BILLS _of_ RIGHTS.
One of the principal objections to the new Federal Constitution, is,
that it contains no _Bill of Rights_. This objection, I presume to
assert, is founded on ideas of government that are totally false. Men
seem determined to adhere to old prejudices, and reason _wrong_, because
our ancestors reasoned _right_. A Bill of Rights against the
encroachments of Kings and Barons, or against any power independent of
the people, is perfectly intelligible; but a Bill of Rights against the
encroachments of an electiv Legislature, that is, against our _own_
encroachments on _ourselves_, is a curiosity in government.
The English nation, from which we descended, have been gaining their
liberties, inch by inch, by forcing concessions from the crown and the
Barons, during the course of six centuries.[17] _Magna Charta_, which is
called the palladium of English liberty, was dated in 1215, and the
people of England were not represented in Parliament till the year 1265.
Magna Charta established the rights of the Barons and clergy against the
encroachments of royal perogativ; but the commons or people were hardly
noticed in that deed. There was but one clause in their favor, which
stipulated, that "no villain or rustic should, by any fine, be bereaved
of his carts, plows and instruments of husbandry." As for the rest, they
were considered as a part of the property belonging to an estate, and
were transferred, as other moveables, at the will of their owners. In
the succeeding reign, they were permitted to send Representativs to
Parliament; and from that time have been gradually assuming their proper
degree of consequence in the British Legislature. In such a nation,
every law or statute that defines the powers of the crown, and
circumscribes them within determinate limits, must be considered as a
barrier to guard popular liberty. Every acquisition of freedom must be
established as a _right_, and solemnly recognized by the supreme power
of the nation; lest it should be again resumed by the crown under
pretence of ancient prerogativ: For this reason, the habeas corpus act
passed in the reign of Charles 2d, the statute of the 2d of William and
Mary, and many others which are declaratory of certain privileges, are
justly considered as the pillars of English freedom.
[17] Not that the English nation was originally in slavery;
for the primitiv Saxons and Germans were free. But the
military tenures, established by the Gothic conquests,
depressed the people; so that under the rigor of the feudal
system, about the date of Magna Charta, the King and Nobles
held their tenants in extreme servitude. From this
depression, the English have gradually emerged into ancient
freedom.
These statutes are however not esteemed because they are unalterable;
for the same power that enacted them, can at any moment repeal them; but
they are esteemed, because they are barriers erected by the
Representativs of the nation, against a power that exists independent of
their own choice.
But the same reasons for such declaratory constitutions do not
exist in America, where the supreme power is _the people in their
Representativs_. The _Bills of Rights_, prefixed to several of the
constitutions of the United States, if considered as assigning the
reasons of our separation from a foreign government, or as solemn
declarations of right against the encroachments of a foreign
jurisdiction, are perfectly rational, and were doubtless necessary. But
if they are considered as barriers against the encroachments of our own
Legislatures, or as constitutions unalterable by posterity, I venture to
pronounce them nugatory, and to the last degree, absurd.
In our governments, there is no power of legislation, independent of the
people; no power that has an interest detached from that of the public;
consequently there is no power existing against which it is necessary to
guard. While our Legislatures therefore remain electiv, and the rulers
have the same interest in the laws, as the subjects have, the rights of
the people will be perfectly secure without any declaration in their
favor.
But this is not the principal point. I undertake to prove that a
standing _Bill of Rights_ is _absurd_, because no constitutions, in a
free government, can be unalterable. The present generation have indeed
a right to declare what _they_ deem a _privilege_; but they have no
right to say what the _next_ generation shall deem a privilege. A state
is a supreme corporate body that never dies. Its powers, when it acts
for itself, are at all times equally extensiv; and it has the same right
to _repeal_ a law this year, as it had to _make_ it the last. If
therefore our posterity are bound by our constitutions, and can neither
amend nor annul them, they are to all intents and purposes our slaves.
But it will be enquired, have we then no right to say, that trial by
jury, the liberty of the press, the habeas corpus writ, and other
invaluable privileges, shall never be infringed nor destroyed? By no
means. We have the same right to say that lands shall descend in a
particular mode to the heirs of the deceased proprietor, and that such a
mode shall never be altered by future generations, as we have to pass a
law that the trial by jury shall never be abridged. The right of Jury
trial, which we deem invaluable, may in future cease to be a privilege;
or other modes of trial more satisfactory to the people, may be devised.
Such an event is neither impossible nor improbable. Have we then a right
to say that our posterity shall not be judges of their own
circumstances? The very attempt to make _perpetual_ constitutions, is
the assumption of a right to control the opinions of future generations;
and to legislate for those over whom we have as little authority as we
have over a nation in Asia. Nay we have as little right to say that
trial by jury shall be perpetual, as the English, in the reign of Edward
the Confessor, had, to bind their posterity forever to decide causes by
fiery Ordeal, or single combat. There are perhaps many laws and
regulations, which from their consonance to the eternal rules of
justice, will always be good and conformable to the sense of a nation.
But most institutions in society, by reason of an unceasing change of
circumstances, either become altogether improper, or require amendment;
and every nation has at all times, the right of judging of its
circumstances and determining on the propriety of changing its laws.
The English writers talk much of the omnipotence of Parliament; and yet
they seem to entertain some scruples about their right to change
particular parts of their constitution. I question much whether
Parliament would not hesitate to change, on any occasion, an article of
Magna Charta. Mr. Pitt, a few years ago, attempted to reform the mode of
representation in Parliament. Immediately an uproar was raised against
the measure, as _unconstitutional_. The representation of the kingdom,
when first established, was doubtless equal and wise; but by the
increase of some cities and boroughs, and the depopulation of others, it
has become extremely _unequal_. In some boroughs there is scarcely an
elector left to enjoy its privileges. If the nation feels no great
inconvenience from this change of circumstances, under the old mode of
representation, a reform is unnecessary. But if such a change has
produced any national evils of magnitude enough to be felt, the present
form of electing the Representativs of the nation, however
_constitutional_, and venerable for its antiquity, may at any time be
amended, if it should be the sense of Parliament. The _expediency_ of
the alteration must always be a matter of opinion; but all scruples as
to the right of making it are totally groundless.
Magna Charta may be considered as a contract between two parties, the
King and the Barons, and no contract can be altered but by the consent
of both parties. But whenever any article of that deed or contract shall
become inconvenient or oppressiv, the King, Lords and Commons may either
amend or annul it at pleasure.
The same reasoning applies to each of the United States, and to the
Federal Republic in general. But an important question will arise from
the foregoing remarks, which must be the subject of another paper.
No. IV.