To assert that bills of rights have always originated from, or been considered as grants of the King or Prince, and that the liberties which they secure are the gracious concessions of the sovereign, betrays an equal ignorance of history and of law, or what in effect amounts to the same thing a violent and precipitate zeal.
I believe no writer in the most venal age, has ever openly asserted this doctrine, but the prostituted, rotten Sir Robert Filmer, and Aristides—And the man who at this day would contend in England that their bill of rights is the grant of the King, would find the general contempt his only security—In saying this, I sincerely regret that the name of Aristides should be joined with that of Sir Robert Filmer, and I freely acknowledge that no contemptible degree of talents, and integrity render him who uses it, much more worthy of the very respectable association he has selected for himself—But the errors of such men alone are dangerous—the man who has too much activity of mind, or restlessness to be quiet, qualities to engage public and private esteem, talents to form and support an opinion, fortitude to avow it, and too much pride to be convinced, will at all times have weight in a free country, (especially where indolence is the general characteristic) though that weight he will always find impaired in proportion as he indulges levity, caprice and passion.
I will confine my inquiry to the English constitution—Example there, is in a great measure law here—and the authority of an American judge on a point of English law, should be digested with coolness and promulgated with caution, because it is frequently conclusory.
The celebrated and only bill of rights of Great-Britain, which is considered as the supreme law of the land, and not to be questioned or impeached in their courts, was the work of that convention of lords and commons in 1688, which declared that King James 2d, had abdicated the crown, and that the throne had thereby become vacant, and who after they had compleated and asserted this glorious declaration of the unalienable rights of their fellow citizens, pursuing the peculiar duty of a convention, conferred the crown of the three kingdoms on an alien and foreigner, William the 3d.
Can any man imagine that this convention could at that time, have considered these rights as the grant of a King, whom they previously declared to have abdicated the throne, or the gracious concessions of a Prince whom they were about to deprive forever of the crown? Or could they have considered this bill of rights as the concession of Prince William, at that time a foreigner and alien, not entitled to hold a foot of land, or any of the common rights of citizenship, and who could afterwards only derive his title to the crown from the same source, which gave authority and sanction to this fundamental and most inestimable law? or, could the British nation at that time, or ever since, have viewed this declaration, as the grant and concession of a King or Prince, when no King or Prince was at that time in existence?—But should there remain any minds yet unsatisfied, I refer such to the debates of that convention, which are preserved in Grey's debates in parliament, and there will be found in them, the principles of equal liberty, the inherent and unalienable rights of men, as amply and ably discussed, and as fully recognized by the authors of that blessing, the artists of that British palladium, as ever they have since been by the animated patriots of America, or the present age.—I also refer them to an inestimable little treatise composed on this occasion by that accomplished lawyer and patriot, afterwards the Lord Somers—High Chancellor of Great-Britain—then a member of the convention, and chiefly instrumental in their great work—a pamphlet that should find a place in the library of every American judge at least—Whoever peruses these, will discover undeniable evidence, that the British convention, considered this their declaration, as the concession of no Prince, but the Prince of Heaven—whom alone they acknowledged as the author of their liberties—they will there find that a bill of rights, is an enumeration of those conditions on which the individuals of the empire agreed to confirm the social compact; and consequently that no power, which they thus conditionally delegated to the majority (in whatever form organized) should be so exercised as to infringe and impair these their natural rights—not vested in SOCIETY, but reserved to each member thereof.
This was not the doctrine of that period alone—It was the common law and constitution of England, so asserted and maintained by the ablest lawyers of every age of the empire.—The petition of right, which came forward in the reign of Charles 1st, said to have been originally penned by the celebrated Lord Coke—although in its title a contradiction in terms, is yet in substance equally strong and clear—asserting the rights of the people to be coeval with the government—We find this principle strenuously and ably maintained through all the works of this great man, and to this doctrine he finally, with the devotion of a freeman, and the fortitude of an Englishman, sacrificed his vanity, his ambition and his avarice—This last act of an aged and venerable judge, has obliterated the errors of a youthful courtier—it has made his peace with posterity, who with gratitude and indulgence has forgiven the conduct of a court lawyer, which she might have punished with detestation, although she could not correct.
Here I cannot but observe what strenuous bill of rights men, all the great luminaries of the English law have been: to Lord Coke and Lord Somers, I will add that [ ] of human nature, Sir Matthew Hale, in whom were united true Christian piety, Roman fortitude, and an understanding more than human.
This perfect man although firmly opposed to the violences of the mad fanatics of the age, stood up almost alone in that parliament which restored the regal government, in favor of a bill of rights—but the tide of popular rage, hastening to place the worthless Charles on the throne of his more worthless ancestors, was too strong, and the voice of that man could not be heard, who was the delight of his own and the admiration of succeeding ages.
It is true, that something like the doctrine of Aristides was frequently the language of courtiers and sycophants in the feeble reigns of the arbitrary Stuarts—times of impotent and impudent usurpation—and they grounded their assertions on the form of the statute of magna charta, a statute much estemed for the many valuable rights it ascertains—the enacting words of which imply it to be an act of the King—But Aristides must know that this was the frequent form of the ancient statutes, sometime it is the King alone enacts, sometime the King with advice and consent of the great men and Barons, and sometimes the three estates—Even at this day, the King uses these words in passing laws that bear the same implication; and we see even in America acts of authority issue under the name and signature of the Governor alone, who has not a voice unless the council are divided—But as to the legal and acknowledged authority of the King at the time of enacting magna charta, there can remain but little doubt. Henry Bracton a contemporary lawyer and judge, who has left us a compleat and able treatise on the laws of England, is thus clear and express—Omnes quidem sub rege, ipse autem sub lege, all are subject to the King, but the King is subject to the law—It will hardly then be imagined, that the supreme law and constitution were the grants and concessions of a Prince, who was thus in theory and practice, subject himself to ordinary acts of legislation—But all these things are so amply discussed and the authorities so accurately collected in the publication of my Lord Somers, that a reference must be much more satisfactory than a repetition.
If I understand Aristides, he says that it would have been considered as an arrogant usurpation of sovereign rights in the members of convention, to have affixed a bill of rights—Can he reconcile this position with another opinion in his remarks, where he maintains that in offering this constitution, they could only act as private individuals, any of whom have a right to propose a constitution to the Americans to adopt at their discretion—In this view they could only have proposed—it is certain they could not have enacted a bill of rights—Nor would there have been any usurpation in WE the people, of the States of New Hampshire, Massachusetts, &c. securing to ourselves and our posterity the following unalienable rights, &c. which is the stile of the new constitution—The convention have actually engrafted some of these natural rights, yet no one calls it an usurpation—nor can I believe that any of my fellow-citizens of the United States, would have discovered the least indignation, had they engrafted them all—The universal complaint has been that they have enumerated so few—But says Aristides, it would have been a work of great difficulty, if not impossible to have ascertained them—Are the fundamental rights of mankind at this day unknown? Are they so soon forgot? If they are not imprinted on our hearts, they are in several of the constitutions—Although various in form, they are certainly not contradictory in substance—It did not require the wisdom of a national convention to have reduced them into order, and such as would not have gained the suffrage of a majority, would never have been regretted by America—or, I will venture to assert, what I shall never believe, that the majority were very unworthy of the trust reposed in them—Nor yet can I believe, that the late convention were incompetent to a task that has never been undertaken in the separate States without success.
This constitution is to be the act of the individual members of the American empire—the highest source of terrestrial power with us—As it is a subsequent act, it not only repeals all prior acts of the same authority where it interferes with them—But being a government of the people of all the States, I do not know what right the citizens of Maryland for instance, have to expect that the citizens of Connecticut or New-Jersey, will be governed by the laws or constitution of Maryland—or what benefit a citizen of Maryland could derive from his bill of rights in a court of the United States, which can only be governed by the constitution and laws of the United States—Nor will it help the question to say, what will certainly be denied, that the future Congress may provide by law for this,—that an ordinary law of the United States can make, is an admission that it can unmake, and to submit the bills of rights of the separate States to the power of every annual national parliament, is a very uncertain tenure indeed.
If a citizen of Maryland can have no benefit of his own bill of rights in the confederal courts, and there is no bill of rights of the United States—how could he take advantage of a natural right founded in reason, could he plead it and produce Locke, Sydney, or Montesquieu as authority? How could he take advantage of any of the common law rights, which have heretofore been considered as the birthright of Englishmen and their descendants, could he plead them and produce the authority of the English judges in his support? Unquestionably not, for the authority of the common law arises from the express adoption by the several States in their respective constitutions, and that in various degrees and under different modifications—If admitted at all, I do not see to what extent, and if admitted, it must be admitted as unalterable by ordinary acts of legislation, which would be impossible—and it could never be of use to an individual, but in combating some national law infringing natural right.—To render this more intelligible—suppose for instance, that an officer of the United States should force the house, the asylum of a citizen, by virtue of a general warrant, I would ask, are general warrants illegal by the constitution of the United States? Would a court, or even a jury, but juries are no longer to exist, punish a man who acted by express authority, upon the bare recollection of what once was law and right? I fear not, especially in those cases which may strongly interest the passions of government, and in such only have general warrants been used—Suppose a case that must and will frequently happen, for such happen almost daily in England—That an officer of the customs should break open the dwelling, and violate the sanctuary of a freeman, in search for smuggled goods—impost and revenue laws are and from necessity must be in their nature oppressive—in their execution they may and will become intolerable to a free people, no remedy has been yet found equal to the task of detering and curbing the insolence of office, but a jury—It has become an invariable maxim of English juries, to give ruinous damages whenever an officer has deviated from the rigid letter of the law, or been guilty of an unnecessary act of insolence or oppression—It is true these damages to the individual, are frequently paid by government, upon a certificate of the judge that there was probable cause of suspicion—But the same reasons that would induce an English judge to give this certificate, would probably lead an American judge, who will be judge and jury too, to spare the public purse, if not favour a brother officer.
I could proceed with an enumeration of familiar [similar?] instances that must and will happen, that would be as alarming as prolix: but it is not my intention to ring an alarm bell—If I know myself I would rather conciliate than divide—But says Aristides the government may establish [ ] for such cases, though not commanded; what they will do I will not presume to say; but I can readily and will hereafter prove if they do, they will violate the constitution; and even admitting their power, it would be but a slender thread to [ ] so great a stake upon.
Here I must meet a position that has been ingeniously advanced—That all powers and rights not expressly given, [ ] consequently reserved—If this is not downright political nonsense, it is at least, untrue in theory and impossible in practice—until man is gifted with one of the most important attributes of the Deity—that of fore knowledge and [ ] it will be impossible to limit affirmatively legislative [ ]. When a people part with the legislative power to government they can no more say, you shall make such and such [ ] than they can say, such and such events shall happen—[ ] must be regulated by events—All the precaution that [ ] to human wisdom, is the exertion of a negative [ ] speaking thus in the language of a bill of rights, no [ ] shall authorize, no plea of necessity shall justify the legislature in making a law to abolish or infringe the freedom of the press, or the liberty of conscience, &c.—And even [ ] these bounds are expressly and clearly affirmed, we [ ] lament that they do not always prove an effectual safeguard against the power of government; but they are [ ] guard, and why shall we leave our citizens totally [ ]. A gentleman, in the Pennsylvania convention, of [ ] reputation, said, that the form of the constitution—the organization of power, is a bill of rights—he had then a defensible, but unformed idea floating in his imagination [ ] however, expressed it inaccurately, and unfortunately [ ] on the wrong side of his own question. A proper organization of power would most probably prevent a violation [ ] bill of rights and prove the best security of political [ ]. Such an organization is nothing more than a good [ ] a mint or die, that will make money in its proper form, [ ] the quantity of alloy must be regulated by law, or the people may be cheated by a debased currency—The truth is, that the rights of individuals are frequently opposed to the apparent interests of the majority—For this reason the greater the portion of political freedom in a form of government the greater the necessity of a bill of rights—often the natural rights of an individual are opposed to the presumed interests or heated passions of a large majority of [ ] democratic government; if these rights are not clearly and expressly ascertained, the individual must be lost; and for the truth of this I appeal to every man who has borne a part in the legislative councils of America. In such government the tyranny of the legislative is most to be dreaded.—In monarchical governments, the feelings of the majority [ ] most frequently on the side of the individual from the [ ] jealousy inseperably attendant on those forms of government, where the tyranny of the executive prevails tyranny whether exercised in the garb of a despot, or [ ] plain coat of a quaker, is equally detestable, and should be guarded against.
If a bill of rights was that essential requisite to a [ ] constitution, why was it omitted by a convention of the ablest men in America, a large majority of whom were unquestionably well disposed? This has been a natural inequity [inquiry?], and perhaps the true reason yet remains to be disclosed. I have been informed that the proposed constitution was carried through its several stages, in a very inoffensive form to the last, and that it did not assume its decided featues until days before the convention rose—the changes then effected produced much difference of opinion—created some [ ] and their patience was too much exhausted to make the necessary correspondent alterations and additions. These [ ] may, I believe, be depended on, but the inference is [ ] offered as conjecture—if true, we may attribute the omission of a bill of rights, and many other imperfections to [ ] rather than design.