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For the security of life, in criminal prosecutions, the bills of fights of most of the states have
declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge
brought against him; he shall not be compelled to accuse, or furnish evidence against himself—The witnesses
against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it
is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen.
Are not provisions of this kind as necessary in the general government, as in that of a particular state?
The powers vested in the new Congress extend in many cases to life; they are authorised to provide for
the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save
only, that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial
shall be in the state where the said crimes shall have been committed." No man is secure of a trial
in the county where he is charged to have committed a crime; he may be brought from Niagara to New-York,
or carried from Kentucky to Richmond for trial for an offence, supposed to be committed. What security
is there, that a man shall be furnished with a full and plain description of the charges against him?
That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against
him face to face, or that he shall be fully heard in his own defence by himself or counsel?
For the security of liberty it has been declared, "that excessive bail should not be required, nor
excessive fines imposed, nor cruel or unusual punishments inflicted—That all warrants, without oath or
affirmation, to search suspected places, or seize any person, his papers or property, are grievous and
oppressive."
These provisions are as necessary under the general government as under that of the individual states;
for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting
punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as
the other.
For the purpose of securing the property of the citizens, it is declared by all the states, "that
in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best
securities of the rights of the people, and ought to remain sacred and inviolable."
Does not the same necessity exist of reserving this right, under this national compact, as in that of
these states? Yet nothing is said respecting it. In the bills of rights of the states it is declared,
that a well regulated militia is the proper and natural defence of a free government—That as standing
armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept
under strict subordination to, and controuled by the civil power.
The same security is as necessary in this constitution, and much more so; for the general government will
have the sole power to raise and to pay armies, and are under no controul in the exercise of it; yet nothing
of this is to be found in this new system.
I might proceed to instance a number of other rights, which were as necessary to be reserved, such as,
that elections should be free, that the liberty of the press should be held sacred; but the instances
adduced, are sufficient to prove, that this argument is without foundation.—Besides, it is evident, that
the reason here assigned was not the true one, why the framers of this constitution omitted a bill of
rights; if it had been, they would not have made certain reservations, while they totally omitted others
of more importance. We find they have, in the 9th section of the 1st article, declared, that the writ
of habeas corpus shall not be suspended, unless in cases of rebellion—that no bill of attainder, or expost
facto law, shall be passed—that no title of nobility shall be granted by the United States, &c. If
every thing which is not given is reserved, what propriety is there in these exceptions? Does this constitution
any where grant the power of suspending the habeas corpus, to make expost facto laws, pass bills of attainder,
or grant titles of nobility? It certainly does not in express terms. The only answer that can be given
is, that these are implied in the general powers granted. With equal truth it may be said, that all the
powers, which the bills of right[s], guard against the abuse of, are contained or implied in the general
ones granted by this constitution.
So far it is from being true, that a bill of rights is less necessary in the general constitution than
in those of the states, the contrary is evidently the fact.—This system, if it is possible for the people
of America to accede to it, will be an original compact; and being the last, will, in the nature of things,
vacate every former agreement inconsistent with it. For it being a plan of government received and ratified
by the whole people, all other forms, which are in existence at the time of its adoption, must yield to
it. This is expressed in positive and unequivocal terms, in the 6th article, "That this constitution
and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States, shall be bound thereby, any thing in the
constitution, or laws of any state, to the contrary notwithstanding.
"The senators and representatives beforementioned, and the members of the several state legislatures,
and all executive and judicial officers, both of the United States, and of the several states, shall be
bound, by oath or affirmation, to support this constitution."
It is therefore not only necessarily implied thereby, but positively expressed, that the different state
constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the
laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the
authority of the United States; of what avail will the constitutions of the respective states be to preserve
the rights of its citizens? Should they be plead, the answer would be, the constitution of the United
States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial
of- ficers, whether of the general or state governments, are bound by oath to support it. No priviledge,
reserved by the bills of rights, or secured by the state government, can limit the power granted by this,
or restrain any laws made in pursuance of it. It stands therefore on its own bottom, and must receive
a construction by itself without any reference to any other—And hence it was of the highest importance,
that the most precise and express declarations and reservations of rights should have been made.
This will appear the more necessary, when it is considered, that not only the constitution and laws made
in pursuance thereof, but all treaties made, or which shall be made, under the authority of the United
States, are the supreme law of the land, and supersede the constitutions of all the states. The power
to make treaties, is vested in the president, by and with the advice and consent of two thirds of the
senate. I do not find any limitation, or restriction, to the exercise of this power. The most important
article in any constitution may therefore be repealed, even without a legislative act. Ought not a government,
vested with such extensive and indefinite authority, to have been restricted by a declaration of rights?
It certainly ought.
So clear a point is this, that I cannot help suspecting, that persons who attempt to persuade people,
that such reservations were less necessary under this constitution than under those of the states, are
wilfully endevouring to deceive, and to lead you into an absolute state of vassalage.
Brutus.
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