New York Journal
November 15, 1787
Sir, Your speech has varnished an iron trap, bated with some illustrious names, to catch the liberties of the people. And this you are pleased to call a constitution—”the best form of government that wasever offered to the world.” May Heaven then have mercy on the world and on us. And in this prayer, I am persuaded, you will join me when you come to consider temperately, the unbounded powers given to this best of all possible governments; and then recollect, from your reading, what horrible abuses have grown from too unlimited a confidence of the people in their rulers. It is always both easier and safer, to add to powers, which are found to be insufficient, than to recall those which are injuriously large. This is a maxim, which no people, who mean to be free, should ever forget. While the people have something to give, they will be respected by their rulers. When with Cappadocian baseness, they resign all at once, they will be deemed fit only to be hewers of wood and drawers of water.
In my former papers, I have shewn, that the freedom of the press is left at the mercy of the proposed government—that the sacred trial by jury, in civil cases, is at best doubtful; and in all cases of appeal expressly taken away. In equal insecurity, or rather equally at mercy, are we left as to—liberty of conscience. We find nothing that regards it, except the following;—”but no religious test shall ever be required as a qualification to any office or public trust under the United States.” This exception implies, and necessarily implies, that in all other cases whatever liberty of conscience may be regulated. For, though no such power is expressly given, yet it is plainly meant to be included in the general powers, or else this exception would have been totally unnecessary—For why should it be said, that no religious test should be required as a qualification for office, if no power was given or intended to be given to impose a religious test of any kind? Upon the omission of the trial by jury in civil cases, you observe—”when this subject was in discussion, we were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to trial by jury differed in the different states, it was therefore impracticable on that ground to have made a general rule.”—because the extent of the trial by jury varied in the different states, therefore it was proper to abolish it in all. For what else can your words—”it was impracticable to have made a general rule” mean?—If ever the rule is made, it must be general. And if this is impracticable—it surely follows, that in the foederal court we must go without it in civil cases. What sense is there in supposing, that what, for the reasons you alledge, was impracticable with the Convention, will be practicable with the Congress? What faculty can the one body have more than the other, of reconciling contradictions? But the sophistry of this excuse consists in the word made—make you might not, but surely nothing hindered your proposing the general rule, which, if approved by the several state Conventions, would make the rule. You have made nothing. You have only proposed. It rests with the several conventions, to make your propositions, rules. It is not possible to say, that the Convention could not have proposed, that there should be one similar general mode of trial by jury in the Foederal court in all cases whatever. If the states would not have acceded to the proposition, we should only be where we are. And that this trial by jury is best, even in courts where the civil law process now prevails, I think no unbigoted man can doubt. Judge Blackstone is so explicit on this head, that I need only quote him to enforce conviction on every unprejudiced mind.—”This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law; where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. Where an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken. Besides the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had on any other method of trial. Nor is the presence of the judge, during the examination, a matter of small importance; for besides the respect, &c. with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence, have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike, when their depositions are reduced to writing and read to the judge, in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered as from the matter of it. These are a few of the advantages attending this way of giving testimony oretenus; which was also, indeed, familiar among the ancient Romans.”
They who applaud the practice of civil law courts, must either have seen very little of such practice not to know that it is liable to infinite fraud, corruption, and oppression. As far as it prevails in the English system of jurisprudence, from which we derive ours, it is a remnant of ecclesiastical tyranny. The free and pure part of the system, that is the common law courts, have ever cautiously guarded against its encroachments, and restrained its operation. All great judges have reprobated it, except Lord Mansfield. He indeed, has been as desirious of extending it in England, as he was of extending parliamentary power into America; and with the same view—to establish tyranny. This noble Lord’s principles, if we may judge from the proposed constitution, has too many admirers in America.
But I shall be told, that almost all the nations in Europe have adopted the civil law. This is true; and it is equally true, that almost all European nations have adopted arbitrary power with the civil law. This ought to be a warning to us how we admit it, even as England has done. It would never have been admitted there, but from the ecclesiastical influence in the days of superstition. This, thank Heaven, is now no more; and I sincerely wish its offspring was also extinct.
I have been thus particular on the subject of civil law, to shew how little propriety there was in leaving it upon as respectable a foot, as the common law, in civil cases. In fact, the constitution leaves them both to shift for themselves, in original process, and in appeal seems to favor the former by placing both law and fact, in the arbitrament of the judges.
Upon standing armies, sir, your professional dexterity has not abandoned you. The Constitution proposes to give the power of raising and supporting armies—and this without any limitation as to number; and to appropriate money to that object for two years at a time. This you justify by saying, that you “do not know a nation in the world which has not found it necessary and useful to maintain the appearance of strength, in a season of profound tranquility:” your knowledge then, sir, has not extended to free nations. Your phraseology, it is true, is somewhat equivocal; but unless by the term, appearance of strength, we understand, a standing army, we must suppose you to have meant a disingenuous evasion. Your reading might have informed you, sir,—that the Grecian republics, while free, never kept up any standing army—that the Roman republic, while free, never kept up a standing army, but that with them, a standing army and tyranny were co-eval, and concomitant—that in the free Swiss Cantons, no standing army, was ever, or is now permitted; no, sir, in all these great and glorious republics, though surrounded with enemies, their military array was occasional, or at the utmost, annual; nor was there formerly, nor is there now, in the Swiss Cantons, any more appearance of strength kept up in time of peace, than their militia gives: and yet they are free and formidable.
You say a standing army has always been, “a topic of popular declamation.” Is it indeed nothing more, sir? Is that which all free nations have studiously avoided, as the rock on which their liberties would suffer shipwreck; that which in fact, is the source and security of tyranny; that which all great political writers concur in condemning; that which has animated the ardor, and inflamed the eloquence of the first orators in the two houses of parliament, in Great-Britain—that which all the art and influence of the crown could never obtain from the people for more than a year—is all that, sir, nothing more than a topic of popular declamation? Is it surprising, that such knowledge, and such sentiments, as this declaration holds out, should have given us such a constitution? But the weightiest reason is, that without a standing army, “the government must declare war, before they are prepared to carry it on.” This is without question a most warlike paragraph: whether we are to invade Great-Britain, France, Spain, Portugal, or all together, under the new constitution, and with the standing army it has given, you have not been pleased to inform us. To do this, a navy too will be necessary, and I see no provision for that: however, I suppose that, as well as every thing else, is included in the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing, and all other powers vested by this constitution, in the government of the United States, or in any department or officer thereof.” Let then the people rightly understand, that one blessing of the constitution will be, the taxing them to support fleets and armies to conquer other nations, against whom the ambition of their new rulers may declare war.