A letter from the Honorable the President to the Convention was read, stating his inability to attend his duty in the House to-day; Whereupon the Honorable John Tyler was unanimously elected Vice-President, to preside during the inability of the President.
The Convention then, 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.
Mr. Corbin thought the Mississippi subject had been amply discussed.-He hoped that the Committee would enter into the discussion of the proposed Constitution regularly-but that if any Gentleman would continue the enquiry relative to that river, he would answer him. He moved, that they should debate it clause by clause.
Mr. Grayson,-Mr. Chairman.-I conceive the investigation of this subject, which materially concerns the welfare of this country, ought not to wound the feelings of any Gentleman. I look upon this as a contest for empire.-Our country is equally affected with Kentucky.- The Southern States are deeply interested in this subject. If the Mississippi be shut up, emigrations will be stopped entirely. There will be no new States formed on the Western Waters. This will be a Government of seven States. This contest of the Mississippi involves this great national contest-That is, whether one part of the Continent shall govern the other. The Northern States have the majority, and will endeavor to retain it. This is therefore a contest for dominion-for empire. I apprehend that God and nature have intended, from the extent of territory and fertility of soil, that the weight of population should be on this side of the Continent. At present, for various reasons, it is on the other side. This dispute concerns every part of Kentucky. A particular investigation ought to offend no Gentleman.-Mr. Grayson then declared he hoped the subject would be further continued.
Mr. Alexander White wished the further discussion of that subject to be postponed till they came to that part which enables the Senate to make treaties.-He seconded Mr. Corbin's motion, to proceed clause by clause.
(The third section of the first article was then read.)
Mr. Tyler hoped, that when amendments should be brought forward, they should be at liberty to take a general view of the whole Constitution. He thought that the power of trying impeachments, added to that of making treaties, was something enormous, and rendered the Senate too dangerous.
Mr. Madison answered, that it was not possible to form any system to which objections might not be made; that the junction of these powers might be in some degree objectionable, but that it could not be amended. He agreed with the Gentleman, that when amendments were brought on, a collective view of the whole system might be taken.
(The 4th and 5th sections read.)
Mr. Monroe wished that the Honorable Gentleman, who had been in the Federal Convention, would give information respecting the clause concerning elections. He wished to know why Congress had an ultimate controul over the time, place, and manner of elections of Representatives, and the time and manner of that of Senators; and also why there was an exception as to the place of electing Senators.
Mr. Madison,-Mr. Chairman.-The reason of the exception was, that if Congress could fix the place of choosing the Senators, it might compel the State Legislatures to elect them in a different place from that of their usual sessions, which would produce some inconvenience, and was not necessary for the object of regulating the elections. But it was necessary to give the General Government a controul over the time and manner of choosing the Senators, to prevent its own dissolution.
With respect to the other point, it was thought that the regulation of time, place, and manner of electing the Representatives, should be uniform throughout the Continent. Some States might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some States; particularly South-Carolina, with respect to Charleston, which is represented by 30 Members. Should the people of any State, by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government. It was found impossible to fix the time, place, and manner, of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State Governments, as being best acquainted with the situation of the people, subject to the controul of the General Government, in order to enable it to produce uniformity, and prevent its own dissolution. And considering the State Governments and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former, and the general regulations to the latter. Were they exclusively under the controul of the State Governments, the General Government might easily be dissolved. But if they be regulated properly by the State Legislatures, the Congressional controul will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution.
Mr. Monroe wished to hear an explanation of the clause, which prohibits either House, during the session of Congress, from adjourning for more than three days without the consent of the other. He asked if it was proper or right, that the Members of the lower House should be dependent on the Senate? He considered that it rendered them in some respect dependent upon the Senators, as it prevented them from returning home, or adjourning, without their consent, and as this might increase their influence unduly, he thought it improper.
Mr. Madison wondered that this clause should meet with a shadow of objection. It was possible, he observed, that the two branches might not agree concerning the time of adjourning, and that this possibility suggested the power given the President of adjourning both Houses to such time as he should think proper, in case of their disagreement. That it would be very exceptionable to allow the Senators, or even the Representatives, to adjourn without the consent of the other House, at any season whatsoever, without any regard to the situation of public exigencies. That it was possible, in the nature of things, that some inconvenience might result from it; but that it was as well secured as possible.
Governor Randolph observed, that the Constitution of Massachusetts was produced as an example, in the Grand Convention, in favor of this power given to the President. If, said his Excellency, he be honest, he will do what is right. If dishonest, the Representatives of the people will have power of impeaching him.
Mr. Henry—Mr. Chairman.—Our burden should, if possible, be rendered more light. I was in hopes some other Gentleman would have objected to this part. The pay of the Members is, by the Constitution, to be fixed by themselves, without limitation or restraint. They may therefore indulge themselves in the fullest extent. They may make their compensations as high as they please. I suppose, if they be good men, their own delicacy will lead them to be satisfied with moderate salaries. But there is no security for this, should they be otherwise inclined. I really believe that if the State Legislatures were to fix their pay, no inconvenience would result from it, and the public mind would be better satisfied.2
But in the same section there is a defect of a much greater consequence. There is no restraint on corruption. They may be appointed to offices without any material restriction. And the principal source of corruption in Representatives, is the hopes and expectations of offices and emoluments. After the first organization of offices, and the Government is put in motion, they may be appointed to any existing offices which become vacant, and they may create a multiplicity of offices, in order thereafter to be appointed to them. What says the clause? "No Senator or Representative, shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time." This is an idea strangely expressed. He shall not accept of any office created during the time he is elected for, or to any office whereof the emoluments have been increased in that time! Does not this plainly say, that if an office be not created during the time for which he is elected, or if its emoluments be not increased during such time, that he may accept of it? I can see it in no other light. If we wish to preclude the inticement to getting offices, there is a clear way of expressing it. If it be better that Congress should go out of their representative offices, by accepting other offices, then it ought to be so. If not, we require an amendment to the clause, that it shall not be so. I may be wrong. Perhaps the Honorable Member may be able to give a satisfactory answer on this subject.3
Mr. Madison,—Mr. Chairman.—I most sincerely wish to give a proper explanation on this subject, in such a manner as may be to the satisfaction of everyone. I shall suggest such considerations as led the Convention to approve of this clause. With respect to the right of ascertaining their own pay, I will acknowledge, that their compensations, if practicable, should be fixed in the Constitution itself, so as not to be dependent on Congress itself, or on the State Legislatures. The various vicissitudes, or rather the gradual diminution of the value of all coins and circulating medium, is one reason against ascertaining them immutably; as what may be now an adequate compensation, might, by the progressive reduction of the value of our circulating medium, be extremely inadequate at a period not far distant.
It was thought improper to leave it to the State Legislatures, because it is improper that one Government should be dependent on another: And the great inconveniencies experienced under the old Confederation, shew, that the States would be operated upon by local considerations, as contradistinguished from general and national interests.—Experience shews us, that they have been governed by such heretofore, and reason instructs us, that they would be influenced by them again. This theoretic inconvenience of leaving to Congress the fixing their compensations, is more than counterbalanced by this in the Confederation; that the State Legislatures had a right to determine the pay of the Members of Congress, which enabled the States to destroy the General Government. There is no instance where this power has been abused. In America, Legislative bodies have reduced their own wages lower rather than augmented them. This is a power which cannot be abused without rousing universal attention and indignation. What would be the consequence of the Virginian Legislature raising their pay to four or five pounds each per day? The universal indignation of the people. Should the General Congress annex wages disproportionate to their service, or repugnant to the sense of the community, they would be universally execrated. The certainty of incurring the general detestation of the people will prevent abuse. It was conceived, that the great danger was in creating new offices, which would increase the burdens of the people; and not in an uniform admission of all meritorious characters to serve their country in the old offices. There is no instance of any State Constitution which goes as far as this. It was thought to be a mean between two extremes. It guards against abuse by taking away the inducement to create new offices, or increase the emoluments of old offices. And it gives them an opportunity of enjoying, in common with other citizens, any of the existing offices which they may be capable of executing. To have precluded them from this, would have been to exclude them from a common privilege to which every citizen is intitled, and to prevent those who had served their country with the greatest fidelity and ability from being on a par with their fellow-citizens. I think it as well guarded as reason requires: More so than the Constitution of any other nation.
Mr. Nicholas thought it sufficiently guarded, as it prevented the Members of the General Government from holding offices which they created themselves, or of which they increased the emoluments; and as they could not enjoy any office during their continuance in Congress. To admit them to old offices when they left Congress, was giving them no exclusive privilege, but such as every citizen had an equal right to.
Mr. Tyler was afraid, that as their compensations were not fixed in the Constitution, Congress might fix them so low, that none but rich men could go; by which the Government might terminate in an Aristocracy. The States might choose men noted for their wealth and influence, and that State influence would govern the Senate. This, though not the most capital objection, he thought was considerable, when joined to others of greater magnitude. He thought the Gentleman's account of it, was by no means satisfactory. A parallel had been drawn between this power in Congress, of fixing their compensations, and that of our Assembly fixing the quantum of their salaries. He was of opinion, the comparison did not apply, as there was less responsibility in the former than in the latter case. He dreaded that great corruption would take place, and wished to have it amended so as to prevent it.
Mr. Grayson,—Mr. Chairman.—It strikes me that they may fix their wages very low. From what has happened in Great-Britain, I am warranted to draw this conclusion. I think every Member of the House of Commons formerly had a right to receive twenty shillings, or a guinea, a day. But, I believe, that this salary is taken away since the days of corruption. The Members of the House of Commons, if I recollect rightly, get nothing for their services as such. But there are some noble emoluments to be derived from the Minister, and some other advantages to be obtained. Those who go to Parliament form an idea of emoluments. They expect something besides wages. They go in with the wishes and expectations of getting offices.—This, Sir, may be the case in this Government. My fears are increased from the inconveniencies experienced under the Confederation.
Most of the great officers have been taken out of Congress; such as Ambassadors to foreign Courts, &c. A number of offices have been unnecessarily created, and Ambassadors have been unnecessarily sent to foreign countries—to countries with which we have nothing to do. If the present Congress exceeded the limits of propriety, though extremely limited with respect to power in the creation of offices; what may not the future Congress do, when they have by this system a full scope of creating what offices, and annexing what salaries they please? There are but few Members in the Senate and lower House. They may all get offices at different times, as they are not excluded from being appointed to existing offices, for the time for which they shall have been elected. Considering the corruption of human nature, and the general tendency of mankind to promote their own interest, I think there is great danger. I am confirmed in my opinion from what I have seen already in Congress, and among other nations. I wish this part therefore to be amended, by prohibiting any Senator, or Representative, from being appointed to any office during the time for which he was elected, and by fixing their emoluments.4
Though I would not object to the Constitution on this account solely, were there no other defect.
Mr. Madison,—Mr. Chairman.—Let me ask those who oppose this part of the system, whether any alteration would not make it equally, or more liable to objections? Would it be better to fix their compensations? Would not this produce inconveniencies? What authorises us to conclude, that the value of coins will continue always the same?—Would it be prudent to make them dependent on the State Governments for their salaries—On those who watch them with jealous eyes, and who consider them as encroaching, not on the people, but on themselves? But the worthy Member [John Tyler] supposes, that Congress will fix their wages so low, that only the rich can fill the offices of Senators and Representatives. Who are to appoint them? The rich? No, Sir, the people at large are to choose them. If the Members of the General Government were to reduce their compensations to a trifle, before the evil suggested could happen, the people could elect other Members in their stead, who would alter that regulation. The people do not choose them for their wealth. If the State Legislatures choose such men as Senators, it does not influence the people at large in their election of Representatives. They can choose those who have the most merit and least wealth. If Congress reduce their wages to a trifle, what shall prevent the States from giving a man of merit, so much as will be an adequate compensation? I think the evil very remote, and if it were now to happen, the remedy is in our own hands, and may by ourselves be applied.
Another Gentleman seems to apprehend infinite mischief from a possibility that any Member of Congress may be appointed to an office, although he ceases to be a Member the moment he accepts it! What will be the consequence of precluding them from being so appointed? If you have in your country one man whom you could in time of danger trust above all others, with an office of high importance, he cannot undertake it till the two years expire if he be a Representative; or till the six years elapse, if a Senator.—Suppose America was engaged in war, and the man of the greatest military talents and approved fidelity, was a Member of either House—would it be right that this man who could lead us to conquer, and who could save his country from destruction, could not be made General till the term of his election expired? Before that time we might be conquered by our enemies. This will apply to civil as well as military offices. It is impolitic to exclude from the service of his country, in any office, the man who may be most capable of discharging its duties, when they are most wanting.
The Honorable Gentleman [William Grayson] said, that those who go to Congress will look forward to offices as a compensation for their services, rather than salaries. Does he recollect that they shall not fill offices created by themselves? When they go to Congress the old offices will be filled. They cannot make any probable calculation that the men in offices will die, or forfeit their offices. As they cannot get any new offices, one of these contingencies must happen before they can get any office at all. The chance of getting an office is therefore so very remote, and so very distant, that it cannot be considered as a sufficient reason to operate on their minds to deviate from their duty. Let any man calculate in his own mind, the improbability a Member of the General Government getting into an office, when he cannot fill any office newly created, and when he finds all the old offices filled at the time he enters into Congress. Let him view the danger and impolicy of precluding Member of Congress from holding existing offices, and the danger of making one Government dependent on another, and he will find that both clauses deserve applause.
The observations made by several Honorable Members illustrate my opinion, that it is impossible to devise any system agreeable to all. When objections so contradictory are brought against it, how shall we decide? Some Gentlemen object because they may make their wages too high—Others object to it, because they may make them too low! If it is to be perpetually attacked by principles so repugnant, we may cease to discuss.6
For what is the object of our discussion? Truth, Sir. To draw a true and just conclusion.—Can this be done without rational premises, and syllogistic reasoning.
As to the British Parliament, it is nearly as he says. But how does it apply to this case?
Suppose their compensations had been appointed by the State Governments, or fixed in the Constitution—Would it be a safe Government for the Union, if its Members depended on receiving their salaries from other political bodies at a distance, and fully competent to withhold them? Its existence would at best be but precarious. If they were fixed in the Constitution, they might become extremely inadequate, and produce the very evil which Gentlemen seem to fear. For then a man of the highest merit could not act unless he were wealthy.7
This is the most delicate part in the organization of a Republican Government. It is the most difficult to establish on unexceptionable grounds. It appears to me most eligible as it is. The Constitution has taken a medium between the two extremes, and perhaps with more wisdom than either the British or the State Governments, with respect to their eligibility to offices. They can fill no new offices created by themselves, nor old ones of which they increased the salaries. If they were excluded altogether, it is possible that other disadvantages might accrue from it, besides the impolicy and injustice of depriving them of a common privilege. They will not relinquish their Legislative in order to accept other offices. They will more probably confer them on their friends and connections. If this be an inconvenience, it is incident to all Governments. After having heard a variety of principles developed, I thought that on which it is established the least exceptionable, and it appears to me sufficiently well guarded.
Mr. Grayson,—Mr. Chairman.—I acknowledge that the Honorable Gentleman has represented the clause rightly as to their exclusion from new offices: But is there any clause to hinder them from giving offices to uncles, nephews, brothers, and other relations and friends? I imagine most of the offices will be created the first year, and then Gentlemen will be tempted to carry on this accommodation.
A worthy Member [James Madison] has said, what had been often said before, that suppose a war took place, and the most experienced and able man was unfortunately in either House, he could not be made General, if the proposed amendment was adopted. Had he read the clause, he would have discovered that it did not extend to military offices, and that the restriction extends to civil offices only. No case can exist with respect to civil offices, that would occasion a loss to the public if the Members of both Houses were precluded from holding any office during the time for which they were elected. The old Confederation is so defective, in point of power, that no danger can result from creating offices under it; because those who hold them cannot be paid. The power of making paper money will not be exercised. This country is so thoroughly sensible of the impropriety of it, that no attempt will be made to make anymore. So that no danger can arise, as they have not power to pay, if they appoint, officers. Why not make this system as secure as that, in this respect?
A great number of offices will be created to satisfy the wants of those who shall be elected. The worthy Member says, the electors can alter them. But have the people the power of making honest men be elected? If he be an honest man, and his wages so low that he could not pay for his expences, he could not serve them if elected. But there are many thirsting after offices, more than public good. Political adventurers go up to Congress solely to advance their own particular emoluments. It is so in the British House of Commons. There are two sets always in that House. One, the landed interest, the most patriotic and respectable. The other a set of dependents and fortune-hunters, who are elected for their own particular interest, and are willing to sell the interest of their constituents to the Crown. The same division may happen among our Representatives. This clause might as well not be guarded at all, as in this flimsy manner. They cannot be elected to offices for the terms for which they were elected, and continue to be Members of Congress. But as they can create as many offices as they please, for the particular accommodation of their friends, it might as well not be guarded at all. Upon the whole I consider it entirely imperfect.8
Mr. Grayson objected to the power of the Senate to propose or concur with amendments to money bills. He looked upon the power of proposing amendments to be equal in principle to that of originating, and that they were in fact the same. As this was, in his opinion, a departure from that great principle which required that the immediate Representatives of the people only should interfere with money bills; he wished to know the reasons on which it was founded. The Lords in England had never been allowed to intermeddle with money bills. He knew not why the Senate should. In the lower House, said he, the people are represented according to their numbers. In the upper House, the States are represented in their political capacities. Delaware or Rhode-Island has as many Representatives here as Massachusetts. Why should the Senate have a right to intermeddle with money, when the representation is neither equal or just?
Mr. Madison,—Mr. Chairman.—The criticism made by the Honorable Member, is, that there is an ambiguity in the words, and that it is not clearly ascertained where the origination of money bills may take place. I suppose the first part of the clause is sufficiently expressed to exclude all doubts. The Gentlemen who composed the Convention divided in opinion, concerning the utility of confining this to any particular branch. Whatever it be in Great-Britain, there is a sufficient difference between us and them to render it inapplicable to this country. It always appeared to me to be a matter of no great consequence, whether the Senate had a right of originating, or proposing amendments to money bills or not. To withhold it from them would create disagreeble disputes. Some American constitutions make no difference. Virginia and South-Carolina, are, I think, the only States where this power is restrained. In Massachusetts, and other States, the power of proposing amendments is vested unquestionably in their Senates. No inconvenience has resulted from it. On the contrary, with respect to South-Carolina, this clause is continually source of disputes. When a bill comes from the other House, the Senate entirely rejects it, and this causes contentions. When you send a bill to the Senate, without the power of making any alteration, you force them to reject the bill altogether, when it would be necessary and advantageous that it should pass. The power of proposing alterations removes this inconvenience, and does not appear to me at all objectionable. I should have no objection to their having a right of originating such bills. People would see what was done, and it would add the intelligence of one House to that of the other. It would be still in the power of the other House to obstruct any injudicious measure proposed by them. There is no land-mark or constitutional provision in Great-Britain, which prohibits the House of Lords from intermeddling with money bills; but the House of Commons have established this rule. Yet the Lords insist on their having a right to originate them, as they possess great property, as well as the Commons, and are taxed like them. The House of Commons object to their claim, least they should too lavishly make grants to the Crown, and increase the taxes. The Honorable Member [William Grayson] says, that there is no difference between the right of originating bills, and proposing amendments. There is some difference, though not considerable. If any grievances should happen in consequence of unwise regulations in revenue matters, the odium would be divided, which will now be thrown on the House of Representatives. But you may safely lodge this power of amending with the Senate. When a bill is sent with proposed amendments to the House of Representatives, if they find the alterations defective, they are not conclusive. The House of Representatives are the judges of their propriety, and the recommendation of the Senate is nothing. The experience of this State justifies this clause.—The House of Delegates has employed weeks in forming money bill; and because the Senate had no power of proposing amendments, the bill was lost altogether; and a new bill obliged to be again introduced, when the insertion of one line by the Senate would have done. Those Gentlemen who oppose this clause will not object to it, when they recollect that the Senators are appointed by the States, as the present Members of Congress are appointed. For, as they will guard the political interests of the States in other respects, they will attend to them very probably in their amendments to money bills. I think this power, for these considerations, is useful and necessary.
Mr. Grayson still considered the power of proposing amendments to be the same in effect, as that of originating. The Senate could strike out every word of the bill, except the word Whereas, or any other introductory word, and might substitute new words of their own. As the State of Delaware was not so large as the county of Augusta, and Rhode-Island was still less, and yet had an equal suffrage in the Senate, he could not see the propriety of giving them this power; but referred it to the judgment of the House.
Mr. Clay wished to be informed, why the Congress were to have power to provide for calling forth the militia, to put the laws of the Union in execution.
Mr. Madison supposed the reasons of this power to be so obvious that they would occur to most Gentlemen. If resistance should be made to the execution of the laws, he said, it ought to be overcome. This could be done only two ways; either by regular forces, or by the people. By one or the other it must unquestionably be done. If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed to suppress and repel them, rather than a standing army. The best way to do these things, was to put the militia on a good and sure footing, and enable the Government to make use of their services when necessary.
Mr. George Mason,—Mr. Chairman.—Unless there be some restrictions on the power of calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use the militia to a very bad purpose, if any disturbance happened in New-Hampshire, to call them from Georgia. This would harrass the people so much that they would agree to abolish the use of militia, and establish standing army. I conceive the General Government ought to have power over the militia, but it ought to have some bounds. If Gentlemen say, that the militia of a neighbouring State is not sufficient, the Government ought to have power to call forth those of other States, the most convenient and contiguous. But in this case the consent of the State Legislatures ought to be had. On real emergencies this consent will never be denied; each State being concerned in the safety of the rest. This power may be restricted without any danger. I wish such an amendment as this, that the militia of any State should not be marched beyond the limits of the adjoining State, and if it be necessary to draw them from one end of the Continent to the other, I wish such a check as the consent of the State Legislature, to be provided. Gentlemen may say, that this would impede the Government; and that the State Legislatures would counteract it, by refusing their consent. This argument may be applied to all objections whatsoever.—How is this compared to the British Constitution?—Though the King may declare war, the Parliament has the means of carrying it on. It is not so here. Congress can do both. Were it not for that check in the British Government, the Monarch would be a despot. When a war is necessary for the benefit of the nation, the means of carrying it on are never denied. If any unjust requisition be made on Parliament, it will be, as it ought to be, refused. The same principle ought to be observed in our Government. In times of real danger, the States will have the same enthusiasm in aiding the General Government, and granting its demands, which is seen in England, when the King is engaged in a war apparently for the interest of the nation.—This power is necessary, but we ought to guard against danger. If ever they attempt to harass and abuse the militia, they may easily abolish them, and raise a standing army in their stead. There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a Government, where there is a standing army.
The militia may be here destroyed by that method which has been practised in other parts of the world before. That is, by rendering them useless, by disarming them.9
Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them,10
&c. Here is a line of division drawn between the State and General Governments.—The power over the militia is divided between them. The national Government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The State Governments have the power of appointing the officers, and of training the militia according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national Government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing standing army.11
No man has a greater regard for the military Gentlemen than I have. I admire their intrepidity, perseverance, and valour. But when once a standing army is established, in any country, the people lose their liberty. When against a regular and disciplined army, yeomanry are the only defence yeomanry unskilful and unarmed, what chance is there for preserving freedom? Give me leave to recur to the page of history, to warn you of your present danger-Recollect the history of most nations of the world. What havock, desolation, and destruction, have been perpetrated by standing armies? An instance within the memory of some of this House, will shew us how our militia may be destroyed.
Forty years ago, when the resolution of enslaving America was formed in Great-Britain, the British Parliament was advised by an artful man who was Governor of Pennsylvania, to disarm the people.-That it was the best and most effectual way to enslave them.-But that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia.-(Here Mr. Mason quoted sundry passages to this effect)-This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The General Government ought at the same time to have some such power. But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.12
I am not acquainted with the military profession. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet anyone. I wish, that in case the General Government should neglect to arm and discipline - the militia, that there should be an express declaration, that the State Governments might arm and discipline them. With this single exception I would agree to this part, as I am conscious the Government ought to, have the power. They may effect the destruction of the militia, by rendering the service odious to the people themselves, by harassing them from one end of the Continent to the other, and by keeping them under martial law. The English Parliament never pass a mutiny bill but for one year. This is necessary, for otherwise the soldiers would be on the same footing with the officers, and the army would be dissolved. One mutiny bill has been here in force since the revolution. I humbly conceive there is extreme danger of establishing cruel martial regulations. If at any time our rulers should have unjust and iniquitous designs against our liberties, and should wish to establish a standing army, the first attempt would be to render the service and use of militia odious to the people themselves; subjecting them to unnecessary severity of discipline in time of peace, confining them under martial law, and disgusting them so much, as to make them cry out, Give us a standing army-I would wish to have some check to exclude this danger; as, that the militia should never be subject to martial law, but in time of war. I consider and fear the natural propensity of rulers to oppress the people. I wish only to prevent them from doing evil By these amendments, I would give necessary powers, but no unnecessary power. If the clause stands as it is now, it will take from the State Legislatures what Divine Providence has given to every individual-the means of self-defence. Unless it be moderated in some degree, it will ruin us and introduce a standing army.
Mr. Madison.-Mr. Chairman.-I most cordially agree with the Honorable Member last up, that a standing army is one of the greatest mischiefs that can possibly happen. It is a great recommendation for this system, that it provides against this evil more than any other system known to us, and particularly more than the old system of Confederation
. The most effectual way to guard against a standing army, is to render it unnecessary. The most effectual way to render it unnecessary, is to give the General Government full power to call forth the militia, and exert the whole natural strength of the Union when necessary. Thus you will furnish the people with sure and certain protection, without recurring to this evil; and the certainty of this protection from the whole, will be a strong inducement to individual exertion. Does the organization of this Government warrant a belief that this power will be abused? Can we believe that a Government of a federal nature, consisting of many coequal sovereignties, and particularly having one branch chosen from the people, would drag the militia unnecessarily to an immense distance? This, Sir, would be unworthy the 13
most arbitrary despot. They have no temptation whatever to abuse this power; such abuse could only answer the purpose of exciting the universal indignation of the people, and drawing on themselves the general hatred and detestation of their country.
I cannot help thinking that the Honorable Gentleman [George Mason] has not considered in all its consequences, the amendment he has proposed. Would this be an equal protection, Sir? Or would it notbe a most partial provision? Some States have three or four States in contact. Were this State invaded, as it is bounded by several States, the militia of three or four States would, by this proposition, be obliged to come to our aid; and those from some of the States would come a far greater distance than those of others. There are other States, which if invaded, could be assisted by the militia of one State only, there being several States which border but on one State. Georgia and New-Hampshire would be infinitely less safe than most of the other States. Were we to adopt this amendment, we should set up those states as butts for invasions, invite foreign enemies to attack them, and expose them to peculiar hardships and dangers. Were the militia confined to any limitted distance from their respective places of abode, it would produce equal, nay more, inconveniencies. The principles of equality and reciprocal aid would be destroyed in either case.
I cannot conceive that this Constitution, by giving the General Government the power of arming the militia, takes it away from the State Governments. The power is concurrent, and not exclusive. Have we not found from experience, that while the power of arming and governing of the militia has been solely vested in the State Legislatures, they
were neglected and rendered unfit for immediate service? Every State neglected too much this most essential object-But the General Government can do it more effectually. Have we not also found, that the militia of one State were almost always insufficient to succour its harassed neighbour? Did all the States furnish their quotas of militia, with sufficient promptitude? The assistance of one State will be of little avail to repel an invasion. But the general head of the whole Union can do it with effect, if it be vested with power to use the aggregate strength of the Union. If the regulation of the militia were to be committed to.the Executive authority alone, there might be reason for providing restrictions. But, Sir, it is the Legislative authority that has this power. They must make a law for the purpose.14
The Honorable Member is under another mistake. He wishes martial law to be exercised only in time of war, under an idea that Congress can establish it in time of peace. The States are to have the authority of training the militia according to the Congressional discipline; and of governing them at all times, when not in the service of the Union- Congress is to govern such part of them as may be employed in the actual service of the United States; and such part only can be subject to martial law. The Gentlemen in opposition have drawn a most tremendous picture of the Constitution in this respect. Without considering that the power was absolutely indispensible, they have alarmed us with the possible abuse of it; but have shewn no inducement or motive to tempt them to such abuse. Would the Legislature of this State drag the militia of the Eastern Shore to the Western frontiers, or those of the Western frontiers to the Eastern Shore, if the local militia were sufficient to effect the intended purpose? There is something so preposterous, and so full of mischief in the idea of dragging the militia unnecessarily from one end of the Continent to the other, that I think there can be no ground of apprehension.
If you limit their power over the militia, you give them a pretext for substituting standing army. If you put it in the power of the State Governments to refuse the militia, by requiring their consent, you destroy the General Government, and sacrifice particular States. The same principles and motives which produced disobedience to requisitions, will producerefusal in this case. The restrictions which the Honorable Gentleman [George Mason] mentioned to be in the British Constitution, are all provisions against the power of the Executive Magistrate. But the House of Commons may, if they be so disposed, sacrifice the interest of their constituents in all those cases. They may prolong the duration of mutiny bills, and grant supplies to the King to carry on an impolitic war. But they have no motives to do so. For they have strong motives to do their duty. We have more ample security than the people of Great-Britain. The powers of the Government are more limited and guarded, and our Representatives are more responsible than the Members of the British House of Commons. Mr. Clay apprehended that by this power, our militia might be sent to the Mississippi. He observed that the sheriff might raise the posse comitatus to execute the laws-He feared it would lead to the establishment of a military Government, as the militia were to be called forth to put the laws in execution. He asked why this mode was preferred to the old established custom of executing the laws? Mr. Madison answered, that the power existed in all countries, that the militia might be called forth for that purpose, under the laws of this State and every other State in the Union. That public force must be used, when the resistance to the laws required it, otherwise the society itself must be destroyed. That the mode referred to by the Gentleman might not be sufficient on every occasion, as the sheriff must be necessarily restricted to the posse of his own county. If the posse of one county were insufficient to overcome the resistance to the execution of the laws, this power must be resorted to. He did not by any means admit, that the old mode was superceded by the introduction of the new one. And it was obvious to him, that when the civil power was sufficient, this mode would never be put in practice.15
Mr. Henry-Mr. Chairman-In my judgment the friends of the opposition - have to act cautiously. We must make a firm stand before wedecide. I was heard to say, a few days ago, that the sword and pursewere the two great instruments of Government, and I professed great repugnance at parting with the purse, without any controul to the proposed system of Government And now when we proceed in this formidable compact, and come to the national defence, the sword; I am persuaded, we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
The Honorable Member [James Madison] who has risen to explain several parts of the system, was pleased to say, that the best way of avoiding the danger of a standing army, was, to have the militia in such a way as to render it unnecessary, and that as the new Government would have power over the militia, we should have no standing army, it being unnecessary. This argument destroys itself. It demands a power, and denies the probability of its exercise. There are suspicions of power on the one hand, and absolute and unlimited confidence on the other. I hope to be one of those who have a large portion of suspicion. I leave it to this House, if there be not too small a portion on the other side; by giving up too much to that Government, you can easily see which is the worst of two extremes. Too much suspicion may be corrected. If you give too little power to-day, you may give more to-morrow. But the reverse of the proposition will not hold. If you give too much power to-day, you cannot retake it to-morrow: For to-morrow will never come for that purpose. If you have the fate of other nations, you will never see it. It is easier to supply deficiencies of power, than to take back excess of power. This no man can deny- But, says the Honorable Member, Congress will keep the militia armed, or in other words, they will do their duty-Pardon me, if I am too jealous and suspicious to confide in this remote possibility.16
My honorable friend went on a supposition that the American rulers, like all others, will depart from their duty without bars and checks. No Government can be safe without checks. Then he told us, they had no temptation to violate their duty, and that it would be their interest to perform it. Does he think you are to trust men who cannot have separate interests from the people? It is a novelty in the political world (as great a novelty as the system itself) to find rulers without private interests, and views of personal emoluments and ambition. His supposition, that they will not depart from their duty, as having no interest to do so, is no satisfactory answer to my mind. This is no check. The Government may be most intolerable and destructive, if this be our onlysecurity. My honorable friend [George Mason] attacked the Honorable Gentleman [James Madison] with universal principles. That, in all nations and ages, rulers have been actuated by motives of individual interests, and private emoluments, and that in America it would be so also. I hope, before we part with this great bulwark, this noble palladium of safety, we will have such checks interposed as will render us secure. The militia, Sir, is our ultimate safety. We can have no security without it.
But then, he [James Madison] says, that the power of arming and organizing the militia is concurrent, and to be equally exercised by the General and State Governments. I am sure, and I trust in the candour of that Gentleman, that he will recede from that opinion, when his recollection will be called to the particular clause which relates to it. As my worthy friend [George Mason] said, there is a positive partition of power between the two Governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the State Legislatures is given the power of "appointing the officers and training the militia according to the discipline prescribed by Congress." I observed before, that if the power be concurrent as to arming them, it is concurrent in other respects. If the States have the right of arming them, &c. concurrently, Congress has a concurrent power of appointing the officers and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity—That Congress has nothing exclusive on the one hand, nor the States on the other—The rational explanation is, that Congress shall have exclusive power of arming them, &c. and that the State Governments shall have exclusive power of appointing the officers, &c. Let me put it in another light. May we not discipline and arm them as well as Congress, if the power be concurrent? So that our militia shall have two sets of arms, double sets of regimentals, &c. and thus, at a verygreat cost, we shall be doubly armed. The great object is, that everyman be armed. But can the people afford to pay for double sets of arms, &c? Everyone who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case? When this power is given up to Congress without limitation orbounds, how will your militia be armed? You trust to chance; for sure I am, that that nation which shall trust its liberties in other hands, cannot long exist. If Gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or in otherwords, to say that Congress shall not arm or discipline them, till the States shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you.17
You would be laughed at by the whole world, for trusting your safety implicitly to implication-The argument of my honorable friend [George Mason] was, that rulers might tyrannize. The answer he received, was, that they will not. In saying that they would not, he [James Madison] admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in Government. If Gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.
The Honorable Gentleman [James Madison] in endeavouring to answer - the question, why the militia were to be called forth to execute the laws, said that the civil power would probably do it. He is driven to say, that the civil power may do it instead of the militia. Sir, the military power ought not to interpose till the civil power refused. If this be the spirit of your new Constitution, that the laws are to be inforced by military coercion, we may easily divine the happy consequences which will result from it. The civil power is not to be employed at all. If it be, shew me it. I read it attentively, and could see nothing to warrant a belief that the civil power can be called for. I would be glad to see the power that authorises Congress to do so.18
The sheriff will be aided by military force. The most wanton excesses may be committed under colour of this. For everyman in office, in the States, is to take an oath to support it in all its operations. The Honorable Gentleman said, in answer to the objection, that the militia might be marched from New-Hampshire to Georgia, that the Members of the Government would not attempt to excite the indignation of the people. Here again we have the general unsatisfactory answer, that they will be virtuous, and that there is no danger. Will Gentlemen be satisfied with an answer which admits of dangers and abuses, if they be wicked? Let us put it out of their power to do mischief I am convinced there is no safety in the paper on the table as it stands now. I am sorry to have an occasion to pass an eulogium on the British Government, as Gentlemen may object to it. But how natural it is, when comparing deformity to beauty, to be struck with the superiority of the British Government to that system? In England, self-love-self-interest, pow- erfully stimulates the Executive Magistrate to advance the prosperity of the nation. In the most distant part he feels the loss of his subjects. He will see the great advantage of his posterity inseparably from the felicity of his people-Man is a fallen creature, a fallible being, and cannot be depended on without self-love. Your President will not have the same motives of self-love to impel him to favor your interests. His political character is but transient, and he will promote as much as possible, his own private interests. He will conclude, the constant observation has been, that he will abuse his power, and that it is expected. The King of England has a more permanent interest. His stock-his family is to continue in possession of the same emoluments. The more flourishing his nation, the more formidable and powerful is he. The sword and purse are not united in that Government in the same hands, as in this system. Does not infinite security result from their separation? But it is said, that our Congress are more responsible than the British Parliament. It appears to me there is no real, though there may be some specious responsibility. If Congress, in the execution of their un- bounded powers, shall have done wrong, how will you come at them to punish them, if they are at the distance of 500 miles? At such a great distance they will evade responsibility altogether. If you have given up your militia, and Congress shall refuse to arm them, you have lost every thing. Your existence will be precarious, because you depend on others, whose interests are not affected by your infelicity. If Con- gress are to arm us exclusively, the man of New-Hampshire mayvote for or against it, as well as the Virginian. The great distance and difference between the two places, render it impossible that the people of that country can know, or pursue what will promote our convenience. I therefore contend, that if Congress do not arm the militia, we ought to provide for it ourselves.
Mr. Nicholas-Mr. Chairman-
The great object of Government in every country, is security and public defence. I suppose therefore that what we ought to attend to here, is, what is the best mode of enabling the General Government to protect us? One of three ways must be pursued for this purpose. We must either empower them to employ, and rely altogether on a standing army, or depend altogether on militia; or else we must enable them to use the one or the other of these two ways, as may be found most expedient. The least reflection will satisfy us, that the Convention has adopted the only proper method. If a standing army were alone to be employed, such an army must be kept up in time of peace, as would be sufficient in war. The dangers of such an army are so striking, that everyman would oppose the ado19
ption of this Government, had it been proposed by it, as the only mode of defence. Would it be safe to depend on militia alone, without the agency of regular forces even in time of war? Were we to be invaded by a powerful disciplined army, would we be safe with militia? Could men unacquainted with the hardships, and unskilled in the discipline of war,-men only inured to the peaceable occupations of domestic, life, encounter with success, the most skilful veterans, inured to the fatigues and toils of campaigns? Although some people are pleased with the theory of reliance on militia as the sole defence of a nation, yet I think it will be found in practice to be by no means adequate. Its inadequacy is proved by the experience of other nations. But were it fully adequate, it would be unequal. If war be supported by militia, it is by personal service. The poor man does as much as the rich. Is this just? What is the consequence when war is carried on by regular troops?-They are paid by taxes raised of the people, according to their property; and, then the rich man pays an adequate share. But if you confine yourselves to militia alone, the poor man is oppressed. The rich man exempts himself by furnishing substitute. And, although - it be oppressive to the poor, it is not advantageous to the rich: For what he gives would pay regular troops. It is therefore neither safe nor just to depend entirely on militia.20
As these two ways are ineligible, let us consider the third method. Does this Constitution put this on a proper footing? It enables Congress to raise an army when necesssary, or to call forth the militia when necessary. What will be the consequence of their having these two powers? Till there be a necessity for an army to be raised, militia will do. And 21
when an army will be raised, the militia will still be employed, which will render a less numerous army sufficient. By these means there will be a sufficient defence for the country, without having a standing army altogether, or oppressing the people. The worth Member [George Mason] has said, that it ought to be a part of the Constitution that the militia ought not to go out of the State without the consent of the State Legislature. What would be the consequence of this? The general defence is trusted to the General Government. How is it to protect the Union? It must apply to the State Governments before it can do it. Is this right? Is it not subjecting the general will to the particular will, and exposing the general defence to the particular caprice of the Members of the State Governments? This would entirely defeat the power given to Congress, to provide for the general defence, and unless the militia were to aid in the execution of the laws, when resisted, the other powers of Congress would be nugatory. But he has said, that this idea is justified by the English history—For that the King has the power of the sword, but must apply to the Commons for the means of using it—for the purse. This is not a similar case. The King and Commons are parts of the same Government. But the General Government is separate and perfectly distinct from the individual Governments of the States. Should Congress be obliged to apply to the particular States for the militia, they may be refused, and the Government overturned. To make the case similar, he ought to show us, that the King and Parliament were obliged to call on some other power to raise forces, and provide for the means of carrying on war; for, otherwise there is no similitude. If the General Government be obliged to apply to the States, a part will be thereby rendered superior to the whole. What are to be the effects of the amendment proposed? To destroy one of the most beneficial parts of the Constitution; put an obstacle in the way of the General Government, and put it in the power of the State Governments to take away the aid of the militia. Who will be most likely to want the aid of the militia?-The Southern States from their situation. Who are the most likely to be called for? The Eastern States from their strength, &c. Should we put it in the power of particular States to refuse the militia, it would operate against ourselves. It is the height of bad policy to alter this part of the system.
But it is said, the militia are to be disarmed. Will they be worse armed than they are now? Still, as my honorable friend [James Madison] said, the States would have power to arm them. The power of arming them is concurrent, between the General and State Governments. For the power of arming them rested in the State Governments before, and although the power be given to the General Government, yet it is not given exclusively. For, in every instance, where the Constitution intends that the General Government shall exercise any power exclusively of the State Governments, words of exclusion are particularly inserted. Consequently in everycase where such words of exclusion are not inserted, the power is concurrent to the State Governments and Congress, unless where it is impossible that the power should be exercised by both. It is therefore not an absurdity to say, that Virginia may arm the militia should Congress neglect to arm them. But it would be absurd to say, that we should arm them after Congress had armed them, when it would be unnecessary; or that Congress should appoint the officers and train the militia when it is expressly excepted from their powers.
But his [George Mason] great uneasiness is, that the militia may be under martial law when not under duty. A little attention will be sufficient to remove this apprehension. The Congr22
ess is to have power "To provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." Another part tells you, that they are to provide for calling them forth, to execute the laws of the Union, suppress insurrections, and repel invasions. These powers only amount to this; that they can only call them forth in these three cases; and that they can only govern such part of them as may be in the actual service of the United States. This causes a sufficient security, that they will not be under martial law but when in actual service.23
If, Sir, a mutiny-bill has continued since the revolution, recollect that this is done under the present happy Government. Under the new Government, no appropriation of money, to the use of raising or supporting an army, shall be for a longer term than two years. The President is to command. But the regulation of the army and navy is given to Congress. Our Representatives will be a powerful check here. The influence of the Commons in England in this case is very predominant.
But the worthy Member on the other side of the House
[Patrick Henry], has said, that the militia are the great bulwark of the nation, and wishes to take no step to bring them into disuse. What is the inference? He wishes to see the militia employed. The Constitution provides what he wants: That is, to bring them frequently into use. If he expects that by depriving - the General Government of the power of calling them into more frequent use, they will be rendered more useful and expert, he is greatly deceived - We ought to part with the power to use the militia to some body. To whom? Ought we not to part with it for the general defence? If you give it not to Congress, it may be denied by the States. If you withhold it, you render a standing army absolutely necessary. For if they have not the militia, they must have such a body of troops as will be necessary for the general defence of the Union.24
It was said by the Gentleman [Patrick Henry], that there was something singular in this Government, in saying, that the militia shall be called forth to execute the laws of the Union.25
There is a great difference between having the power in three cases, and in all cases. They cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions. And can any thing be more demonstrably obvious, than that the laws ought to be inforced if resisted -, and insurrections quelled, and foreign invasions repelled? But it is asked, why has not the Constitution declared, that the civil power shall be employed to execute the laws? Has it said that the civil power shall not be employed? The civil officer is to execute the laws on all occasions; and if he be resisted, this auxiliary power is given to Congress, of calling forth the militia to execute them, when it shall be found absolutely necessary. From his [Patrick Henry] argument on this occasion, and his eu- logium on the Executive Magistrate of Britain, it might be inferred, that the Executive Magistrate here, was to have the power of calling forth the militia. What is the idea of those Gentlemen who heard his.'- argument on this occasion? Is it not that the President is to have this pow
er-that President who he tells us, is not to have tho
se high feel- ings, and that fine sensibility, which the British Monarch possesses? No, Sir, the President is not to have this power. God forbid we should ever see a public man in this country who should have this power. Congress only are to have the power of calling forth the militia. And will the worthy Member say, that he would trust this power to a Prince governed by the dictates of ambition, or mere motives of personal interest, sooner than he would trust it in the hands of Congress? I will trust Congress, because they will be actuated by motives of fellow feeling. They can make no regulations but what will affect themselves, their friends, and relations. But I would not trust a Prince whose ambition and private views would be the guide of his actions. When the Government is carried on by Representatives, and persons of my own choice, whom I can follow when far removed, wh
o can be displaced at stated and short periods, I can safely confide the power to them. It appears to me that this power is essentially necessary. For, as the general defence is trusted to Congress, we ought to intrust fully the means. This cannot be fully done without giving the power of calling forth the militia; and this power is sufficiently guarded.2627
Mr. Madison-Mr. Chairman.-The Honorable Gentleman [Patrick Henry] has laid much stress on the maxim, that the purse and sword ought not to be put in the same hands; with a view of pointingout the impropriety of vesting this power in the General Government. But it is totally inapplicable to this question. What is the meaning of this maxim? Does it mean that the sword and purse ought not to be trusted in the hands of the same Government? This cannot be the meaning. For there never was, and I can say there never will be, an efficient Government, in which both are not vested. The only rational meaning, is, that the sword and purse are not to be given to the same member. Apply it to the British Government which has been mentioned. The sword is in the hands of the British King. The purse in the hands of the Parliament. It is so in America, as far as any analogy can exist. Would the Honorable Member say, that the sword ought to be put in the hands of the Representatives of the people, or in other hands independent of the Government altogether? If he says so, it will violate the meaning of that maxim. This would be a novelty hitherto unprecedented.
The purse is in the hands of the Representatives of the people. They have the appropriation of all monies. They have the direction and regulation of land and naval forces.28
They are to provide for calling forth the militia-And the President is to have the command; and, in conjunction with the Senate, to appoint the officers. The means ought to be commensurate to the end. The end is general protection. This cannot be effected without a general power to use the strength of the Union. We are told that both sides are distinguished by these great traits, confidence and distrust. Perhaps there may be a less or greater tincture of suspicion on one side, than the other. But give me leave to say, that where power can be safely lodged, if it be necessary, reason commands its cession. In such case it is imprudent and unsafe to withhold it. It is universally admitted that it must be lodged in some hands or other. The question then is, in what part of the Government it ought to be placed; and not whether any other political body independent of the Government should have it or not. I profess myself to have had an uniform zeal for a Republican Government. If the Honorable Member, or any other person, conceives that my attachment to this system arises from a different source, he is greatly mistaken. From the first moment that my mind was capable of contemplating political subjects, I never, till this moment, ceased wishing success to a well regulated Republican Government. The establishment of such in America was my most ardent desire. I have considered attentively (and my consideration has been aided by experience) the tendency of a relaxation of laws, and licentiousness of manners.
If we review the history of all Republics, we are justified by the supposition, that if the bands of the Government be relaxed, confusion will ensue. Anarchy ever has, and I fear ever will, produce despotism. What was the state of things that preceded the wars and revolutions in Germany? Faction and confusion. What produced the disorders and commotions of Holland? The like causes in this Commonwealth, and every State in the Union, the relaxed operation of the Government has been sufficient to alarm the friends of their country. The rapid increase of population in every State is an additional reason to check dissipation and licentiousness. Does it not strongly call for the friends of Republican Government to endeavour to establish a Republican organization? A change is absolutely necessary. I can see no danger in submitting to practice an experiment which seems to be founded on the best theoretic principles. But the Honorable Member [Patrick Henry] tells us, there is not an equal responsibility delineated on that paper, to that which is in the English Government. Calculations have been made here, that when you strike off those entirely elected by the influence of the Crown, the other part does not bear a greater proportion to the number of their people, than the number fixed in that paper, bears to the number of inhabitants in the United States. If it were otherwise, there is still more responsibility in this Government. Our Representatives are chosen for two years. In Great Britain they are chosen for seven years. Any citizen may be elected here. In Great-Britain no one can be elected to represent a county, without having an estate of the value of 6001 sterling, a year; nor to represent a corporation without an annual estate of 3001 yet we are told, there is no sympathy or fellow-feeling between the people here, and their Representatives; but that in England they have both. A just comparison will shew, that confidence be due to the Government there, it is due ten-fold here-Mr. Madison made many other observations, but spoke so very low that he could not be distinctly heard.)
Mr. Henry-Mr. Chairman-It is now confessed that this is a national Government. There is not a single federal feature in it. It has been alledged within these walls, during the debates, to be national and federal, as it suited the arguments of Gentlemen. But now when we have heard the definition of it, it is purely national The Honorable Member [James Madison] was pleased to say, that the sword and purse included every thing of consequence. And shall we trust them out of our hands without checks and barriers? The sword and purse are essentially necessary for the Government. Every essential requisite must be in Congress. Where are the purse and sword of Virginia? They must go to Congress. What is become of your country? The Virginian Government is but a name. It clearly results from his last argument that we are to be consolidated. We should be thought unwise indeed to keep 200 Legislators in Virginia, when the Government is in fact gone to Philadelphia or New-York. We are as a State to form no part of the Government. Where are your checks? The most essential objects of Government are to be administered by Congress. How then can the State Governments be any check upon them? If we are to be a Republican Government it will be consolidated, not confederated. The means, says the Gentleman, must be commensurate to the end. How does this apply all things in common are left with this Government. There being an infinitude in the Government, there must be an infinitude of means to carry it on. This is a sort of mathematical Government that may appear well on paper, but cannot sustain examination, or be safely reduced to practice. The delegation of power to an adequate number of Representatives; and an unimpeded reversion of it back to the people at short periods, form the principal traits of a Republican Government. The idea of a Republican Government in that paper, is something superior to the poor people. The governing persons are the servants of the people. There the servants are greater than their masters; because it includes infinitude, and infinitude excludes every idea of subordination. In this the creature has destroyed, and soared above the creator. For if its powers be infinite, what rights have the people remaining? By that very argument despotism has made way in all countries, where the people unfortunately have been enslaved by it. We are told the sword and purse are necessary for the national defence. The junction of these without limitation in the same hands, is, by logical and mathematical conclusions, the description of despotism. The reasons adduced here today, have long ago been advanced in favor of passive obedience and non-resistance. In 1688, the British nation expelled their Monarch for attempting to trample on their liberties. The doctrine of divine right and passive obedience, as I said to be commanded by Heaven, was inculcated by his minions and adherents. He wanted to possess without control, the sword and purse. The attempt cost him his Crown. This Government demands the same powers. I see reason to be more and more alarmed. I fear it will terminate in despotism. As to his objection of the abuse of liberty, it is denied. The political inquiries and promotions of the peasants, is a happy circumstance. A foundation of knowledge is a great mark of happiness. When the spirit of inquiry after political discernment, goes forth among the lowest of the people, it rejoices my heart. Why such fearful apprehensions? I defy him to shew that liberty has been abused. There has been no rebellion here, though there was in Massachusetts. Tell me of any country which has been so long without a rebellion. Distresses have been patiently borne in this country, which would have produced revolutions in other countries. We strained every nerve to make provisions to payoff our soldiers and officers. They, though not paid, and greatly distressed at the conclusion of the war, magnanimously acquiesced. The depreciation of the circulating currency so very much involved many of them, and thousands of other citizens, in absolute ruin; but the same patient fortitude and forbearance marked their conduct-What would the people of England have done in such a situation? They would have resisted the Government, and murdered the tyrant. But in this country no abuse of power has taken place. It is only a general assertion unsupported, which suggests the contrary. Individual licentiousness will shew its baneful consequences in every country, let its Government be what it may.
But the Honorable Gentleman says, responsibility will exist more in this, than in the British Government. It exists here more in name than any thing else. I need not speak of the Executive authority. But consider the two Houses-the American Parliament. Are the Members of the Senate responsible? They may try themselves, and if found guilty on impeachment, are to be only removed from office. In England the greatest characters are brought to the block for their sinister administration. They have a power there, not to dismiss them from office, but from life, for malpractices. The King himself cannot pardon in this case. How does it stand with respect to your lower House? You have but ten; whatever number may be there, six is a majority-Will your country afford no temptation, no money to corrupt them? Cannot six fat places be found to accommodate them? They may, after the first Congress, take any place. There will be a multiplicity of places. Suppose they corruptly obtain places. Where will you find them to punish them? At the farthest parts of the Union. In the ten miles square; or within a State where there is a strong hold. What are you to do when these men return from Philadelphia? Two things are to be done. To detect the offender and bring him to punishment. You will find it difficult to do either. In England the proceedings are openly transacted. They deliver their opinions freely and openly-They do not fear all Europe. Compare it to this. You cannot detect the guilty.
The publication from time to time is merely optional in them. They may prolong the period, or suppress it altogether under pretence of its being necessary to be kept secret. The yeas and nays will avail nothing. Is the publication daily? It may be a year, or once in a century. I know this would be an unfair construction in the common concerns of life. But it would satisfy the words of the Constitution. It would be some security were it once a year, or even once in two years.29
When the new election comes on, unless you detect them, what becomes of your responsibility? Will they discover their guilt when they wish to be re-elected? This would suppose them to be not only bad, but foolish men. In pursuit of responsibility, have you a right to scrutinize into the conduct of your Representatives? Can any man who conceives himself injured, go and demand a sight of their journals? But it will be told that I am suspicious. I am answered to every question, that they will be good men. In England they see daily what is doing in Parliament. They will hear from their Parliament in one thirty-ninth part of the time, that we will hear from Congress in this scattered country. Let it be proposed in England to lay a poll-tax, or enter into any measure that will injure one part, and produce emoluments to another; intelligence will fly quickly as the rays of light to the people- They will instruct their Representatives to oppose it, and will petition against it, and get it prevented or redressed instantly. Impeachment follows quickly a violation of duty. Will it be so here? You must detect the offence, and punish the defaulter. How will this be done when you know not the offender, even though he had a previous design to commit the misdemeanor? Your Parliament will consist of sixty-five. Your share will be ten out of the sixty-five. Will they not take shelter, by saying, they were in the minority-that the men from New-Hampshire and Kentucky out-voted them?-Thus will responsibility, that great pillar of a free Government, be taken away.
The Honorable Gentleman [James Madison] wished to try the experiment. Loving his country as he does, he would not surely wish to trust its happiness to an experiment, from which much harm, but no good may result.
I will speak another time, and will not fatigue the Committee now. I think the friends of the opposition ought to make a pause here; for, I can see no safety to my country, if you give up this power.
Mr. Madison-Mr. Chairman.-The Honorable Member [Patrick Henry] expresses surprise, that I wished to see an experiment made of a Republican Government; or, that I would risk the happiness of my country on an experiment. What is the situation of this country at this moment? Is it not rapidly approaching to anarchy? Are not the bands of the Union so absolutely relaxed as almost to amount to a dissolution? What has produced despotism and tyranny in other parts of the world? Is it not agreed upon all hands, that a reform is necessary? If any takes place, will it not be an experiment as well as this system? He acknowledges the existing system to be defective. He admits the necessity of some change. Would not the change he would chuse himself be also an experiment? He has repeated objections which have been already clearly refuted, and which I will therefore pass over.
With respect to responsibility, still the Honorable Member thinks, that the House of Representatives and Senate will suffer by a comparison with the British Parliament. I will not repeat the contrast made before, which he has not mentioned. He. tells us what may be done by our Representatives with respect to the admission to offices, and insinuates that less may be done in Great-Britain by the Members of Parliament. In this country, by this system, no new office can be taken by a Member of the Government, and if he takes an old one, he loses his seat. If the emoluments of any existing office be encreased, he cannot take it. How is it in Great-Britain? Any Member may have any place. For Parliament may create any new offices they please, or increase the emoluments of existing offices, and yet the Members may accept any such places. Any Member may accept any office whatever, and go again into Parliament. Does this comparison militate against this system? He tells us the affairs of our country are not alarming. I wish this assertion was well founded. I concur with him in rejoicing to see the people enlightened and vigilant. I should be happy to see the people paying respect to the laws and magistracy. But is respect paid to our laws? Every mans experience will tell him more perhaps than any thing I could say. Public and private confidence daily and rapidly decrease. Experiments must be made, and in that form which we must find most to the interest of our country.
Governor Randolph-Mr. Chairman-Our attention is summoned to this clause respecting the militia, and alarms are thrown out to persuade us, that it involves a multiplicity of dangers. It is supposed by the Honorable Gentleman lately up [Patrick Henry], and another Gentleman [Green Clay], that the clause for calling forth the militia to suppress insurrections, repel invasions, and execute the laws of the Union, implies, that instead of using civil force in the first instance, the militia are to be called forth to resist petty offenders against the laws. Ought not common sense to be the rule of interpreting this Constitution? Is there an exclusion of the civil power? Does it provide that the laws are to be inforced by military coercion in all cases? No, Sir. All that we are to infer, is, that when the civil power is not sufficient, the militia must be drawn out. Who are they? He [Patrick Henry] says (and I chearfully acquiesce in the rectitude of the assertion) that they are the bulwark of our liberties. Shall we be afraid that the people, this bulwark of freedom, shall turn instruments of slavery? The officers are to be appointed by the States. Will you admit that they will act so criminally as to turn against their country? The officers of the General Government are attached to it, because they derive their appointment from it. Admitting the militia officers to be corrupt, what is to make them be in favor of the General Government? Will not the same reason attach them to the State Governments-But it is feared that the militia are to be subjected to martial law when not in service. They are only to be called out in three cases; and only to be governed by the authority of Congress when in the actual service of the United States-So that their articles of war can no longer operate upon them, than when in the actual service of the Union.
Can it be presumed that you can vest the supreme power of the United States with the power of defence, and yet take away this natural defence from them? You risk the general defence by withholding this power.
The Honorable Gentleman [Patrick Henry] speaking responsibility has mistaken facts. He says the King cannot pardon offenders found guilty on impeachment. The King can pardon after impeachment, though not before. He says further, that in America every thing is concealed, where as in England the operations of the Government are openly transacted-In England those subjects which produce impeachments are not opinions. No man ever thought of impeaching a man for an opinion. It would be impossible to discover whether the error in opinion, resulted from a wilful mistake of the heart, or an involuntary fault of the head. What are the occasions of impeachments most commonly? Treaties-Are these previously known? No. Till after theyare presented to the public eye, they are not known. Those who advised a treaty are not known till then. There ought not to be a publication on the subject of negotiations till they are concluded. So that when he thinks there is a greater notoriety in this case in England than here, I say he is mistaken. There will be as much notoriety in America as in England. The spirit of the nation occasions the notoriety of their political operations, and not any constitutional requisition. The spirit of liberty will not be less predominant in America, I hope than there.
With respect to a standing army, I believe there was not a Member in the Federal Convention, who did not feel indignation at suchan institution. What remedy then could be provided-Leave the country defenceless? In order to provide for our defence, and exclude the dangers of a standing army, the general defence is left to those who are the objects of defence. It is left to the militia who will suffer if they become the instruments of tyranny. The General Government must have power to call them forth when the general defence requires it. In order to produce greater security, the State Governments are to appoint the officers.30
The President, who commands them when in the actual service of the Union, is appointed secondarily by the people this is a further security.31
Is it not incredible, that men who are interested in the happiness of their country, whose friends, relations, and connections, must be involved in the fate of their country, should turn against their country? I appeal to every man, whether, if any of our own officers were called upon to destroy the liberty of their country, he believes they would assent to such an act of suicide? The State Governments having the power of appointing them, may elect men who are the most remarkable for their virtue and attachment to their country.
Mr. George Mason after having read the clause which gives Congress power to provide for arming, organizing, and disciplining the militia, and governing those in the actual service of the Union-declared it as his firm belief that it included the power of annexing punishments, and establishing necessary discipline; more especially as the construction of this, and every other part of the Constitution, was left to those who were to govern. If so, he asked, if Congress could not inflict the most ignominious punishments on the most worthy citizens of the community? Would freemen submit to such indignant treatment? It might be thought a strained construction, but it was no more than Congress might put upon it He thought such severities might be exercised on the militia, as would make them wish the use of militia to be utterly abolished; and assent to the establishment of a standing army.32
He then adverted to the representation, and said it was not sufficiently full, to take into consideration the feelings and sentiments of all the citizens. He admitted that the nature of the country rendered a full representation impracticable. But he strongly urged that impracticability a conclusive reason for granting no powers to the Government, but such as were absolutely indispensable, and these to be most cautiously guarded.33
He then recurred to the power of impeachment. On this subject he entertained great suspicions-He apologized for being suspicious-He entered into the world with as few suspicions as any man. Young men, he said, were apt to think well of everyone, till time and experience taught them better. After a treaty manifestly repugnant to the interests of the country was made, he asked, how they were to be punished? Suppose it had been made by the means of bribery and corruption-Suppose they had received 100,000 guineas, or louis d'ors, from a foreign nation, for consenting to a treaty; how was the truth to be come at? Corruption and bribery of that kind had happened in other Governments, and might in this. The House of Representatives were to impeach them.
The Senators were to try themselves. Ifa majority of them were guilty of the crime, would they pronounce themselves guilty?34
Yet, says he, this is called responsibility-He wished to know in what court the Members of the Government were to be tried for the commission of indictable offences, or injuries to individuals? He acknowledged himself to be no lawyer; but he thought he could see, that they could neither be tried in the State or Federal Courts. The only means therefore of bringing them to punishment must be by a court appointed by law: And the law to punish them must also be made by themselves. By whom is it to be made, demanded he? By the very men who are interested in not inflicting punishment. Yet, says he, though they make the law, and fix the punishment to be inflicted on themselves, it is called responsibility.35
If the Senators do not agree to the law, it will not be made, and thus they will escape altogether-Mr. Mason then animadverted on the ultimate controul of Congress over the elections; and was proceeding to prove that it was dangerous; when he was called to order by Mr. Nicholas, for departing from the clause under consideration-A desultory conversation ensued, and Mr. Mason was permitted to proceed. He was of opinion, that the controul over elections tended to destroy responsibility. He declared he had endeavoured to discover whether this power was really necessary, or what was the necessity of vesting it in the Government; but that he could find no good reason for giving it. That the reasons suggested were, that in case the States should refuse or neglect to make regulations; or in case they should be prevented from making regulations by rebellion or invasion, then the General Government should interpose-Mr. Mason then proceededthus-If there be any other cases I would be glad to know them; for I know them not. If there be no other, why not confine them to these cases? But the power here, as in a thousand other instances, is without reason-I have no power, which any other person can take from me. I have no right representation, if they can take it from me. I say therefore, that Congress may by this claim, take away the right of f representation; or render it nugatory, despicable, or oppressive. It is at least argumentative, that what may be done will be done, and that a favourite point will be done by those who can.
Suppose the State of Virginia should adopt such regulations as Gentlemen say (and in which I accord with all my heart) and divide the State into ten districts. Suppose then that Congress should order instead of this, that the elections should be held in the borough of Norfolk. Will any man say, that any man in Frederick or Berkeley county, would have any share in this Representation, if the Members were chosen in Norfolk? Nay, I might go further and say, that the elections for all the States might be had in New-York, and then we should have to go so far that the privilege would be lost altogether; for but few Gentlemen could afford to go thither. Some of the best friends of the Constitution have advocated that the elections should be in one place. This power is not necessary, and is capable of great abuse. It ought to be confined to the particular cases in which they I assert it to be necessary. Whatever Gentlemen may think of the opposition I will never agree to give any power which I conceive to be dangerous.
I have doubts on another point. The fifth section, of the first article, provides, "That each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy." This enables them to keep the negotiations about treaties secret. Under this veil they may conceal any thing and everything. Why not insert words that would exclude ambiguity and danger? The words of the Confederation, that defective system, are, in this respect, more eligible. What are they? In the last clause of the ninth article it provides, "That Congress shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy." The proceedings by that system are to be published monthly, except certain exceptions. These are proper guards. It is not so here. On the contrary they may conceal what they please. Instead of giving information, they will produce suspicion. You cannot discover the advocates of their iniquitous acts.36
This is an additional defect of responsibility. Neither House can adjourn without the con-sent of the other for more than three days. This is no Parliamentary rule. It is untrodden ground, and appears to me liable to much exception.
The Senators are chosen for six years. They are not recallable for those six years, and are re-eligible at the end of the six years. It stands on a very different ground from the Confederation. By that system they were only elected for one year, might be recalled, and were incapable re-election. But in the new Constitution, instead of being elected for one, they are chosen for six years. They cannot be recalled in all that time for any misconduct, and at the end of that long term may again be elected. What will be the operation of this? Is it not probable, that those Gentlemen who will be elected Senators will fix themselves in the federal town, and become citizens of that town more than of our State? They will purchase a good seat in or near the town, and become inhabitants of that place-Will it not be then in the power of the Senate to worry the House of Representatives into any thing? They will be a continually existing body. They will exercise those machinations and contrivances, which the many have always to fear from the few. The House of Representatives is the only check on the Senate, with their enormous powers. But by that clause you give them the power of worrying the House of Representatives into a compliance with any measure. The Senators living at the spot will feel no inconvenience from long sessions, as they will vote themselves handsome pay, without incurring any additional expences. Your Representatives are on a different ground, from their shorter continuance in office. The Gentlemen from Georgia are six or seven hundred miles from home, and wish to go home. The Senate taking advantage of this, by stopping the other House from adjourning, may worry them into any thing. These are my doubts, and I think the provision not consistent with the usual Parliamentary modes.
Mr. Lee, of Westmoreland,-Mr. Chairman-I am anxious to know the truth on this great occasion. I was in hopes of receiving true information, but have been disappointed. I have heard suspicions against possibility, and not against probability. As to the distinction which lies between the Gentlemen for and against the Constitution: In the first place most of the arguments the latter use, pay no regard to the necessity of the Union, which is our object In the next place they use contradictory arguments. It may be remembered, that we were told there was great danger ofan Aristocracy governing this country; for that their wages would be so low, that the rich alone could serve. And what does another Gentleman [George Mason] say? That the price will be so high, that they will fix themselves comfortably in office, and by their power and extravagant emoluments ruin us—Ought we to adduce arguments like these, which imply a palpable contradiction? We ought to use arguments capable of discussion.
I beg leave to make some reply to what the Honorable Gentleman over the way [Patrick Henry] said. He rose with great triumph and exultation, saying, that we had conceded, that the Government was national. The Honorable Gentleman is so little used to triumph on the grounds of reasoning, that he suffers himself to be quite captivated by the least appearance of victory. What reason had he to say, that we admitted it to be a national Government? We agree that the sword and the purse are in the hands of the General Government for different designated purposes. What had the Honorable Member [James Madison] conceded? That the objects of the Government were general, as designated in that system, equally affecting the interests of the people of every State. This was the sole concession, and which by no means warrants his conclusion. Then why did the Honorable Gentleman seize it as a victory? Does he mean to object to the Constitution by putting words into our mouths which we never uttered? Did that Gentleman say, that the happiness of the people depended on the private virtues of the Members of the Government, and not on its construction? Did any Gentleman admit this, as he insinuated? No, Sir, we never admitted such a conclusion. Why then take up the time of this House in declaiming on words we never said? We say, that it will secure our liberty and happiness, and that it is so constructed and organized, that we need apprehend no danger.
But says he, the creature destroys the creator. How has he proved it? By his bare assertion. By ascribing infinitude to powers clearly limited and defined, for certain designated purposes. I shall not repeat the arguments which have fully refuted this idea of the Honorable Gentleman.
But Gentlemen say, that we must apply to the militia to execute the constitutional laws, without the interposition of the civil power, and that a military officer is to be substituted to the Sheriff in all cases. This unwarrantable objection is urged, like many others, to produce the rejection of this Government, though contrary to reason—What is the meaning of the clause under debate? Does not their explanation violate the natural meaning of language? Is it to be inferred, that when the laws are not opposed, judgments must be executed by the militia? Is this the right and liberal way of discussing the general national objects? I am astonished that Gentlemen should attempt to impose so absurd a construction upon us.38
The Honorable Gentleman last up [George Mason] says, that ororganizing the militia gives Congress power to punish them when not in the actual service of the Government. The Gentleman is mistaken in the meaning of the word organization; to explain which would unnecessarily take up time. Suffice it to say, it does not include the infliction of punishments. The militia will be subject to the common regulations of war when in actual service. But not in time of peace.39
But the Honorable Gentleman said, there is danger of an abuse of the power, and attempted to exemplify. Any delegated power may be abused. It would be civil and candid in those Gentlemen who inveigh against this Constitution with such malignity, to shew in what manner adequate powers can be given without a possibility of being abused. It appears to me to be as well secured as it can be, and that the alterations he proposes would involve many disadvantages. I cannot then but conclude, that this Government will, in my opinion, secure our liberty and happiness, without any alteration.
Mr. Clay made several remarks, but he spoke too low. He admitted that he might be mistaken with respect to the exclusion of the civil power in executing the laws. As it was insinuated that he was not under the influence of common sense in making the objection, his error might result from his deficiency in that respect. But he thought that another Gentleman [Henry Lee] was as deficient in common decency, as he was in common sense. He was not, however, convinced that the civil power would be employed. If it was meant that the militia should not be called out to execute the laws in all cases, why were they not satisfied with the words, "repel invasions, suppress insurrections?" He thought the word insurrection included every opposition to the laws; and if so, it would be sufficient to call them forth to suppress insurrections, without mentioning that they were to execute the laws of the Union. He added, that although the militia officers were appointed by the State Governments, yet as they were sworn to obey the superior power of Congress, no check or security would result from their nomination of them.
Mr. Madison—Mr. Chairman—I cannot think that the explanation of the Gentleman last up, is founded in reason. It does not say that the militia shall be called out in all cases, but in certain cases. There are cases in which the execution of the laws may require the operation of militia, which cannot be said to be an invasion or insurrection.—There may be a resistance to the laws which cannot be termed an insurrection. My honorable friend over the way has opened a new source of arguments. He has introduced the assertions of Gentlemen out of doors. If we thus depart from regularity, we will never be able to come to a decision.
If there be any Gentleman who is a friend to the Government, and says, that the elections may, or ought to be held in one place, he is an enemy to it on that ground.—With respect to the time, place, and manner of elections, I cannot think, notwithstanding the apprehensions of the Honorable Gentleman, that there is any danger, or if abuse should take place, that there is not sufficient security.—If all the people of the United States should be directed to go to elect in one place, the Members of the Government would be execrated for the infamous regulation. Many would go to trample them under foot for their conduct—and they would be succeeded by men who would remove it. They would not dare to meet the universal hatred and detestation of the people, and run the risk of the certain dreadful consequences. We must keep within the compass of human probability. If a possibility be the cause of objection, we must object to every Government in America. But the Honorable Gentleman may say, that better guards may be provided. Let us consider the objection. The power of regulating the time, place, and manner of elections, must be vested somewhere. It could not be fixed in the Constitution without involving great inconveniences They could then have no authority to adjust the regulations to the changes of circumstances. The question then is, whether it ought to be fixed unalterably in the State Governments, or subject to the controul of the General Government. Is it not obvious, that the General Government would be destroyed without this controul?40
It has already been demonstrated that it will produce many conveniences. Have we not sufficient security against abuse? Consider fully the principles of the Government. The sum of the powers given up by the people of Virginia is divided into two classes. One to the Federal and the other to the State Government. Each is subdivided in three branches. These may be kept independent of each other in the one as well as the other. In this system they are as distinct as is consistent with good policy. This, in my opinion, instead of diminishing, increases the security of liberty more than any Government that ever was. For the powers of Government which in every other country are given to one body, are here given to two; and are favourable to public liberty.
With respect to secrecy, if every thing in which it is necessary, could be enumerated, I would have no objection to mention them. All the State Legislatures can keep secret what they think ought to be concealed. The British House of Commons can do it. They are in this respect under much less restraint than Congress. There never was any Legislative Assembly without a discretionary power of concealing important transactions, the publication of which might be detrimental to the community. There can be no real danger as long as the Government is constructed on such principles.41
He [George Mason] objects also to the clause respecting adjournment, that neither House shall, without the consent of the other, adjourn for more than three days. It was before remarked, that if a difference should take place between the two Houses about the time adjournment, the President could still determine it: From which no danger could arise, as he is chosen in a secondary degree by the people, and would consequently fix no time which would be repugnant to the sense of the Representatives of the people. Another, and more satisfactory answer is this: Suppose the Senate wished to chain down the House of Representatives, what is to hinder them from going home? How bring them back again? It would be contrary to the spirit of the Constitution to impede the operations of the Government, perhaps at a critical period. I cannot conceive that such difference will often happen. Were the Senate to attempt to prevent an adjournment, it would but serve to irritate the Representatives, without having the intendedeffect, as the President could adjourn them. There willnot be occasion for the continual residence of the Senators at the seat of Government.42
What business have they more than the House of Representatives? The appointment of officers and treaties. With respect to the appointment of officers, a law may be made to grant it to the President alone. It must be supposed there will be but few and subordinate officers to be appointed, as the principal offices will be filled.43
It is to be observed, that the President, when vacancies happen during the recess of the Senate, may fill them up till it meets.44
With respect to treaties, the occasions of forming them will not be many, and will make but a small proportion of their time of session.
Mr. Clay wished to know the instances where an opposition to the laws did not come within the idea of an insurrection.
Mr. Madison replied, that a riot did not come within the legal definition of an insurrection. There might be riots to oppose the execution of the laws, which the civil power might not be sufficient to quell. This was one case, and there might probably be other cases. He referred to the candour of the Committee, whether the militia could ever be used to destroy themselves.
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, nine o'clock.