You would likewise restrain Congress from requiring excessiv bail or imposing excessiv fines and unusual punishment. But unless you can, in every possible instance, previously define the words excessiv and unusual; if you leave the discretion of Congress to define them on occasion, any restriction of their power by a general indefinit expression, is a nullity—mere formal nonsense. What consummate arrogance must you possess, to presume you can now make better provision for the government of these States, during the course of ages and centuries, than the future Legislatures can, on the spur of the occasion! Yet your whole reasoning on the subject implies this arrogance, and a presumption that you have a right to legislate for posterity!
But to complete the list of unalienable rights, you would insert a clause in your declaration, that every body shall, in good weather, hunt on his own land, and catch fish in rivers that are public property. Here, gentlemen, you must have exerted the whole force of your genius! Not even the all important subject of legislating for a world, can restrain my laughter at this clause! As a supplement to that article of your bill of rights, I would suggest the following restriction:—"That Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter's night, or even on his back, when he is fatigued by lying on his right." This article is of just as much consequence as the eighth clause of your proposed bill of rights.
But to be more serious, gentlemen, you must have had in idea the forest laws in Europe, when you inserted that article; for no circumstance that ever took place in America, could have suggested the thought of a declaration in favor of hunting and fishing. Will you forever persist in error? Do you not reflect that the state of property in America, is directly the reverse of what it is in Europe? Do you not consider, that the forest laws in Europe originated in feudal tyranny, of which not a trace is to be found in America? Do you not know that in this country almost every farmer is lord of his own soil? That instead of suffering under the oppression of a monarch and nobles, a class of haughty masters, totally independent of the people, almost every man in America is a lord himself, enjoying his property in fee? Where then the necessity of laws to secure hunting and fishing? You may just as well ask for a clause, giving license for every man to till his own land, or milk his own cows. The barons in Europe procured forest laws to secure the right of hunting on their own land, from the intrusion of those who had no property in lands. But the distribution of land in America, not only supersedes the necessity of any laws upon this subject, but renders them absolutely trifling. The same laws which secure the property in land, secure to the owner the right of using it as he pleases.
But you are frightened at the prospect of a consolidation of the States. I differ from you very widely. I am afraid, after all our attempts to unite the States, that contending interests, and the pride of State sovereignties, will either prevent our union, or render our federal government weak, slow and inefficient. The danger is all on this side. If any thing under heaven now endangers our liberties and independence, it is that single circumstance.
You harp upon that clause of the new constitution, which declares, that the laws of the United States, &c. shall be the supreme law of the land; when you know that the powers of the Congress are defined, to extend only to those matters which are in their nature and effects, general. You know, the Congress cannot meddle with the internal police of any State, or abridge its sovereignty. And you know, at the same time, that in all general concerns, the laws of Congress must be supreme, or they must be nothing.
No. XIV.
PHILADELPHIA, MARCH, 1787.
On TEST LAWS, OATHS of ALLEGIANCE and ABJURATION, and PARTIAL EXCLUSIONS from OFFICE.
To change the current of opinion, is a most difficult task, and the attempt is often ridiculed. For this reason, I expect the following remarks will be passed over with a slight reading, and all attention to them cease with a hum.