The Federalist Papers
exceptions to general rules.
3. Vide No. 81, in which the supposition of its being abolished by the
appellate jurisdiction in matters of fact being vested in the Supreme
Court, is examined and refuted.
FEDERALIST No. 84
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered.
From McLEAN's Edition, New York. Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
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 comprise
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 1, 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,(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."(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
state 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 pretense 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.(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