As the charges of M—s. are founded in the main, on "Yates debates in the federal Convention of 1787", it may be remarked without impeaching the integrity of the Reporter, that he was the representative in that Body of the party in N. York which was warmly opposed to the Convention, and to any change in the principles of the "articles of confederation"; that he was doubtless himself at the time, under all the political bias which an honest mind could feel; that he left the Convention, as the Journals shew, before the middle of the Session, and before the opinions or views of the members might have been developed into their precise & practical application; that the notes he took, are on the face of them, remarkably crude & desultory, having often the appearance of scraps & expressions as the ear hastily caught them, with a liability to omit the sequel of an observation or an argument which might qualify or explain it.
With respect to inferences from votes in the Journal of the Convention, it may be remarked, that being unaccompanied by the reasons for them, they may often have a meaning quite uncertain, and sometimes contrary to the apparent one. A proposition may be voted for, with a view to an expected qualification of it; or voted agst. as wrong in time or place, or as blended with other matter of objectionable import.
Although such was the imperfection of Mr Yates Notes of what passed in the Convention, it is on that authority alone that J. M. is charged with having said "that the States never possessed the essential rights of sovereignty; that these were always vested in Congress"
It must not be overlooked that this language is applied to the Condition of the States, and to that of Congress, under "the Articles of Confederation". Now can it be believed that Mr. Yates did not misunderstand J. M in making him say, that the States had then never possessed the essential rights of sovereignty" and that "these had always been vested in the Congress then existing. The charge is incredible, when it is recollected that the second of the Articles of Confederation emphatically declares "that each State retains its sovereignty freedom & independence and every power &c, which is not expressly delegated to the U. S. in Congs. assembled"
It is quite possible that J. M. might have remarked that certain powers attributes of sovereignty had been vested in Congs; for that was true as to the powers of war, peace, treaties &c" But that he should have held the language ascribed to him in the notes of Mr. Yates, is so far from being credible, that it suggests a distrust of their correctness in other cases where a strong presumptive evidence is opposed to it.
Again, J M. is made to say "that the States were only great political corporations having the power of making by-laws, and these are effectual only if they were not contradictory to the general confederation"
Without admitting the correctness of this statement in the sense it seems meant to convey, it may be observed that according to the theory of the old confederation, the laws of the States contradictory thereto would be ineffectual. That they were not so in practice is certain, and this practical inefficacy is well known to have been the primary inducement to the exchange of the old for the new system of Govt. for the U. S.
Another charge agst. J. M. is an "opinion that the States ought to be placed under the controul of the General Govt. at least as much as they formerly were under the King & Parliament of G. B."
The British power over the Colonies, as admitted by them, consisted mainly of 1. the Royal prerogatives of war & peace, treaties coinage &c. with a veto on the Colonial laws as a guard agst. laws interfering with the General law, and with each other: 2 the parliamentary power of regulating commerce, as necessary to be lodged somewhere, and more conveniently there than elsewhere. These powers are actually vested in the Federal Govt. with the difference, that for the veto power is substituted the general provision that the Constitution & laws of the U. S. shall be paramount to the Constitutions & laws of the States; and the further difference that no tax whatever should be levied by the British Parliament, even as a regulation of commerce; whereas an indefinite power of taxation is allowed to Congress, with the exception of a tax on exports, a tax the least likely to be resorted to. When it is considered that the power of taxation is the most commanding of powers, the one for which G. Britain contended for, and the Colonies resisted by a war of seven years, and when it is considered that the British Govt. was, in every branch, irresponsible to the American people, whilst every branch of the Federal Government is responsible to the States and the people as their Constituents, it might well occur on a general view of the subject, that in an effectual reform of the Federal system, as much power might be safely instrusted to the new Govt. as was allowed to G. B. in the old one.
An early idea taken up by J. M. with a view to the security of a Govt. for the Union, and the harmony of the State Governments, without allowing to the former an unlimited and consolidated power, appears to have been a negative on the State laws, to be vested in the Senatorial branch of the Govt; but under what modifications does not appear. This again is made a special charge against him. That he became sensible of the obstacles to such an arrangement, presented in the extent of the Country, the number of the States and the multiplicity of their laws, can not be questioned. But is it wonderful that among the early thoughts on a subject so complicated and full of difficulty, one should have been turned to a provision in the compound and on this point analogous system of which this Country had made a part; substituting for the distant, the independent & irresponsible authority of a King which had rendered the provision justly odius, an elective and responsible authority within ourselves.
It must be kept in mind that the radical defect of the old confederation lay in the power of the States to comply with to disregard or to counteract the authorisd requisitions & regulations of Congress that a radical cure for this fatal defect, was the essential object for which the reform was instituted; that all the friends of the reform looked for such a cure; that there could therefore be no question but as to the mode of effecting it. The deputies of Virga. to the Convention, consisting of G. W. Govr. R. &c appear to have proposed a power in Congs. to repeal the unconstitutional and interfering laws of the States. The proposed negative on them, as the Journals shew, produced an equal division of the Votes. In every proceeding of the Convention where the question of paramountship in the laws of the Union could be involved, the necessity of it appears to have been taken for granted. The mode of controuling the legislation of the States which was finally preferred has been already noticed. Whether it be the best mode, experience is to decide. But the necessity of some adequate mode of preventing the States in their individual characters, from defeating the Constitutional authority of the States in their united character, and from collisions among themselves, had been decided by a past experience. (It may be thought not unworthy of notice that Col. Taylor regarded the controul of the Fedl. Judiciary over the State laws as more objectionable than a Legislative negative on them. See New Views &c. p. 18. contra see Mr. Jefferson-vol. 2. p. 163)
M — s asks "If the States possessed no sovereignty, how could J. M. "demonstrate that the States retained a residuary sovereignty", and calls for a solution of the problem. He will himself solve it, by answering the question, which is most to be believed, that J M. should have been guilty of such an absurdity, or that Mr. Yates should have erred in ascribing it to him.
Mr. Y. himself says "that J. M. expressed as much attachment to the rights of the States as to the trial by Jury."
By associating J. M. with Mr. Hamilton who entertained peculiar opinions, M—s would fain infer that J. M. concurred with those opinions. The inference would have been as good, if he had made Mr. H. concur in all the opinions of J. M. That they agreed to a certain extent, as the body of the Convention manifestly did, in the expediency of an energetic Govt. adequate to the exigencies of the Union, is true. But when M — s adds "that Mr. H. & Mr. M. advocated a system, not only independent of the States, but which would have reduced them to the meanest municipalities", he failed to consult the recorded differences of opinion between the two individuals
[Footnotes as included or written by Farrand]