their real friends,
those factious men who in every country are ready to disturb its peace
for personal gratifications of their own, and those desperate ones
to whom every change is welcome, we shall have much more reason to
fear that the government may be overawed by groundless discontents,
than that it should be able, if contrary to every probability such
a government could be supposed willing, to effect any designs for
the destruction of their own liberties as well as those of their
constituents; for surely we ought ever to remember, that there will
not be a man in the government but who has been either mediately or
immediately recently chosen by the people, and that for too limited
a time to make any arbitrary designs consistent with common sense,
when every two years a new body of representatives with all the energy
of popular feelings will come, to carry the strong force of a severe
national control into every department of government. To say nothing
of the one-third to compose the Senate coming at the same time, warm
with popular sentiments, from their respective assemblies. Men may
be sure to suggest dangers from any thing, but it may truly be said
that those who can seriously suggest the danger of a premeditated
attack on the liberties of the people from such a government as this,
could with ease assign reasons equally plausible for mistrusting the
integrity of any government formed in any manner whatever; and really
it does seem to me, that all their reasons may be fairly carried to
this position, that inasmuch as any confidence in any men would be
unwise, as we can give no power but what may be grossly abused, we
had better give none at all, but continue as we are, or resolve into
total anarchy at once, of which indeed our present condition falls very
little short. What sort of a government would that be which, upon the
most certain intelligence that hostilities were meditated against it,
could take no method for its defence till after a formal declaration
of war, or the enemy’s standard was actually fixed upon the shore? The
first has for some time been out of fashion, but if it had not, the
restraint these gentlemen recommend, would certainly have brought it
into disuse with every power who meant to make war upon America. They
would be such fools as to give us the only warning we had informed
them we would accept of, before we would take any steps to counteract
their designs. The absurdity of our being prohibited from preparing to
resist an invasion till after it had actually taken place(78) is so
glaring, that no man can consider it for a moment without being struck
with astonishment to see how rashly, and with how little consideration
gentlemen, whose characters are certainly respectable, have suffered
themselves to be led away by so delusive an idea. The example of other
countries, so far from warranting any such limitation of power, is
directly against it. That of England has already been particularly
noticed. In our present articles of confederation there is no such
restriction. It has been observed by the Federalist, that Pennsylvania
and North Carolina appear to be the only States in the Union which
have attempted any restraint of the Legislative authority in this
particular, and that their restraint appears rather in the light of
a caution than a prohibition; but notwithstanding that, Pennsylvania
had been obliged to raise forces in the very face of that article
of her bill of rights. That great writer from the remoteness of his
situation, did not know that North Carolina had equally violated her
bill of rights in a similar manner. The Legislature of that State in
November, 1785, passed an act for raising 200 men for the protection of
a county called Davidson county against hostilities from the Indians;
they were to continue for _two years_ from the time of their first
rendezvous, unless sooner disbanded by the Assembly, and were to be
subject to the same “rules with respect to their government as were
established in the time of the late war by the Congress of the United
States for the government of the Continental army.” These are the very
words of the act. Thus, from the examples of the only two countries in
the world that I believe ever attempted such a restriction, it appears
to be a thing incompatible with the safety of government. Whether their
restriction is to be considered as a caution or a prohibition, in less
than five years after peace the caution has been disregarded, or the
prohibition disobeyed.(79) Can the most credulous or suspicious men
require stronger proof of the weakness and impolicy of such restraints?