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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 con: tains, in the body of it, various provisions in favour 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 o are equally secured. To the first I answer, that the constitution offered 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 I, 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 honour, “trust, or profit under the United States; but the party “convicted shall, nevertheless, be liable and subject to “indictment, trial, judgment, and punishment, accord“ing 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 ea 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 III. seetion 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 comicted of trea"son, 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 at"tainted."
It may well be a question, whether these are not. upon the whole, of equal importance with any which are to he found in the constitution of this state. The establishment of the writ of habeas coipus, the prohibition of ex post facto laws, and of Titles Of Nobility, to which we have no corresponding provisions in our constitution, are perhaps greater securities to liberty 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 favourite and most formidable instruments of tyranny. The observations of the judicious Blackstone,* in reference to the latter, are well worthy of recital: "To be"reave a man of life (says he) or by violence to confis"cate 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 u whole nation ; but confinement of the person, by se"cretly hurrying him to jail, where his sufferings are "unknown or forgotten, is a less public, a less stricking, and therefore a more dangerous engine of arbitrary "government." And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the Bulwark of the British constitution."!
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
* Vide Blackstone's Commentaries, vol. 1, page 136.
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 statute 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 art 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 to limit 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, abridgments of prerogative in favour 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 chavter by succeeding princes. Such was the petition of right assented to by Charles the First, 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:" this 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 natiou, than to one which has the regulation of every species of personal and private concerns. If therefore the loud clamours 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 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 colourable 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 pretence 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 right 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 has been said, I cannot forbear adding a remark or two: in
the first place, I observe that there is not a syllable con. cerning 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 declara. tion, 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 impractica. ble; 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 govern. ment.* And here, after all, as intimated upon another occasiou, 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 declamation 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. In like manner the proposed constitution, if adopted, will be the bill of rights of the union. Is it one object of a bill of rights to de' clare 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
* To show that there is a power in the constitution, by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said, that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it ...Pbe maintained, that the declarations in the state con: stitutions, in favour of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot cer. tainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press no where enjoys greater liberty than in that". try. And if duties of any kind may be laid without a violation of that liberty, to evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all general declarations respecting the liberty of the pres: will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations t the means of taxation, as under the proposed constitution, which has nothing of the kind. It would be quite as significant to declare, that government ought to befree, that taxes o not to be excessive, &c, as that the liberty of the press ought not " be restrained.