Answer.
1. As to the want of a declaration of rights. The introduction of these in England, from which the idea was originally taken, was in consequence of usurpations of the Crown, contrary, as was conceived, to the principles of their government. But there no original constitution is to be found, and the only meaning of a declaration of rights in that country is, that in certain particulars specified, the Crown had no authority to act. Could this have been necessary had there been a constitution in being by which it could have been clearly discerned whether the Crown had such authority or not? Had the people, by a solemn instrument, delegated particular powers to the Crown at the formation of their government, surely the Crown, which in that case could claim under that instrument only, could not have contended for more power than was conveyed by it. So it is in regard to the new Constitution here: the future government which may be formed under that authority certainly cannot act beyond the warrant of that authority. As well might they attempt to impose a King upon America, as go one step in any other respect beyond the terms of their institution. The question then only is, whether more power will be vested in the future government than is necessary for the general purposes of the union. This may occasion a ground of dispute—but after expressly defining the powers that are to be exercised, to say that they shall exercise no other powers (either by a general or particular enumeration) would seem to me both nugatory and ridiculous. As well might a Judge when he condemns a man to be hanged, give strong injunctions to the Sheriff that he should not be beheaded.[67]
2. As to the common law, it is difficult to know what is meant by that part of the objection. So far as the people are now entitled to the benefit of the common law, they certainly will have a right to enjoy it under 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 from the principles of the common law? The people are expressly secured (contrary to Mr. Mason’s wishes) against ex post facto laws; so that the tenure of any property at any time held under the principles of the common law, cannot be altered by any future act of the general legislature. The principles of the common law, as they now apply, must surely always hereafter apply, except in those particulars in which express authority is given by this constitution; in no other particulars can the Congress have authority to change it, and I believe it cannot be shown that any one power of this kind given is unnecessarily given, or that the power would answer its proper purpose if the legislature was restricted from any innovations on the principles of the common law, which would not in all cases suit the vast variety of incidents that might arise out it.
II. Objection.
“In the House of Representatives there is not the substance, but the shadow only of representation; which can never produce proper information 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 this objection was in a great measure removed by altering the number of 40,000 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 sufficiently respectable, and whether, if that number be sufficient, it would have been right, in the very infancy of this government, to burthen the people with a great additional expense to answer no good purpose.[68]
III. Objection.
“The Senate have the power of altering all money bills, and of originating appropriations of money, and the salaries of the officers of their own appointment, in conjunction with the President of the United States; although they are not the representatives of the people or amenable to them.—These, with their other great powers (viz. their powers in the appointment of Ambassadors, and all public officers, in making treaties and trying all impeachments) their influence upon and connection with the supreme Executive, from these causes, their duration of office, and their being a constant existing body almost continually sitting, joined with their being one complete branch of the legislature, will destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.”