Observations on George Mason’s Objections to the Federal Constitution

Author: James Iredell (Marcus)

[Answers to Mr. Mason’s objections to the new Constitution, recommendedby the late Convention. By Marcus. Newbern: Printed by Hodge and Wills.1788.]

By James Iredell, member of the first North Carolina Convention. This argument was originally published in the State Gazette of North Carolina, and was republished in pamphlet form, together with pieces by Archibald Maclaine and William R. Davie. The most careful search has not enabled me to find the pamphlet, so I am forced to reprint the “answers” from McRee’s Life of James Iredell, a work of considerable rarity; and in consequence the above title is certainly not that of the pamphlet.

“I have read with great pleasure your answer to Mr. Mason’s objections; and surely every man who read them, and on whom Mr. Mason’s observations, or indeed the arguments of those in opposition in general have had any effect, must be convinced that the objections to the constitution are without foundation.” Witherspoon to Iredell, April 3, 1788.

P. L. F.

I. OBJECTION.

“There is no declaration of rights, and the laws of the generalgovernment being paramount to the laws and constitutions of theseveral States, the declarations of rights in the separate States areno security. Nor are the people secured even in the enjoyment of thebenefit of the common law, which stands here upon no other foundationthan its having been adopted by the respective acts forming theConstitutions of the several States.”

ANSWER.

1. As to the want of a declaration of rights. The introduction ofthese in England, from which the idea was originally taken, was inconsequence of usurpations of the Crown, contrary, as was conceived, tothe principles of their government. But there no original constitutionis to be found, and the only meaning of a declaration of rights inthat country is, that in certain particulars specified, the Crown hadno authority to act. Could this have been necessary had there been aconstitution in being by which it could have been clearly discernedwhether the Crown had such authority or not? Had the people, by asolemn instrument, delegated particular powers to the Crown at theformation of their government, surely the Crown, which in that casecould claim under that instrument only, could not have contended formore power than was conveyed by it. So it is in regard to the newConstitution here: the future government which may be formed under thatauthority certainly cannot act beyond the warrant of that authority.As well might they attempt to impose a King upon America, as go onestep in any other respect beyond the terms of their institution. Thequestion then only is, whether more power will be vested in the futuregovernment than is necessary for the general purposes of the union.This may occasion a ground of dispute—but after expressly definingthe powers that are to be exercised, to say that they shall exerciseno other powers (either by a general or particular enumeration) wouldseem to me both nugatory and ridiculous. As well might a Judge when hecondemns a man to be hanged, give strong injunctions to the Sheriffthat he should not be beheaded.(67)

2. As to the common law, it is difficult to know what is meant by thatpart of the objection. So far as the people are now entitled to thebenefit of the common law, they certainly will have a right to enjoy itunder the new Constitution until altered by the general legislature,which even in this point has some cardinal limits assigned to it.What are most acts of Assembly but a deviation in some degree fromthe principles of the common law? The people are expressly secured(contrary to Mr. Mason’s wishes) against ex post facto laws; so thatthe tenure of any property at any time held under the principles ofthe common law, cannot be altered by any future act of the generallegislature. The principles of the common law, as they now apply,must surely always hereafter apply, except in those particulars inwhich express authority is given by this constitution; in no otherparticulars can the Congress have authority to change it, and Ibelieve it cannot be shown that any one power of this kind givenis unnecessarily given, or that the power would answer its properpurpose if the legislature was restricted from any innovations on theprinciples of the common law, which would not in all cases suit thevast variety of incidents that might arise out it.

II. OBJECTION.

“In the House of Representatives there is not the substance, butthe shadow only of representation; which can never produce properinformation in the legislature, or inspire confidence in the people;the laws will therefore generally be made by men little concerned in,and unacquainted with their effects and consequences.”

ANSWER.

This is a mere matter of calculation. It is said the weight of thisobjection was in a great measure removed by altering the number of40,000 to 30,000 constituents. To show the discontented nature of man,some have objected to the number of representatives as being too large.I leave to every man’s judgment whether the number is not sufficientlyrespectable, and whether, if that number be sufficient, it would havebeen right, in the very infancy of this government, to burthen thepeople with a great additional expense to answer no good purpose.(68)

III. OBJECTION.

“The Senate have the power of altering all money bills, and oforiginating appropriations of money, and the salaries of the officersof their own appointment, in conjunction with the President of theUnited States; although they are not the representatives of the peopleor amenable to them.—These, with their other great powers (viz. theirpowers in the appointment of Ambassadors, and all public officers,in making treaties and trying all impeachments) their influence uponand connection with the supreme Executive, from these causes, theirduration of office, and their being a constant existing body almostcontinually sitting, joined with their being one complete branch of thelegislature, will destroy any balance in the government, and enablethem to accomplish what usurpations they please upon the rights andliberties of the people.”

ANSWER.

This objection, respecting the dangerous power of the Senate, is oneof that kind which may give rise to a great deal of gloomy prediction,without any solid foundation: An imagination indulging itself inchimerical fears, upon the disappointment of a favorite plan, maypoint out danger arising from any system of government whatever, evenif angels were to have the administration of it; since I presume nonebut the Supreme Being himself is altogether perfect, and of courseevery other species of beings may abuse any delegated portion of power.This sort of visionary scepticism therefore will lead us to thisalternative, either to have no government at all, or to form the bestsystem we can, making allowance for human imperfection. In my opinionthe fears as to the power of the Senate are altogether groundless, asto any probability of their being either able or willing to do anyimportant mischief. My reasons are,

1. Because, though they are not immediately to represent the people,yet they are to represent the representatives of the people who areannually chosen, and it is therefore probable the most popular, orconfidential, persons in each State, will be elected members of theSenate.

2. Because one-third of the Senate are to be chosen as often as theimmediate representatives of the people, and as the President can actin no case from which any great danger can be apprehended without theconcurrence of two-thirds, let us think ever so ill of the designsof the President, and the danger of a combination of power among astanding body generally associated with him, unless we suppose everyone of them to be base and infamous (a supposition, thank God, bad ashuman nature is, not within the verge of the slightest probability),we have reason to believe that the one-third newly introduced everysecond year, will bring with them from the immediate body of thepeople, a sufficient portion of patriotism and independence to checkany exorbitant designs of the rest.

3. Because in their legislative capacity they can do nothing withoutthe concurrence of the House of Representatives, and we need look nofarther than England for a clear proof of the amazing consequence whichrepresentatives of the people bear in a free government. There theKing (who is hereditary, and therefore not so immediately interested,according to narrow views of interest which commonly govern Kings, toconsult the welfare of his people) has the appointment to almost everyoffice in the government, many of which are of high dignity and greatpecuniary value, has the creation of as many Peers as he pleases, isnot restricted from bestowing places on the members of both houses ofParliament, and has a direct negative on all bills, besides the powerof dissolving the Parliament at his pleasure. In theory would not anyone say this power was enormous enough to destroy any balance in theconstitution? Yet what does the history of that country tell us?—thatso great is the natural power of the House of Commons (though a veryimperfect representation of the people, and a large proportion of themactually purchasing their seats) that ever since the revolution theCrown has continually aimed to corrupt them by the disposal of placesand pensions; that without their hearty concurrence it found all thewheels of government perpetually clogged; and that notwithstandingthis, in great critical emergencies, the members have broke through thetrammels of power and interest, and by speaking the sense of the people(though so imperfectly representing them) either forced an alterationof measures, or made it necessary for the Crown to dissolve them.If their power, under these circumstances, is so great, what wouldit be if their representation was perfect, and their members couldhold no appointments, and at the same time had a security for theirseats? The danger of a destruction of the balance would be perhaps onthe popular side, notwithstanding the hereditary tenure and weightyprerogatives of the Crown, and the permanent station and great wealthand consequence of the Lords. Our representatives therefore beingan adequate and fair representation of the people, and they beingexpressly excluded from the possession of any places, and not holdingtheir existence upon any precarious tenure, must have vast influence,and considering that in every popular government the danger of factionis often very serious and alarming, if such a danger could not bechecked in its instant operation by some other power more independentof the immediate passions of the people, and capable therefore ofthinking with more coolness, the government might be destroyed by amomentary impulse of passion, which the very members who indulged itmight for ever afterwards in vain deplore. The institution of theSenate seems well calculated to answer this salutary purpose. Excludedas they are from places themselves, they appear to be as much above thedanger of personal temptation as men can be. They have no permanentinterest as a body to detach them from the general welfare, since sixyears is the utmost period of their existence, unless their respectivelegislatures are sufficiently pleased with their conduct to re-electthem. This power of re-election is itself a great check upon abuse,because if they have ambition to continue members of the Senate theycan only gratify this ambition by acting agreeably to the opinionof their constituents. The House of Representatives, as immediatelyrepresenting the people, are to originate all money bills. This Ithink extremely right, and it is certainly a very capital acquisitionto 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, thepropriety of which the other House may be very sensible of, thoughthey had not occurred to themselves. There is no great danger ofany body of men suffering by too eager an adoption of any amendmentproposed to any system of their own. The probability is stronger oftheir being too tenacious of their original opinion, however erroneous,than of their profiting by the wise information of any other personswhatever. Human nature is so constituted, and therefore I think wemay safely confide in the free admission of an intercourse of opinionon the detail of business, as well as to taxation as to other points.Our House of Representatives surely could not have such reason todread the power of a Senate circumstanced as ours must be, as theHouse of Commons in England the permanent authority of the Peers, andtherefore a jealousy, which may be well grounded in the one case wouldbe entirely ill-directed in the other. For similar reasons I dreadnot any power of originating appropriations of money as mentioned inthe objection. While the concurrence of the other House must be had,and as that must necessarily be the most weighty in the government, Ithink no danger is to be apprehended. The Senate has no such authorityas to awe or influence the House of Representatives, and it will beas necessary for the one as for the other that proper active measuresshould be pursued: And in regard to appropriations of money, occasionsfor such appropriations may, on account of their concurrence with theexecutive power, occur to the Senate, which would not to the Houseof Representatives, and therefore if the Senate were precluded fromlaying any such proposals before the House of Representatives, thegovernment might be embarrassed; and it ought ever to be remembered,that in our views of distant and chimerical dangers we ought not tohazard our very existence as a people, by proposing such restrictionsas may prevent the exertion of any necessary power. The power ofthe Senate in the appointment of Ambassadors, &c., is designed as acheck upon the President. They must be appointed in some manner. Ifthe appointment was by the President alone, or by the President anda Privy Council (Mr. Mason’s favorite plan), an objection to sucha system would have appeared much more plausible. It would have beensaid 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 inthe President. It ought to be shown by reason and probability (notbold assertion) how this concurrence of power with the President canmake the Senate so dangerous. It is as good an argument to say thatit will not as that it will.(69) The power of making treaties isso important that it would have been highly dangerous to vest it inthe Executive alone, and would have been the subject of much greaterclamor. From the nature of the thing, it could not be vested in thepopular representative. It must therefore have been provided for withthe Senate’s concurrence, or the concurrence of a Privy Council (athing which I believe nobody has been mad enough to propose), or thepower, the greatest monarchical power that can be exercised, must havebeen vested in a manner that would have excited universal indignationin the President alone.—As to the power of trying impeachments:—LetMr. Mason show where this power could more properly have been placed.It is a necessary power in every free government, since even the Judgesof the Supreme Court of Judicature themselves may require a trial, andother public officers might have too much influence before an ordinaryand common court. And what probability is there that such a court,acting in so solemn a manner, should abuse its power (especially as itis wisely provided that the sentences shall extend only to removal fromoffice and incapacitation) more than any other court? The argument asto the possible abuse of power, as I have before suggested, will reachall delegation of power, since all power may be abused when falliblebeings 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 thingat all.—The bold assertions at the end of this objection are meredeclamation, and till some reason is assigned for them, I shall takethe liberty to rely upon the reasons I have stated above, as affordinga belief that the popular representative must for ever be the mostweighty in this government, and of course that apprehensions of dangerfrom 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 justiceas unattainable by a great part of the community, as in England; andenabling the rich to oppress and ruin the poor.”

ANSWER.

Mr. Mason has here asserted, “That the judiciary of the UnitedStates is so constructed and extended, as to absorb and destroy thejudiciaries of the several States.” How is this the case? Are notthe State judiciaries left uncontrolled as to the affairs of thatState only? In this, as in all other cases, where there is a wisedistribution, power is commensurate to its object. With the mereinternal concerns of a State, Congress are to have nothing to do: Inno case but where the Union is in some measure concerned, are thefederal courts to have any jurisdiction. The State Judiciary will be asatellite waiting upon its proper planet: That of the Union, like thesun, cherishing and preserving a whole planetary system.

In regard to a possible ill construction of this authority, we mustdepend upon our future legislature in this case as well as others, inrespect to which it is impracticable to define every thing, that itwill be provided for so as to occasion as little expense and distressto individuals as can be. In parting with the coercive authorityover the States as States, there must be a coercion allowed as toindividuals. The former power no man of common sense can any longerseriously contend for; the latter is the only alternative. Supposean objection should be made that the future legislature should notascertain salaries, because they might divide among themselves andtheir officers all the revenue of the Union.(70) Will not every man seehow irrational it is to expect that any government can exist which isto be fettered in its most necessary operations for fear of abuse?

V. OBJECTION.

“The President of the United States has no constitutional Council (athing unknown in any safe and regular government), he will thereforebe unsupported by proper information and advice, and will generallybe directed by minions and favorites—or he will become a tool tothe Senate—or a Council of State will grow out of the principalofficers of the great departments; the worst and most dangerous ofall ingredients for such a Council in a free country, for they may beinduced to join in any dangerous or oppressive measures, to shelterthemselves, 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, andtwo from the southern States, to be appointed by a vote of the Statesin the House of Representatives, with the same duration and rotationof office as the Senate, the Executive would always have had safe andproper information and advice: The President of such a Council mighthave acted as Vice-President of the United States, pro tempore, uponany vacancy or disability of the Chief Magistrate, and long-continuedsessions of the Senate would in a great measure have been prevented.From this fatal defect of a constitutional Council has arisen theimproper power of the Senate, in the appointment of public officers,and the alarming dependence and connection between that branch ofthe legislature and the Supreme Executive. Hence also sprung thatunnecessary and dangerous officer, the Vice-President, who for want ofother employment, is made President of the Senate; thereby dangerouslyblending the Executive and Legislative powers; besides always giving tosome one of the States an unnecessary and unjust pre-eminence over theothers.”

ANSWER.

Mr. Mason here reprobates the omission of a particular Council forthe President, as a thing contrary to the example of all safe andregular governments. Perhaps there are very few governments now inbeing deserving of that character, if under the idea of safety he meansto include safety for a proper share of personal freedom, withoutwhich their safety and regularity in other respects would be of littleconsequence to a people so justly jealous of liberty as I hope thepeople in America ever will be. Since however Mr. Mason refers us tosuch authority, I think I cannot do better than to select for thesubject of our inquiry in this particular, a government which mustbe universally acknowledged to be the most safe and regular of anyconsiderable government now in being (though I hope America will soonbe able to dispute that pre-eminence). Every body must know I speakof Great Britain, and in this I think I give Mr. Mason all possibleadvantage, since in my opinion it is most probable he had GreatBritain principally in his eye when he made this remark, and in thevery height of our quarrel with that country, so wedded were our ideasto the institution of a Council, that the practice was generally ifnot universally followed at the formation of our governments, thoughwe instituted Councils of a quite different nature, and so far asthe little experience of the writer goes, have very little benefitedby it. My inquiry into this subject shall not be confined to theactual present practice of Great Britain; I shall take the libertyto state the Constitutional ideas of Councils in England, as derivedfrom their ancient law subsisting long before the Union, not omittinghowever to show what the present practice really is. By the laws ofEngland(71) the King is said to have four Councils,—1, The High Courtof Parliament; 2, The Peers of the realm; 3, His Judges; 4, His PrivyCouncil. By the first, I presume is meant, in regard to the makingof laws; because the usual introductory expressions in most actsof Parliament, viz., “By the King’s most excellent Majesty, by andwith the advice and consent of the Lords spiritual and temporal, andCommons,” &c., show that in a constitutional sense, they are deemed theKing’s laws, after a ratification in Parliament. The Peers of the realmare by their birth hereditary Counsellors of the Crown, and may becalled upon for their advice, either in time of Parliament, or whenno Parliament is in being: They are called in some law books MagnumConcilium Regis (the King’s Great Council). It is also considered theprivilege of every particular Peer to demand an audience of the King,and to lay before him anything he may deem of public importance. TheJudges, I presume, are called “Council of the King,” upon the sameprinciple as the Parliament is, because the administration of justiceis in his name, and the Judges are considered as his instruments inthe distribution of it. We come now to the Privy Council, which Iimagine, if Mr. Mason had any particular view towards England whenhe made this objection, was the one he intended as an example of aConstitutional Council in that kingdom. The Privy Council in thatcountry is undoubtedly of very ancient institution, but it has onefixed property invariably annexed to it, that it is a mere creatureof 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 ofmoment to us, merely as a precedent, it should be followed in all itsparts, and then what would there be in the regulation to prevent thePresident being governed by “minions and favorites?” It would only bethe means of riveting them on constitutional ground. So far as theprecedents in England apply, the Peers being constitutionally theGreat Council of the King, though also a part of the legislature, wehave reason to hope that there is by no means such a gross improprietyas has been suggested in giving the Senate, though a branch of thelegislature, a strong control over the Executive. The only differencein the two cases is, that the Crown in England may or may not givethis consequence to the Peers at its own pleasure, and accordinglywe find that for a long time past this great Council has been veryseldom consulted; under our constitution the President is allowed nooption in respect to certain points wherein he cannot act without theSenate’s concurrence. But we cannot infer from any example in England,that a concurrence between the Executive and a part of the legislativeis contrary to the maxims of their government, since their governmentallows of such a concurrence whenever the Executive pleases. The rule,therefore, from the example of the freest government in Europe, thatthe Legislative and Executive powers must be altogether distinct,is liable to exceptions; it does not mean that the Executive shallnot form a part of the Legislative (for the King, who has the wholeExecutive authority, is one entire branch of the legislature, andthis Montesquieu, who recognizes the general principle, declares isnecessary); neither can it mean (as the example above evinces) that theCrown must consult neither House as to any exercise of the Executivepower. But its meaning must be, that one power shall not include bothauthorities. The King, for instance, shall not have the sole Executiveand sole Legislative authority also. He may have the former, but mustparticipate the latter with the two Houses of Parliament. The rulealso would be infringed were the three branches of the legislatureto share jointly the Executive power. But so long as the people’srepresentatives are altogether distinct from the Executive authority,the liberties of the people may be deemed secure. And in this pointsurely, there can be no manner of comparison between the provisions bywhich the independence of our House of Representatives is guarded, andthe condition in which the British House of Commons is left exposed toevery species of corruption. But Mr. Mason says, for want of a Council,the President may become “a tool of the Senate.” Why? Because he cannotact without their concurrence. Would not the same reason hold forhis being “a tool to the Council,” if he could not act without theirconcurrence, supposing a Council was to be imposed upon him without hisown nomination (according to Mr. Mason’s plan)? As great care is takento make him independent of the Senate as I believe human precautioncan provide. Whether the President will be a tool to any persons willdepend upon the man, and the same weakness of mind which would makehim pliable to one body of control, would certainly attend him withanother. But Mr. Mason objects, if he is not directed by minions andfavorites, nor becomes a tool of the Senate, “a Council of State willgrow out of the principal officers of the great departments; the worstand most dangerous of all ingredients for such a Council in a freecountry; for they may be induced to join in any dangerous or oppressivemeasures, to shelter themselves, and prevent an inquiry into theirown misconduct in office.” I beg leave to carry him again to my oldauthority, England, and ask him, what efficient Council they have therebut one formed of their great officers. Notwithstanding their importantConstitutional Council, everybody knows that the whole movements oftheir Government, where a Council is consulted at all, are directed bytheir Cabinet Council, composed entirely of the principal officersof the great departments; that when a Privy Council is called, it isscarcely ever for any other purpose than to give a formal sanctionto the previous determinations of the other, so much so that it isnotorious that not one time in a thousand one member of the PrivyCouncil, except a known adherent of administration, is summoned to it.But though the President under our constitution may have the aid ofthe “principal officers of the great departments,” he is to have thisaid, I think, in the most unexceptionable manner possible. He is notto be assisted by a Council summoned to a jovial dinner perhaps, andgiving their opinions according to the nod of the President; but theopinion is to be given with the utmost solemnity in writing. No afterequivocation can explain it away. It must for ever afterwards speakfor itself, and commit the character of the writer, in lasting colors,either of fame or infamy, or neutral insignificance, to future ages, aswell as the present. From those written reasons, weighed with care,surely the President can form as good a judgment, as if they had beengiven by a dozen formal characters, carelessly met together on a slightappointment; and this further advantage would be derived from theproposed system (which would be wanting if he had constitutional adviceto screen him), that the President must be _personally responsible_for everything—for though an ingenious gentleman has proposed, thata Council should be responsible for their opinions, and the samesentiment of justice might be applied to these opinions of the greatofficers, I am persuaded it will in general be thought infinitely moresafe, as well as more just, that the President who acts shouldbe responsible for his conduct, following advice at his peril, thanthat there should be a danger of punishing any man for an erroneousopinion which might possibly be sincere. Besides the morality of thisscheme, which may well be questioned, its inexpediency is glaring,since it would be so plausible an excuse and the insincerity of itso difficult to detect, the hopes of impunity this avenue to escapewould afford would nearly take away all dread of punishment. As to thetemptation mentioned to the officers joining in dangerous or oppressivemeasures to shelter themselves, and prevent an inquiry into theirown misconduct in office, this proceeds upon a supposition that thePresident and the great officers may form a very wicked combinationto injure their country, a combination that in the first place itis utterly improbable, in a strong respectable government should beformed for that purpose, and in the next, with such a government asthis constitution would give us, could have little chance of beingsuccessful, on account of the great superior strength and natural andjealous vigilance of one at least, if not both the weighty branchesof legislation. This evil, however, of the possible depravity of allpublic officers, is one that can admit of no cure, since in everyinstitution of government the same danger in some degree or other mustbe risked; it can only be guarded against by strong checks, and Ibelieve it be difficult for the objectors to our new Constitution toprovide stronger ones against any abuse of the Executive authority thanwill exist in that. As to the Vice President, it appears to me veryproper he should be chosen much in the same manner as the President,in order that the States may be secure, upon any accidental loss bydeath or otherwise of the President’s service, of the services in thesame important station of the man in whom they repose their secondconfidence. The complicated manner of election wisely prescribed wouldnecessarily occasion a considerable delay in the choice of another,and in the mean time the President of the Council, though very fit forthe purpose of advising, might be very ill qualified, especially in acritical period, for an active Executive department. I am concernedto see, among Mr. Mason’s other reasons, so trivial a one as thelittle advantage one State might accidentally gain by a Vice Presidentof their country having a seat, with merely a casting vote, in theSenate. Such a reason is utterly unworthy of that spirit of amity, andrejection of local views, which can alone save us from destruction.It was the glory of the late Convention, that by discarding such theyformed a general government upon principles that did as much honor totheir hearts as to their understandings. God grant, that in all ourdeliberations, we may consider America as one body, and not divertour attention from so able a prospect to small considerations ofpartial jealousy and distrust. It is in vain to expect upon any systemto secure an exact equilibrium of power for all the States. Some willoccasionally have an advantage from the superior abilities of itsmembers; the field of emulation is however open to all. Suppose anyone should now object to the superior influence of Virginia (and thewriter of this is not a citizen of that State), on account of the highcharacter of General Washington, confessedly the greatest man of thepresent age, and perhaps equal to any that has existed in any period oftime; would this be a reason for refusing a union with her, though theother States can scarcely hope for the consolation of ever producinghis equal?

VI. OBJECTION.

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

ANSWER.

Nobody can contend upon any rational principles, that a power ofpardoning should not exist somewhere in every government, because itwill often happen in every country that men are obnoxious to a lawfulconviction, who yet are entitled, from some favorable circumstances intheir case, to a merciful interposition in their favor. The advocatesof monarchy have accordingly boasted of this, as one of the advantagesof that form of government, in preference to a republican; neverthelessthis authority is vested in the Stadtholder in Holland, and I believeis vested in every Executive power in America. It seems to have beenwisely the aim of the late Convention, in forming a general governmentfor America, to combine the acknowledged advantages of the Britishconstitution with proper republican checks to guard as much as possibleagainst abuses, and it would have been very strange if they had omittedthis, which has the sanction of such great antiquity in that country,and if I am not mistaken, a universal adoption in America.(73) Thosegentlemen who object to other parts of the constitution as introducinginnovations, contrary to long experience, with a very ill grace attemptto reject an experience so unexceptionable as this, to introduce aninnovation (perhaps the first ever suggested) of their own. When apower is acknowledged to be necessary, it is a very dangerous thingto prescribe limits to it, for men must have a greater confidence intheir own wisdom than I think any men are entitled to, who imaginethey can form such exact ideas of all possible contingencies as tobe sure that the restriction they propose will not do more harm thangood. The probability of the President of the United States committingan act of treason against his country is very slight; he is so wellguarded by the other powers of government, and the natural strengthof the people at large must be so weighty, that in my opinion it isthe most chimerical apprehension that can be entertained. Such athing is however possible, and accordingly he is not exempt from atrial, if he should be guilty or supposed guilty, of that or any otheroffence. I entirely lay out of the consideration of the probability ofa man honored in such a manner by his country, risking like GeneralArnold, the damnation of his fame to all future ages, though it is acircumstance of some weight in considering whether for the sake of sucha remote and improbable danger as this, it would be prudent to abridgethis power of pardoning in a manner altogether unexampled, and whichmight produce mischiefs the full extent of which it is not perhapseasy at present to foresee. In estimating the value of any power it ispossible to bestow we have to choose between inconveniences of somesort or other, since no institution of man can be entirely free fromall. Let us now therefore consider some of the actual inconvenienceswhich would attend an abridgment of the power of the President in thisrespect. One of the great advantages attending a single Executive poweris the degree of secrecy and dispatch with which on critical occasionssuch a power can act. In war this advantage will often counterbalancethe want of many others. Now suppose, in the very midst of a war ofextreme consequence to our safety or prosperity, the President couldprevail on a gentleman of abilities to go into the enemy’s country,to serve in the useful, but dishonorable character of a spy. Such arecertainly maintained by all vigilant governments, and in proportionto the ignominy of the character, and the danger sustained in theenemy’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 secretservices but the President himself; his adherence however to the enemyis notorious: he is afterwards intercepted in endeavoring to return tohis own country, and having been perhaps a man of distinction before,he is proportionably obnoxious to his country at large for his supposedtreason. Would it not be monstrous that the President should not haveit in his power to pardon this man? or that it should depend upon meresolicitation and favor, and perhaps, though the President should statethe fact as it really was, some zealous partisan, with his jealousyconstantly fixed upon the President, might insinuate that in fact thePresident and he were secret traitors together, and thus obtain arejection of the President’s application. It is a consideration alsoof some moment, that there is scarcely any accusation more apt toexcite popular prejudice than the charge of treason. There is perhapsno country in the world where justice is in general more impartiallyadministered than in England, yet let any man read some of the trialsfor treason in that country even since the revolution; he will seesometimes a fury influencing the judges, as well as the jury, that isextremely disgraceful. There may happen a case in our country wherea man in reality innocent, but with strong plausible circumstancesagainst him, would be so obnoxious to popular resentment, that he mightbe convicted upon very slight and insufficient proof. In such a caseit would certainly be very proper for a cool temperate man of highauthority, and who might be supposed uninfluenced by private motives,to interfere and prevent the popular current proving an innocent man’sruin. I know men who write with a view to flatter the people, andnot to give them honest information, may misrepresent this accountas an invidious imputation on the usual impartiality of juries. Godknows no man more highly reverences that blessed institution than Ido; I consider them the natural safeguard of the personal libertiesof a free people, and I believe they would much seldomer err in theadministration of justice than any other tribunal whatever. But no manof experience and candor will deny the probability of such a caseas I have supposed sometimes, though rarely, happening; and wheneverit did happen, surely so safe a remedy as a prerogative of mercy inthe Chief Magistrate of a great country ought to be at hand. Thereis little danger of an abuse of such a power, when we know how aptmost men are in a republican government to court popularity at toogreat an expense, rather than do a just and beneficient action inopposition to strong prevailing prejudices among the people. But saysMr. Mason, “The President may sometimes exercise this power to screenfrom punishment those whom he had secretly instigated to commit thecrime, and thereby prevent a discovery of his own guilt.” This ispossible, but the probability of it is surely too slight to endangerthe consequences of abridging a power which seems so generally to havebeen deemed necessary in every well regulated government. It may alsobe questioned, whether supposing such a participation of guilt, thePresident would not expose himself to greater danger by pardoning,than by suffering the law to have its course. Was it not supposed, bya great number of intelligent men, that Admiral Byng’s execution wasurged on to satisfy a discontented populace, when the administration,by the weakness of the force he was entrusted with, were perhaps thereal cause of the miscarriage before Minorca? Had he been acquitted, orpardoned, he could have perhaps exposed the real fault: as a prisonerunder so heavy a charge his recrimination would have been discredited,as merely the effort of a man in despair to save himself from anignominious 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 toget clear of it at all events. Would any men of understanding, or atleast ought they to credit an accusation from a person under suchcircumstances?(74)

VII. OBJECTION.

“By declaring all treaties the supreme law of the land, the Executiveand the Senate have, in many cases an exclusive power of legislation;which might have been avoided by proper distinctions with respect totreaties, 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 verysensible letter of Mr. Jay, that a treaty when once made pursuant tothe sovereign authority, ex vi termini became immediately the law ofthe land? It seems to result unavoidably from the nature of the thing,that when the constitutional right to make treaties is exercised, thetreaty so made should be binding upon those who delegated authorityfor 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. Masonhas in his imagination, but has not thought proper to disclose, acritical occasion might arise, when for want of a little rationalconfidence in our own government we might be obliged to submit to amaster in an enemy. Mr. Mason wishes the House of Representatives tohave some share in this business, but he is immediately sensible ofthe 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 andSenate judge whether it can be done with safety or not? If they are ofopinion it is unsafe, and the House of Representatives of course notconsulted, what becomes of this boasted check, since, if it amountsto no more than that the President and Senate may consult the Houseof Representatives if they please, they may do this as well withoutsuch a provision as with it. Nothing would be more easy than to assignplausible reasons, after the negotiation was over, to show that acommunication was unsafe, and therefore surely a precaution that couldbe so easily eluded, if it was not impolitic to the greatest degree,must be thought trifling indeed. It is also to be observed, that thisauthority, so obnoxious in the new Constitution (which is unfortunatein having little power to please some persons, either as containingnew things or old), is vested indefinitely and without restriction inour present Congress, who are a body constituted in the same manner asthe Senate is to be, but there is this material difference in the twocases, that we shall have an additional check, under the new system ofa President of high personal character chosen by the immediate body ofthe people.

VIII. OBJECTION.

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

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 carryinginto execution the foregoing powers, and all other powers vested bythis Constitution in the United States, or in any department or officethereof.”

Those powers would be useless, except acts of legislation could beexercised upon them. It was not possible for the Convention, nor is itfor any human body, to foresee and provide for all contingent casesthat may arise. Such cases must therefore be left to be provided for bythe 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 therights of the different Legislatures, or of any private citizens, thepeople will be exactly in the same situation as if there had been anexpress provision against such power in particular, and yet they hadpresumed to exercise it. It would be an act of tyranny, against whichno parchment stipulations can guard; and the Convention surely can beonly answerable for the propriety of the powers given, not for thefuture virtues of all with whom those powers may be intrusted. It doesnot therefore appear to me that there is any weight in this objectionmore than in others. But that I may give it every fair advantage, Iwill take notice of every particular injurious act of power which Mr.Mason points out as exercisable by the authority of Congress under thisgeneral clause.

The first mentioned is, “That the Congress may grant monopoliesin trade and commerce.” Upon examining the constitution I find itexpressly provided, “That no preference shall be given to the portsof one State over those of another;” and that “citizens of each Stateshall be entitled to all privileges and immunities of citizens in theseveral States.” These provisions appear to me to be calculated for thevery purpose Mr. Mason wishes to secure. Can they be consistent withany monopoly in trade and commerce?(75) I apprehend therefore, underthis expression must be intended more than is expressed, and if I mayconjecture from another publication of a gentleman of the same Stateand in the same party of opposition, I should suppose it arose from ajealousy of the eastern States very well known to be often expressed bysome gentlemen of Virginia. They fear, that a majority of the Statesmay establish regulations of commerce which will give great advantageto the carrying trade of America, and be a means of encouraging NewEngland vessels rather than Old England. Be it so. No regulations cangive such advantage to New England vessels, which will not be enjoyedby all other American vessels, and many States can build as well asNew England, though not at present perhaps in equal proportion.(76) Andwhat could conduce more to the preservation of the Union than allowingto every kind of industry in America a peculiar preference! Each Stateexerting itself in its own way, but the exertions of all contributingto the common security, and increasing the rising greatness of ourcountry! Is it not the aim of every wise country to be as much thecarriers of their own produce as they can be? And would not this bethe means in our own of producing a new source of activity among thepeople, giving to our fellow-citizens what otherwise must be given tostrangers, and laying the foundation of an independent trade amongourselves, and of gradually raising a navy in America which, howeverdistant the prospect, ought certainly not to be out of our sight.There is no great probability however that our country is likely soonto enjoy so glorious an advantage. We must have treaties of commerce,because without them we cannot trade to other countries. We alreadyhave such with some nations; we have none with Great Britain, which canbe imputed to no other cause but our not having a strong respectablegovernment to bring that haughty nation to terms. And surely no man,who feels for the honor of his country, but must view our presentdegrading commerce with that country with the highest indignation,and the most ardent wish to extricate ourselves from so disgraceful asituation. This only can be done by a powerful government which candictate conditions of advantage to ourselves, as an equivalent foradvantages to them; and this could undoubtedly be easily done by sucha government, without diminishing the value of any articles of our ownproduce; or if there was any diminution it would be too slight to befelt by any patriot in competition with the honor and interest of hiscountry.

As to the constituting of new crimes, and inflicting unusual and severepunishment, certainly the cases enumerated wherein the Congress areempowered either to define offences, or prescribe punishments, aresuch as are proper for the exercise of such authority in the generalLegislature of the Union. They only relate to “counterfeiting thesecurities and current coin of the United States,” to “piracies andfelonies committed on the high seas, and offences against the lawof nations,” and to “treason against the United States.” These areoffences immediately affecting the security, the honor or the interestof the United States at large, and of course must come within thesphere of the Legislative authority which is intrusted with theirprotection. Beyond these authorities, Congress can exercise no otherpower of this kind, except in the enacting of penalties to enforcetheir acts of legislation in the cases where express authority isdelegated to them, and if they could not enforce such acts by theenacting of penalties those powers would be altogether useless, sincea legislative regulation without some sanction would be an absurdthing indeed. The Congress having, for these reasons, a just right toauthority in the above particulars, the question is, whether it ispracticable and proper to prescribe limits to its exercise, for fearthat they should inflict punishments unusual and severe. It may beobserved, in the first place, that a declaration against “cruel andunusual punishments” formed part of an article in the Bill of Rights atthe revolution in England in 1688. The prerogative of the Crown havingbeen grossly abused in some preceding reigns, it was thought proper tonotice every grievance they had endured, and those declarations wentto an abuse of power in the Crown only, but were never intended tolimit the authority of Parliament. Many of these articles of the Billof Rights in England, without a due attention to the difference of thecases, were eagerly adopted when our constitutions were formed, theminds of men then being so warmed with their exertions in the causeof liberty as to lean too much perhaps towards a jealousy of powerto repose a proper confidence in their own government. From thesearticles in the State constitutions many things were attempted to betransplanted into our new Constitution, which would either have beennugatory or improper. This is one of them. The expressions “unusualand severe” or “cruel and unusual” surely would have been too vague tohave been of any consequence, since they admit of no clear and precisesignification. If to guard against punishments being too severe, theConvention had enumerated a vast variety of cruel punishments, andprohibited the use of any of them, let the number have been ever sogreat, an inexhaustible fund must have been unmentioned, and if ourgovernment had been disposed to be cruel their invention would onlyhave been put to a little more trouble. If to avoid this difficulty,they had determined, not negatively what punishments should not beexercised, but positively what punishments should, this must have ledthem into a labyrinth of detail which in the original constitution ofa government would have appeared perfectly ridiculous, and not left aroom for such changes, according to circumstances, as must be in thepower of every Legislature that is rationally formed. Thus when weenter into particulars, we must be convinced that the proposition ofsuch a restriction would have led to nothing useful, or to somethingdangerous, and therefore that its omission is not chargeable as a faultin the new Constitution. Let us also remember, that as those who are tomake those laws must themselves be subject to them, their own interestand feelings will dictate to them not to make them unnecessarilysevere; and that in the case of treason, which usually in every countryexposes men most to the avarice and rapacity of government, care istaken that the innocent family of the offender shall not suffer forthe treason of their relation. This is the crime with respect to whicha jealousy is of the most importance, and accordingly it is definedwith great plainness and accuracy, and the temptations to abusiveprosecutions guarded against as much as possible. I now proceed to thethree great cases: The liberty of the press, the trial by jury in civilcases, 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 thanto secure to authors for a limited time an exclusive privilege ofpublishing their works.—This authority has been long exercised inEngland, where the press is as free as among ourselves or in anycountry in the world; and surely such an encouragement to genius isno restraint on the liberty of the press, since men are allowed topublish what they please of their own, and so far as this may be deemeda restraint upon others it is certainly a reasonable one, and can beattended with no danger of copies not being sufficiently multiplied,because the interest of the proprietor will always induce him topublish a quantity fully equal to the demand. Besides, that suchencouragement may give birth to many excellent writings which wouldotherwise have never appeared.(77) If the Congress should exerciseany other power over the press than this, they will do it without anywarrant from this constitution, and must answer for it as for any otheract of tyranny.

In respect to the trial by jury in civil cases, it must be observedit is a mistake to suppose that such a trial takes place in all civilcases now. Even in the common law courts, such a trial is only hadwhere facts are disputed between the parties, and there are even somefacts 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 Statesin these particulars differ very much in their practice from eachother. A general declaration therefore to preserve the trial by juryin all civil cases would only have produced confusion, so that thecourts afterwards in a thousand instances would not have known how tohave proceeded.—If they had added, “as heretofore accustomed,” thatwould not have answered the purpose, because there has been no uniformcustom about it.—If therefore the Convention had interfered, it musthave been by entering into a detail highly unsuitable to a fundamentalconstitution of government; if they had pleased some States they musthave displeased others by innovating upon the modes of administeringjustice perhaps endeared to them by habit, and agreeable to theirsettled conviction of propriety. As this was the case it appearsto me it was infinitely better, rather than endanger everything byattempting too much, to leave this complicated business of detail tothe regulation of the future Legislature, where it can be adjustedcoolly and at ease, and upon full and exact information. There is nodanger of the trial by jury being rejected, when so justly a favoriteof the whole people. The representatives of the people surely can haveno interest in making themselves odious, for the mere pleasure of beinghated, and when a member of the House of Representatives is only sureof 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 saynothing of his being a man of common honesty, must ever be uppermost inhis mind. We know the great influence of the monarchy in the Britishgovernment, and upon what a different tenure the Commons there havetheir seats in Parliament from that prescribed to our representatives.We know also they have a large standing army. It is in the power ofthe Parliament, if they dare to exercise it, to abolish the trial byjury altogether. But woe be to the man who should dare to attempt it.It would undoubtedly produce an insurrection, that would hurl everytyrant to the ground who attempted to destroy that great and justfavorite of the English nation. We certainly shall be always sure ofthis guard at least upon any such act of folly or insanity in ourrepresentatives. They soon would be taught the consequence of sportingwith the feelings of a free people. But when it is evident that suchan attempt cannot be rationally apprehended, we have no reason toanticipate unpleasant emotions of that nature. There is indeed littleprobability that any degree of tyranny which can be figured to the mostdiscolored imagination as likely to arise out of our government, couldfind an interest in attacking the trial by jury in civil cases;—and incriminal ones, where no such difficulties intervene as in the other,and where there might be supposed temptations to violate the personalsecurity of a citizen, it is sacredly preserved.

The subject of a standing army has been exhausted in so masterly amanner in two or three numbers of the Federalist (a work which I hopewill soon be in every body’s hands) that but for the sake of regularityin answering Mr. Mason’s objections, I should not venture upon thesame topic, and shall only presume to do so, with a reference forfuller satisfaction to that able performance. It is certainly one ofthe most delicate and proper cases for the consideration of a freepeople, and so far as a jealousy of this kind leads to any degree ofcaution not incompatible with the public safety, it is undoubtedly tobe commended. Our jealousy of this danger has descended to us from ourBritish ancestors; in that country they have a Monarch, whose powerbeing limited, and at the same time his prerogatives very considerable,a constant jealousy of him is both natural and proper. The two lastof the Stuarts having kept up a considerable body of standing forcesin time of peace for the clear and almost avowed purpose of subduingthe liberties of the people, it was made an article of the bill ofrights at the revolution, “That the raising or keeping a standing armywithin the kingdom in time of peace, unless it be with the consentof Parliament, is against law;” but no attempt was made, or I daresay even thought of, to restrain the Parliament from exercise ofthat right. An army has been kept on foot annually by authority ofParliament, and I believe ever since the revolution they have had somestanding troops; disputes have frequently happened about the number,but I don’t recollect any objection by the most zealous patriot,to the keeping up of any at all. At the same time, notwithstandingthe above practice of an annual vote (arising from a very judiciouscaution), it is still in the power of Parliament to authorize thekeeping up of any number of troops for an indefinite time, and toprovide for their subsistence for any number of years. Considerationsof prudence, not constitutional limits to their authority, alonerestrain such an exercise of it—our Legislature however will bestrongly guarded, though that of Great Britain is without any checkat all. No appropriations of money for military services can continuelonger than two years. Considering the extensive services the generalgovernment may have to provide for upon this vast continent, no forceswith any serious prospect of success could be attempted to be raisedfor a shorter time. Its being done for so short a period, if therewere any appearance of ill designs in the government, would affordtime enough for the real friends of their country to sound an alarm,and when we know how easy it is to excite jealousy of any government,how difficult for the people to distinguish from their real friends,those factious men who in every country are ready to disturb its peacefor personal gratifications of their own, and those desperate onesto whom every change is welcome, we shall have much more reason tofear that the government may be overawed by groundless discontents,than that it should be able, if contrary to every probability sucha government could be supposed willing, to effect any designs forthe destruction of their own liberties as well as those of theirconstituents; for surely we ought ever to remember, that there willnot be a man in the government but who has been either mediately orimmediately recently chosen by the people, and that for too limiteda time to make any arbitrary designs consistent with common sense,when every two years a new body of representatives with all the energyof popular feelings will come, to carry the strong force of a severenational control into every department of government. To say nothingof the one-third to compose the Senate coming at the same time, warmwith popular sentiments, from their respective assemblies. Men maybe sure to suggest dangers from any thing, but it may truly be saidthat those who can seriously suggest the danger of a premeditatedattack on the liberties of the people from such a government as this,could with ease assign reasons equally plausible for mistrusting theintegrity of any government formed in any manner whatever; and reallyit does seem to me, that all their reasons may be fairly carried tothis position, that inasmuch as any confidence in any men would beunwise, as we can give no power but what may be grossly abused, wehad better give none at all, but continue as we are, or resolve intototal anarchy at once, of which indeed our present condition falls verylittle short. What sort of a government would that be which, upon themost certain intelligence that hostilities were meditated against it,could take no method for its defence till after a formal declarationof war, or the enemy’s standard was actually fixed upon the shore? Thefirst has for some time been out of fashion, but if it had not, therestraint these gentlemen recommend, would certainly have brought itinto disuse with every power who meant to make war upon America. Theywould be such fools as to give us the only warning we had informedthem we would accept of, before we would take any steps to counteracttheir designs. The absurdity of our being prohibited from preparing toresist an invasion till after it had actually taken place(78) is soglaring, that no man can consider it for a moment without being struckwith astonishment to see how rashly, and with how little considerationgentlemen, whose characters are certainly respectable, have sufferedthemselves to be led away by so delusive an idea. The example of othercountries, so far from warranting any such limitation of power, isdirectly against it. That of England has already been particularlynoticed. In our present articles of confederation there is no suchrestriction. It has been observed by the Federalist, that Pennsylvaniaand North Carolina appear to be the only States in the Union whichhave attempted any restraint of the Legislative authority in thisparticular, and that their restraint appears rather in the light ofa caution than a prohibition; but notwithstanding that, Pennsylvaniahad been obliged to raise forces in the very face of that articleof her bill of rights. That great writer from the remoteness of hissituation, did not know that North Carolina had equally violated herbill of rights in a similar manner. The Legislature of that State inNovember, 1785, passed an act for raising 200 men for the protection ofa county called Davidson county against hostilities from the Indians;they were to continue for two years from the time of their firstrendezvous, unless sooner disbanded by the Assembly, and were to besubject to the same “rules with respect to their government as wereestablished in the time of the late war by the Congress of the UnitedStates for the government of the Continental army.” These are the verywords of the act. Thus, from the examples of the only two countries inthe world that I believe ever attempted such a restriction, it appearsto be a thing incompatible with the safety of government. Whether theirrestriction is to be considered as a caution or a prohibition, in lessthan five years after peace the caution has been disregarded, or theprohibition disobeyed.(79) Can the most credulous or suspicious menrequire stronger proof of the weakness and impolicy of such restraints?

IX. OBJECTION.

“The State Legislatures are restrained from laying export duties ontheir own produce.”

ANSWER.

Duties upon exports, though they may answer in some particulars aconvenience to the country which imposes them, are certainly not thingsto be contended for, as if the very being of a State was interested inpreserving them. Where there is a kind of monopoly they may sometimesbe ventured upon, but even there perhaps more is lost by imposing suchduties, than is compensated for by any advantage. Where there is not aspecies of monopoly, no policy can be more absurd. The American States,are so circumstanced that some of the States necessarily export part ofthe produce of neighboring ones. Every duty laid upon such exportedproduce operates in fact as a tax by the exporting State upon thenon-exporting State. In a system expressly formed to produce concordamong all, it would have been very unwise to have left such a sourceof discord open; and upon the same principle, and to remove as much aspossible every ground of discontent, Congress itself are prohibitedfrom laying duties on exports, because by that means those States whichhave a great deal of produce to export would be taxed much more heavilythan those which had little or none for exportation.

X. OBJECTION.

“The general Legislature is restrained from prohibiting the furtherimportation of slaves for twenty odd years, though such importationrenders the United States weaker, more vulnerable; and less capable ofdefence.”

ANSWER.

If all the States had been willing to adopt this regulation, I shouldas an individual most heartily have approved of it, because even if theimportation of slaves in fact rendered us stronger, less vulnerable andmore capable of defence, I should rejoice in the prohibition of it,as putting an end to a trade which has already continued too long forthe honor and humanity of those concerned in it. But as it was wellknown that South Carolina and Georgia thought a further continuance ofsuch importations useful to them, and would not perhaps otherwise haveagreed to the new constitution, those States which had been importingtill they were satisfied, could not with decency have insisted upontheir relinquishing advantages themselves had already enjoyed. Oursituation makes it necessary to bear the evil as it is. It will beleft to the future legislatures to allow such importations or not.If any, in violation of their clear conviction of the injustice ofthis trade, persist in pursuing it, this is a matter between God andtheir own consciences. The interests of humanity will, however, havegained something by the prohibition of this inhuman trade, though at adistance of twenty odd years.

XI. OBJECTION.

“Both the general Legislature and the State Legislatures, haveexpressly prohibited making ex post facto laws, though there neverwas, nor can be, a legislature but must and will make such laws, whennecessity and the public safety require them; which will hereafter be abreach of all the constitutions in the Union, and offer precedents forother innovations.”

ANSWER.

My ideas of liberty are so different from those of Mr. Mason, that inmy opinion this very prohibition is one of the most valuable parts ofthe new constitution. Ex post facto laws may sometimes be convenient,but that they are ever absolutely necessary I shall take the libertyto doubt, till that necessity can be made apparent. Sure I am, theyhave been the instrument of some of the grossest acts of tyranny thatwere ever exercised, and have this never failing consequence, to putthe minority in the power of a passionate and unprincipled majority,as to the most sacred things, and the plea of necessity is neverwanting where it can be of any avail. This very clause, I think, isworth ten thousand declarations of rights, if this, the most essentialright of all, was omitted in them. A man may feel some pride in hissecurity, when he knows that what he does innocently and safely to-dayin accordance with the laws of his country, cannot be tortured intoguilt and danger to-morrow. But if it should happen, that a great andoverruling necessity, acknowledged and felt by all, should make adeviation from this prohibition excusable, shall we not be more safein leaving the excuse for an extraordinary exercise of power to restupon the apparent equity of it alone, than to leave the door open toa tyranny it would be intolerable to bear? In the one case, every onemust be sensible of its justice, and therefore excuse it; in the other,whether its exercise was just or unjust, its being lawful would besufficient to command obedience. Nor would a case like that, restingentirely on its own bottom, from a conviction of invincible necessity,warrant an avowed abuse of another authority, where no such necessityexisted or could be pretended.

I have now gone through Mr. Mason’s objections; one thing stillremains to be taken notice of, his prediction, which he is pleased toexpress in these words: “This government will commence in a moderatearistocracy; it is at present impossible to foresee, whether itwill in its operation produce a monarchy, or a corrupt, oppressivearistocracy; it will most probably vibrate some years between the two,and then terminate in the one or the other.” From the uncertainty ofthis prediction, we may hope that Mr. Mason was not divinely inspiredwhen he made it, and of course that it may as fairly be questionedas any of his particular objections. If my answers to his objectionsare, in general, solid, a very different government will arise fromthe new constitution, if the several States should adopt it, as I hopethey will. It will not probably be too much to flatter ourselves with,that it may present a spectacle of combined strength in government,and genuine liberty in the people, the world has never yet beheld. Inthe meantime, our situation is critical to the greatest degree. Thosegentlemen who think we may at our ease go on from one convention toanother, to try if all objections cannot be conquered by perseverance,have much more sanguine expectations than I can presume to form. Thereare critical periods in the fate of nations, as well as in the life ofman, which are not to be neglected with impunity. I am much mistakenif this is not such a one with us. When we were at the very brink ofdespair, the late excellent Convention with a unanimity that nonecould have hoped for, generously discarding all little considerationsformed a system of government which I am convinced can stand the nicestexamination, if reason and not prejudice is employed in viewing it.With a happiness of thought, which in our present awful situationought to silence much more powerful objections than any I have heard,they have provided in the very frame of government a safe, easy andunexceptionable method of correcting any errors it may be thought tocontain. Those errors may be corrected at leisure; in the mean time theacknowledged advantages likely to flow from this constitution may beenjoyed. We may venture to hold up our head among the other powers ofthe world. We may talk to them with the confidence of an independentpeople, having strength to resent insults; and avail ourselves of ournatural advantages. We may be assured of once more beholding justice,order and dignity taking place of the present anarchical confusionprevailing almost every where, and drawing upon us universal disgrace.We may hope, by proper exertions of industry, to recover thoroughlyfrom the shock of the late war, and truly to become an independent,great and prosperous people. But if we continue as we now are,wrangling about every trifle, listening to the opinion of a smallminority, in preference to a large and most respectable majority ofthe first men in our country, and among them some of the first in theworld, if our minds in short are bent rather on indulging a captiousdiscontent, than bestowing a generous and well-placed confidence inthose who we have every reason to believe are entirely worthy of it,we shall too probably present a spectacle for malicious exultation toour enemies, and melancholy dejection to our friends; and the honor,glory and prosperity which were just within our reach, will perhaps besnatched from us for ever.

MARCUS.

January, 1788.

Credit: Pamphlet text preserved and compiled by Paul Leicester Ford. See the full Ford collection at on Patriot Echoes.