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abolished * by that plan; and that there are great, if not in. surmountable difficulties in the way of making any precise and proper provision for it, in a constitution for the United States.
The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit, that the changes which are continually happening in the affairs of society, may render a different mode of determining questions of property, preferable in many cases, in which that mode of trial now prevails. For my own part, I acknowledge myself to be convinced that, even in this state, it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all roasonable men, that it ought not to obtain in all cases. Tho examples of innovations which contract its ancient limits, as well in these states as in Great Britain, afford a strong presumption that its former extent has been found inconvenient; and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it is equally so in the state of Connecticut; and yet it may be safely affirmed, that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added, that these encroachments have generally, originated with the men who endeavour to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles
* Vide No. LXXXI. in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted.
to arrest them in a favourite career. The truth is, that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than aro commonly ascribed to them; and the want of them, will never be with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good govern. ment.
It cortainly sounds not a little harsh and extraordinary to affirm, that there is no security for liberty in a constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either.
NEW YORK, JULY 29 AND AUGUST 8, 12, 1788
CONCERNING SEVERAL MISCELLANEOUS OBJECTIONS.
In the course of the foregoing review of the constitution, I have endeavoured to answer most of the objections which have appeared against it. There remain, however, a few which either did not fall naturally under any particular head, or were for gotten in their proper places. These shall now be discussed : but as the subject has been drawn into great length, I sball so far consult brevity, as to comprise all my observations on these miscellaneous points in a single paper.
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
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. 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, thoy 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 privilegos 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 tho first I answor, 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 publio 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, accopt of any prosent, 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 bave 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."
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 probibition 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 bereavo a man of life (says he) or by violence to confiscate bis 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 striking, and therefore a more dangerous engine of arbitrary government.” And as 3 remedy for this fatal evil, he is overy where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place ho calls “the BULWARK of the British constitution." +
Nothing noed be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the cornor stono of ropublican govornmont; for so long as thoy 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 pro. visions as the legislature shall from time to time make concern
* Vide Blackstone's Commentaries, vol. 1, p. 136.