As to the constituting of new crimes, and inflicting unusual and severe punishment, certainly the cases enumerated wherein the Congress are empowered either to define offences, or prescribe punishments, are such as are proper for the exercise of such authority in the general Legislature of the Union. They only relate to “counterfeiting the securities and current coin of the United States,” to “piracies and felonies committed on the high seas, and offences against the law of nations,” and to “treason against the United States.” These are offences immediately affecting the security, the honor or the interest of the United States at large, and of course must come within the sphere of the Legislative authority which is intrusted with their protection. Beyond these authorities, Congress can exercise no other power of this kind, except in the enacting of penalties to enforce their acts of legislation in the cases where express authority is delegated to them, and if they could not enforce such acts by the enacting of penalties those powers would be altogether useless, since a legislative regulation without some sanction would be an absurd thing indeed. The Congress having, for these reasons, a just right to authority in the above particulars, the question is, whether it is practicable and proper to prescribe limits to its exercise, for fear that they should inflict punishments unusual and severe. It may be observed, in the first place, that a declaration against “cruel and unusual punishments” formed part of an article in the Bill of Rights at the revolution in England in 1688. The prerogative of the Crown having been grossly abused in some preceding reigns, it was thought proper to notice every grievance they had endured, and those declarations went to an abuse of power in the Crown only, but were never intended to limit the authority of Parliament. Many of these articles of the Bill of Rights in England, without a due attention to the difference of the cases, were eagerly adopted when our constitutions were formed, the minds of men then being so warmed with their exertions in the cause of liberty as to lean too much perhaps towards a jealousy of power to repose a proper confidence in their own government. From these articles in the State constitutions many things were attempted to be transplanted into our new Constitution, which would either have been nugatory or improper. This is one of them. The expressions “unusual and severe” or “cruel and unusual” surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification. If to guard against punishments being too severe, the Convention had enumerated a vast variety of cruel punishments, and prohibited the use of any of them, let the number have been ever so great, an inexhaustible fund must have been unmentioned, and if our government had been disposed to be cruel their invention would only have been put to a little more trouble. If to avoid this difficulty, they had determined, not negatively what punishments should not be exercised, but positively what punishments should, this must have led them into a labyrinth of detail which in the original constitution of a government would have appeared perfectly ridiculous, and not left a room for such changes, according to circumstances, as must be in the power of every Legislature that is rationally formed. Thus when we enter into particulars, we must be convinced that the proposition of such a restriction would have led to nothing useful, or to something dangerous, and therefore that its omission is not chargeable as a fault in the new Constitution. Let us also remember, that as those who are to make those laws must themselves be subject to them, their own interest and feelings will dictate to them not to make them unnecessarily severe; and that in the case of treason, which usually in every country exposes men most to the avarice and rapacity of government, care is taken that the innocent family of the offender shall not suffer for the treason of their relation. This is the crime with respect to which a jealousy is of the most importance, and accordingly it is defined with great plainness and accuracy, and the temptations to abusive prosecutions guarded against as much as possible. I now proceed to the three great cases: The liberty of the press, the trial by jury in civil cases, and a standing army in time of peace.
The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works.—This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand. Besides, that such encouragement may give birth to many excellent writings which would otherwise have never appeared.[77] If the Congress should exercise any other power over the press than this, they will do it without any warrant from this constitution, and must answer for it as for any other act of tyranny.
In respect to the trial by jury in civil cases, it must be observed it is a mistake to suppose that such a trial takes place in all civil cases now. Even in the common law courts, such a trial is only had where facts are disputed between the parties, and there are even some facts triable by other methods. In the Chancery and Admiralty Courts, in many of the States, I am told they have no juries at all. The States in these particulars differ very much in their practice from each other. A general declaration therefore to preserve the trial by jury in all civil cases would only have produced confusion, so that the courts afterwards in a thousand instances would not have known how to have proceeded.—If they had added, “as heretofore accustomed,” that would not have answered the purpose, because there has been no uniform custom about it.—If therefore the Convention had interfered, it must have been by entering into a detail highly unsuitable to a fundamental constitution of government; if they had pleased some States they must have displeased others by innovating upon the modes of administering justice perhaps endeared to them by habit, and agreeable to their settled conviction of propriety. As this was the case it appears to me it was infinitely better, rather than endanger everything by attempting too much, to leave this complicated business of detail to the regulation of the future Legislature, where it can be adjusted coolly and at ease, and upon full and exact information. There is no danger of the trial by jury being rejected, when so justly a favorite of the whole people. The representatives of the people surely can have no interest in making themselves odious, for the mere pleasure of being hated, and when a member of the House of Representatives is only sure of being so for two years, but must continue a citizen all his life, his interest as a citizen, if he is a man of common sense, to say nothing of his being a man of common honesty, must ever be uppermost in his mind. We know the great influence of the monarchy in the British government, and upon what a different tenure the Commons there have their seats in Parliament from that prescribed to our representatives. We know also they have a large standing army. It is in the power of the Parliament, if they dare to exercise it, to abolish the trial by jury altogether. But woe be to the man who should dare to attempt it. It would undoubtedly produce an insurrection, that would hurl every tyrant to the ground who attempted to destroy that great and just favorite of the English nation. We certainly shall be always sure of this guard at least upon any such act of folly or insanity in our representatives. They soon would be taught the consequence of sporting with the feelings of a free people. But when it is evident that such an attempt cannot be rationally apprehended, we have no reason to anticipate unpleasant emotions of that nature. There is indeed little probability that any degree of tyranny which can be figured to the most discolored imagination as likely to arise out of our government, could find an interest in attacking the trial by jury in civil cases;—and in criminal ones, where no such difficulties intervene as in the other, and where there might be supposed temptations to violate the personal security of a citizen, it is sacredly preserved.
The subject of a standing army has been exhausted in so masterly a manner in two or three numbers of the Federalist (a work which I hope will soon be in every body’s hands) that but for the sake of regularity in answering Mr. Mason’s objections, I should not venture upon the same topic, and shall only presume to do so, with a reference for fuller satisfaction to that able performance. It is certainly one of the most delicate and proper cases for the consideration of a free people, and so far as a jealousy of this kind leads to any degree of caution not incompatible with the public safety, it is undoubtedly to be commended. Our jealousy of this danger has descended to us from our British ancestors; in that country they have a Monarch, whose power being limited, and at the same time his prerogatives very considerable, a constant jealousy of him is both natural and proper. The two last of the Stuarts having kept up a considerable body of standing forces in time of peace for the clear and almost avowed purpose of subduing the liberties of the people, it was made an article of the bill of rights at the revolution, “That the raising or keeping a standing army within the kingdom in time of peace, unless it be with the consent of Parliament, is against law;” but no attempt was made, or I dare say even thought of, to restrain the Parliament from exercise of that right. An army has been kept on foot annually by authority of Parliament, and I believe ever since the revolution they have had some standing 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, notwithstanding the above practice of an annual vote (arising from a very judicious caution), it is still in the power of Parliament to authorize the keeping up of any number of troops for an indefinite time, and to provide for their subsistence for any number of years. Considerations of prudence, not constitutional limits to their authority, alone restrain such an exercise of it—our Legislature however will be strongly guarded, though that of Great Britain is without any check at all. No appropriations of money for military services can continue longer than two years. Considering the extensive services the general government may have to provide for upon this vast continent, no forces with any serious prospect of success could be attempted to be raised for a shorter time. Its being done for so short a period, if there were any appearance of ill designs in the government, would afford time 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 peace for personal gratifications of their own, and those desperate ones to whom every change is welcome, we shall have much more reason to fear that the government may be overawed by groundless discontents, than that it should be able, if contrary to every probability such a government could be supposed willing, to effect any designs for the destruction of their own liberties as well as those of their constituents; for surely we ought ever to remember, that there will not be a man in the government but who has been either mediately or immediately recently chosen by the people, and that for too limited a time to make any arbitrary designs consistent with common sense, when every two years a new body of representatives with all the energy of popular feelings will come, to carry the strong force of a severe national control into every department of government. To say nothing of the one-third to compose the Senate coming at the same time, warm with popular sentiments, from their respective assemblies. Men may be sure to suggest dangers from any thing, but it may truly be said that those who can seriously suggest the danger of a premeditated attack on the liberties of the people from such a government as this, could with ease assign reasons equally plausible for mistrusting the integrity of any government formed in any manner whatever; and really it does seem to me, that all their reasons may be fairly carried to this position, that inasmuch as any confidence in any men would be unwise, as we can give no power but what may be grossly abused, we had better give none at all, but continue as we are, or resolve into total anarchy at once, of which indeed our present condition falls very little short. What sort of a government would that be which, upon the most certain intelligence that hostilities were meditated against it, could take no method for its defence till after a formal declaration of war, or the enemy’s standard was actually fixed upon the shore? The first has for some time been out of fashion, but if it had not, the restraint these gentlemen recommend, would certainly have brought it into disuse with every power who meant to make war upon America. They would be such fools as to give us the only warning we had informed them we would accept of, before we would take any steps to counteract their designs. The absurdity of our being prohibited from preparing to resist an invasion till after it had actually taken place[78] is so glaring, that no man can consider it for a moment without being struck with astonishment to see how rashly, and with how little consideration gentlemen, whose characters are certainly respectable, have suffered themselves to be led away by so delusive an idea. The example of other countries, so far from warranting any such limitation of power, is directly against it. That of England has already been particularly noticed. In our present articles of confederation there is no such restriction. It has been observed by the Federalist, that Pennsylvania and North Carolina appear to be the only States in the Union which have attempted any restraint of the Legislative authority in this particular, and that their restraint appears rather in the light of a caution than a prohibition; but notwithstanding that, Pennsylvania had been obliged to raise forces in the very face of that article of her bill of rights. That great writer from the remoteness of his situation, did not know that North Carolina had equally violated her bill of rights in a similar manner. The Legislature of that State in November, 1785, passed an act for raising 200 men for the protection of a county called Davidson county against hostilities from the Indians; they were to continue for two years from the time of their first rendezvous, unless sooner disbanded by the Assembly, and were to be subject to the same “rules with respect to their government as were established in the time of the late war by the Congress of the United States for the government of the Continental army.” These are the very words of the act. Thus, from the examples of the only two countries in the world that I believe ever attempted such a restriction, it appears to be a thing incompatible with the safety of government. Whether their restriction is to be considered as a caution or a prohibition, in less than five years after peace the caution has been disregarded, or the prohibition disobeyed.[79] Can the most credulous or suspicious men require stronger proof of the weakness and impolicy of such restraints?
IX. Objection.
“The State Legislatures are restrained from laying export duties on their own produce.”
Answer.
Duties upon exports, though they may answer in some particulars a convenience to the country which imposes them, are certainly not things to be contended for, as if the very being of a State was interested in preserving them. Where there is a kind of monopoly they may sometimes be ventured upon, but even there perhaps more is lost by imposing such duties, than is compensated for by any advantage. Where there is not a species of monopoly, no policy can be more absurd. The American States, are so circumstanced that some of the States necessarily export part of the produce of neighboring ones. Every duty laid upon such exported produce operates in fact as a tax by the exporting State upon the non-exporting State. In a system expressly formed to produce concord among all, it would have been very unwise to have left such a source of discord open; and upon the same principle, and to remove as much as possible every ground of discontent, Congress itself are prohibited from laying duties on exports, because by that means those States which have a great deal of produce to export would be taxed much more heavily than those which had little or none for exportation.