No.

84↩
by Alexander Hamilton

Concerning several miscellaneous objections↩

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. [443] And yet the persons who in
this 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 favour 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 statute 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.

Independent of those which relate to the structure of the government, we find the
following: Article I. section 3. clause 7. “Judgment in cases of impeachment shall not
extend further 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 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 present, 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
levying 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.”

[444]

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 convey 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 public, a less stricking, and therefore a more dangerous
engine of arbitrary government.” And as a remedy for this fatal evil, he is every where
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.

[445]

It has been several times truly remarked, that bills of rights are, in their origin,
stipulations between kings and their subjects, 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 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 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 [446] 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 intimated upon another occasion, must we seek for the only solid basis of all our
rights.

[447]

There remains but one other view of this matter to conclude the point. The truth is, after
all the declamation we have heard, 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 personal and private concerns? This we have seen
has also been attended to, in a variety of cases, in the same plan. Adverting therefore to
the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found
in the work of the convention. It may be said that it does not go far enough, though it
will not be easy to make this appear; but it can with no propriety be contended that
there is no such thing. It certainly must be immaterial what mode is observed as to the
order of declaring the rights of the citizens, if they are provided for in any part of the
instrument which establishes the government. Whence it must be apparent, that much
of what has been said on this subject rests merely on verbal and nominal distinctions,
entirely foreign to the substance of the thing.

Another objection, which, from the frequency of its repetition, may be presumed to be
relied on, is of this nature: it is improper (say the objectors) to confer such large powers,
as are proposed, upon the national government; because the seat of that government
must of necessity be too remote from many of the states to admit of a proper knowledge
on the part of the constituent, of the conduct of the representative body. This argument,
if it proves any thing, proves that there ought to be no general government whatever.
For the powers which, it seems to be agreed on all hands, ought to be vested in the
union, cannot be safely intrusted to a body which is not under every requisite control.
But there are satisfactory reasons to show, that the objection is, in reality, not well
founded. There is in most of the arguments which relate to distance, a palpable illusion
of the imagination. What are the sources of information, by which the people in any
distant county must regulate their judgment of the conduct of their representatives in
the state legislature? Of [448] personal observation they can have no benefit. This is
confined to the citizens on the spot. They must therefore depend on the information of
intelligent men, in whom they confide: and how must these men obtain their
information? Evidently from the complexion of public measures, from the public prints,
from correspondences with their representatives, and with other persons who reside at
the place of their deliberations.
It is equally evident that the like sources of information would be open to the people, in
relation to the conduct of their representatives in the general government: and the
impediments to a prompt communication which distance may be supposed to create,
will be overbalanced by the effects of the vigilance of the state governments. The
executive and legislative bodies of each state will be so many sentinels over the persons
employed in every department of the national administration; and as it will be in their
power to adopt and pursue a regular and effectual system of intelligence, they can never
be at a loss to know the behaviour of those who represent their constituents in the
national councils, and can readily communicate the same knowledge to the people.
Their disposition to apprize the community of whatever may prejudice its interests from
another quarter, may be relied upon, if it were only from the rivalship of power. And we
may conclude with the fullest assurance, that the people, through that channel, will be
better informed of the conduct of their national representatives, than they can be by any
means they now possess, of that of their state representatives.

It ought also to be remembered, that the citizens who inhabit the country at and near
the seat of government will, in all questions that affect the general liberty and
prosperity, have the same interest with those who are at a distance; and that they will
stand ready to sound the alarm when necessary, and to point out the actors in any
pernicious project. The public papers will be expeditious messengers of intelligence to
the most remote inhabitants of the union.

Among the many curious objections which have appeared against the proposed
constitution, the most extraordinary and the least colourable is derived from the want of
some provision respecting the debts due to the United States. This has been represented
as a tacit relinquishment of those debts, and as a wicked contrivance to screen public
defaulters. The newspapers have teemed with the most inflammatory railings on this
head; yet there is nothing clearer than that the suggestion is entirely void of
foundation, [449] the offspring of extreme ignorance or extreme dishonesty. In addition
to the remarks I have made upon the subject in another place, I shall only observe, that
as it is a plain dictate of common sense, so it is also an established doctrine of political
law, that “states neither lose any of their rights, nor are discharged from any of their
obligations, by a change in the form of their civil government.”*

The last objection of any consequence at present recollected, turns upon the article of
expense. If it were even true, that the adoption of the proposed government would
occasion a considerable increase of expense, it would be an objection that ought to have
no weight against the plan. The great bulk of the citizens of America, are with reason
convinced that union is the basis of their political happiness. Men of sense of all parties
now, with few exceptions, agree that it cannot be preserved under the present system,
nor without radical alterations; that new and extensive powers ought to be granted to
the national head, and that these require a different organization of the federal
government; a single body being an unsafe depository of such ample authorities. In
conceding all this, the question of expense is given up; for it is impossible, with any
degree of safety, to narrow the foundation upon which the system is to stand. The two
branches of the legislature are, in the first instance, to consist of only sixty-five persons;
the same number of which congress, under the existing confederation, may be
composed. It is true that this number is intended to be increased; but this is to keep pace
with the progress of the population and resources of the country. It is evident, that a less
number would, even in the first instance, have been unsafe; and that a continuance of
the present number would, in a more advanced stage of population, be a very
inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated, is the
multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present
government, are the same which will be required under the new. There are now a
secretary at war, a secretary for foreign affairs, a secretary for domestic affairs, a board
of treasury consisting of three persons, a treasurer, [450] assistants, clerks, &c. These
offices are indispensable under any system, and will suffice under the new, as well as the
old. As to ambassadors and other ministers and agents in foreign countries, the
proposed constitution can make no other difference, than to render their characters,
where they reside, more respectable, and their services more useful. As to persons to be
employed in the collection of the revenues, it is unquestionably true that these will form
a very considerable addition to the number of federal officers; but it will not follow, that
this will occasion an increase of public expense. It will be in most cases nothing more
than an exchange of state for national officers. In the collection of all duties, for
instance, the persons employed will be wholly of the latter description. The states
individually, will stand in no need of any for this purpose. What difference can it make
in point of expense, to pay officers of the customs appointed by the state, or by the
United States.

Where then are we to seek for those additional articles of expense, which are to swell the
account to the enormous size that has been represented? The chief item which occurs to
me, respects the support of the judges of the United States. I do not add the president,
because there is now a president of congress, whose expenses may not be far, if any
thing, short of those which will be incurred on account of the president of the United
States. The support of the judges will clearly be an extra expense, but to what extent will
depend on the particular plan which may be adopted in regard to this matter. But upon
no reasonable plan can it amount to a sum which will be an object of material
consequence.

Let us now see what there is to counterbalance any extra expense that may attend the
establishment of the proposed government. The first thing which presents itself is, that a
great part of the business, that now keeps congress sitting through the year, will be
transacted by the president. Even the management of foreign negotiations will naturally
devolve upon him, according to general principles concerted with the senate, and
subject to their final concurrence. Hence it is evident, that a portion of the year will
suffice for the session of both the senate and the house of representatives: we may
suppose about a fourth for the latter, and a third, or perhaps half, for the former. The
extra business of treaties and appointments may give this extra occupation to the senate.
From this circumstance we may infer, that until the house of representatives shall be
increased greatly beyond its present number, there will [451] be a considerable saving of
expense from the difference between the constant session of the present, and the
temporary session of the future congress.

But there is another circumstance, of great importance in the view of economy. The
business of the United States has hitherto occupied the state legislatures, as well as
congress. The latter has made requisitions which the former have had to provide for. It
has thence happened, that the sessions of the state legislatures have been protracted
greatly beyond what was necessary for the execution of the mere local business. More
than half their time has been frequently employed in matters which related to the
United States. Now the members who compose the legislatures of the several states
amount to two thousand and upwards; which number has hitherto performed what,
under the new system, will be done in the first instance by sixty-five persons, and
probably at no future period by above a fourth or a fifth of that number. The congress
under the proposed government will do all the business of the United States themselves,
without the intervention of the state legislatures, who thenceforth will have only to
attend to the affairs of their particular states, and will not have to sit in any proportion
as long as they have heretofore done. This difference, in the time of the sessions of the
state legislatures, will be clear gain, and will alone form an article of saving, which may
be regarded as an equivalent for any additional objects of expense that may be
occasioned by the adoption of the new system.

The result from these observations is, that the sources of additional expense from the
establishment of the proposed constitution, are much fewer than may have been
imagined; that they are counterbalanced by considerable objects of saving; that that,
while it is questionable on which side of the scale will preponderate, it is certain that a
government less expensive would be incompetent to the purposes of the union.