Certain General and Miscellaneous Objections to the Constitution

Considered and Answered



From McLEAN’s Edition, New York.



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, Usays he,e 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 therefore to the substantial meaning of a bill of rights, it

is absurd to allege that it is not to be found in the work of the

convention. It may be said that it does not go far enough, though it

will not be easy to make this appear; but it can with no propriety be

contended that there is no such thing. It certainly must be immaterial

what mode is observed as to the order of declaring the rights of the

citizens, if they are to be found in any part of the instrument which

establishes the government. And hence it must be apparent, that much of

what has been said on this subject rests merely on verbal and nominal

distinctions, entirely foreign from the substance of the thing.



Another objection which has been made, and which, from the frequency of

its repetition, it is to be presumed is relied on, is of this nature:

“It is improper,” say the objectors, “to confer such large powers, as

are proposed, upon the national government, because the seat of that

government must of necessity be too remote from many of the States to

admit of a proper knowledge on the part of the constituent, of the

conduct of the representative body.” This argument, if it proves any

thing, proves that there ought to be no general government whatever.

For the powers which, it seems to be agreed on all hands, ought to be

vested in the Union, cannot be safely intrusted to a body which is not

under every requisite control. But there are satisfactory reasons to

show that the objection is in reality not well founded. There is in

most of the arguments which relate to distance a palpable illusion of

the imagination. What are the sources of information by which the

people in Montgomery County must regulate their judgment of the conduct

of their representatives in the State legislature? Of personal

observation they can have no benefit. This is confined to the citizens

on the spot. They must therefore depend on the information of

intelligent men, in whom they confide; and how must these men obtain

their information? Evidently from the complexion of public measures,

from the public prints, from correspondences with their

representatives, and with other persons who reside at the place of

their deliberations. This does not apply to Montgomery County only, but

to all the counties at any considerable distance from the seat of

government.



It is equally evident that the same sources of information would be

open to the people in relation to the conduct of their representatives

in the general government, and the impediments to a prompt

communication which distance may be supposed to create, will be

overbalanced by the effects of the vigilance of the State governments.

The executive and legislative bodies of each State will be so many

sentinels over the persons employed in every department of the national

administration; and as it will be in their power to adopt and pursue a

regular and effectual system of intelligence, they can never be at a

loss to know the behavior of those who represent their constituents in

the national councils, and can readily communicate the same knowledge

to the people. Their disposition to apprise the community of whatever

may prejudice its interests from another quarter, may be relied upon,

if it were only from the rivalship of power. And we may conclude with

the fullest assurance that the people, through that channel, will be

better informed of the conduct of their national representatives, than

they can be by any means they now possess of that of their State

representatives.



It ought also to be remembered that the citizens who inhabit the

country at and near the seat of government will, in all questions that

affect the general liberty and prosperity, have the same interest with

those who are at a distance, and that they will stand ready to sound

the alarm when necessary, and to point out the actors in any pernicious

project. The public papers will be expeditious messengers of

intelligence to the most remote inhabitants of the Union.



Among the many curious objections which have appeared against the

proposed Constitution, the most extraordinary and the least colorable

is derived from the want of some provision respecting the debts due TO

the United States. This has been represented as a tacit relinquishment

of those debts, and as a wicked contrivance to screen public

defaulters. The newspapers have teemed with the most inflammatory

railings on this head; yet there is nothing clearer than that the

suggestion is entirely void of foundation, the offspring of extreme

ignorance or extreme dishonesty. In addition to the remarks I have made

upon the subject in another place, I shall only observe that as it is a

plain dictate of common-sense, so it is also an established doctrine of

political law, that “STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE

DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF

THEIR CIVIL GOVERNMENT.”[4]



The last objection of any consequence, which I at present recollect,

turns upon the article of expense. If it were even true, that the

adoption of the proposed government would occasion a considerable

increase of expense, it would be an objection that ought to have no

weight against the plan.



The great bulk of the citizens of America are with reason convinced,

that Union is the basis of their political happiness. Men of sense of

all parties now, with few exceptions, agree that it cannot be preserved

under the present system, nor without radical alterations; that new and

extensive powers ought to be granted to the national head, and that

these require a different organization of the federal government a

single body being an unsafe depositary of such ample authorities. In

conceding all this, the question of expense must be given up; for it is

impossible, with any degree of safety, to narrow the foundation upon

which the system is to stand. The two branches of the legislature are,

in the first instance, to consist of only sixty-five persons, which is

the same number of which Congress, under the existing Confederation,

may be composed. It is true that this number is intended to be

increased; but this is to keep pace with the progress of the population

and resources of the country. It is evident that a less number would,

even in the first instance, have been unsafe, and that a continuance of

the present number would, in a more advanced stage of population, be a

very inadequate representation of the people.



Whence is the dreaded augmentation of expense to spring? One source

indicated, is the multiplication of offices under the new government.

Let us examine this a little.



It is evident that the principal departments of the administration

under the present government, are the same which will be required under

the new. There are now a Secretary of War, a Secretary of Foreign

Affairs, a Secretary for Domestic Affairs, a Board of Treasury,

consisting of three persons, a Treasurer, assistants, clerks, etc.

These officers are indispensable under any system, and will suffice

under the new as well as the old. As to ambassadors and other ministers

and agents in foreign countries, the proposed Constitution can make no

other difference than to render their characters, where they reside,

more respectable, and their services more useful. As to persons to be

employed in the collection of the revenues, it is unquestionably true

that these will form a very considerable addition to the number of

federal officers; but it will not follow that this will occasion an

increase of public expense. It will be in most cases nothing more than

an exchange of State for national officers. In the collection of all

duties, for instance, the persons employed will be wholly of the latter

description. The States individually will stand in no need of any for

this purpose. What difference can it make in point of expense to pay

officers of the customs appointed by the State or by the United States?

There is no good reason to suppose that either the number or the

salaries of the latter will be greater than those of the former.



Where then are we to seek for those additional articles of expense

which are to swell the account to the enormous size that has been

represented to us? The chief item which occurs to me respects the

support of the judges of the United States. I do not add the President,

because there is now a president of Congress, whose expenses may not be

far, if any thing, short of those which will be incurred on account of

the President of the United States. The support of the judges will

clearly be an extra expense, but to what extent will depend on the

particular plan which may be adopted in regard to this matter. But upon

no reasonable plan can it amount to a sum which will be an object of

material consequence.



Let us now see what there is to counterbalance any extra expense that

may attend the establishment of the proposed government. The first

thing which presents itself is that a great part of the business which

now keeps Congress sitting through the year will be transacted by the

President. Even the management of foreign negotiations will naturally

devolve upon him, according to general principles concerted with the

Senate, and subject to their final concurrence. Hence it is evident

that a portion of the year will suffice for the session of both the

Senate and the House of Representatives; we may suppose about a fourth

for the latter and a third, or perhaps half, for the former. The extra

business of treaties and appointments may give this extra occupation to

the Senate. From this circumstance we may infer that, until the House

of Representatives shall be increased greatly beyond its present

number, there will be a considerable saving of expense from the

difference between the constant session of the present and the

temporary session of the future Congress.



But there is another circumstance of great importance in the view of

economy. The business of the United States has hitherto occupied the

State legislatures, as well as Congress. The latter has made

requisitions which the former have had to provide for. Hence it has

happened that the sessions of the State legislatures have been

protracted greatly beyond what was necessary for the execution of the

mere local business of the States. More than half their time has been

frequently employed in matters which related to the United States. Now

the members who compose the legislatures of the several States amount

to two thousand and upwards, which number has hitherto performed what

under the new system will be done in the first instance by sixty-five

persons, and probably at no future period by above a fourth or fifth of

that number. The Congress under the proposed government will do all the

business of the United States themselves, without the intervention of

the State legislatures, who thenceforth will have only to attend to the

affairs of their particular States, and will not have to sit in any

proportion as long as they have heretofore done. This difference in the

time of the sessions of the State legislatures will be clear gain, and

will alone form an article of saving, which may be regarded as an

equivalent for any additional objects of expense that may be occasioned

by the adoption of the new system.



The result from these observations is that the sources of additional

expense from the establishment of the proposed Constitution are much

fewer than may have been imagined; that they are counterbalanced by

considerable objects of saving; and that while it is questionable on

which side the scale will preponderate, it is certain that a government

less expensive would be incompetent to the purposes of the Union.



PUBLIUS.



 [1] _Vide_ Blackstone’s _Commentaries_, vol. 1., p. 136.



 [2] _Vide_ Blackstone’s _Commentaries_, vol. iv., p. 438.



 [3] 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 the

 publications so high as to amount to a prohibition. I know not by what

 logic it could be maintained, that the declarations in the State

 constitutions, in favor of the freedom of the press, would be a

 constitutional impediment to the imposition of duties upon

 publications by the State legislatures. It cannot certainly 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 nowhere

 enjoys greater liberty than in that country. And if duties of any kind

 may be laid without a violation of that liberty, it is evident that

 the extent must depend on legislative discretion, respecting the

 liberty of the press, 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 through 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 be free, that taxes ought not to be excessive, etc., as that

 the liberty of the press ought not to be restrained.



 [4] _Vide_ Rutherford’s Institutes, Vol. 2, Book II, Chapter X,

 Sections XIV and XV. _Vide_ also Grotius, Book II, Chapter IX,

 Sections VIII and IX.









THE FEDERALIST.