Chapter XV: Letter IV: October 12th, 1787 (2)

3. Because in their legislative capacity they can do nothing without the concurrence of the House of Representatives, and we need look no farther than England for a clear proof of the amazing consequence which representatives of the people bear in a free government. There the King (who is hereditary, and therefore not so immediately interested, according to narrow views of interest which commonly govern Kings, to consult the welfare of his people) has the appointment to almost every office in the government, many of which are of high dignity and great pecuniary value, has the creation of as many Peers as he pleases, is not restricted from bestowing places on the members of both houses of Parliament, and has a direct negative on all bills, besides the power of dissolving the Parliament at his pleasure. In theory would not any one say this power was enormous enough to destroy any balance in the constitution? Yet what does the history of that country tell us?—that so great is the natural power of the House of Commons (though a very imperfect representation of the people, and a large proportion of them actually purchasing their seats) that ever since the revolution the Crown has continually aimed to corrupt them by the disposal of places and pensions; that without their hearty concurrence it found all the wheels of government perpetually clogged; and that notwithstanding this, in great critical emergencies, the members have broke through the trammels of power and interest, and by speaking the sense of the people (though so imperfectly representing them) either forced an alteration of measures, or made it necessary for the Crown to dissolve them. If their power, under these circumstances, is so great, what would it be if their representation was perfect, and their members could hold no appointments, and at the same time had a security for their seats? The danger of a destruction of the balance would be perhaps on the popular side, notwithstanding the hereditary tenure and weighty prerogatives of the Crown, and the permanent station and great wealth and consequence of the Lords. Our representatives therefore being an adequate and fair representation of the people, and they being expressly excluded from the possession of any places, and not holding their existence upon any precarious tenure, must have vast influence, and considering that in every popular government the danger of faction is often very serious and alarming, if such a danger could not be checked in its instant operation by some other power more independent of the immediate passions of the people, and capable therefore of thinking with more coolness, the government might be destroyed by a momentary impulse of passion, which the very members who indulged it might for ever afterwards in vain deplore. The institution of the Senate seems well calculated to answer this salutary purpose. Excluded as they are from places themselves, they appear to be as much above the danger of personal temptation as men can be. They have no permanent interest as a body to detach them from the general welfare, since six years is the utmost period of their existence, unless their respective legislatures are sufficiently pleased with their conduct to re-elect them. This power of re-election is itself a great check upon abuse, because if they have ambition to continue members of the Senate they can only gratify this ambition by acting agreeably to the opinion of their constituents. The House of Representatives, as immediately representing the people, are to _originate_ all money bills. This I think extremely right, and it is certainly a very capital acquisition to the popular representative. But what harm can arise from the Senate, who are nearly a popular representative also, proposing amendments, when those amendments must be concurred with by the original proposers? The wisdom of the Senate may sometimes point out amendments, the propriety of which the other House may be very sensible of, though they had not occurred to themselves. There is no great danger of any body of men suffering by too eager an adoption of any amendment proposed to any system of their own. The probability is stronger of their being too tenacious of their original opinion, however erroneous, than of their profiting by the wise information of any other persons whatever. Human nature is so constituted, and therefore I think we may safely confide in the free admission of an intercourse of opinion on the detail of business, as well as to taxation as to other points. Our House of Representatives surely could not have such reason to dread the power of a Senate circumstanced as ours must be, as the House of Commons in England the permanent authority of the Peers, and therefore a jealousy, which may be well grounded in the one case would be entirely ill-directed in the other. For similar reasons I dread not any power of originating appropriations of money as mentioned in the objection. While the concurrence of the other House must be had, and as that must necessarily be the most weighty in the government, I think no danger is to be apprehended. The Senate has no such authority as to awe or influence the House of Representatives, and it will be as necessary for the one as for the other that proper active measures should be pursued: And in regard to appropriations of money, occasions for such appropriations may, on account of their concurrence with the executive power, occur to the Senate, which would not to the House of Representatives, and therefore if the Senate were precluded from laying any such proposals before the House of Representatives, the government might be embarrassed; and it ought ever to be remembered, that in our views of distant and chimerical dangers we ought not to hazard our very existence as a people, by proposing such restrictions as may prevent the exertion of any necessary power. The power of the Senate in the appointment of Ambassadors, &c., is designed as a check upon the President. They must be appointed in some manner. If the appointment was by the President alone, or by the President and a _Privy_ Council (Mr. Mason’s favorite plan), an objection to such a system would have appeared much more plausible. It would have been said that this was approaching too much towards monarchical power, and if this new Privy Council had been like all I have ever heard of, it would have afforded little security against an abuse of power in the President. It ought to be shown by reason and probability (not bold assertion) how this concurrence of power with the President can make the Senate so dangerous. It is as good an argument to say that it will not as that it will.(69) The power of making treaties is so important that it would have been highly dangerous to vest it in the Executive alone, and would have been the subject of much greater clamor. From the nature of the thing, it could not be vested in the popular representative. It must therefore have been provided for with the Senate’s concurrence, or the concurrence of a Privy Council (a thing which I believe nobody has been mad enough to propose), or the power, the greatest monarchical power that can be exercised, must have been vested in a manner that would have excited universal indignation in the President alone.—As to the power of trying impeachments:—Let Mr. Mason show where this power could more properly have been placed. It is a necessary power in every free government, since even the Judges of the Supreme Court of Judicature themselves may require a trial, and other public officers might have too much influence before an ordinary and common court. And what probability is there that such a court, acting in so solemn a manner, should abuse its power (especially as it is wisely provided that the sentences shall extend only to removal from office and incapacitation) more than any other court? The argument as to the possible abuse of power, as I have before suggested, will reach all delegation of power, since all power may be abused when fallible beings are to execute it; but we must take as much caution as we can, being careful at the same time not to be too wise to do any thing at all.—The bold assertions at the end of this objection are mere declamation, and till some reason is assigned for them, I shall take the liberty to rely upon the reasons I have stated above, as affording a belief that the popular representative must for ever be the most weighty in this government, and of course that apprehensions of danger from such a Senate are altogether ill-founded.

IV. OBJECTION.

“The judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive and justice as unattainable by a great part of the community, as in England; and enabling the rich to oppress and ruin the poor.”

ANSWER.

Mr. Mason has here asserted, “That the judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States.” How is this the case? Are not the State judiciaries left uncontrolled as to the affairs of that _State_ only? In this, as in all other cases, where there is a wise distribution, power is commensurate to its object. With the mere internal concerns of a State, Congress are to have nothing to do: In no case but where the Union is in some measure concerned, are the federal courts to have any jurisdiction. The State Judiciary will be a satellite waiting upon its proper planet: That of the Union, like the sun, cherishing and preserving a whole planetary system.

In regard to a possible ill construction of this authority, we must depend upon our future legislature in this case as well as others, in respect to which it is impracticable to define every thing, that it will be provided for so as to occasion as little expense and distress to individuals as can be. _In parting with the coercive authority over the States as States, there must be a coercion allowed as to individuals. The former power no man of common sense can any longer seriously contend for; the latter is the only alternative._ Suppose an objection should be made that the future legislature should not ascertain salaries, because they might divide among themselves and their officers all the revenue of the Union.(70) Will not every man see how irrational it is to expect that any government can exist which is to be fettered in its most necessary operations for fear of abuse?

V. OBJECTION.

“The President of the United States has no constitutional Council (a thing unknown in any safe and regular government), he will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites—or he will become a tool to the Senate—or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country, for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office: Whereas, had a constitutional Council been formed (as was proposed) of six members, viz., two from the eastern, two from the middle, and two from the southern States, to be appointed by a vote of the States in the House of Representatives, with the same duration and rotation of office as the Senate, the Executive would always have had safe and proper information and advice: The President of such a Council might have acted as Vice-President of the United States, _pro tempore_, upon any vacancy or disability of the Chief Magistrate, and long-continued sessions of the Senate would in a great measure have been prevented. From this fatal defect of a constitutional Council has arisen the improper power of the Senate, in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the Supreme Executive. Hence also sprung that unnecessary and dangerous officer, the Vice-President, who for want of other employment, is made President of the Senate; thereby dangerously blending the Executive and Legislative powers; besides always giving to some one of the States an unnecessary and unjust pre-eminence over the others.”

ANSWER.

Mr. Mason here reprobates the omission of a particular Council for the President, as a thing contrary to the example of all safe and regular governments. Perhaps there are very few governments now in being deserving of that character, if under the idea of safety he means to include safety for a proper share of personal freedom, without which their safety and regularity in other respects would be of little consequence to a people so justly jealous of liberty as I hope the people in America ever will be. Since however Mr. Mason refers us to such authority, I think I cannot do better than to select for the subject of our inquiry in this particular, a government which must be universally acknowledged to be the most safe and regular of any considerable government now in being (though I hope America will soon be able to dispute that pre-eminence). Every body must know I speak of Great Britain, and in this I think I give Mr. Mason all possible advantage, since in my opinion it is most probable he had Great Britain principally in his eye when he made this remark, and in the very height of our quarrel with that country, so wedded were our ideas to the institution of a Council, that the practice was generally if not universally followed at the formation of our governments, though we instituted Councils of a quite different nature, and so far as the little experience of the writer goes, have very little benefited by it. My inquiry into this subject shall not be confined to the actual present practice of Great Britain; I shall take the liberty to state the Constitutional ideas of Councils in England, as derived from their ancient law subsisting long before the Union, not omitting however to show what the present practice really is. By the laws of England(71) the King is said to have four Councils,—1, The High Court of Parliament; 2, The Peers of the realm; 3, His Judges; 4, His Privy Council. By the first, I presume is meant, in regard to the making of laws; because the usual introductory expressions in most acts of Parliament, viz., “By the King’s most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons,” &c., show that in a constitutional sense, they are deemed the King’s laws, after a ratification in Parliament. The Peers of the realm are by their birth hereditary Counsellors of the Crown, and may be called upon for their advice, either in time of Parliament, or when no Parliament is in being: They are called in some law books _Magnum Concilium Regis_ (the King’s Great Council). It is also considered the privilege of every particular Peer to demand an audience of the King, and to lay before him anything he may deem of public importance. The Judges, I presume, are called “Council of the King,” upon the same principle as the Parliament is, because the administration of justice is in his name, and the Judges are considered as his instruments in the distribution of it. We come now to the Privy Council, which I imagine, if Mr. Mason had any particular view towards England when he made this objection, was the one he intended as an example of a _Constitutional Council_ in that kingdom. The Privy Council in that country is undoubtedly of very ancient institution, but it has one fixed property invariably annexed to it, that it is a mere creature of the Crown, dependent on its will both for number and duration, since the King may, whenever he thinks proper, discharge any member, or the whole of it, and appoint another.(72) If this precedent is of moment to us, merely as a precedent, it should be followed in all its parts, and then what would there be in the regulation to prevent the President being governed by “minions and favorites?” It would only be the means of riveting them on constitutional ground. So far as the precedents in England apply, the Peers being constitutionally the _Great Council_ of the King, though also a part of the legislature, we have reason to hope that there is by no means such a gross impropriety as has been suggested in giving the Senate, though a branch of the legislature, a strong control over the Executive. The only difference in the two cases is, that the Crown in England may or may not give this consequence to the Peers at its own pleasure, and accordingly we find that for a long time past this great Council has been very seldom consulted; under our constitution the President is allowed no option in respect to certain points wherein he cannot act without the Senate’s concurrence. But we cannot infer from any example in England, that a concurrence between the Executive and a part of the legislative is contrary to the maxims of their government, since their government allows of such a concurrence whenever the Executive pleases. The rule, therefore, from the example of the freest government in Europe, that the Legislative and Executive powers must be altogether distinct, is liable to exceptions; it does not mean that the Executive shall not form a part of the Legislative (for the King, who has the whole Executive authority, is one entire branch of the legislature, and this Montesquieu, who recognizes the general principle, declares is necessary); neither can it mean (as the example above evinces) that the Crown must consult neither House as to any exercise of the Executive power. But its meaning must be, that one power shall not include _both authorities_. The King, for instance, shall not have the sole Executive and sole Legislative authority also. He may have the former, but must participate the latter with the two Houses of Parliament. The rule also would be infringed were the three branches of the legislature to share jointly the Executive power. But so long as the people’s representatives are altogether distinct from the Executive authority, the liberties of the people may be deemed secure. And in this point surely, there can be no manner of comparison between the provisions by which the independence of our House of Representatives is guarded, and the condition in which the British House of Commons is left exposed to every species of corruption. But Mr. Mason says, for want of a Council, the President may become “a tool of the Senate.” Why? Because he cannot act without their concurrence. Would not the same reason hold for his being “a tool to the Council,” if he could not act without their concurrence, supposing a Council was to be imposed upon him without his own nomination (according to Mr. Mason’s plan)? As great care is taken to make him independent of the Senate as I believe human precaution can provide. Whether the President will be a tool to any persons will depend upon the man, and the same weakness of mind which would make him pliable to one body of control, would certainly attend him with another. But Mr. Mason objects, if he is not directed by minions and favorites, nor becomes a tool of the Senate, “a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office.” I beg leave to carry him again to my old authority, England, and ask him, what efficient Council they have there but one formed of their great officers. Notwithstanding their important _Constitutional Council_, everybody knows that the whole movements of their Government, where a Council is consulted at all, are directed by their _Cabinet Council_, composed entirely of the principal officers of the great departments; that when a Privy Council is called, it is scarcely ever for any other purpose than to give a formal sanction to the previous determinations of the other, so much so that it is notorious that not one time in a thousand one member of the Privy Council, except a known adherent of administration, is summoned to it. But though the President under our constitution may have the aid of the “principal officers of the great departments,” he is to have this aid, I think, in the most unexceptionable manner possible. He is not to be assisted by a Council summoned to a jovial dinner perhaps, and giving their opinions according to the nod of the President; but the opinion is to be given with the utmost solemnity _in writing_. No after equivocation can explain it away. It must for ever afterwards speak for itself, and commit the character of the writer, in lasting colors, either of fame or infamy, or neutral insignificance, to future ages, as well as the present. From those _written reasons_, weighed with care, surely the President can form as good a judgment, as if they had been given by a dozen formal characters, carelessly met together on a slight appointment; and this further advantage would be derived from the proposed system (which would be wanting if he had constitutional advice to screen him), that the President must be _personally responsible_ for everything—for though an ingenious gentleman has proposed, that a Council should be responsible for _their opinions_, and the same sentiment of justice might be applied to these opinions of the great officers, I am persuaded it will in general be thought infinitely more _safe_, as well as more _just_, that the President who _acts_ should be responsible for his _conduct_, following advice at his peril, than that there should be a danger of punishing any man for an erroneous opinion which might possibly be sincere. Besides the morality of this scheme, which may well be questioned, its inexpediency is glaring, since it would be so plausible an excuse and the insincerity of it so difficult to detect, the hopes of impunity this avenue to escape would afford would nearly take away all dread of punishment. As to the temptation mentioned to the officers joining in dangerous or oppressive measures to shelter themselves, and prevent an inquiry into their own misconduct in office, this proceeds upon a supposition that the President and the great officers may form a very wicked combination to injure their country, a combination that in the first place it is utterly improbable, in a strong respectable government should be formed for that purpose, and in the next, with such a government as this constitution would give us, could have little chance of being successful, on account of the great superior strength and natural and jealous vigilance of one at least, if not both the weighty branches of legislation. This evil, however, of the possible depravity of _all public officers_, is one that can admit of no cure, since in every institution of government the same danger in some degree or other must be risked; it can only be guarded against by strong checks, and I believe it be difficult for the objectors to our new Constitution to provide stronger ones against any abuse of the Executive authority than will exist in that. As to the Vice President, it appears to me very proper he should be chosen much in the same manner as the President, in order that the States may be secure, upon any accidental loss by death or otherwise of the President’s service, of the services in the same important station of the man in whom they repose their second confidence. The complicated manner of election wisely prescribed would necessarily occasion a considerable delay in the choice of another, and in the mean time the President of the Council, though very fit for the purpose of advising, might be very ill qualified, especially in a critical period, for an active Executive department. I am concerned to see, among Mr. Mason’s other reasons, so trivial a one as the little advantage one State might accidentally gain by a Vice President of their country having a seat, with merely a casting vote, in the Senate. Such a reason is utterly unworthy of that spirit of amity, and rejection of local views, which can alone save us from destruction. It was the glory of the late Convention, that by discarding such they formed a general government upon principles that did as much honor to their hearts as to their understandings. God grant, that in all our deliberations, we may consider America as _one_ body, and not divert our attention from so able a prospect to small considerations of partial jealousy and distrust. It is in vain to expect upon any system to secure an exact equilibrium of power for all the States. Some will occasionally have an advantage from the superior abilities of its members; the field of emulation is however open to all. Suppose any one should now object to the superior influence of Virginia (and the writer of this is not a citizen of that State), on account of the high character of General Washington, confessedly the greatest man of the present age, and perhaps equal to any that has existed in any period of time; would this be a reason for refusing a union with her, though the other States can scarcely hope for the consolation of ever producing his equal?

VI. OBJECTION.

“The President of the United States has the unrestrained power of granting pardons for treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”

ANSWER.

Nobody can contend upon any rational principles, that a power of pardoning should not exist somewhere in every government, because it will often happen in every country that men are obnoxious to a lawful conviction, who yet are entitled, from some favorable circumstances in their case, to a merciful interposition in their favor. The advocates of monarchy have accordingly boasted of this, as one of the advantages of that form of government, in preference to a republican; nevertheless this authority is vested in the Stadtholder in Holland, and I believe is vested in every Executive power in America. It seems to have been wisely the aim of the late Convention, in forming a general government for America, to combine the acknowledged advantages of the British constitution with proper republican checks to guard as much as possible against abuses, and it would have been very strange if they had omitted this, which has the sanction of such great antiquity in that country, and if I am not mistaken, a universal adoption in America.(73) Those gentlemen who object to other parts of the constitution as introducing innovations, contrary to long experience, with a very ill grace attempt to reject an experience so unexceptionable as this, to introduce an innovation (perhaps the first ever suggested) of their own. When a power is acknowledged to be necessary, it is a very dangerous thing to prescribe limits to it, for men must have a greater confidence in their own wisdom than I think any men are entitled to, who imagine they can form such exact ideas of all possible contingencies as to be sure that the restriction they propose will not do more harm than good. The probability of the President of the United States committing an act of treason against his country is very slight; he is so well guarded by the other powers of government, and the natural strength of the people at large must be so weighty, that in my opinion it is the most chimerical apprehension that can be entertained. Such a thing is however possible, and accordingly he is not exempt from a trial, if he should be guilty or supposed guilty, of that or any other offence. I entirely lay out of the consideration of the probability of a man honored in such a manner by his country, risking like General Arnold, the damnation of his fame to all future ages, though it is a circumstance of some weight in considering whether for the sake of such a remote and improbable danger as this, it would be prudent to abridge this power of pardoning in a manner altogether unexampled, and which might produce mischiefs the full extent of which it is not perhaps easy at present to foresee. In estimating the value of any power it is possible to bestow we have to choose between inconveniences of some sort or other, since no institution of man can be entirely free from all. Let us now therefore consider some of the actual inconveniences which would attend an abridgment of the power of the President in this respect. One of the great advantages attending a single Executive power is the degree of secrecy and dispatch with which on critical occasions such a power can act. In war this advantage will often counterbalance the want of many others. Now suppose, in the very midst of a war of extreme consequence to our safety or prosperity, the President could prevail on a gentleman of abilities to go into the enemy’s country, to serve in the useful, but dishonorable character of a spy. Such are certainly maintained by all vigilant governments, and in proportion to the ignominy of the character, and the danger sustained in the enemy’s country, ought to be his protection and security in his own. This man renders very useful services; perhaps by timely information, prevents the destruction of his country. Nobody knows of these secret services but the President himself; his adherence however to the enemy is notorious: he is afterwards intercepted in endeavoring to return to his own country, and having been perhaps a man of distinction before, he is proportionably obnoxious to his country at large for his supposed treason. Would it not be monstrous that the President should not have it in his power to pardon this man? or that it should depend upon mere solicitation and favor, and perhaps, though the President should state the fact as it really was, some zealous partisan, with his jealousy constantly fixed upon the President, might insinuate that in fact the President and he were secret traitors together, and thus obtain a rejection of the President’s application. It is a consideration also of some moment, that there is scarcely any accusation more apt to excite popular prejudice than the charge of treason. There is perhaps no country in the world where justice is in general more impartially administered than in England, yet let any man read some of the trials for treason in that country even since the revolution; he will see sometimes a fury influencing the judges, as well as the jury, that is extremely disgraceful. There may happen a case in our country where a man in reality innocent, but with strong plausible circumstances against him, would be so obnoxious to popular resentment, that he might be convicted upon very slight and insufficient proof. In such a case it would certainly be very proper for a cool temperate man of high authority, and who might be supposed uninfluenced by private motives, to interfere and prevent the popular current proving an innocent man’s ruin. I know men who write with a view to flatter the people, and not to give them honest information, may misrepresent this account as an invidious imputation on the usual impartiality of juries. God knows no man more highly reverences that blessed institution than I do; I consider them the natural safeguard of the personal liberties of a free people, and I believe they would much seldomer err in the administration of justice than any other tribunal whatever. But no man of experience and candor will deny the probability of such a case as I have supposed sometimes, though rarely, happening; and whenever it did happen, surely so safe a remedy as a prerogative of mercy in the Chief Magistrate of a great country ought to be at hand. There is little danger of an abuse of such a power, when we know how apt most men are in a republican government to court popularity at too great an expense, rather than do a just and beneficient action in opposition to strong prevailing prejudices among the people. But says Mr. Mason, “The President may sometimes exercise this power to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” This is possible, but the probability of it is surely too slight to endanger the consequences of abridging a power which seems so generally to have been deemed necessary in every well regulated government. It may also be questioned, whether supposing such a participation of guilt, the President would not expose himself to greater danger by pardoning, than by suffering the law to have its course. Was it not supposed, by a great number of intelligent men, that Admiral Byng’s execution was urged on to satisfy a discontented populace, when the administration, by the weakness of the force he was entrusted with, were perhaps the real cause of the miscarriage before Minorca? Had he been acquitted, or pardoned, he could have perhaps exposed the real fault: as a prisoner under so heavy a charge his recrimination would have been discredited, as merely the effort of a man in despair to save himself from an ignominious punishment. If a President should pardon an accomplice, that accomplice then would be an unexceptionable witness. Before, he would be a witness with a rope about his own neck, struggling to get clear of it at all events. Would any men of understanding, or at least ought they to credit an accusation from a person under such circumstances?(74)

VII. OBJECTION.

“By declaring all treaties the supreme law of the land, the Executive and the Senate have, in many cases an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.”

ANSWER.

Did not Congress very lately unanimously resolve, in adopting the very sensible letter of Mr. Jay, that a treaty when once made pursuant to the sovereign authority, _ex vi termini_ became immediately the law of the land? It seems to result unavoidably from the nature of the thing, that when the constitutional right to make treaties is exercised, the treaty so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us? And if this right was restricted by any such fine checks as Mr. Mason has in his imagination, but has not thought proper to disclose, a critical occasion might arise, when for want of a little rational confidence in our own government we might be obliged to submit to a master in an enemy. Mr. Mason wishes the House of Representatives to have some share in this business, but he is immediately sensible of the impropriety of it, and adds “where it can be done with safety.” And how is it to be known whether it can be done with safety or not, but during the pendency of a negotiation? Must not the President and Senate judge whether it can be done with safety or not? If they are of opinion it is unsafe, and the House of Representatives of course not consulted, what becomes of this boasted check, since, if it amounts to no more than that the President and Senate may consult the House of Representatives if they please, they may do this as well without such a provision as with it. Nothing would be more easy than to assign plausible reasons, after the negotiation was over, to show that a communication was unsafe, and therefore surely a precaution that could be so easily eluded, if it was not impolitic to the greatest degree, must be thought trifling indeed. It is also to be observed, that this authority, so obnoxious in the new Constitution (which is unfortunate in having little power to please some persons, either as containing new things or old), is vested indefinitely and without restriction in our present Congress, who are a body constituted in the same manner as the Senate is to be, but there is this material difference in the two cases, that we shall have an additional check, under the new system of a President of high personal character chosen by the immediate body of the people.

VIII. OBJECTION.

“Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishment, and extend their power as far as they shall think proper; so that the State Legislatures have no security for the powers now presumed to remain to them: or the people for their rights. There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes, nor against the danger of standing armies in time of peace.”

ANSWER.

The general clause at the end of the enumerated power is as follows:—

“To make all laws which shall be necessary and proper for carrying into execution the _foregoing powers, and all other powers vested by this Constitution in the United States, or in any department or office thereof_.”

Those powers would be useless, except acts of legislation could be exercised upon them. It was not possible for the Convention, nor is it for any human body, to foresee and provide for all contingent cases that may arise. Such cases must therefore be left to be provided for by the general Legislature as they shall happen to come into existence. If Congress, under pretence of exercising the power delegated to them, should in fact, by the exercise of any other power, usurp upon the rights of the different Legislatures, or of any private citizens, the people will be exactly in the same situation as if there had been an express provision against such power in particular, and yet they had presumed to exercise it. It would be an act of tyranny, against which no parchment stipulations can guard; and the Convention surely can be only answerable for the propriety of the powers given, not for the future virtues of all with whom those powers may be intrusted. It does not therefore appear to me that there is any weight in this objection more than in others. But that I may give it every fair advantage, I will take notice of every particular injurious act of power which Mr. Mason points out as exercisable by the authority of Congress under this general clause.

The first mentioned is, “That the Congress may grant monopolies in trade and commerce.” Upon examining the constitution I find it expressly provided, “That no preference shall be given to the ports of one State over those of another;” and that “citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” These provisions appear to me to be calculated for the very purpose Mr. Mason wishes to secure. Can they be consistent with any monopoly in trade and commerce?(75) I apprehend therefore, under this expression must be intended more than is expressed, and if I may conjecture from another publication of a gentleman of the same State and in the same party of opposition, I should suppose it arose from a jealousy of the eastern States very well known to be often expressed by some gentlemen of Virginia. They fear, that a majority of the States may establish regulations of commerce which will give great advantage to the carrying trade of America, and be a means of encouraging New England vessels rather than Old England. Be it so. No regulations can give such advantage to New England vessels, which will not be enjoyed by all other American vessels, and many States can build as well as New England, though not at present perhaps in equal proportion.(76) And what could conduce more to the preservation of the Union than allowing to every kind of industry in America a peculiar preference! Each State exerting itself in its own way, but the exertions of all contributing to the common security, and increasing the rising greatness of our country! Is it not the aim of every wise country to be as much the carriers of their own produce as they can be? And would not this be the means in our own of producing a new source of activity among the people, giving to our fellow-citizens what otherwise must be given to strangers, and laying the foundation of an independent trade among ourselves, and of gradually raising a navy in America which, however distant the prospect, ought certainly not to be out of our sight. There is no great probability however that our country is likely soon to enjoy so glorious an advantage. We must have treaties of commerce, because without them we cannot trade to other countries. We already have such with some nations; we have none with Great Britain, which can be imputed to no other cause but our not having a strong respectable government to bring that haughty nation to terms. And surely no man, who feels for the honor of his country, but must view our present degrading commerce with that country with the highest indignation, and the most ardent wish to extricate ourselves from so disgraceful a situation. This only can be done by a powerful government which can dictate conditions of advantage to ourselves, as an equivalent for advantages to them; and this could undoubtedly be easily done by such a government, without diminishing the value of any articles of our own produce; or if there was any diminution it would be too slight to be felt by any patriot in competition with the honor and interest of his country.

As to the constituting of new crimes, and inflicting unusual and severe punishment, certainly the cases enumerated wherein the Congress are empowered either to define offences, or prescribe punishments, are such as are proper for the exercise of such authority in the general Legislature of the Union. They only relate to “counterfeiting the securities and current coin of the United States,” to “piracies and felonies committed on the high seas, and offences against the law of nations,” and to “treason against the United States.” These are offences immediately affecting the security, the honor or the interest of the United States at large, and of course must come within the sphere of the Legislative authority which is intrusted with their protection. Beyond these authorities, Congress can exercise no other power of this kind, except in the enacting of penalties to enforce their acts of legislation in the cases where express authority is delegated to them, and if they could not enforce such acts by the enacting of penalties those powers would be altogether useless, since a legislative regulation without some sanction would be an absurd thing indeed. The Congress having, for these reasons, a just right to authority in the above particulars, the question is, whether it is practicable and proper to prescribe limits to its exercise, for fear that they should inflict punishments unusual and severe. It may be observed, in the first place, that a declaration against “cruel and unusual punishments” formed part of an article in the Bill of Rights at the revolution in England in 1688. The prerogative of the Crown having been grossly abused in some preceding reigns, it was thought proper to notice every grievance they had endured, and those declarations went to an abuse of power in the Crown only, but were never intended to limit the authority of Parliament. Many of these articles of the Bill of Rights in England, without a due attention to the difference of the cases, were eagerly adopted when our constitutions were formed, the minds of men then being so warmed with their exertions in the cause of liberty as to lean too much perhaps towards a jealousy of power to repose a proper confidence in their own government. From these articles in the State constitutions many things were attempted to be transplanted into our new Constitution, which would either have been nugatory or improper. This is one of them. The expressions “unusual and severe” or “cruel and unusual” surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification. If to guard against punishments being too severe, the Convention had enumerated a vast variety of cruel punishments, and prohibited the use of any of them, let the number have been ever so great, an inexhaustible fund must have been unmentioned, and if our government had been disposed to be cruel their invention would only have been put to a little more trouble. If to avoid this difficulty, they had determined, not negatively what punishments should not be exercised, but positively what punishments should, this must have led them into a labyrinth of detail which in the original constitution of a government would have appeared perfectly ridiculous, and not left a room for such changes, according to circumstances, as must be in the power of every Legislature that is rationally formed. Thus when we enter into particulars, we must be convinced that the proposition of such a restriction would have led to nothing useful, or to something dangerous, and therefore that its omission is not chargeable as a fault in the new Constitution. Let us also remember, that as those who are to make those laws must themselves be subject to them, their own interest and feelings will dictate to them not to make them unnecessarily severe; and that in the case of treason, which usually in every country exposes men most to the avarice and rapacity of government, care is taken that the innocent family of the offender shall not suffer for the treason of their relation. This is the crime with respect to which a jealousy is of the most importance, and accordingly it is defined with great plainness and accuracy, and the temptations to abusive prosecutions guarded against as much as possible. I now proceed to the three great cases: The liberty of the press, the trial by jury in civil cases, and a standing army in time of peace.

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works.—This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand. Besides, that such encouragement may give birth to many excellent writings which would otherwise have never appeared.(77) If the Congress should exercise any other power over the press than this, they will do it without any warrant from this constitution, and must answer for it as for any other act of tyranny.

In respect to the trial by jury in civil cases, it must be observed it is a mistake to suppose that such a trial takes place in all civil cases now. Even in the common law courts, such a trial is only had where facts are disputed between the parties, and there are even some facts triable by other methods. In the Chancery and Admiralty Courts, in many of the States, I am told they have no juries at all. The States in these particulars differ very much in their practice from each other. A general declaration therefore to preserve the trial by jury in all civil cases would only have produced confusion, so that the courts afterwards in a thousand instances would not have known how to have proceeded.—If they had added, “as heretofore accustomed,” that would not have answered the purpose, because there has been no uniform custom about it.—If therefore the Convention had interfered, it must have been by entering into a detail highly unsuitable to a fundamental constitution of government; if they had pleased some States they must have displeased others by innovating upon the modes of administering justice perhaps endeared to them by habit, and agreeable to their settled conviction of propriety. As this was the case it appears to me it was infinitely better, rather than endanger everything by attempting too much, to leave this complicated business of detail to the regulation of the future Legislature, where it can be adjusted coolly and at ease, and upon full and exact information. There is no danger of the trial by jury being rejected, when so justly a favorite of the whole people. The representatives of the people surely can have no interest in making themselves odious, for the mere pleasure of being hated, and when a member of the House of Representatives is only sure of being so for two years, but must continue a citizen all his life, his interest as a citizen, if he is a man of common sense, to say nothing of his being a man of common honesty, must ever be uppermost in his mind. We know the great influence of the monarchy in the British government, and upon what a different tenure the Commons there have their seats in Parliament from that prescribed to our representatives. We know also they have a large standing army. It is in the power of the Parliament, if they dare to exercise it, to abolish the trial by jury altogether. But woe be to the man who should dare to attempt it. It would undoubtedly produce an insurrection, that would hurl every tyrant to the ground who attempted to destroy that great and just favorite of the English nation. We certainly shall be always sure of this guard at least upon any such act of folly or insanity in our representatives. They soon would be taught the consequence of sporting with the feelings of a free people. But when it is evident that such an attempt cannot be rationally apprehended, we have no reason to anticipate unpleasant emotions of that nature. There is indeed little probability that any degree of tyranny which can be figured to the most discolored imagination as likely to arise out of our government, could find an interest in attacking the trial by jury in civil cases;—and in criminal ones, where no such difficulties intervene as in the other, and where there might be supposed temptations to violate the personal security of a citizen, it is sacredly preserved.