which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.

This is now clearly understood to be the case in Great Britain, and it is equally so in the state of Connecticut; and yet it may be safely affirmed, that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added, that these encroachments have generally originated with the men who endeavour to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favourite career. The truth is that the general GENIUS of a goverment is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them, will never be with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government.

It certainly sounds not a little harsh and extraordinary to affirm, that there is no security for liberty in a constitution which expressly establishes a trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either. PUBLIUS.

No. LXXXIV.

BY ALEXANDER HAMILTON.

Concerning several miscellaneous objections.

In the course of the foregoing review of the constitution, I have endeavoured to answer most of the objections which have appeared against it. There remain, however, a few which either did not fall naturally under any particular head, or were forgotten in their proper places. These shall now be discussed: but as the subject has been drawn into great length, I shall so far consult brevity, as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked, that the constitutions of several of the states are in

a similar predicament. I add, that New York is of the number. And yet the persons who in the state oppose the new system, while they profess an unlimited admiration for our particular constitution, are among the most intemperate partizans of a bill of rights. To justify their zeal in this matter, they allege two things: one is, that though the constitution of New York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favor of particular privileges and rights, which, in substance, amount to the same thing; the other is, that the constitution adopts, in their full extent, the common and statue law of Great Britain, by which many other rights, not expressed, are equally secured.

To the first I answer, that the constitution offered by the convention contains, as well as the constitution of this state, a number of such provisions.

7.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause "Judgment in cases of impeachment shall not extend fur"ther than to removal from office, and disqualification to hold "and enjoy any office of honour, trust, or profit under the "United States; but the party convicted shall, nevertheless, be "liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2. "The privilege of the writ of habeas corpus shall not be "suspended, unless when in cases of rebellion or invasion the "the public safety may require it." Clause 3. "No bill of "attainder or ex post facto law shall be passed." Clause 7. "No title of nobility shall be granted by the United States; " and no person holding any office of profit or trust under them, "shall, without the consent of the congress, accept of any pre"sent, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article III, section 2, "clause 3. "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the "state where the said crimes shall have been committed; but "when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.” Section 3, of the same article: "Treason against the United "States, shall consist only in leveying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony "of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section: "The congress shall have power to declare the punishment of treason; "but no attainder of treason shall work corruption of blood, or "forfeiture, except during the life of the person attainted."

It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in

the constitution of this state. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provisions in our constitution, are perhaps greater securities to liberty than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law; and the practice of arbitrary imprisonments, have been, in all ages, the favourite and most formidable instruments of tyranny. The observations of the judicious Blackstone,* in reference to the latter, are well worthy of recital: "To bereave a man of life (says he) or by violence to "confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once con"vey the alarm of tyranny throughout the whole nation; but "confinement of the person, by secretly hurrying him to jail, "where his sufferings are unknown or forgotten, is a less pub"lic, a less striking, and therefore a more dangerous engine of "arbitrary government." And as a remedy for this fatal evil, he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British constitution."+

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

To the second, that is, to the pretended establishment of the common and statute law by the constitution, I answer, that they are expressly made subject "to such alterations and provisions "as the legislature shall from time to time make concerning the "same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law, and to remove doubts which might have been occasioned by the revolution. This consequently can be considered as no part of a declaration of rights; which under our constitutions must be intended to limit the power of the government itself.

It has been several times truly remarked, that bills of rights. are, in their origin, stipulations between kings and their sub jects, abridgments of prerogative in favour of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from king * Vide Blackstone's Commentaries, vol. 1, page 136.

+ Idem, vol. 4, page 438.

John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the petition of right assented to by Charles the first, in the beginning of his reign. Such also, was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations. "WE, THE PEOPLE of the United States to secure the blessings of liberty "to ourselves and our posterity, do ordain and establish this "constitution for the United States of America :" this is a better recognition of popular rights, than volumes of those aphorisms, which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics, than in a constitution of government.

But a minute detail of particular rights, is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to one which has the regulation of every species of personal and private concerns. If therefore, the loud clamours against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm, that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a right to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the

numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: in the first place, I observe that there is not a syllable concerning it in the constitution of this state; in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration, that "the liberty of the press shall "be inviolably preserved?" What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.* And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamation we have beard, that the constitution is itself, in every rational sense, and to every useful purpose, a BILL of rights. The several bills

of rights in Great Britain, form its constitution, and conversely the constitution of each state is its bill of rights. In like manner the proposed constitution, if adopted, will be the bill of rights of the union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the state constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to per

To show that there is a power in the constitution, by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said, that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the state constitutions, in favour of the freedom of the press would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all, general declarations respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. It would be quite as significant to declare, that government ought to be free, that taxes ought not to be excessive, &c., as that the liberty of the press ought not to be restrained.