The Convention, according to the order of the day, again resolved itself into a Committee of the whole Convention, to take into farther consideration, the proposed plan of Government—Mr. Wythe in the Chair.
(The first and second sections still under consideration.)
Governor Randolph—Mr. Chairman—I was restrained yesterday by the lateness of the day from making those observations which I intended— to make in answer to the Honorable Gentleman who had gone before me. I shall now resume that subject. I hope we shall come at last to a decision. I shall not forever wander from the point, nor transgress the rules of the House; but after making answer to him, shall go on in regular order.
He observed that the only question was with respect to previous and subsequent amendments. Were this the only question, Sir, I am sure this inconsiderable matter would not long retard a decision. I conceive the preservation of the Union to be a question of great magnitude. This must be the peculiar object of my attention, unless I depart from that rule which has regulated my conduct since the introduction of federal measures.
Suppose, contrary to my expectation, this Convention should propose certain amendments previous to her ratification; mild and pliant as those States may be, who have received it unanimously; flexible as those may be, who have adopted it by a majority; I rather argue from human nature that they will not recede from their resolutions to accommodate our caprice. Is there no jealousy existing between the States? They discover no superiority in anyone State, of arrogating to itself a right to dictate what ought to be done. They would not see the reasons of such amendments, for some amendments in themselves are really dangerous. The same reasons could not be impressed on all the States.1
I shall mention one example. I shall suppose, for instance, that we shall propose as an amendment, that the President shall have a Council. I conceive a Council to be injurious to the Executive. The Counsellors will either impede and clog the President, or, if he be a man of dexterity, they will be governed by him. They will also impair his responsibility. Is it probable that all the other States would think alike on the subject, or agree to such an alteration? As there is a mode in the Constitution itself to procure amendments, not by reference to the people, but by the interposition of the State Legislature—Will the people of Virginia bind themselves not to enter into the Union till amendments shall have been obtained? I refer it to any Gentleman here, whether this may not entirely exclude us from the Union.
The Honorable Gentleman then told us, that Maryland held out, and that there can be no danger from our holding out of the Union; that she refused to come into the Confederation until the year 1781, when she was pressed by the then Congress. Is this a proper comparison? The fear of the British army and navy kept the States together. This fear induced that State to come into the Union then, otherwise the Union would have been destroyed. We are also told that Vermont held out. His information is inaccurate. Pardon me for saying that it is not to be found in the history of those times. The right to that territory was long in dispute between New York and Connecticut. The inhabitants took that opportunity of erecting themselves into a State. They pressed Congress for admission into the Union. Their solicitations were continually opposed till the year 1781, when a kind of assent was given. Can it be said from this, that the people of Vermont held out against the Confederation of twelve States? Were they sufficiently numerous and wealthy to do so? Virginia is said to be able to stand by herself From her situation she has cause to fear. She has also cause to fear from her inability to raise an army, a navy or money. I contend that she is not able to stand by herself I am sure that everyman who comes from the exposed parts of this country is well convinced of this truth. As these have been enumerated, it would be useless to go over them again. He then told us, that an error in Government never can be removed. I will acknowledge with him, that there are Governments in Europe, whereof the defects have a long time been unaltered, and are not easily changed. We need not go farther than the war to find a willing relinquishment of power. Look at the Confederation, you will there find such a voluntary relinquishment. View the Convention at Annapolis: The object of its delegation involved in its nature some relinquishment of power. It produced this effect all the States, except Rhode Island, agreed to call a general Convention, to revise the Confederation and invest Congress with more power. A general Convention has been called—It has proposed a system which concedes considerable powers to Congress. Eight States have already assented to this concession. After this, can we say, that men will not voluntarily relinquish power? Contrast this country with Scotland, blessed with Union. The circumstances of the two countries are not dissimilar. View Scotland—That country is greatly benefited by Union. It wouldnot be now in its present flourishing situation without the auspices of England. This observation brings us to the necessity of Union.
Were we not to look to futurity, have we nothing to fear from the present state of Europe? We are exposed at sea. The Honorable Gentleman tells us, we have no hostility to fear from that quarter. That our Ambassador at Paris [Thomas Jefferson] would have informed us if there were any combustibles preparing. If he has not done any such thing, it is no conclusive evidence of safety. Nations have passions like men. It is the disposition of nations to attack where there is a demonstrable weakness. Are you weak? Go to history, it will tell you, you will be insulted. One insult will produce another, till at last it produces a partition. So, when they tell us that there is no storm gathering, they ought to support their allegations by some probable evidence. The Honorable Gentleman then told us, that armies do not collect debts. But armies make reprisals. If the debts which we owe, continue on the disgraceful footing they have been on hitherto, without even the payment of interest, we may well expect such reprisals. The seizure of our vessels in foreign ports must be the certain consequences of the continuance of such a disgraceful conduct. He then informed us, that no danger was to be apprehended from Spain—That she trembles for Mexico and Peru. That nation, Sir, is a powerful nation, and has immense resources. What will she be when united with France and other nations who have cause of complaint against us?
Mr. Chairman, Maryland seems too to be disregarded. The loss of the Union would not bring her arms upon our heads—Look the Northern Neck. If the Union is dissolved, will it adhere to Virginia? Will the people of that place sacrifices, it is only a report circulated through the town, that he wished nine States to adopt, and the others to reject it, in order to get amendments. Which is the ninth State to introduce the Government? That illustrious citizen tells you, that he wishes the Government to be adopted by nine States, to prevent a schism in the Union. This, Sir, is my wish. I will go heart and hand to obtain amendments, but I will never agree to the dissolution of the Union. But unless a ninth State will accede, this must inevitably happen. No doubt he wished Virginia to adopt. I wish not to be bound by any man's opinion; but admitting the authority which the Honorable Gentleman has produced to be conclusive, it militates against himself. Is it right to adopt? He says, no, because there is a President. I wish he was ineligible after a given number of years. I wish also some other changes to be made in the Constitution. But am I therefore obliged to run the risk of losing the Union, by proposing amendments previously, when amendments without that risk can be obtained afterwards? Am I to indulge capricious opinions so far as to lose the Union? The friends of the Union will see how far we carry our attachment to it, and will therefore concur with our amendments.2
The Honorable Gentleman has told us, that Holland is ruined by a Stadtholder and a Stadtholder's wife. I believe this republic is much indebted to that execrated Stadtholder for her power and wealth. Recur to the history of Holland, and you will find that country never could have resisted Spain had it not been for the Stadtholder. At those periods when they had no Stadtholder their Government was weak and their public affairs deranged. Why has this been mentioned? Was it to biass our minds against the Federal Executive?
Are we to have no Executive at all, or are we to have eight or ten? An Executive is as necessary for the security of liberty and happiness as the two other branches of Government. Every State in the Union has an Executive. Let us consider whether the Federal Executive be wisely constructed. This is a point in which the Constitution of every State differs widely as to the mode of electing their Executives, and as to the time of continuing them in office. In some States the Executive is perpetually eligible. In others he is rendered ineligible after a given period. They are generally elected by the Legislature. It cannot be objected to the Federal Executive, that the power is executed by one man. All the enlightened part of mankind agree that the superior dispatch, secrecy, and energy with which one man can act, renders it more politic to vest the power of executing the laws in one man, than in any number of men.3
How is the President elected? By the people—on the same day throughout the United States—by those whom the people please. There can be no concert between the electors. The votes are sent sealed to Congress.4
What are his powers? To see the laws executed. Every Executive in America has that power.
He is also to command the army—This power also is enjoyed by the Executives of the different States.5
He can handle no part of the public money except what is given him by law.
At the end of four years he may be turned out of his office.6
If he misbehaves he may be impeached, and in this case he will never be re-elected.7
I cannot conceive how his powers can be called formidable. Both Houses are a check upon him. He can do no important act without the concurrence of the Senate. In England the sword and the purse are in different hands.—The King has the power of the sword—And the purse is in the hands of the people alone. Take a comparison between this and the Government of England. It will prove in favour of the American principle.
In England the King declares war. In America,Congress must be consulted.—8
In England, Parliament gives money. In America Congress does it. There are consequently more powers in the hands of the people, and greater checks upon the Executive here, than in England. Let him pardon me, when I say he is mistaken in passing an eulogium on the English Government to the prejudice of this plan. Those checks which he says are to be found in the English Government, are also to be found here. Our Government is founded upon real checks. He ought to shew there are no checks in it. Is this the case? Who are your Representatives? They are chosen by the people for two years. Who are your Senators? They are chosen by the Legislatures, and a third of them go out of the Senate at the end of every second year. They also may be impeached. There are no better checks upon earth. Are there better checks in the Government of Virginia? There is not a check in the one that is not in the other. The difference consists in the length of time, and in the nature of the objects. Any man may be impeached here, so he may there. If the people of Virginia can remove their Delegates for misbehaviour, by electing other men at the end of the year; so in like manner, the Federal Representatives may be removed at the end of two, and the Senators at the end of six years. The Honorable Gentleman has praised the Virginian Government. We can prove that the Federal Constitution is equally excellent The Legislature of Virginia may conceal their transactions as well as the General Government. There is no clause in the Constitution of Virginia to oblige its Legislature to publish its proceedings at any period. The clause in this Constitution which provides for a periodical publication, and which the Honorable Gentleman reprobates so much, renders the Federal Constitution superiour to that of Virginia in this respect. The expression, from time to time, renders us sufficiently secure—It will compel them to publish their proceedings as often as it can conveniently and safely be done; and must satisfy every mind, without an illiberal perversion of its meaning. His bright ideas are very much obscured, by torturing the explication of words. His interpretation of elections must be founded on a misapprehension.
The Constitution says, that "the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators."9
It says in another place, "that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." Who would have conceived it possible to deduce from these clauses, that the power of election was thrown into the hands of the rich? As the electors of the Federal Representatives are to have the same qualifications with those of the Representatives of this State Legisla their safety for us? How are we to retain them? By force of arms? Is this the happy way he proposes for leaving us out of the Union? We are next informed, that there is no danger from the borders of Maryland and Pennsylvania; and that my observations upon the frontiers of England and Scotland, are inapplicable. He distinguishes republican from monarchical borderers—and ascribes pacific meekness to the former, and barbarous ferocity to the latter. There is as much danger, Sir, from republican borderers as from any other. The danger results from the situation of borderers, and not from the nature of the Government under which they may live. History will shew, that as much barbarity and cruelty have been committed upon one another by republican borderers, as by any other. We are borderers upon three States, two of which are ratifying States. I therefore repeat, Sir, that we have danger to apprehend from this quarter. As to the people's complaints of their Government, the Gentleman must either have misunderstood me, or went over very slightly what I said of the Confederation. He spoke of the Constitution of Virginia, concerning which I said nothing. The Confederation, Sir, on which we are told we ought to trust our safety, is totally void of coercive power and energy. Of this the people of America have been long convinced; and this conviction has been sufficiently manifested to the world. Of this I spoke, and I now repeat, that if we trust to it, we shall be defenceless. The General Government ought to be vested with powers competent to our safety, or else the necessary consequence must be, that we shall be defenceless. The Honorable Gentleman [Patrick Henry] tells us, that if the project at Albany for the Colonial consolidation, as he terms it, had been completed, it would have destroyed every union and happiness. What has that to do with this paper? It tells us what the present situation, of America is. Can any man say, he could draw a better picture of our situation than that paper? He says, that by the completion of that project, the King of Great-Britain might have bound us so tight together, that resistance would have been ineffectual. Does it not tell us, that Union is necessary? Will not our united strength be more t. competent to our defence, against any assault, than the force of a part? If in their judgment alone, who could decide on it, it was judged insufficient to secure their happiness and prosperity, why say, that that project would have destroyed us? But the Honorable Gentleman again recurs to his beloved requisitions, on which he advises us to trust our happiness. Can any thing be more imprudent, than to put the General Government on so humiliating and disgraceful a footing? What are they but supplications and intreaties to the States to do their duty? Shall we rely on a system of which every man knows the inefficacy? One cannot conceive any thing more contemptible than a Government which is forced to make humble applications to other Governments, for the means of its common support—which is driven to apply for a little money to carry on its administration a few months.
After the total incapacity of the Confederation to secure our happiness, has been fully experienced; what will be the consequence, if we reject this Constitution? Shall we recur to separate Confederacies? The Honorable Gentleman acknowledges them to be evils which ought not to be resorted to but on the last necessity—They are evils of the first magnitude.10
Permit me to extract out of the Confederation of Albany, a fact of the highest authority, because drawn from human nature; which clearly demonstrates the fatal impolicy of separate confederacies.— (Here he made a quotation to that effect)—If there is a Gentleman here, who harbours in his mind the idea of a separate confederacy, I beg him to consider the consequence. Where shall we find refuge in the day of calamity? The different confederacies will be rivals in power and commerce, and therefore will soon be implacable enemies of one another. I ask if there be any objection to this system, that will not come with redoubled energy against any other plan? See the defects in this Constitution, and examine if they do not appear with ten-fold force in separate confederacies.
After having acknowledged the evil tendency of separate confederacies, he recurs to this, that this country is too extensive for this system. If there be an Executive dependent for its election on the people; a judiciary which will administer the laws with justice, no extent of country can be too great for a republic.11
Where is there a precedent to prove that this country is too extensive for a Government of this kind? America cannot find a precedent to prove this. Theoretic writers have adopted a position, that extensive territories will not admit of a Republican Government. These positions were laid down before the science of Government was as well understood as it is now. Where would America look for a precedent to warrant her adoption of that position. If you go to Europe before arts and sciences had arrived at their present perfection, no example worthy of imitation can be found. The history of England from the reign of Henry the 7th; of Spain, since that of Charles the 5th; and of France, since that of Francis the 1st, prove, that they have greatly improved in the science of politics since that time. Representation, the source of American liberty, and English liberty, was a thing not understood in its full extent till very lately. The position I have spoken of was founded upon an ignorance of the principles of representation. Its force must be now done away, as this principle is so well understood. If laws are to be made by the people themselves, in their individual capacities, it is evident, that they cannot conveniently assemble together for this purpose, but in a very limited sphere; but if the business of legislation be transacted by Representatives, chosen periodically by the people, it is obvious that it may be done in any extent of country. The experience of this Commonwealth, and of the United States, proves this assertion.
Mr. Chairman—I am astonished that the rule of the House to debate regularly has not been observed by Gentlemen.—Shall we never have order? I must transgress that rule now, not because I think the conduct of Gentlemen deserves imitation, but because the Honorable Gentleman ought to be answered. In that list of facts with which he would touch our affections, he has produced a name, (Mr. Jefferson) which will ever be remembered with gratitude by this Commonwealth. I hope that his life will be continued, to add, by his future actions, to the brilliancy of his character.—Yet, I trust that his name was not mentioned to influence any member of this House. Notwithstanding the celebrity of his character, his name cannot be used as authority against the Constitution. I know not his authority. I have had no letter from him. As far as my information goeture; or in other words, as the electors of the one are to be electors of the other; his suggestion is unwarrantable, unless he carries his supposition farther, and says, that Virginia will agree to her own suicide, by modifying elections in such a manner as to throw them into the hands of the rich. The Honorable Gentleman has not given us a fair object to be attacked; he has not given us any thing substantial to be examined. It is also objected, that the trial by jury, the writ of habeas corpus, and the liberty of the press, are insecure. But I contend that the habeas corpus is at least on as secure and good a footing as it is in England. In that country it depends on the will of the Legislature. That privilege is secured here by the Constitution, and is only to be suspended in cases of extreme emergency. Is not this a fair footing? After agreeing that the Government of England secures liberty, how do we distrust this Government? Why distrust ourselves? The liberty of the press is supposed to be in danger. If this were the case, it would produce extreme repugnancy in my mind. If it ever will be suppressed in this country, the liberty of the people will not be far from being sacrificed. Where is the danger of it? He says that every power is given to the General Government, that is not reserved to the States. Pardon me if I say the converse of the proposition is true. I defy anyone to prove the contrary. Every power not given it by this system is left with the States. This being the principle, from what part of the Constitution can the liberty of the press be said to be in danger?—
(Here his Excellency read the 8th section of the first article, containing all the powers given to Congress.)—Go through these powers, examine every one, and tell me if the most exalted genius can prove that the liberty of the press is in danger.12
The trial by jury is supposed to be in danger also—It is secured in criminal cases—13
But supposed to be taken away in civil cases. It is not relinquished by the Constitution—It is only not provided for. Look at the interest of Congress to suppress it. Can it be in any manner advantageous for them to suppress it? In equitable cases it ought not to prevail, nor with respect to admiralty causes; because there will be an undue leaning against those characters of whose business Courts of Admiralty will have cognizance. I will rest myself secure under this reflection, that it is impossible for the most suspicious or malignant mind, to shew that it is the interest of Congress to infringe on this trial by jury.14
Freedom of religion is said to be in danger. I will candidly say, I once thought that it was, and felt great repugnance to the Constitution for that reason. I am willing to acknowledge my apprehensions removed—And I will inform you by what process of reasoning I did remove them. Th15
e Constitution provides, that "the Senators and Representatives before mentioned, 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; but no religious test shall ever be required as a qualification to any office or public trust under the United States." It has been said, that if the exclusion of the religious test were an exception from the general power of Congress, the power over religion would remain. I inform those who are of this opinion, that no power is given expressly to Congress over religion.
The Senators and Representatives, members of the State Legislatures, and Executive and Judicial officers, are bound by oath, or affirmation, to support this Constitution.16
This only binds them to support it in the exercise of the powers constitutionally given it. The exclusion of religious tests is an exception from this general provision, with respect to oaths, or affirmations. Although officers, &c. are to swear that they will support this Constitution, yet they are not bound to support one mode of worship, or to adhere to one particular sect. It puts all sects on the same footing. A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States. I am a friend to a variety of sects, because they keep one another in order. How many different sects are we composed of throughout the United States? How many different sects will be in Congress? We cannot enumerate the sects that may be in Congress.—And there are so many now in the United States, that they will prevent the establishment of anyone sect in prejudice to the rest, and will forever oppose all attempts to infringe religious liberty. If such an attempt be made, will not the alarm be sounded throughout America? If Congress be as wicked as we are foretold they will, they would not run the risk of exciting the resentment of all, or most of the religious sects in America. The Judiciary is drawn upin terror—Here I have an objection of a different nature.—I object to the appellate jurisdiction as the greatest evil in it But I look at the Union—the object which guides me.—When I look at the Union, objects of less consideration vanish, and I hope that the inconvenience will be redressed, and that Congress will prohibit the appeal with respect to matters of fact. When it respects only matters of law, no danger can possibly arise from it. Can Congress have any interest in continuing appeals of matters of fact? If Pennsylvania has an interest in continuing it, will not Georgia, North-Carolina, South-Carolina, Virginia, New-York, and the Eastern States, have an interest in discontinuing it? What advantage will its continuance be to Maryland, New Jersey, or Delaware? Is there not an unanimity against it in Congress almost? Kentucky will be equally opposed to it Thus, Sir, all these will probably be opposed to one State. If Congress wish to aggrandise themselves by oppressing the people, the Judiciary must first be corrupted—No man says any thing against them—They are more independent than in England.
But they say, that the adoption of this system will occasion an augmentation of taxes. To object to it on this ground, is as much as to say—No Union—Stand by yourselves. An increase of taxes is a terror that no friend to the Union ought to be alarmed at. The impost must produce a great sum. The contrary cannot be supposed. I conceive the particular expence of particular States will be diminished, and that diminution will to a certain extent, support the Union. Either disunion, or separate confederacies, will enhance the expence. An Union of all the States will be, even on œconomical principles, more to the interest of the people of Virginia, than either separate confederacies or disunion. Had the States complied with the obligations, imposed upon them by the Confederation, this attempt would never have been made. The unequivocal experience we have had of their inefficacy, renders this change necessary. If Union be necessary for our safety, we ought not to address the avarice of this House. I am confident that not a single member of this Committee would be moved by such unworthy considerations. We are told that the people do not understand this Government. I am persuaded that they do not—not for the want of more time to understand it, but to correct them is representations of it-When I meditated an opposition to previous amendments marked the number of what appeared to me to be errors, and I wish to be subsequently removed. But its real errors have exaggerated-It has not met with a fair decision.-It must be acknowledged, that there are some evils in it which ought to be moved. But I am confident that such gross misrepresentations been made of it, that if carried before any intelligent men, they wonder at such glaring attempts to mislead, or at such absolute apprehension of the subject. Though it be not perfect, any government is better than the risk which Gentlemen wish us to run.-
Another construction he gives, is, that it is exclusively in the power of to arm the militia, and that the States could not do it if thought proper to neglect it. I am astonished how this idea could into the Gentleman's mind, whose acuteness no man doubts. How this be fairly deduced from the following clause-"To provide organizing, arming, and disciplining the militia; and for governing part of them as may be employed in the service of the United reserving to the States respectively, the appointment of the officers and the authority of training the militia according to the prescribed by Congress." He complains much of implication, but this case he has made use of it himself for his construction of clause, cannot possibly be supported without it. It is clear and evident that the pretended danger cannot result from this. Should Congress neglect to arm or discipline the militia, the are fully possessed of the power of doing it; for they are from it by no part of the Constitution. The sweeping clause, as called, is much dreaded. I find that I differ from several on this point. This formidable clause does not in the least increase powers of Congress. It is only inserted for greater caution, and prevent the possibility encroaching upon the powers of Congress. No sophistry will be permitted to be used to explain away any of powers-Nor can they possibly assume, any other power, but contained in the Constitution, without absolute usurpation. Another security, is, that if they attempt such an usurpation, the influence the State Governments, will stop it in the bud of hope. I know Government will be cautiously watched. The smallest assumption of power will be sounded in alarm to the people, and followed by an active opposition.17
I hope that my country men will keep against every arrogation of power. I shall take notice of what Honorable Gentleman said, with respect to the to provide for the general welfare. The meaning of this clause been perverted, to alarm our apprehensions.
The whole clause has not been read together. It enables Congress "to lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises, shall be uniform throughout the United States." The plain and obvious meaning of this, is, that no more duties, taxes, imposts and excises' shall be laid, than are sufficient to pay the debts and provide for the common defence and general welfare of the United States. If you mean to have a General Government at all, ought it not to be empowered to raise money to pay the debts, and advance the prosperity of the United States, in the manner that Congress shall think most eligible? What is the consequence of the contrary? You give it power by one hand, and take it away from it by the other.18
If it be defective in some parts, yet we ought to give due credit to those parts, yet which are acknowledged to be good.
Does not the prohibition of paper money merit our approbation? I approve of it because it prohibits tender laws, secures the widows and orphans, and prevents the States from impairing contracts.19
I admire that part which forces Virginia to pay her debts. If we recur to the Bill of Rights, which the Honorable Gentleman speaks so much of we will find that it recommends justice. Had not this power been given, my affection for it would not have been so great. When it obliges us to tread in the paths of virtue-When it takes away from the most influential man, the power of directing our passions to his own emolument, and of trampling upon justice, I hope to be excused when I say, that were it more objectionable than it is, I would vote for the Union.
Mr. Monro-Mr. Chairman-I cannot avoid expressing the great anxiety which I feel upon the present occasion-an anxiety that proceeds not only from an high sense of the importance of the subject, but from a profound respect for this august and venerable assembly. When we contemplate the fate that has befallen other nations; whether we cast our eyes back into the remotest ages of antiquity, or derive instruction from those examples which modern times have presented to our view; and observe how prone all human institutions have been to decay; how subject the best formed and wisely organized Governments have been to lose their checks and totally dissolve; how difficult it has been for mankind in all ages and countries, to preserve their dearest rights and best privileges, impelled as it were by an irresistable to fate into despotism: If we look forward to those prospects that sooner or later await our country, unless we shall be exempted from the fate of other nations; even to a mind, the most sanguine and benevolent, some gloomy apprehensions must necessarily croud upon it. This consideration is sufficient to teach us the limited capacity of the human mind; how subject the wisest men have been to error. For my own part, Sir, I come forward here not as the partizan of this or that side of the question; [but] to commend where the subject appears to me to deserve commendation; to suggest my doubts where I have any- to hear with candour the explication of others; and in the ultimate result, to act as shall appear for the best advantage of our common country.
The American States exhibit at present a new, and interesting spectacle to the eyes of mankind. Modern Europe, for more than twelve centuries past, has presented to view one of a very different kind. In all the nations of that quarter of the globe, there hath been a constant effort on the part of the people, to extricate themselves from the oppression of their rulers; but with us the object is of a very different nature-to establish the dominion of law over licentiousness-to encrease the powers of the national Government to such extent, and organize it in such manner, as to enable it to discharge its duties and manage the affairs of the States to the best advantage. There are two circumstances remarkable in our Colonial settlement: 1st, the exclusive monopoly of our trade. 2d, that it was settled by the Commons of England only. The revolution, in having emancipated us from the shackles of Great Britain, has put the entire Government in the hands of one order of people only-freemen; not of nobles and freemen. This is a peculiar trait in the character of this revolution. That this sacred deposit may be always retained there, is my most earnest wish and fervent prayer. That Union is the first object for the security of our political happiness, in the hands of gracious Providence, is well understood and universally admitted through all the United States. From New-Hampshire to Georgia, (Rhode-Island excepted) the people have uniformly manifested a strong attachment to the Union-This attachment has resulted from a persuasion of its utility and necessity. In short, this is a point so well known, that it is needless to trespass on your patience any longer about it. A recurrence has been had to history. Ancient and modern leagues have been mentioned to make impressions. Will they admit of any analogy with our situation? The same principles will produce the same effects. Permit me to take a review of those leagues which the Honorable Gentleman [James Madison] has mentioned,6 which are 1st, the Amphictionic Council-2d, the Achaen league-3d, the Germanic system-4th, Swiss cantons-5th, the United Netherlands-and 6th, the New-England Confederacy. Before I develope the principles of these leagues, permit me to speak of what must influence the happiness and duration of leagues. These principally depend on the following circumstances: 1st, the happy con construction of the Government of the members of the Union-2d, the security from foreign danger. For instance, Monarchies united would separate soon; Aristocracies would preserve their Union longer; but Democracies, unless separated by some extraordinary circumstance, would last forever. The causes of half the wars that have thinned the ranks of mankind, and depopulated nations, are, caprice, folly, and ambition: These belong to the higher orders of Governments, where the passions of one, or of a few individuals, direct the fate of the rest of the community. But it is otherwise with Democracies, where there is an equality among the citizens-and a foreign and powerful enemy, especially Monarch, may crush weaker neighbours. Let us see how far these positions are supported by the history of these leagues, and how far they apply to us. The Amphictionic Council consisted of three members, Sparta, Thebes, and Athens. What was the construction of these States? Sparta was a Monarchy more analogous to the Constitution of England, than any I have heard of in modern times. Thebes was a Democracy, but on different principles from modern Democracies. Representation was not known then. This is the acquirement of modern times. Athens like Thebes was generally Democratic, but sometimes changed. In these two States the people transacted their business in person; consequently they could not be of any great extent. There was a perpetual variance between the members of this confederacy and its ultimate dissolution was attributed to this defect. The weakest were obliged to call for foreign aid. And this precipitated the ruin of this confederacy. The Achaean league had more analogy to ours, and gives me great hopes that the apprehensions of Gentlemen with respect to our Confederacy are groundless. They were all Democratic and firmly united. What was the effect? The most perfect harmony and friendship subsisted between them, and they were very active in guarding their liberties. The history of that confederacy does not present us with those confusions and internal convulsions, which Gentlemen ascribe to all Governments of a confederate kind. The most respectable historians prove this confederacy to have been exempt from those defects.-(Here Mr. Monro read several passages in Polybius, tending to elucidate and prove the excellent structure of the Achaean league, and the consequent happy effects of this excellency) He then continued-This league was founded on Democratical principles, and from the wisdom of its structure continued a far greater length of time than any other. Its members, like our States, by our Confederation, retained their individual sovereignty, and enjoyed a perfect equality. What destroyed it? Not internal dissentions. They were surrounded by great and powerful nations-The Lacedemonians, Macedonians, and Ætolians. The Ætolians and Lacedemonians making war on them, they solicited the assistance of Macedon, who no sooner granted it, then she became their oppressor. To free themselves from the tyranny of the Macedonians, they prayed succour from the Romans, who after relieving them from their oppressors, soon totally enslaved them.
The Germanic body is a league of independent principalities. It has no analogy to our system. It is very injudiciously organized. Its members are kept together by the fear of danger from one another, and from foreign powers, and by the influence of the Emperor.
The Swiss cantons have been instanced also, as a proof of the natural imbecility of Federal Governments. Their league has sustained a variety of changes, and notwithstanding the many causes that tend to disunite them, they still stand firm. We have not the same causes of disunion, or internal variance that they have. The individual cantons, composing the league are chiefly Aristocratic. What an opportunity does this offer to foreign powers to disturb them, by bribing and corrupting their Aristocrats? It is well known, that their services have been frequently purchased by foreign nations. Their difference of religion has been a source of divisions and animosity between them, and tended to disunite them. This tendency has been considerably increased by the interference of foreign nations, the contiguity of their position to those nations rendering such interference easy. They have been kept together by the fear of those nations, and the nature of their association; the leading features of which are a principle of equality between the cantons, and the retention of individual sovereignty. The same reasoning applies nearly to the United Netherlands.-The other Confederacy which has been mentioned, had no kind of analogy to our situation.
From a review of these leagues, we find the causes of the misfortunes of those which have been dissolved, to have been a dissimilarity of structure in the individual members, the facility of foreign interference, and recurrence to foreign aid. After this review of those leagues, if we consider our comparative situation, we shall find that nothing can be adduced from any of them, to warrant a departure from a confederacy to a consolidation, on the principle of inefficacy in the former to secure our happiness. The causes which with other nations rendered leagues ineffectual and inadequate to the security and happiness of the people do not exist here. What is the form of our State Governments? They are all similar in their structure-perfectly Democratic. The freedom of mankind has found an asylum here, which it could find no where else. Freedom of conscience is enjoyed here in the fullest degree. Our States are not disturbed by a contrariety of religious opinions, and other causes of quarrels which other nations have. They have no causes of internal variance. Causes of war between the States have been represented in all those terrors, which a splendid genius and brilliant imagination can so well depict. But, Sir, I conceive they are imaginary-mere creatures of fancy. I will admit that there was a contrariety of sentiments; a contest of which I was a witness in some respect; a contest respecting the western unsettled lands. Every State having a charter for the lands within its Colonial limits, had its claim to such lands confirmed by the war. The other States contended that those lands belonged not to a part of the States, but to all. That it was highly reasonable and equitable, that all should participate in what had been acquired by the efforts of all. The progress of this dispute gave uneasiness to the true friends of America: But territorial claims may be now said to be adjusted. Have not Virginia, North-Carolina, and other States, ceded their claims to Congress? The disputes between Virginia and Maryland are also settled; nor is there an existing controversy between any of the States at present. Thus, Sir, this great source of public calamity has been terminated without the adoption of this Government. Have we any danger to fear from the European countries? Permit me to consider our relative situation in regard to f them, and to answer what has been suggested on the subject. Our situation is relatively the same to all foreign powers. View the distance between us and them-the wide Atlantic-an ocean 3000 miles across, lies between us. If there be any danger to these States, to be apprehended from any of those countries, it must be Great-Britain and Spain, whose colonies are contiguous to our country. Has there been any thing on the part of Great-Britain since the peace, that indicated a hostile intention towards us? Was there a complaint of a violation of treaty? She committed the first breach. Virginia instructed her delegation to demand a reparation for the negroes which had been carried awaycontrary to treaty. Being in Congress, I know the facts. The other States were willing to get some compensation for their losses as well as Virginia. New-York wished to get possession of the western posts situated within her territory. We wished to establish an amicable correspondence with that country, and to adjust all differences. The United States sent an Ambassador for this purpose. The answer sent was, that a compliance with the treaty on our part must precede it on , theirs. These transactions are well known in every State, and need hardly be mentioned. Certain it is, that Great-Britain is desirous of peace, and that it is her true interest to be in friendship with us: It is also so with Spain.
Another circumstance which has been dwelt upon, is, the necessity of the protection of commerce. What does our commerce require? Does it want extension and protection? Will treaties answer these ends? Treaties, Sir, will not extend your commerce. Our object is the regulation of commerce and not treaties. Our treaties with Holland, Prussia, and other powers, are of no consequence. It is not to the advantage of the United States, to make any compact with any nation with respect to trade. Our trade is engrossed by a country with which we have no commercial treaty. That country is Great-Britain. That monopoly is the result of the want of a judicious regulation on our part. It is as valuable and advantageous to them, on its present footing, nay more so, than it could be by any treaty. It is the interest of the United States to invite all nations to trade with them. To open their ports to all, and grant no exclusive privilege to any, in preference to others. I apprehend no treaty that could be made, can be of any advantage to us. If those nations opened any of their ports to us in the East or West-Indies, it would be of advantage to us; but there is no probability of this.20
France and Holland have been said to be threatening for the payment of the debts due to them. I understood, that Holland has added to her favours to us, by lending us other sums lately. This is a proof that she has no hostile intent against us, and that she is willing to indulge us. France has made no pressing demand. Our country has received from that kingdom, the highest proofs of favours which a magnanimous power can shew. Nor are there any grounds to suspect a diminution of its friendship. Having examined the analogy between the ancient leagues and our confederacy, and shewn that we have no danger to apprehend from Europe; I conclude, that we are in no danger of immediate disunion, but that we may calmly and dispassionately examine the defects of our Government, and apply such remedies as we shall find necessary. I proceed now to the examination of the Confederation, and to take a comparative view of this Constitution. In examining either a division into two heads is proper, viz: 1st, the form, and 2d, the powers of the Government I consider the existing system defective in both respects. Is the Confederation a band of Union sufficiently strong to bind the States together? Is it possessed of sufficient power to enable it to manage the affairs of the Union? Is it well organized, safe and proper? I confess that in all these instances, I consider it as defective-I consider it to be void of energy, and badly organized.
What are the powers which the Federal Government ought to have? I will draw the line between the powers necessary to be given to the Federal, and those which ought to be left to the State Governments. To the former I would give controul over the national affairs: To the latter I would leave the care of local interests. Neither the Confederation, nor this Constitution, answers this discrimination. To make the first a proper Federal Government, I would add to it one great power-I would give it an absolute controul over commerce. To render the system under consideration safe and proper, I would take from it one power only-I mean that of direct taxation. I conceive its other powers are sufficient without this. My objections to this power, are, that I conceive it to be unnecessary, impracticable under a Democracy; and if exercised, as tending to anarchy, or the subversion of liberty, and probably the latter. In the first place it is unnecessary, because exigencies will not require it. The demands and necessities of Government are now greater than they will be hereafter, because of the expences of the war in which we were engaged, which cost us the blood of our best citizens, and which ended so gloriously.
There is no danger of war, as I have already said. Our necessities will therefore in a short time be greatly diminished. What are the resources of the United States?
How are requisitions to be complied with? I know the Government ought to be so organized, as to be competent to discharge its engagements, and secure the public happiness. To enable it [to] do these things, I would give it the power of laying an impost, which is amply sufficient with its other means. The impost, at an early period, was calculated at near a million of dollars. If this calculation was well founded-If it was so much at five per centum, what will it not amount to, when the absolute controul of commerce will be in the hands of Congress? May we not suppose, that when the General Government will be able to lay what duties it may think proper, that the amount will be very considerable? There are other resources. The back lands have already been looked upon as a very important resource. When we view the Western extensive territory, and contemplate the fertility of the soil, the noble rivers which pervade it, and the excellent navigation that may be had there; may we not depend on this as a very substantial resource? In the third place, we have the resource of loans. This is a resource which is necessary and proper, and has been recurred to by all nations. The credit of our other resources will enable us to procure, by loans, any sums we may want. We have also in the fourth place, requisitions which are so much despised. These, Sir, have been often productive. As the demands on the States will be but for trivial sums, after Congress shall be possessed of its other great resources, is it to be presumed, that its applications will be despised? If the Government be well administered, or possess any part of the confidence of the people, is it to be presumed, that requisitions for trivial sums will be refused? I conclude, Sir, that they will be readily complied with; and that they, with the imposts, back lands, and loans, will be abundantly sufficient for all the exigencies of the Union.21
In the next place, it appears to me, that the exercise of the power of direct taxation, is impracticable in this country under a Democracy.
Consider the territory lying between the Atlantic ocean and the Mississippi. Its extent far exceeds that of the German empire. It is larger than any territory that ever was under anyone free Government. It is too extensive to be governed but by a despotic Monarchy. Taxes cannot be laid justly and equally in such a territory.
What are the objects of direct taxation? Will the taxes be laid on land? One Gentleman [James Madison] has said, that the United States would select out a particular object, or objects, and leave the rest to the States. Suppose land to be the object selected by Congress; examine its consequences. The land holder alone would suffer by such a selection. A very considerable part of the community would escape. Those who pursue commerce and arts would escape. It could not possibly be estimated equally. Will the taxes be laid on polls only? Would not the land-holder escape in that case? How then will it be laid? On all property? Consider the consequences. Is it possible to make a law that shall operate alike in all the States? Is it possible that there should be sufficient intelligence for the man of Georgia, to know the situation of the men of New-Hampshire? Is there a precise similitude of situation in each State? Compare the situation of the citizens in different States. Are there not a thousand circumstances shewing clearly, that there can be no law, that can be uniform in its operation throughout the United States? Another Gentleman [Edmund Randolph] said, that information would be had from the State laws. Is not this reversing the principles of good policy? Can this substitution of one body to thirteen assemblies, in a matter that requires the most minute and extensive local information, be politic or just? They cannot know what taxes can be least oppressive to the people. The tax that may be convenient in one State, may be oppressive in another. If they vary the objects of taxation in different States, the operation must be unequal and unjust. If Congress should fix the tax on some mischievous objects, what will be the tendency? It is to be presumed, that all Governments will sometime or other exercise their powers, or else, why should they possess them? Enquire into the badness of this Government. What is the extent of the power of laying and collecting direct taxes? Does it not give to the United States all the resources of the individual States? Does it not give an absolute controul over the resources of all the States? If you give the resources of the several States to the General Government, in what situation are the States left? I therefore think the General Government will preponderate.22
Besides its possession of all the resources of the country; there are other circumstances, that will enable it to triumph in the conflict with the States. Gentlemen of influence and character, men of distinguished talents, of eminent virtue, and great endowments, will compose the General Government. In what a situation will the different States be, when all the talents " and abilities of the country will be against them?
Another circumstance will operate in its favour in case of a contest. The oath that is to be taken to support it, will aid it most powerfully. The influence which the sanction of oaths has on men, is irresistible. The religious authority of divine revelation will be quoted to prove the propriety of adhering to it, and will have great influence in disposing men's minds to maintain it.
It will also be strongly supported by the last clause in the eighth section of the first article, which vests it with the power of making all laws necessary to carry its powers into effect.23
The correspondent judicial powers will be an additional aid. There is yet another circumstance which will throw the balance in the scale of the General Government. A disposition in its favour, has shewn itself in all parts of the Continent, and will certainly become more and more predominant. Is it not to be presumed, that if a contest between the State Legisatures and the General Government should arise, the latter would preponderate? The Confederation has been deservedly reprobated, for its inadequacy to promote the public welfare. But this change, is, in my opinion, very dangerous. It contemplates objects with which a Federal Government ought never to interfere. The concurrent interfering power, of laying taxes on the people, will occasion a perpetual conflict between the General and individual Governments; which, for the reasons I have already mentioned, must terminate to the disadvantage, if not in the annihilation of the latter. Can it be presumed, that the people of America can patiently bear such a double oppression? Is it not to be presumed, that they will endeavour to get rid of one of the oppressors? I fear, Sir, that it will ultimately end in the establishment of a Monarchical Government. The people, in order to be delivered from one species of tyranny, may submit to another. I am strongly impressed with the necessity of having a firm national Government, but I am decidedly against giving it the power of direct taxation; because I think it endangers our liberties. My attachment to the Union and an energetic Government, is such, that I would consent to give the General Government every power contained in that plan, except that of taxation.
As it will operate on all States and individuals, powers given it generally should be qualified. It may be attributed to the prejudice of my education, but I am a decided and warm friend to a Bill of Rights- the polar star, and great support of American liberty; and I am clearly of opinion, that the general powers conceded by that plan, such as the impost, &c. should be guarded and checked by a Bill of Rights.
Permit me to examine the reasoning, that admits, that all powers not given up are reserved. Apply this.
If you give to the United States the power of direct taxation-In making all laws necessary to give it operation (which is a power given by the last clause, in the eighth section, of the first article) suppose they should be of opinion, that the right of the trial by jury, was one of the requisites to carry it into effect; there is no check in this Constitution to prevent the formal abolition of it. There is a general power given to them, to make all laws that will enable them to carry their powers into effect. There are no limits pointed out. They are not restrained or controuled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect.
By this general unqualified power, they may infringe not only the trial by jury, but the liberty of the press, and every right that is not expressly secured, or excepted, from that general power.24
I conceive that such general powers are very dangerous. Our great unalienable rights ought to be secured from being destroyed by such unlimited powers, either by a Bill of Rights, or by an express provision in the body of the Constitution. It is immaterial in which of these two modes rights are secured.25
I fear I have tired the patience of the Committee; I beg however the indulgence of making a few more observations. There is a distinction between this Government, and ancient and modern ones. The division of power in ancient Governments, or in any Government at present in the world, was founded on different principles from those of this Government.
What was the object of the distribution of power in Rome? It will not be controverted, that there was a composition or mixture of Aristocracy, Democracy, and Monarchy, each of which had a repellent quality, which enabled it to preserve itself from being destroyed by the other two-so that the balance was continually maintained. This is the case in the English Government, which has the most similitude to our own. There they have distinct orders in the Government, which possess real efficient repellent qualities. Let us illustrate it. If the Commons prevail, may they not vote the King useless? If the King prevails, will not the Commons lose their liberties? Without the interposition of a check-without a balance, the one would destroy the other. The Lords, the third branch, keep up this balance. The wisdom of the English Constitution has given a share of Legislation to each of the three branches, which enables effectually to defend itself and which preserves the liberty of the people of that country. What is the object of the division of power in America? Why is the Government divided into different branches? For a more faithful and regular administration. Where is there a check? We have more to apprehend from the Union of these branches, than from the subversion of any; and this Union will destroy the rights of the people. There is nothing to prevent this coalition. But the contest which will probably subsist between the General Government and the individual Governments, will tend to produce it. There is a division of sovereignty between the national and State Governments. How far then will they coalesce together? Is it not to be supposed that there will be a conflict between them? If so, will not the members of the former combine together? Where then will be the check to prevent encroachments on the rights of the people? There is not a third essentially distinct branch to preserve a just equilibrium, or to prevent such encroachments. In developing this plan of Government, we ought to attend to the necessity of having checks. I can see no real checks in it.
Let us first enquire into the probability of harmony between the General and individual Governments; and in the next place, into the responsibility the General Government, either to the people at large, or to the State Legislatures. As to the harmony between the Governments, communion of powers, Legislative and Judicial, forbids it.
I have never yet heard, or read in the history of mankind, of a concurrent exercise of power by two parties, without producing struggle between them. Consult the human heart. Does it not prove, that where two parties, or bodies, seek the same object, there must be a struggle? Now, Sir, as to the responsibility
- Let us begin with the House of Representatives, which is the most Democratic part. The Representatives are elected by the people, but what is the responsibility? At the expiration of the time for which they are elected, the people may discontinue them; but if they commit high crimes, how are they to be punished? I apprehend the General Government cannot punish them, because it would be a subversion of the rights of the people. The State Legislatures cannot punish them, because they have no controul over them in anyone instance.26
In the next place, consider the responsibility of the Senators. To whom are they amenable? I apprehend to none. They are punishable, neither by the General Government, nor by the State Legislatures. The latter may call them to an account, but they have no power to punish them.27
Let us now consider the responsibility the President. He is elected for four years, and not excluded from re-election. Suppose he violates th28
e laws and Constitution, or commits high crimes, by whom is he to be tried? By his own Council—By those who advise him to commit such violations and crimes? This subverts the principles of justice, as it secures him from punishment. He commands the army of the United States till he is condemned. Will not this be an inducement to foreign nations to use their arts and intrigues to corrupt his Counsellors? If he and his Counsellors can escape punishment with so much facility, what a delightful prospect must it be for a foreign nation, which may be desirous of gaining territorial or commercial advantages over us, to practice on them. The certainty of success would be equal to the impunity.
How is he elected? By electors appointed according to the direction of the State Legislatures. Does the plan of Government contemplate any other mode? A combination between the electors might easily happen which would fix on a man in every respect improper. Contemplate this in all its consequences. Is it not the object of foreign Courts to have such a man possessed of this power, as would be inclined to promote their interests? What an advantageous prospect for France or Great-Britain to secure the favour and attachment of the President, by exerting their power and influence to continue him in the office! Foreign nations may, by their intrigues, have great influence in each State, in the election of the President, and I have no doubt but their efforts will be tried to the utmost. Will not the influence of the President himself have great weight in his re-election? The variety of the offices at his disposal, will acquire him the favour and attachment of those who aspire after them, and of the officers, and their friends. He will have some connection with the members of the different branches of Government. They will esteem him, because they will be acquainted with him—live in the same town with him, and often dine with him. This familiar and frequent intercourse will secure him great influence. I presume that when once he is elected, he may be elected forever. Besides his influence in the town where he will reside, he will have very considerable weight in the different States. Those who are acquainted with the human mind in all its operations, can clearly foresee this. Powerful men in different States will form a friendship with him. For these reasons, I conceive, the same President may always be continued, and be in fact elected by Congress, instead of independent and intelligent electors.29
It is a misfortune, more than once experienced, that the Representatives of the States do not pursue the particular interest of their own State.
When we take a more accurate view of the principles of the Senate, we shall have grounds to fear that the interest of our State may be totally neglected—nay, that our Legislative influence will be as little as if we were actually expelled or banished out of Congress. The Senators are amenable to and appointed by the States. They have a negative on all laws, may originate any, except money bills, and direct the affairs of the Executive.
Seven States are a majority, and can in most cases bind the rest; from which reason, the interest of certain States will alone be con-sulted.30
Although the House of Representatives is calculated on national principles, and shoud they attend contrary to my expectations, to the general interests of the Union, yet the dangerous exclusive powers given to the Senate, will, in my opinion, counter-balance their exertions. Consider the connection of the Senate with the Executive. Has it not an authority over all the acts of the Executive? What are the acts which the President can do without them?
What number is requisite to make treaties? A very small number. Two-thirds of those who may happen to be present, may, with the President, make treaties that shall sacrifice the dearest interests of the Southern States—which may relinquish part of our territories—which may dismember the United States. There is no check to prevent this-There is no responsibility, or power to punish it.31
He is to nominate, and by and with the advice and consent of the Senate, to appoint Ambassadors, other public Ministers, and Consuls, Judges of the Supreme Court, and all other officers of the United States. The concurrence of a bare majority of those who may be present, will enable him to do these important acts. It does not require the consent of two-thirds, even of those who may be present. Thus, I conceive the Government is put entirely into the hands of seven States; indeed into the hands of two-thirds of a majority.32
The Executive branch is under their protection, and yet they are freed from a direct charge of combination.
Upon reviewing this Government, I must say, under my present impression, I think it a dangerous Government, and calculated to secure neither the interests, nor the rights of our countrymen. Under such an one, I shall be averse to embark the best hopes and prospects of a free people. We have struggled long to bring about this revolution, by which we enjoy our present freedom and security. Why then this haste—this wild precipitation?
I have fatigued the Committee, but as I have not yet said all that I wish upon the subject, I trust I shall be indulged another day.
Mr. John Marshall—Mr. Chairman,-I conceive that the object of the now us, is, whether Democracy, or Despotism, be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former. The supporters of the Constitution claim the title of being firm friends of liberty, and the rights of man- kind. They say, that they consider it as the best means of protecting liberty. We, Sir, idolize Democracy. Those who oppose it have bestowed eulogiums on Monarchy. We prefer this system to any Monarchy, be-cause we are convinced that it has a greater tendency to secure our liberty and promote our happiness. We admire it, because we think it a well regulated Democracy. It is recommended to the good people of this country-They are, through us, to declare whether it be such a plan of Government,. as will establish and secure their freedom. Permit me to attend to what the Honorable Gentleman (Mr. Henry) has said. He has expatiated on the necessity of a due attention to certain maxims-to certain fundamental principles, from which a free people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in any Government but more essential to a Democracy than to any other. What are the favourite maxims of Democracy? A strict observance of justice and public faith, and a steady adherence to virtue. These, Sir, are the principles of a good Government. No mischief-no misfortune ought to deter us from a strict observance of justice and public faith. Would to Heaven that these principles had been observed under the present Government! Had this been the case, the friends of liberty would not be so willing now to part with it. Can we boast that our Government is founded on these maxims? Can we pretend to the enjoyment of political freedom, or security, when we are told, that a man has been, by an act of Assembly, struck out of existence, without a trial by jury- without examination-without being confronted with his accusers and witnesses-without the benefits of the law of the land? Where is our safety, when we are told, that this act was justifiable, because the person was not a Socrates. What has become of the worthy member's maxims? Is this one of them? Shall it be a maxim, that a man shall be deprived of his life without the benefit of law? Shall such a deprivation of life be justified by answering, that the man's life was not taken secundum artem, because he was a bad man? Shall it be a maxim, that Government ought not to be empowered to protect virtue?
The Honorable member, after attempting to vindicate that tyrannical Legislative act to which I have been alluding, proceeded to take a view of the dangers to which this country is exposed. He told us, that the principal danger arose, from a Government, which if adopted, would give away the Mississippi I intended to proceed regularly, by attending to the clause under debate, but I must reply to some observations which were dwelt upon, to make impressions on our minds, unfavourable to the plan upon the table. Have we no navigation in, or do we derive no benefit from, the Mississippi? How shall we attain it? By retaining that weak Government which has hitherto kept it from us? Is it thus that we shall secure that navigation? Give the Government the power of retaining it, and then we may hope to derive actual I advantages from it. Till we do this, we cannot expect that a Government which hitherto has not been able to protect it, will have power to do it hereafter. Have we not attended too long to consider whether this Government would be able to protect us? Shall we wait for further proofs of its inefficacy? If on mature consideration, the Constitution will be found to be perfectly right on the subject of treaties, and containing no danger of losing that navigation, will he still object? Will he object because eight States are unwilling to part with it? This is no good ground of objection. He then stated the necessity and probability of obtaining amendments. This we ought to postpone till we come to that clause, and make up our minds, whether there be any thing unsafe in the system.
He conceived it impossible to obtain amendments after adopting it. If he was right, does not his own argument prove, that in his own conception, previous amendments cannot be had; for, Sir, subsequent amendments cannot be obtained, shall we get amendments before we ratify? The reasons against the latter do not apply against the former. There are in this State, and in every State of the Union, many who are decided enemies of the Union. Reflect on the probable conduct of such men. What will they do? They will bring amendments which are local in their nature, and which they know will not be accepted. What security have we, that other States will not do the same? We are told, that many in the States are violently opposed to it. They are more mindful of local interests. They will never propose such amendments, as they think would be obtained. Disunion will be their object.33
This will be attained by the proposal of unreasonable amendments. This, Sir, though a strong cause, is not the only one that will militate against previous amendments. Look at the comparative temper of this country now, and when the late Federal Convention met. We had no idea then of any particular system. The formation of the most perfect plan was our object and wish. It was imagined that the States would accede to, and be pleased with the proposition that would be made them. Consider the violence of opinions, the prejudices and animosities which have been since imbibed. Will not these greatly operate against mutual concessions, or a friendly concurrence? This will, however, be taken up more properly at another time. He says, we wish to have a strong, energetic, powerful Government. We contend for a well regulated Democracy. He insinuates, that the power of the Government has been enlarged by the Convention, and that we may apprehend it will be enlarged by others. The Convention did not in fact assume any power. They have proposed to our consideration a scheme of Government which they thought advisable. We are not bound to adopt it, if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country? Have not several Gentlemen already demonstrated, that the Convention did not exceed their powers? But the Congress have the power of making bad laws it seems. The Senate, with the President, he informs us, may make a treaty which shall be disadvantageous to us-and that if they be not good men, it will not be a good Constitution. I shall ask the worthy member only, if the people at large, and they only, ought to make laws and treaties? Has any man this in contemplation? You cannot exercise the powers of Government personally yourselves. You must trust agents. If so, will you dispute giving them the power of acting for you, from an existing possibility that they may abuse it? As long as it is impossible for you to transact your business in person, if you repose no confidence in delegates, because there is a possibility of their abusing it, you can have no Government; for the power of doing good, is inseparable from that of doing some evil.
We may derive from Holland, lessons very beneficial to ourselves. Happy that country which can avail itself of the misfortunes of others- which can gain knowledge from that source without fatal experience! What has produced the late disturbances in that country? The want of such a Government as is on your table, and having in some measure such a one as you are about to part with. The want of proper powers in the Government-The consequent deranged and relaxed administration-The violence of contending parties, and inviting foreign powers to interpose in their disputes, have subjected them to all the mischiefs which have interrupted their harmony. I cannot express my astonishment at his high-coloured eulogium on such a Government Can any thing be more dissimilar than the relation between the British Government, and the Colonies, and the relation between Congress and the States. We were not represented in Parliament Here we are represented. Arguments which prove the impropriety of being taxed by Britain, do not hold against the exercise of taxation by Congress.
Let me pay attention to the observation of the Gentleman who was last up, that the power of taxation ought not to be given to Congress. This subject requires the undivided attention of this House. This power I think essentially necessary, for without it, there will be no efficiency in the Government We have had a sufficient demonstration of the vanity of depending on requisitions. How then can the General Government exist without this power? The possibility of its being abused, is urged as an argument against its expediency. To very little purpose did Virginia discover the defects in system—To little purpose indeed did she propose improvements to no purpose is this plan constructed for the promotion of our happiness, if we refuse it now, because it is possible that it may be The Confederation has nominal powers, but no means to carry into effect. If a system of Government were devised by more human intelligence, it would not be effectual if the means adequate to the power. All delegated powers are liable to be Arguments drawn from this source go in direct opposition to Government, and in recommendation of anarchy. The friends of the Constitution are as tenacious of liberty as its enemies. They give no power that will endanger it. They wish to give the powers to secure and protect it. Our enquiry here must be, whether the power of taxation be necessary to perform the objects of the Constitution, and whether it be safe and as well guarded as wisdom can do it.34
What are the objects of the national Government? To protect the United States, and to promote the general welfare. Protection in time of war is one of its principal objects. Until mankind shall cease to have ambition and avarice, wars will arise. The prosperity and happiness of the people depend on the performance of these great and important duties of the General Government. Can these be performed by one State? Can one State protect us, and promote our happiness? The Honorable Gentleman who has gone before me (Governor Randolph) has shewn that Virginia cannot do these things. How can then can they be done? By the national Government only. Shall we refuse to give it power to do them? We are answered, that the power may be abused. That though the Congress may promote our happiness yet they may prostitute their powers to destroy our liberties. to the destruction of all confidence in agents. Would you men who had merited your highest confidence would deceive Would you trust them again after one deception? Why then hesitate to trust the General Government?35
The object of our inquiry is,—Is the power necessary—and is it guarded? There must be men and money to protect us. How are armies to be raised? Must we not have that purpose? But the Honorable Gentleman [Patrick Henry] we need not be afraid of war. Look at history, which has been so often quoted. Look at the great volume of human nature. They will foretell you, that a defenceless country cannot be secure. The nature of man forbids us to conclude, that we are in no danger from war. The passions of men stimulate them to avail themselves of the weakness of others. The powers of Europe are jealous of us. It is our interest to watch their conduct, and guard against them. They must be pleased with our disunion. If we invite them by our weakness to attack us, will they not do it? If we add debility to our present situation, a partition of America may take place. It is then necessary to give the Government that power in time of peace, which the necessities of war will render indispensable, or else we shall be attacked unprepared. The experience of the world, a knowledge of human nature, and our own particular experience, will confirm this truth. When danger will come upon us, may we not do what we were on the point of doing once already, that is, appoint a Dictator? Were those who are now friends of this Constitution, less active in the defence of liberty on that trying occasion, than those who oppose it? When foreign dangers come, may not the fear of immediate destruction by foreign enemies impel us to take a most dangerous step? Where then will be our safety? We may now regulate and frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. If we be prepared to defend ourselves, there will be little inducement to attack us. But if we defer giving the necessary power to the General Government, till the moment of danger arrives, we shall give it then, and with an unspairing hand. America, like other nations, may be exposed to war. The propriety of giving this power will be proved by the history of the world, and particularly of modern Republics. I defy you to produce a single instance where requisitions on the several individual States composing a confederacy, have been honestly complied with. Did Gentlemen expect to see such punctuallity complied with in America? If they did, our own experience shews the contrary. We are told, that the Confederation carried us through the war. Had not the enthusiasm of liberty inspired us with unanimity, that system would never have carried us through it. It would have been much sooner terminated had that Government been possessed of due energy. The inability of Congress, and the failure of the States to comply with the Constitutional requisitions, rendered our resistance less efficient than it might have been. The weakness of that Government caused troops to be against us which ought to be on our side, and prevented all the resources of the community from being called at once into action. The extreme readiness of the people to make their utmost exertions to ward of[f] the pressing danger, supplied the place of requisitions. When they came solely to be depended on, their inutility was fully discovered. A bare sense of duty, or a regard to propriety is too feeble to induce men to comply with obligations. We deceive ourselves if we expect any efficacy from these. If requisitions will not avail, the Government must have the sinews of war some other way. Requisitions cannot be effectual. They will be productive of delay, and will ultimately be inefficient By direct taxation, the necessities of the Government will be supplied in a peaceable manner without irritating the minds of the people. But requisitions cannot be rendered efficient without a civil war—without great expence of money, and the blood of our citizens. Are there any other If means? Yes, that Congress shall apportion the respective quotas previously, and if not complied with by the States, that then this dreaded power shall be exercised. The operation of this has been described by the Gentleman who opened the debate. He cannot be answered. This great objection to that system remains unanswered. Is there no other argument which ought to have weight with us on this subject? Delay is a strong and pointed objection to it. We are told by the Gentleman who spoke last, that direct taxation is unnecessary, because we are not involved in war. This admits the propriety of recurring to direct taxation if we were engaged in war. It has not been proved, that we have no dangers to apprehend on this point What will be the consequence of the system proposed by the worthy Gentleman? Suppose the States should refuse. The worthy Gentleman who is so pointedly opposed to the Constitution, proposes remonstrances. Is it a time for Congress to remonstrate, or compel a compliance with requisitions, when the whole wisdom of the Union, and the power of Congress are opposed to a foreign enemy? Another alternative is, that if the States shall appropriate certain funds for the use of Congress, that Congress shall not lay direct taxes. Suppose the funds appropriated by the State for the use of Congress, should be inadequate; it will not be determined whether they be insufficient till after the time at which the quota ought to have been paid, and then after so long a delay, the means of procuring money which ought to have been employed in the first instance, must be recurred to. May they not be amused by such ineffectual and temporising alternatives, from year to year, till America shall be enslaved? The failure of one State will authorise a failure in another. The calculation in some States that others will fail, will produce general failures. This will also be attended with all the expences which we are anxious to avoid. What are the advantages to induce us to embrace this system? If they mean that requisitions should be complied with, it will be the same as if Congress had the power of direct taxation. The same amount will be paid by the people.
It is objected, that Congress will not know how to lay taxes so as to be easy and convenient for the people at large. Let us pay strict attention to this objection. If it appears to be totally without foundation, the necessity of levying direct taxes will obviate what Gentlemen say, nor will there be any colour for refusing to grant the power. The objects of direct taxes are well understood—They but few—What are they? Lands, slaves, stock of all kinds, and a few other articles of domestic property. Can you believe that ten men selected from all parts of the State, chosen because they know the situation of the people, will be unable to determine so as to make the tax equal on, and convenient for, the people at large? Does any man believe, that they would lay the tax without the aid of other information, besides their own knowledge, when they know that the very object for which they are elected, is to lay the taxes in a judicious and convenient manner? If they wish to retain the affection of the people at large, will they not inform themselves of every circumstance that can throw light on the subject? Have they but one source of information? Besides their own experience—their knowledge of what will suit their constituents, they will have the benefit of the knowledge and experience of the State Legislatures. They will see in what manner the Legislature of Virginia collects its taxes. Will they be unable to follow their example? The Gentlemen who shall be delegated to Congress will have every source of information that the Legislatures of the States can have, and can lay the tax as equally on the people and with as little oppression as they can. If then it be admitted, that they can understand how to lay them equally and conveniently, are we to admit that they will not do it; but that in violation of every principle that ought to govern men, they will lay them so as to oppress us? What benefit will they have by it? Will it be promotive of their re-election? Will it be by wantonly imposing hardships and difficulties on the people at large, that they will promote their own interest, and secure their re-election? To me it appears incontrovertible, that they will settle them in such a manner, as to be easy for the people. Is the system so organized as to make taxation dangerous? I shall not go to the various checks of the Government, but examine whether the immediate representation of the people be well constructed. I conceive its organization to be sufficiently satisfactory to the warmest friend of freedom. No tax can be laid without the consent of the House of Representatives. If there be no impropriety in the mode of electing the Representatives, can any danger be apprehended? They are elected by those, who can elect Representatives in the State Legislature. How can the votes of the electors be influenced? By nothing but the character and conduct of the man they vote for. What object can influence them when about choosing him? They have nothing to direct them in the choice, but their own good. Have you not as pointed and strong a security as you can possibly have? It is a mode that secures an impossibility of being corrupted. If they are to be chosen for their wisdom, virtue and integrity, what inducement have they to infringe on our freedom? We are told that they may abuse their power. Are there strong motives to prompt them to abuse it? Will not such abuse militate against their own interest? Will not they and their friends feel the effects of iniquitous measures? Does the Representative remain in office for life? Does he transmit his title of Representative to his son? Is he secured from the burthen imposed on the community? To procure their reelection, it will be necessary for them to confer with the people at large, and convince them that the taxes laid are for their good. If I am able to judge on the subject, the power of taxation now before us, is wisely conceded, and the Representatives are wisely elected.
The Honorable Gentleman said, that a Government should ever depend on the affections of the people. It must so. It is the best support it can have. This Government merits the confidence of the people, and I make no doubt will have it. Then he informed us again, of the disposition of Spain with respect to the Mississippi, and the conduct of the Government with regard to it. To the debility of the Confederation alone, may justly be imputed every cause of complaint on this subject. Whenever Gentlemen will bring forward their objections, I trust we can prove, that no danger to the navigation of that river can arise from the adoption of this Constitution. I beg those Gentlemen who may be affected by it, to suspend their judgment till they hear it discussed. Will, says he, the adoption of this Constitution pay our debts? It will compel the States to pay their quotas. Without this, Virginia will be unable to pay.—Unless all the States pay, she cannot.
Though the States will not coin money, (as we are told) yet this Government will bring forth and proportion all the strength of the Union.36
That ceconomy and industry are essential to our happiness will be denied by no man. But the present Government will not add to our industry. It takes away the incitements to industry, by rendering property insecure and unprotected. It is the paper on your table that will promote and encourage industry. New-Hampshire and Rhode-Island have rejected it, he tells us. New-Hampshire, if my information be right, will certainly adopt it. The report spread in this country, of which I have heard, is, that the Representatives of that State having, on meeting, found they were instructed to vote against it, returned to their Constituents without determining the question, to convince them of their being mistaken, and of the propriety of adopting it. The extent of the country is urged as another objection, as being too great for a Republican Government. This objection has been handed from author to author, and has been certainly misunderstood and misapplied. To what does it owe its source? To observations and criticisms on Governments, where representation did not exist. As to the Legislative power, was it ever supposed inadequate to any extent? Extent of country may render it difficult to execute the laws, but not to Legislate. Extent of country does not extend the power. What will be sufficiently energetic and operative in a small territory, will be feeble when extended over a wide extended country. The Gentleman tells us, there are no checks in this plan. What has become of his enthusiastic eulogium on the American spirit? We should find a check and controul when oppressed, from that source. In this country, there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual—When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own. When he desires such checks as these, he will find them abundantly here. They are the best checks. What has become of his eulogium on the Virginian Constitution? Do the checks in this plan appear less excellent than those of the Constitution of Virginia? If the checks in the Constitution be compared to the checks in the Virginian Constitution, he will find the best security in the former.
The temple of liberty was complete, said he, when the people of England said to their King, that he was their servant. What are we to learn from this? Shall we embrace such a system as that? Is not liberty secure with us, where the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants, who are accountable for the smallest mal-administration? Where is the nation that can boast greater security than we do? We want only a system like the paper before you, to strengthen and perpetuate this security.
The Honorable Gentleman has asked, if there be any safety or freedom, when we give away the sword and the purse? Shall the people at large hold the sword and the purse without the interposition of their Representatives? Can the whole aggregate community act personally? I apprehend that every Gentleman will see the impossibility this. Must they then not trust them to others? To whom are they to trust them but to their Representatives who are accountable for their conduct? He represents secrecy as unnecessary, and produces the British Government as a proof of its inutility. Is there no secrecy there? When deliberating on the propriety of declaring war, or on military arrangements, do they deliberate in the open fields? No, Sir. The British Government affords secrecy when necessary, and so ought every Government. In this plan, secrecy is only used when it would be fatal and pernicious to publish the schemes of Government. We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it.
He then argues against this system, because it does not resemble the British Government in this, that the same power that declares war has not the means of carrying it on. Are the people of England more secure, if the Commons have no voice in declaring war, or are we less I secure by having the Senate joined with the President? It is an absurdity, says the worthy member, that the same man should obey two masters-that the same collector should gather taxes for the General Government and the State Legislature. Are they not both the servants of the people? Are not Congress and the State Legislatures the agents of the people, and are they not to consult the good of the people? May not this be effected by giving the same officer the collection of both taxes? He tells you, that it is an absurdity to adopt before you amend. Is the object of your adoption to amend solely?
The objects of your adoption are Union, and safety against foreign enemies-Protection against faction-against what has been the destruction of all Republics. These impel you to its adoption. If you adopt it, what shall restrain you from amending it, if in trying it, amendments shall be found necessary? The Government is not supported by force, but depending on our free will. When experience shall shew us any inconveniences, we can then correct it. But until we have experience on the lS subject, amendments, as well as the Constitution itself, are to try. Let us try it, and keep our hands free to change it when necessary. If it be necessary to change Government, let us change that Government which has been found to be defective. The difficulty we find in amending the Confederation, will not be found in amending this Constitution. Any amendments in the system before you, will not go to a radical change-a plain way is pointed out for the purpose. All will be interested to change it, and therefore all will exert themselves in getting the change. There is such a diversity of sentiments in human minds, that it is impossible we shall ever concur in one system, till we try it.37
The power given to the General Government over the time, place, and manner of election, is also strongly objected to. When we come to that clause, we can prove that it is highly necessary, and not dangerous.38
The worthy member has concluded his observations by many eulogiums on the British Constitution. It matters not to us whether it be a wise one or not. I think, that for America at least, the Government on your table is very much superior to it. I ask you, if your House of Representatives would be better than it is, if a hundredth part of the people were to elect a majority of them? If your Senators were for life, would they be more agreeable to you? If your President were not accountable to you for his conduct; if it were a constitutional maxim, that he could do no wrong, would you be safer than you are now? If you can answer yes to these questions, then adopt the British Constitution. If not, then good as that Government may be, this is better. The worthy Gentleman who was last up told us, that the Confederacies of ancient and modern times were not similar to ours, and that consequently reasons which applied against them, could not be urged against it. Do they not hold out one lesson very useful to us? However unlike in other respects, they resemble it in its total inefficacy. They warn us to shun their calamities, and place in our General Government, those necessary powers, the want of which destroyed them. I hope we shall avail ourselves of their misfortunes, without experiencing them. There was something peculiar in one observation he made. He said, that those who governed the cantons of Switzerland were purchased by foreign powers, which was the cause of their uneasiness and trouble. How does this apply to us? If we adopt such a Government as theirs, will it not be subject to the same inconvenience? Will not the same cause produce the same effect? What shall protect us from it? What is our security? He then proceeded to say, that the causes of war are removed from us–that we are separated by the sea from the powers of Europe, and need not be alarmed. Sir, the sea makes them neighbours to us. Though an immense ocean divides us, we may speedily see them with us. What dangers may we not apprehend to our commerce? Does not our naval weakness invite an attack on our commerce? May not the Algerines seize our vessels? Cannot they, and every other predatory or maritime nation, pillage our ships and destroy our commerce, without subjecting themselves to any inconvenience? He would, he said, give the General Government all necessary powers. If any thing be necessary, it must be so, to call forth the strength of the Union, when we may be attacked, or when the general purposes of America require it. The worthy Gentleman then proceeded to shew, that our present exigencies are greater than they will ever be again. Who can penetrate into futurity? How can any man pretend to say, that our future exigencies will be less than our present? The exigencies of nations have been generally commensurate to their resources. It would be the utmost impolicy to trust to a mere possibility of not being attacked, or obliged to exert the strength of the community.
He then spoke of a selection of particular objects by Congress, which he says must necessarily be oppressive. That Congress for instance, might select lands for direct taxes, and that all but landholders would escape. Cannot Congress regulate the taxes so as to be equal on all parts of the community? Where is the absurdity of having thirteen revenues? Will they clash with, or injure, each other? If not, why cannot Congress make thirteen distinct laws, and impose the taxes on the general objects of taxation in each State, so as that all persons of the society shall pay equally as they ought?39
He then told you, that your Continental Government will call forth the virtue and talents of America. This being the case, will they encroach on the powers of the State Governments? Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly? I differ in opinion from the worthy Gentleman. I think the virtue and talents of the members of the General Government will tend to the security, instead of the destruction of our liberty.
I think that the power of direct taxation is essential to the existence of the General Government, and that it is safe to grant it. If this power be not necessary, and as safe from abuse as any delegated power can possibly be, then I say, that the plan before you is unnecessary; for it imports not what system we have, unless it have the power of protecting us in time of peace and war.40
Mr. Harrison then addressed the Chair, but spoke so low that he could not be distinctly heard. He observed, that the accusation of the General Assembly with respect to Josiah Phillips, was very unjust That he was a man, who, by the law of nations, was entitled to no privileger of trial, &c. That the Assembly had uniformly been lenient and moderate in their measures, and that as the debates of this Convention would probably be published, he thought it very unwarrantable to utter expressions here which might induce the world to believe, that the Assembly of Virginia had committed murder. He added some observations on the plan of Government-That it certainly would operate an infringement of the rights and liberties of the people-That he was amazed that Gentlemen should attempt to misrepresent facts, to persuade the Convention to adopt such a system; and that he trusted they would not ratify it as it then stood.
Mr. George Nicholas, in reply to Mr. Harrison, observed, that the turpitude of a man's character was not a sufficient reason to deprive him of his life without a trial That such a doctrine as that, was a subversion of every shadow of freedom. That a fair trial was necessary to determine whether accusations against men's characters were well founded or not; and that no person would be safe, were it once adopted as a maxim, that a man might be condemned without a trial-Mr. Nicholas then proceeded-Although have
sat eight days, so little has been done, that we have hardly begun to discuss the question regularly. The rule of the House, to proceed clause by clause, has been violated. Instead of doing this, Gentlemen alarm us by declamation, without reason or argument—By bold assertions, that we are going to sacrifice our liberties. It is a fact, known to many members within my hearing, that several members have tried their interest without doors, to induce others to oppose this system. Every local interest that could affect their minds, has been operated upon. Can it be supposed, that Gentlemen elected for their ability and integrity, to represent the people of Virginia in this Convention, to determine on this important question, whether or not we shall be connected with the other States in the Union—Can it be thought, I say, that Gentlemen in a situation like this, will be influenced by motives like these? An answer which has been given, is, that if this Constitution be adopted, the Western counties will be lost. It is better that a few counties should be lost, than all America. But, Sir, no such consequence can follow from its adoption. They will be much more secure than they are at present. This Constitution, Sir, will secure the equal liberty and happiness of all. It will do immortal honor to the Gentlemen who formed it. I shall shew the inconsistency of the Gentleman who entertained us so long. He insisted that subsequent amendments would go to a dissolution of the Union—That Massachusetts was opposed to it in its present State. Massachusetts has absolutely ratified it; and has gone further, and said, that such and such amendments shall be proposed by their Representatives. But such was the attachment of that respectable State to the Union, that even at that early period, she ratified it unconditionally, and depended on the probability of obtaining amendments afterwards. Can this be a dissolution of the Union? Does this indicate an aversion to the Union on the part of that State; or, can an imitation of her conduct injure us? He tells us, that our present Government is strong. How can that Government be strong, which depends on humble supplications for its support? Does a Government which is dependent for its existence on others, and which is unable to afford protection to the people, deserve to be continued? But the Honorable Gentleman has no objections to see little storms in Republics—They may be useful in the political, as well as in
the natural world. Every thing the great Creator has ordained in the natural world, is founded on consummate wisdom; but let him tell us what advantages, convulsions, dissentions, and bloodshed, will produce in the political world? Can disunion be the means of securing the happiness of the people in this political hemisphere? The worthy member has enlarged on our Bill of Rights. Let us see whether his encomiums on the Bill of Rights be consistent with his other arguments. Our Declaration of Rights says, that all men are by nature equally free and independent. How comes the Gentleman to reconcile himself to a Government wherein there are a hereditary Monarch and nobility? He objects to this change although our present federal system is totally without energy—He objects to this system, because he says, it will lay prostrate your Bill of Rights. Does not the Bill of Rights tell you, that a majority of the community have an indubitable right to alter any Government, which shall be found inadequate to the security of the public happiness? Does it not say, "that no free Government, or the blessings of liberty can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles"? Have not the inadequacy of the present system, and repeated flagrant violations of justice, and the other principles recommended by the Bill of Rights, been amply proved? As this plan of Government will promote our happiness and establish justice, will not its adoption be justified by the very principles of your Bill of Rights? But he has touched on a string which will have great effect. The Western country is not safe if this plan be adopted. What do they stand in need of? Do they want protection from enemies? The present weak Government cannot protect them. But the exercise of the Congressional powers, proposed by this Constitution, will afford them ample security, because the General Government can command the whole strength of the Union, to protect any particular part. There is another point wherein this Government will set them right. I mean the Western posts. This is a subject with which every Gentleman here is acquainted. -They have been withheld from us since the peace by the British. The violation of the treaty on our part, authorises this detention in some degree. The answer of the British Minister to our demand of surrendering the posts, was, that as soon as America should shew a disposition to comply with the treaty on her part, that Great- Britain should do the same. By this Constitution treaties will be the supreme law of the land. The adoption of it therefore is the only chance we have of getting the Western posts. As to the navigation of the Mississippi, it is one of the most unalienable rights of the people, and which ought to be relinquished on no consideration. The strength of the Western people is not adequate to its retention and enjoyment. They can receive no aid from the Confederation. This navigation can only be secured by one of two ways. By force or by treaty. As to force, I apprehend that the new Government will be much more likely to hold it than the old. It will be also more likely to retain it by means of treaties. Because, as it will be more powerful and respectable, it will be more feared; and as they will have more power to injure Spain, Spain will be more inclined to do them justice, by yielding it, or by giving them an adequate compensation. It was said, that France and Spain would not be pleased to see the United States united in one great empire. Shall we remain feeble and contemptible to please them? Shall we reject our own interest to promote theirs? We shall be more able to discharge our engagements. This may be agreeable to them. There are many strong reasons to expect that the adoption of this system will be beneficial to the back country, and that their interest will much better attended to under the new than under the old Government. There are checks in this Constitution which will render the navigation of the Mississippi safer than it was under the Confederation. There is a clause, which, in my opinion, will prohibit the General Government from relinquishing that navigation.
The fifth [sixth] clause, of the ninth section, of the first article, provides, "That no preference shall be given by any regulation of commerce, or revenue, to the ports of one State, over those of another." If Congress be expressly prohibited to give preference to the ports of one State over those of another; there is a strong implication, that they cannot give preference to the ports of any foreign nation, over those of a State. This will render it unconstitutional to give Spain a preference to the Western country in the navigation of that river. They may say that this is a constrained construction, but it appears to me rational. It would be a violation of true policy to give such a preference. It would be a departure from natural construction to suppose, that an advantage withheld from the States, should be given to a foreign nation.41
Under the Confederation, Congress cannot make a treaty without the consent of nine States. Congress, by the proposed plan, cannot make a treaty without the consent of two–thirds of the Senators present, and of the President. Two-thirds will amount to nine States, if the Senators from all the States be present. Can it be candidly and fairly supposed, that they will not all, or nearly all, be present when so important a subject as a treaty is to be agitated? The consent of the President is a very great security.42
He is elected by the people at large. He will not have the local interests which the members of Congress may have.
If he deviates from his duty he is responsible to his constituents. He will be degraded, and will bring on his head the accusation of the Representatives of the people—an accusation which has ever been, and always will be, very formidable: He will be absolutely disqualified to hold any place of profit, honor, or trust, and liable to further punishment, if he has committed such high crimes, as are punishable at common law. From the summit of honor and esteem, he will be precipitated to the lowest infamy and disgrace.43
Although the Representatives have no immediate agency in treaties, yet from their influence in the Government, they will direct everything. They will be a considerable check on the Senate and President. Those from small States will be particularly attentive, to prevent a sacrifice of territory. The people of New-England have lately purchased great quantities of lands in the Western country. Great numbers of them have moved thither. Everyone has left his friends, relations, and acquaintance, behind him. This will prevent those States from adopting measure, that would so greatly tend to the injury of their friends. Has not Virginia, in the most explicit terms, asserted her right to that navigation? Can she ever enjoy it under so feeble a Government as the present? This is one reason why she should assent to ratify this system.
A strong argument offered by the Gentleman last up, against the concession of direct taxation, is, that the back lands and impost will be sufficient for all the exigencies of Government, and calculates the impost at a considerable amount. The impost will be affected by this business. The navigation of that river will increase the impost. Are not the United States as much interested as the people of Kentucky, to retain that navigation? Congress will have as much interest in it, as any inhabitant of that country, and must exert themselves for it. Kentucky will have taxes to pay. How can they pay them without navigation? It will be to their interest to have it in their power to navigate the Mississippi, and raise money by imposts. It will be to the interest of all the States, as it will increase the general resources of the united community. Considering Kentucky as an independent State, she will, under the present system, and without the navigation of that river, be furnished with the articles of her consumption, through the medium of the importing States. She will therefore be taxed by every importing State. If the new Constitution takes place, the amounts of all duties on imported articles, will go into the general treasury, by which means Kentucky will participate an equal advantage with the importing States. It will then be clearly to the advantage of the inhabitants of that country that it should take place.444546
He tells us, that he prays for Union. What kind of Union? An Union of the whole, I suppose, if it could be got on his terms. If on such terms, he will adopt it. If not, he will recur to partial Confederacies. He will attempt amendments. If he cannot obtain them—Then he will choose a partial Confederacy! Now I beg every Gentleman in this Committee, who would not sacrifice the Union, to attend to the situation in which they are about to place themselves. I beg Gentlemen seriously to reflect on this most important business.
They say amendments may be previously obtained, but acknowledged to be difficult. Will you join in an opposition that so directly tends to disunion? Can any member here think of disunion, or a partial Confederacy, without horror? Yet both are expressly preferred to Union, unless this system be amended previously. But, says the worthy member, why should not previous amendments be obtained? Will they not be agreed to, as the eight adopting States are friends to the Union? But what follows? If they are so, they will agree to subsequent amendments. If you recommend alterations after ratifying, the friendship of the adopting States to the Union, and the desires of several of them to have amendments, will lead them to gratify every reasonable proposal. By this means you secure the Government and Union. But if you reject the Constitution and say, that you must have alterations as the previous condition of adoption, you sacrifice the Union, and all the valuable parts of it.47
Can we trust, says he, our liberty to the President—to the Senate—to the House [of] Representatives? We do not trust our liberty to a particular branch: One branch has not the whole power. One branch is a check on the other. The Representatives have a controuling power over the whole. He then told us, that Republican borderers are not disposed to quarrels. This controverts the uniform evidence of history. I refer the Gentleman to the history of Greece. Were not the Republics of that country, which bordered on one another, almost perpetually at war? Their Confederated Republics, as long as they were united, were continually torn by domestic factions. This was the case with the Amphyctions. They called to their assistance the Macedonian Monarch, and were subjected themselves by that very Prince. This was the fate of the other Greecian Republics. Dissentions among themselves rendered it necessary for them to call for foreign aid, and this expedient ultimately ended in their own subjugation. This proves the absolute necessity of the Union. There is a country which affords strong examples, which may be of great utility to us. I mean Great-Britain. England, before it was united to Scotland, was almost constantly at war with that part of the island. The inhabitants of the north and south parts of the same island were more bitter enemies to one another, than to the nations on the Continent. England and Scotland were more bitter enemies before the Union, than England and France have ever been, before or since. Their hatred and animosities were stimulated by the interference of other nations. Since the Union, both countries have enjoyed domestic tranquillity the greatest part of the time, and both countries have been greatly benefited by it. This is a convincing proof that Union is necessary for America, and that partial Confederacies would be productive of endless dissentions and unceasing hostilities between the different parties.
The Gentleman [Patrick Henry] relies much on the force of requisitions. I shall mention two examples which will shew their inutility. They are fruitless without the coercion of arms. If large States refuse, a complete civil war, or, dissolution of the Confederacy will result. If small States refuse, they will be destroyed, or obliged to comply. From the history of the United Netherlands, the inutility of requisitions, without recurring to force, may be proved. The small Provinces refused to comply. Holland, the most powerful, marched into their territories with an army, and compelled them to pay. The other example, is from the New-England Confederacy. Massachusetts, the most wealthy and populous State, refused to contribute her share. The rest were unable to compel her, and the league was dissolved. Attend to a resolution of the Assembly of Virginia in the year 1784. (Her Mr. Nicholas read a resolution of the Assembly of that year, to enable Congress to compel a compliance with requisitions.)-I am sure that the Gentleman recognizes his child. Is not this a conclusive evidence of the utter inefficiency of requisitions? This expedient of coercion is a dreadful alternative. It confounds those who are innocent, and willing to pay, with those who refuse. How are they to be discriminated, if a State is to be attacked for the refusal of its Legislature? I am sure there is not a man in the Committee who does not see the impolicy and danger of such an expedient. We are next terrified with the thoughts of excises. in some countries excises are terrible. In others they are not only harmless, but useful. In our sister States they are exercised without any inconvenience. They are a kind of tax on manufactures. Our manufactures are few in proportion to those of other States. We may be assured, that Congress shall make such regulations as will make excises convenient and easy for the people.
Another argument made use of, is, that ours is the largest State, and must pay in proportion to the other States. How does that appear? The proportion of taxes are fixed by the number of inhabitants, and not regulated by the extent of territory, or fertility of soil. If we be wealthier in proportion, than the other States, it will fall lighter upon us than upon poorer States. They must fix the taxes so that the poorest State can pay, and Virginia being richer will bear it easier.
The Honorable Gentleman says, that the first collections are to go to Congress, and that the State legislatures must bear all deficiencies. How does this appear? Does he prove it? Nothing of it appears in the plan itself. the Congress and the State Legislatures have concurrent jurisdiction in laying and collecting taxes. There is no rule that shews that Congress shall have the first collections. Each is independent of the other. Another argument against this disingenious construction is drawn from that clause which regulates representation, which is conclusive from the words themselves. "Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers." Each State will know from its population, its proportion of any general tax. As it was justly observed by the Gentleman over the way, (Goveror Randolph) they cannot possibly exceed that proportion; they are limited and restrained expressly to it. The State Legislatures have no check of this kind. Their power is uncontrouled. This excludes the danger of interference. Each collects its own taxes, and bears its own deficiencies: And officers are accountable to each Government for the different collections. I deny on my part, what he says with respect to the general welfare. he tells you, that under pretence of providing for the general welfare, they ay lay the most enormous taxes. There is nothing in the clause which warrants this suggestion. It provides, "That Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." The debts of the Union ought to e paid. Ought not the common defence to be provided for? Is it not necessary to provide for the general welfare? It has been fully proved, that this power could not be given to another body. The amounts to be raised, are confined to these purposes solely. Will oppresive burthens be warranted by this clause? They are not to raise money for any other purpose. It is a power which is drawn from his favourite Confederation, the eighth article of which provides, "That all charges of war, and all other expences that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasurey, which shall be supplied by the several States, in proportion to the value of all lands within each State, granted to, or surveyed for any person, as such land, and the building and improvement thereon shall be estimated, according to such mode as the United States in Congress assembled, shall, from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States within the time agreed upon by the United States in Congress assembled." Now, Sir, by a comparison of this article, with the clause in the Constitution, we shall find them to be nearly the same. The common defence and general welfare are the objects expressly mentioned to be provided for, in both systems. The power in the Confederation to secure and provide these objects was constitutionally unlimited. The requisitions of Congress are binding on the States, though from the imbilicility of their nature they cannot be enforced. The same power is intended by the Constitution. The only difference between them is, that Congress is by this plan to impose the taxes on the people, whereas by the Confederation they are laid by the States. The amount to be raised, and the power given to raise it, is the same in principle. The mode of raising is only different; and this difference is founded on the necessity of giving the Government that energy, without which, it cannot exist. The power has not been reprobated in the Confederation. It ought not to be blamed in the proposed plan of Government.
The Gentleman has adverted to what he calls the sweeping clause, &c. and represents it, as replete with great dangers. This dreaded clause runs in the following words: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers; and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." The Committee will perceive, that the Constitution had enumerated all the powers which the General Government should have; but did not say how they were to be exercised. It therefore in this clause tells how they shall be exercised. Does this give any new power? I say not. Suppose it had been inserted at the end of every power, that they should have power to make laws to carry that power into execution: Would this have increased their powers? If therefore it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end of all. This clause only enables them to carry into execution the powers given to them, but gives them no additional power.
But it is objected to for want of a Bill of Rights. It is a principle universally agreed upon, that all powers not given, are retained. Where by the Constitution, the General Government has general powers, for any purpose, its powers are absolute. Where it has powers with some exceptions, they are absolute, only as to those exceptions. In either case, the people retain what is not conferred on the General Government, as it is by their positive grant that it has any of its powers. In England, in all disputes between the King and people, recurrence is had to the enumerated rights of the people to determine. Are the rights in dispute secured—Are they included in Magna Charta, Bill of Rights, &c.? If not, they are, generally speaking, withiin the King's perogative. In disputes between Congress and the people, the reverse of the proposition holds. Is the disputed right enumerated? If not, Congress cannot meddle with it. Which is the most safe? The people of America know what they have relinquished, for certain purposes. They also know that they retain every thing else, and have a right to resume what they have given up, if it be perverted from its intended object. The King's perogative is general, with certain exceptions. The people are therefore less secure than we are. Magna Charta, Bill of Rights, &c. secure their liberty. Our Constitution itself contains an English Bill of Rights. The English Bill of Rights declares, that Parlimetns shall be held frequently. Our Constitution says, that Congress shall sit annually. Teh English Declaration of Rights provides, that no laws shall be suspended. The Constitution provides, that no law shall be suspended, except one, and that in time of rebellion, or invasion, which is the writ of habeas corpus. The Declaration of Rights says, that there should be no army in time of peace without the consent of Parliament. Here we cannot have any army even in time of war, with the approbation of our Representatives, for more than two years.
The liberty of the press is secured. What secures it in England? Is it secured by Magna Charta, the Declaration of Rights, or by any other express provision? It is not. They have no express security for the liberty of the press. They have a reliance on Parliament for its protection and security. In the time of King William, there passed an act for licensing the press. That was repealed. Since that time it has been looked upon as safe. The people have depended on their Representatives. They will not consent to pass an act to infring it, because such an act would irritate the nation. It is equally secure with us. As to the trial by jury, consider in what situation it is by the State Constitution. it is not on a better footing. It is by implication under the controul of the Legislature; because it has left particular cases to be decided by the Legislature. Here it is secured in criminal cases, and left to the Legislature in civil cases. One instance will prove the evil tendency of fixing it in the Constituiton. It would extend to all cases. Causes in Chancery, which strictly speaking, never are, nor can be well tried by a jury, would then be tried by that mode, and could not be altered though found to be inconvenient.
But taxes are to be increased we are told. I think they will not. I am clearly of opinion, that the deduction in the civil list of the States, will be equal to the increase of that of the General Government. Then the increase of custom-house officers is dreaded. The present custom-house officers will be sufficient in the hands of Congress. So that as much as oeconomy will take place, so far the revenues will be increased. Mr. Nicholas concluded, by making a few observations on the general structure of the Government, and its probable happy operation. He said that it was a Government calculated to suit almost any extent of territory. He then quoted the opinion of the celebrated Montesquieu, from Vol. 1st. book ix. where that writer speaks of a Confederate Republic as the only safe means of extending the sphere of a Republican Government to any considerable degree.
The Committee then rose-And on motion, Resolved, That this Convention will, to-morrow, again resolve itself into a Committee of the whole Convention, to take into farther consideration, the proposed Constitution of Government.
And then the Convention adjourned until to-morrow morning, ten o'clock.