817. BILL OF RIGHTS, Demand for.—
I sincerely rejoice at the acceptance of our
new Constitution by nine States. It is a
good canvas on which some strokes only
want retouching. What these are, I think
are sufficiently manifested by the general
voice from north to south, which calls for a
bill of rights. It seems pretty generally understood
that this should go to juries, habeas
corpus, standing armies, printing, religion,
and monopolies. I conceive there may be difficulty
in finding general modifications of
these, suited to the habits of all the States.
But if such cannot be found, then it is better
to establish trials by jury, the right of habeas
corpus, freedom of the press, and freedom of
religion, in all cases, and to abolish standing
armies in time of peace, and monopolies in all
cases, than not to do it in any. The few
cases wherein these things may do evil, cannot
be weighed against the multitude wherein
the want of them will do evil. In disputes
between a foreigner and a native, a trial by
jury may be improper. But if this exception
cannot be agreed to, the remedy will be to
model the jury by giving the mediatas linguæ
in civil as well as criminal cases. Why suspend
the habeas corpus in insurrections and
rebellions? The parties who may be arrested,
may be changed instantly with a well-defined
crime; of course, the judge will remand them.
If the public safety requires that the government
should have a man imprisoned on less
probable testimony in this than in other emergencies,
let him be taken and tried, and retaken
and retried, while the necessity continues,
only giving them redress against the government,
for damages. Examine the history
of England. See how few of the cases of the
suspension of the habeas corpus law have
been worthy of that suspension. They have
been either real treason, wherein the parties
might as well have been charged at once, or
sham plots, where it was shameful they
should ever have been suspected. Yet for the
few cases wherein the suspension of the
habeas corpus has done real good, that operation
is now become habitual, and the mass of
the nation almost prepared to live under its
constant suspension. A declaration, that the
Federal government will never restrain the
presses from printing anything they please,
will not take away the liability of the printers
for false facts printed. The declaration, that
religious faith shall be unpunished, does not
give impunity to criminal acts, dictated by
religious error. The saying there shall be no
monopolies, lessens the incitements to ingenuity,
which is spurred on by the hope of a
monopoly for a limited time, as of fourteen
years; but the benefit of even limited monopolies
is too doubtful to be opposed to that
of their general suppression. If no check can
be found to keep the number of standing
troops within safe bounds, while they are tolerated
as far as necessary, abandon them altogether;
discipline well the militia, and
guard the magazines with them. More than
magazine guards will be useless if few, and
dangerous if many. No European nation can
ever send against us such a regular army as
we need fear; and it is hard if our militia
are not equal to those of Canada or Florida.
My idea then, is that though proper exceptions
to these general rules are desirable, and
probably practicable, yet if the exceptions
cannot be agreed on, the establishment of the
rules in all cases will do ill in very few. I
hope, therefore, a bill of rights will be formed,
to guard the people against the Federal Government,
as they are already guarded against
their State governments in most instances.—
To James Madison. Washington ed. ii, 445.
Ford ed., v, 45.
(P.
July. 1788)
