Article 1, Section 9, Clause 3

Document 10

James Iredell, Marcus, Answers to Mr. Mason's Objections to the New Constitution

1788Pamphlets 368

My ideas of liberty are so different from those of Mr. Mason, that in my opinion this very prohibition is one of the most valuable parts of the new constitution. Ex post facto laws may sometimes be convenient, but that they are ever absolutely necessary I shall take the liberty to doubt, till that necessity can be made apparent. Sure I am, they have been the instrument of some of the grossest acts of tyranny that were ever exercised, and have this never failing consequence, to put the minority in the power of a passionate and unprincipled majority, as to the most sacred things, and the plea of necessity is never wanting where it can be of any avail. This very clause, I think, is worth ten thousand declarations of rights, if this, the most essential right of all, was omitted in them. A man may feel some pride in his security, when he knows that what he does innocently and safely to-day in accordance with the laws of his country, cannot be tortured into guilt and danger tomorrow. But if it should happen, that a great and overruling necessity, acknowledged and felt by all, should make a deviation from this prohibition excusable, shall we not be more safe in leaving the excuse for an extraordinary exercise of power to rest upon the apparent equity of it alone, than to leave the door open to a tyranny it would be intolerable to bear? In the one case, every one must be sensible of its justice, and therefore excuse it; in the other, whether its exercise was just or unjust, its being lawful would be sufficient to command obedience. Nor would a case like that, resting entirely on its own bottom, from a conviction of invincible necessity, warrant an avowed abuse of another authority, where no such necessity existed or could be pretended.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 3, Document 10
The University of Chicago Press

Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, Published during Its Discussion by the People, 1787--1788. Brooklyn, 1888. Reprint. New York: De Capo Press, 1968.

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