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fatal; with others the power of regulating commerce by a bare majority. With some the power of direct taxation was an intolerable grievance; with others the power of indirect taxation by duties on imports. With some the restraint of the State legislatures from laying duties upon exports and passing ex post facto laws was incorrect; with others the lodging of the executive power in a single magistrate. With some the term of office of the senators and representatives was too long; with others the term of office of the President was obnoxious to a like censure, as well as his re-eligibility. With some the intermixture of the legislative, executive, and judicial functions in the Senate was a mischievous departure from all ideas of regular government; with others the non-participation of the House of Representatives in the same functions was the alarming evil. With some the powers of the President were alarming and dangerous to liberty; with others the participation of the Senate in some of those powers. With some the powers of the judiciary were far too extensive; with others the power to make treaties even with the consent of two thirds of the Senate. With some the power to keep up a standing army was a sure introduction to despotism ; with others the power over the militia.3 With some the paramount authority of the Constitution, treaties, and laws of the United States was a dangerous feature; with others the small number composing the Senate and the House of Representatives was an alarming and corrupting evil.4
§ 298. In the glowing language of those times the people were told, " that the new government will not be a confederacy of States, as it ought, but one consolidated government, founded upon the destruction of the several governments of the States. The powers of Congress, under the new Constitution, are complete and unlimited over the purse and the sword, and are perfectly independent of and supreme over the State governments, whose intervention in these great points is entirely destroyed. By virtue of their power of taxation, Congress may command the whole or any part of the properties of the people. They may impose what imposts upon commerce, they may impose what land taxes, and taxes, excises, and duties on all instruments, and duties on every fine article that they may judge proper.” “ Congress may monopolize every source of revenue, and thus indirectly demolish the State governments ; for without funds they could not exist." “ As Congress have the control over the time of the appointment of the President, of the senators, and of the representatives of the United States, they may prolong their existence in office for life by postponing the time of their election and appointment from period to period, under various pretences.” “ When the spirit of the people shall be gradually broken, when the general government shall be firmly established, and when a numerous standing army shall render opposition vain, the Congress may complete the system of despotism in renouncing all dependence on the people, by continuing themselves and their children in the government.” 1
1 2 Amer. Museum, 534, 536, 540; Id. 427, 435; Id. 547, 555.
8 See 2 Amer. Museum, 422, &c.; Id. 435; Id. 434 ; Id. 540, &c., 543, &c.; Id. 553; 3 Amer. Museum, 62; Id. 157; Id. 419, 420, &c.
4 Many of the objections are summed up in the Federalist, No. 38, with great force and ability.
$ 299. A full examination of the nature and extent of the objections to the several powers given to the general government will more properly find a place when those powers come successively under review in our commentary on the different parts of the Constitution itself. The outline here furnished may serve to show what those were which were presented against them as an aggregate or mass. It is not a little remarkable that some of the most formidable applied with equal force to the Articles of Confederation, with this difference only, that though unlimited in their terms, they were in some instances chécked by the want of power to carry them into effect, otherwise than by requisitions on the States. Thus presenting, as has been justly observed, the extraordinary phenomenon of declaring certain powers in the Federal government absolutely necessary, and at the same time rendering them absolutely nugatory.?
§ 300. (3.) Another class of objections urged against the Constitution was founded upon its deficiencies and omissions. It cannot be denied that some of the objections on this head were well taken, and that there was a fitness in incorporating some provision on the subject into the fundamental articles of a free government. There were others, again, which might fairly enough be left to the legislative discretion and to the natural influences of the popular voice in a republican form of government. There were others,
1 Address of the Minority in the Pennsylvania Convention, 2 Amer. Museum, 536, 543, 544, 545. See also the Address of Virginia, 2 Pitk. History, 334. 2 The Federalist, No. 38. VOL. I.
again, so doubtful, both in principle and policy, that they might properly be excluded from any system aiming at permanence in its securities as well as its foundations.
$ 301. Among the defects which were enumerated, none attracted more attention, or were urged with more zeal, than the want of a distinct bill of rights which should recognize the fundamental principles of a free republican government, and the right of the people to the enjoyment of life, liberty, property, and the pursuit of happiness. It was contended that it was indispensable that express provision should be made for the trial by jury in civil cases, and in criminal cases upon a presentment by a grand jury only; and that all criminal trials should be public, and the party be confronted with the witnesses against him; that freedom of speech and freedom of the press should be secured; that there should be no national religion, and the rights of conscience should be inviolable ; that excessive bail should not be required, nor'cruel and unusual punishments inflicted ; that the people should have a right to bear arms; that persons conscientiously scrupulous should not be compelled to bear arms; that every person should be entitled of right to petition for the redress of grievances ; that searchwarrants should not be granted without oath, nor general warrants at all; that soldiers should not be enlisted, except for a short, limited term, and not be quartered in time of peace upon private houses without the consent of the owners; that mutiny bills should continue in force for two years only; that causes once tried by a jury should not be re-examinable upon appeal, otherwise than according to the course of the common law; and that the powers not expressly delegated to the general government should be declared to be reserved to the States. In all these particulars the Constitution was obviously defective; and yet (it was contended) they were vital to the public security.
$ 302. Besides these, there were other defects relied on, such as the want of a suitable provision for a rotation in office, to prevent persons enjoying it for life; the want of an executive council for the President; the want of a provision limiting the duration of standing armies; the want of a clause securing to the people the
1 2 Amer. Museum, 422 to 430 ; Id. 435, &c. ; Id. 534, &c. 536, 540, &c. 553, &c. 557 ; 3 Amer. Museum, 62; Id. 157; Id. 419, 420, &c.; The Federalist, No. 38; [Rives, Life of Madison, II. 607, 639; Jefferson's Works, III. 3, 13, 201 ; Life of Fisher Ames, I. 52, 53.]
enjoyment of the common law; the want of security for proper elections of public officers; the want of a prohibition of members of Congress holding any public offices, and of judges holding any other offices ; and finally, the want of drawing a clear and direct line between the powers to be exercised by Congress and by the States.2
$ 303. Many of these objections found their way into the amendments, which, simultaneously with the ratification, were adopted in many of the State conventions. With the view of carrying into effect popular will, and also of disarming the opponents of the Constitution of all reasonable grounds of complaint, Congress, at its very first session, took into consideration the amendments so proposed; and by a succession of supplementary articles provided, in substance, a bill of rights, and secured by constitutional declarations most of the other important objects thus suggested. These articles (in all, twelve) were submitted by Congress to the States for their ratification, and ten of them were finally ratified by the requisite number of States, and thus became incorporated into the Constitution. It is a curious fact, however, that, although the necessity of these amendments had been urged by the enemies of the Constitution and denied by its friends, they encountered scarcely any other opposition in the State legislatures than what was given by the very party which had raised the objections. The friends of the Constitution generally supported them upon the ground of a large public policy, to quiet jealousies and to disarm resentments.
§ 304. It is perhaps due to the latter to state that they believed that some of the objections to the Constitution existed only in imagination, and that others derived their sole support from an erroneous construction of that instrument. In respect to a bill of rights, it was stated that several of the State constitutions contained none in form, and yet were not on that account thought objectionable. That it was not true that the Constitution of the United States did not, in the true sense of the terms, contain a bill of rights. It was emphatically found in those clauses which respected political rights, the guaranty of republican forms of government, the trial of crimes by jury, the definition of treason, the prohibition against bills of attainder and ex post facto laws and titles of nobility, the trial by impeachment, and the privilege of the writ of habeas corpus. That a general bill of rights would be improper in a Constitution of limited powers like that of the United States, and might even be dangerous, as by containing exceptions from powers not granted it might give rise to implications of constructive power. That in a government like ours, founded by the people and managed by the people, and especially in one of limited authority, there was no necessity of any bill of rights ; for all powers not granted were reserved, and even those granted might at will be resumed or altered by the people. That a bill of rights might be fit in a monarchy, where there were struggles between the crown and the people about prerogatives and privileges. But here the government is the government of the people ; all its officers are their officers, and they can exercise no rights or powers but such as the people commit to them. In such a case the silence of the Constitution argues nothing. The trial by jury, the freedom of the press, and the liberty of conscience are not taken away, because they are not secured. They remain with the people among the mass of ungranted powers, or find an appropriate place in the laws and institutions of each particular State.
1 Mr. Mason, 2 Amer. Museum, 534.
2 2 Amer. Museum, 426, 428; Id. 534, 537 ; Id. 549, 557; 3 Amer. Museum, 62; Id. 419, 420, &c. ; 2 Pitk. Hist. 218, 267, 280, 282, 283, 284.
8 2 Pitk. Hist. 332, 334. [These amendments were proposed and advocated by Mr. Madison, through whose efforts in the main their passage through Congress was secured. See Rives, Life of Madison, II. 38 et seq. ; Life, &c. of Fisher Ames, I. 52 ; Van Buren, Political Parties, 191 et seq. ; Hamilton, History of the Republic, IV. 23.] 4 5 Marsh. Life of Wash. 209, 210.
5 5 Marsh. Life of Wash. 207, 208,
§ 305. Notwithstanding the force of these suggestions, candor will compel us to admit that, as certain fundamental rights were secured by the Constitution, there seemed to be an equal propriety in securing in like manner others of equal value and importance. The trial by jury in criminal cases was secured; but this clause admitted of more clear definition and of auxiliary provisions. The trial by jury in civil cases at common law was as dear to the people, and afforded at least an equal protection to persons and property. The same remark may be made of several other provisions included in the amendments. But these will more properly fall under consideration in our commentary upon that portion of the Constitution. The promptitude, zeal, and liberality with
1 The Federalist, No. 84; Mr. Jay's Address ; 3 Amer. Museum, 554, 559 ; 2 Amer. Museum, 422, 425.