The Convention, according to the order of the day, again resolved itself into a Committee of the whole Convention, to take into farther consideration, the proposed plan of Government—Mr. Wythe in the Chair.
(The first clause, of the ninth section, read.)
Mr. George Mason—Mr. Chairman—This is a fatal section, which has created more dangers than any other.—The first clause, allows the importation of slaves for twenty years. Under the royal Government, this evil was looked upon as a great oppression, and many attempts were made to prevent it; but the interest of the African merchants prevented its prohibition. No sooner did the revolution take place, than it was thought of It was one of the great causes of our separation from Great-Britain. Its exclusion has been a principal object of this State, and most of the States in the Union The augmentation of slaves weakens the States; and such a trade is diabolical in itself, and disgraceful to mankind. Yet by this Constitution it is continued for twenty years. As much as I value an union of all the States, I would not admit the Southern States into the Union, unless they agreed to the discontinuance of this disgraceful trade, because it would bring weakness and not strength to the Union. And though this infamous traffic be continued, we have no security for the property of that kind whichwe have already. There is no clause in this Constitution to secure it; for they may lay such a tax as will amount to manumission. And should the Government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years.—For the fifth article, which provides for amendments, expressly excepts this clause. I have ever looked upon this as a most disgraceful thing to America. I cannot express my detestation of it Yet they have not secured us the property of the slaves we have already. So that "They have done what they ought not to have done, and have left undone what they ought to have done."
Mr. Madison—Mr. Chairman—I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils—The Southern States would not have entered into the Union of America, without the temporary permission of that trade. And if they were excluded from the Union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union in general is not in a worse situation. Under the articles of Confederation, it might be continued forever: But by this clause an end may be put to it after twenty years. There is therefore a(n) (a)melioration of our circumstances. A tax may be laid in the mean time; but it is limited, otherwise Congress might lay such a tax as would amount to a prohibition. From the mode of representation and taxation, Congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those States where slaves are free, he becomes emancipated by their laws. For the laws of the States are uncharitable to one another in this respect. But in this Constitution, "No person held to service, or labor, in one State, under the laws thereof escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered upon claim of the party to whom such service or labour may be due."—This clause was expressly inserted to enable owners of slaves to reclaim them. This is a better security than any that now exists. No power is given to the General Government to interpose with respect to the property in slaves now held by the States. The taxation of this State being equal only to its representation, such a tax cannot be laid as he supposes. Theycannot prevent the importation of slaves for twenty years; but after that period they can. The Gentlemen from South-Carolina and Georgia argued in this manner:—"We have now liberty to import this species of property, and much of the property now possessed, has been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hinderingus from it? The slaves of Virginia would rise in value, and we would be obliged to go to your markets." I need not expatiate on this subject. Great as the evil is, a dismemberment of the Union would be worse. If those States should disunite from the other States, for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.
Mr. Tyler warmly enlarged on the impolicy, iniquity, and disgracefulness of this wicked traffic. He thought the reasons urged by Gentlemen in defence of it, were inconclusive, and ill-founded. It was one cause of the complaints against British tyranny, that this trade was permitted. The revolution had put a period to it; but now it was to be revived. He thought nothing could justify it. This temporary restriction on Congress militated, in his opinion, against the arguments of Gentlemen on the other side, that what was not given up was retained by the States; for that if this restriction had not been inserted, Congress could have prohibited the African trade. The power of prohibiting it, was not expressly delegated to them; yet they would have had it by implication, if this restraint had not been provided. This seemed to him to demonstrate most clearly the necessity of restraining them by a Bill of Rights, from infringing our unalienable rights. It was immaterial whether the Bill of Rights was by itself or included in the Constitution.—But he contended for it one way or the other. It would be justified by our own example, and that of England. His earnest desire was, that it should be handed down to posterity, that he had opposed this wicked clause.
He then reverted to the clauses which enabled Congress, to legislate exclusively in the ten miles square, and other places purchased for forts, magazines, &c.—To provide for the general welfare—To raise a standing army; and to make any law that may be necessary to carry their laws into execution. From the combined operation of these unlimited powers, he dreaded the most fatal consequences. If any acts of violence should be committed on persons or property, the perpetrators of such acts might take refuge in the sanctuary of the ten miles square, and the strong holds. They would thus escape with impunity, as the States had no power to punish them. He called to the recollection of the Committee, the history of the Athenian, who from small beginnings had enslaved his country. He begged them to remember, that Caesar, who prostrated the liberties of his country, did not possess a powerful army at first. Suppose, says he, the time should come, that a King should be proposed by Congress. Will they not be able by the sweeping clause to call in foreign assistance and raise troops, and do whatever they think proper to carry this proposition into effect? He then concluded, that unless this clause were expunged he would vote against the Constitution.1
Mr. Madison was surprised, that any Gentleman should return to the clauses which had already been discussed. He begged the Gentleman to read the clause which gave the power of exclusive legislation, and he might see that nothing could be done without the consent of the States. With respect to the supposed operation of what was denominated the sweeping clause, the Gentleman, he said, was mistaken; for it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause. As to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress, namely, that of regulating commerce with foreign nations.2
GEORGE NICHOLAS, 17 JUNE 1341
Mr. Henry insisted, that the insertion of these restrictions on Congress, was a plain demonstration, that Congress could exercise powers by implication. The Gentleman had admitted that Congress could have interdicted the African trade, were it not for this restriction. If so, the power not having been expressly delegated, must be obtained by implication - . He demanded, where then was their doctrine of reserved rights? He wished for negative clauses to prevent their assuming any powers but those expressly given.—He asked, why it was omitted to secure us that property in slaves, which we held now? He feared its omission was done with design. They might lay such heavy taxes on slaves, as would amount to emancipation; and then the Southern States would be the only sufferers. His opinion was confirmed by the mode of levying money. Congress, he observed, had power to lay and collect taxes, imposts and excises. Imposts (or duties) and excises were to be uniform. But this uniformity did not extend to taxes.-This might compel the Southern States to liberate their negroes. He wished this property therefore to be guarded. He considered the clause which had been adduced by the Gentleman as a security for this property, as no security at all. It was no more than this—That a run-away negro could be taken up in Maryland or New-York. This could not prevent Congress from interfering with that property by laying a grievous and enormous tax on it, so as to compel owners to emancipate their slaves rather than pay the tax. He apprehended it would be productive of much stock-jobbing, and that they would play into one another's hands in such a manner as that this property would be lost to this country.
Mr. George Nicholas, wondered that Gentlemen who were against slavery, would be opposed to this clause, as after that period the slave trade would be done away. He asked, if Gentlemen did not see the inconsistency their arguments? They object, says he, to the Constitution, because the slave trade is laid open for twenty odd years; and yet they tell you, that by some latent operation of it, the slaves who are so now, will be manumitted! At the same moment it is opposed for being promotive and destructive of slavery!--He contended that it was advantageous to Virginia, that it should be in the power of Congress to prevent the importation of slaves after twenty years, as it would then put a period to the evil complained of.
As the Southern States would not confederate without this clause, he asked, if Gentlemen would rather dissolve the Confederacy than to suffer this temporary inconvenience, admitting it to be such? Virginia might continue the prohibition of such importation during the intermediate period; and would be benefited by it, as a tax of ten dollars, each slave, might be laid; of which she would receive a share. He endeavoured to obviate the objection of Gentlemen, that the restriction on Congress was a proof that they would have power not given them, by remarking, that they would only have had a general superintendency of trade, if the restriction had not been inserted. But the Southern States insisted on this exception to that general superintendency for twenty years. It could not therefore have been a power by implication, as the restriction was an exception from a delegated power. The taxes could not, as had been suggested, be laid so high on negroes as to amount to emancipation; because taxation and representation were fixed according to the census established in the Constitution. The exception of taxes, from the uniformity annexed to duties and excises, could not have the operation contended for by the Gentleman; because other clauses had clearly and positively fixed the census. Had taxes been uniform it would have been universally objected to, for no one object could be selected without involving great inconveniences and oppressions. But, says Mr. Nicholas, is it from the General Government we are to fear emancipation? Gentlemen will recollect what I said in another house, and what other Gentlemen have said that advocated emancipation. Give me leave to say, that that clause is a great security for our slave tax. I can tell the Committee, that the people of our country are reduced to beggary by the taxes on negroes-Had this Constitution been adopted, it would not have been the case. The taxes were laid on all our negroes. By this system two- fifths are exempted. He then added, that he had imagined Gentlemen would not support here what they had opposed in another place.
Mr. Henry replied, that though the proportion of each was to be fixed by the census, and three-fifths of the slaves only were included in the enumeration, yet the proportion of Virginia being once fixed, might be laid on blacks and blacks only. For the mode of raising the proportion of each State being to be directed by Congress, they might make slaves the sole object to raise it of Personalities he wished to take leave of They had nothing to do with the question, which was solely whether that paper was wrong or not.
Mr. Nicholas replied, that negroes must be considered as persons or property. If as property, the proportion of taxes to be laid on them was fixed in the Constitution: If he apprehended a poll tax on negroes, the Constitution had prevented it. For, by the census, where a white man paid ten shillings, a negro paid but six shillings. For the exemption of two fifths of them reduced it to that proportion.
(The 2d, 3d, and 4th clauses read.)
Mr. George Mason said, that Gentlemen might think themselves secured by the restriction in the fourth clause, that no capitation or other direct tax should be laid but in proportion to the census before directed to be taken. But that when maturely considered it would be found to be no security whatsoever. It was nothing but a direct assertion, or mere confirmation of the clause which fixed the ratio of taxes and representation. It only meant that the quantum to be raised of each State, should be in proportion to their numbers in the manner therein directed. But the General Government was not precluded from laying the proportion of any particular State on anyone species of property they might think proper. For instance, if 500,000 dollars were to be raised, they might lay the whole of the proportion of the Southern States on the blacks, or anyone species of property: So that by laying taxes too heavily on slaves, they might totally annihilate that kind of property. No real security could arise from the clause which provides, that persons held to labor in one State, escaping into another, shall be delivered up. This only meant, that runaway slaves should not be protected in other States.
As to the exclusion of ex post facto laws, it could not be said to create any security in this case. For laying a tax on slaves would not be ex post facto.3
Mr. Madison replied, that even the Southern States, who were most affected, were perfectly satisfied with this provision, and dreaded no danger to the property they now hold. It appeared to him, that the General Government would not intermeddle with that property for twenty years, but to lay a tax, on every slave imported, not exceeding ten dollars; and that after the expiration of that period they might prohibit the traffic altogether. The census in the Constitution was intended to introduce equality in the burdens to be laid on the community. No Gentleman objected to laying duties, imposts, and excises, uniformly. But uniformity of taxes would be subversive of the principles of equality: For that it was not possible to select any article which would be easy for one State, but what would be heavy for another. That the proportion of each State being ascertained, it would be raised by the General Government in the most convenient manner for the people, and not by the selection of anyone particular object.4
That there must be some degree of confidence put in agents, or else we must reject a state of civil society altogether. Another great security to this property, which he mentioned, was, that five States were greatly interested in that species of property, and there were other States which had some slaves, and had made no attempt, or taken any step to take them from the people. There were a few slaves in New-York, New-Jersey and Connecticut: These States would probably oppose any attempts to annihilate this species of property. He concluded, by observing, that he would be glad to leave the decision of this to the Committee.
(The 5th and 6th clauses read.)
Mr. George Mason, apprehended the loose expression of "publication from time to time," was applicable to any time. It was equally applicable to monthly and septennial periods. It might be extended ever so much. The reasons urged in favor of this ambiguous expression, was, that there might be some matters which might require secrecy. In matters relative to military operations, and foreign negotiations, secrecy was necessary sometimes. But he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money. But that this expression was so loose, it might be concealed forever from them, and might afford opportunities of misapplying the public money, and sheltering those who did it. He concluded it to be as exceptionable as any clause in so few words could be.
Mr. Lee, of Westmoreland, thought such trivial arguments as that just used by the Honorable Gentleman, would have no weight with the Committee. He conceived the expression to be sufficiently explicit and satisfactory. It must be supposed to mean, in the common acceptation of language, short convenient periods. It was as well, as if it had said one year, or a shorter term. Those who would neglect this provision, would disobey the most pointed directions. As the Assembly was to meet next week, he hoped Gentlemen would confine themselves to the investigation of the principal parts of the Constitution.
Mr. Mason begged to be permitted to use that mode of arguing to which he had been accustomed. However desirous he was of pleasing that worthy Gentleman, his duty would give way to that pleasure.
Mr. George Nicholas, said it was a better direction and security than was in the State Government. No appropriation shall be made of the public money but by law. There could not be any misapplication of it. Therefore he thought instead of censure, it merited applause. Being a cautious provision which few Constitutions, or none, had ever adopted.
Mr. Corbin concurred in the sentiments of Mr. Nicholas on this subject.
Mr. Madison thought it much better than if it had mentioned any specified period. Because if the accounts of the public receipts and expenditures were to be published at short stated periods, they would not be so full and connected, as would be necessary for a thorough comprehension of them, and detection of any errors. But by giving them an opportunity of publishing them from time to time, as might be found easy and convenient, they would be more full and satisfactory to the public, and would be sufficiently frequent He thought, after all, that this provision went farther than the Constitution of any State in the Union, or perhaps in the world.
Mr. Mason replied, that in the Confederation the public proceedings were to be published monthly, which was infinitely better than depending on men's virtue to publish them or not, as they might please. If there was no such provision in the Constitution of Virginia, Gentlemen ought to consider the difference between such a full representation, dispersed and mingled with every part of the community, as the State representation was, and such an inadequate representation as this was. One might be safely trusted, but not the other.
Mr. Madison replied, that the inconveniences which had been experienced from the Confederation in that respect, had their weight with him in recommending this in preference to it; for that it was impossible, in such short intervals, to adjust the public accounts in any satisfactory manner.
Mr. Henry—Mr. Chairman—We have now come to the ninth section, and I consider myself at liberty to take a short view of the whole. I wish to do it very briefly. Give me leave to remark, that there is a Bill of Rights in that Government. There are express restrictions which are in the shape of a Bill of Rights: But they bear the name of the ninth section. The design of the negative expressions in this section is to prescribe limits, beyond which the powers of Congress shall not go. These are the sole bounds intended by the American Government Where abouts do we stand with respect to a Bill of Rights? Examine it, and compare it to the idea manifested by the Virginian Bill of Rights, or that of the other States. The restraints in this Congressional Bill of Rights, are so feeble and few, that it would have been infinitely better to have said nothing about it. The fair implication is, that they can do every thing they are not forbidden to do. What will be the result if Congress, in the course of their legislation, should do a thing not restrained by this ninth section? It will fall as an incidental power to Congress, not being prohibited expressly in the Constitution. The first prohibition is, that the privilege of the writ of habeas corpus shall not be suspended, but when in cases of rebellion, or invasion, the public safety may require it. It results clearly, that if it had not said so, they could suspend it in all cases whatsoever. It reverses the position of the friends of this Constitution, that every thing is retained which is not given up. For instead of this, every thing is given up, which is not expressly reserved.—It does not speak affirmatively, and say that it shall be suspended in those cases. But that it shall not be suspended but in certain cases; going on a supposition that every thing which is not negatived, shall remain with Congress. If the power remains with the people, how can Congress supply the want of an affirmative grant? They cannot do it but by implication, which destroys their doctrine. The Virginia Bill of Rights interdicts the relinquishment of the sword and purse without controul That Bill of Rights secures the great and principal rights of mankind. But this Bill of Rights extends to but very few cases, and is destructive of the doctrine advanced by the friends of that paper.
If ex post facto laws had not been interdicted, they might also have been extended by implication at pleasure. Let us consider whether this restriction be founded in wisdom or good policy. If no ex post facto laws be made, what is to become of the old continental paper dollars? Will not this country be forced to pay it in gold and silver, shilling for shilling? Gentlemen may think that this does not deserve an answer: But it is an all important question. Because the property of this country is not commensurate to the enormous demand. Our own Government triumphs with infinite superiority when put in contrast with that paper.—5
The want of a Bill of Rights will render all their laws, however oppressive, constitutional.
If the Government of Virginia passes a law in contradiction to our Bill of Rights, it is nugatory. By that paper the national wealth is to be disposed of under the veil of secrecy: For the publication from time to time, will amount to nothing; and they may conceal what they may think requires secrecy. How different is it in your own Government?—Have not the people seen the journals of our Legislature every day during every session? Is not the lobby full of people every day? Yet, Gentlemen say, that the publication from time to time is a security unknown in our State Government! Such a regulation would be nugatory and vain, or at least needless, as the people see the journals of our Legislature, and hear their debates every day. If this be not more secure than what is in that paper, I will give up that I have totally misconceived the principles of the Government. You are told, that your rights are secured in this new Government. They are guarded in no other part but this ninth section. The few restrictions in that section are your only safeguards. They may controul your actions, and your very words, without being repugnant to that paper. The existence of your dearest privileges will depend on the consent of Congress: For these are not within the restrictions of the ninth section.
If Gentlemen think that securing the slave trade is a capital object; that the privilege of the habeas corpus is sufficiently secured; that the exclusion of ex post facto laws will produce no inconvenience; that the publication from time to time will secure their property; in one word, that this section alone will sufficiently secure their liberties, I have spoken in vain.—Every word of mine, and of my worthy coadjutor [George Mason], is lost. I trust that Gentlemen, on this occasion, will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right secured, before they agree to that paper. These most important human rights are not protected by that section, which is the only safeguard in the Constitution.—My mind will not be quieted till I see something substantial come forth in the shape of a Bill of Rights.
Governor Randolph—Mr. Chairman.—The general review which the Gentleman has taken of the ninth section, is so inconsistent, that in order to answer him, I must with your permission, who are the custos of order here, depart from the rule of the House in some degree. I declared some days ago that I would give my suffrage for this Constitution, not because I considered it without blemish, but because the critical situation of our country demanded it. I invite those who think with me to vote for the Constitution.—But where things occur in it which I disapprove of I shall be candid in exposing my objections.
Permit me to return to that clause, which is called by Gentlemen the sweeping clause. I observed yesterday, that I conceived the construction which had been put on this clause by the advocates of the Constitution was too narrow; and that the construction put upon it by the other party, was extravagant. The intermediate explanation appears to me most rational. The former contend, that it gives no supplementary power; but only enables them to make laws to execute the delegated powers, or in other words, that it only involves the powers incidental to those expressly delegated.—By incidental powers they mean those which are necessary for the principal thing.—That the incident is inseparable from the principal, is a maxim in the construction of laws.—A Constitution differs from a law.—For a law only embraces one thing—But a Constitution embraces a number of things, and is to have a more liberal construction. I need not recur to the Constitutions of Europe for a precedent to direct my explication of this clause, because in Europe there is no Constitution wholly in writing. The European Constitutions sometimes consist in detached statutes or ordinances:—Sometimes they are on record, and sometimes they depend on immemorial tradition. The American Constitutions are singular, and their construction ought to be liberal. On this principle what should be said of the clause under consideration (the sweeping clause.) If incidental powers be those only which are necessary for the principal thing, the clause would be superfluous.
Let us take an example of a single department: For instance that of the President, who has certain things annexed to his office. Does it not reasonably follow, that he must have some incidental powers? The principle of incidental powers extends to all parts of the system. If you then say, that the President has incidental powers, you reduce it to tautology. I cannot conceive that the fair interpretation of these words is as the Honorable Member [James Madison] says.
Let me say, that, in my opinion, the adversaries of the Constitution wander equally from the true meaning. If it would not fatigue the House too far, I would go back to the question of reserved rights. The Gentleman [Patrick Henry] supposes, that compleat and unlimited legislation is vested in the Congress of the United States. This supposition is founded on false reasoning. What is the present situation of this State? She has possession of all rights of sovereignty, except those given to the Confederation. She must delegate powers to the Confederate Government. It is necessary for her public happiness. Her weakness compels her to confederate with the twelve other Governments. She trusts certain powers to the General Government in order to support, protect, and defend the Union. Now is there not a demonstrable difference between the principle of the State Government, and the General Government? There is not a word said in the State Government of the powers given to it, beause they are general. But in the general Constitution, its powers are enumerated. Is it not then fairly deducible, that it has no power but what is expressly given it? For if its powers were to be general, an enumeration would be needless.
But the insertion of the negative restrictions has given cause of triumph it seems, to Gentlemen. They suppose, that it demonstrates that Congress are to have powers by implication. I will meet them on that ground. I persuade myself, that every exception here mentioned, is an exception not from general powers, but from the particular powers therein vested.
To what power in the General Government is the exception made, respecting the importation of negroes? Not from a general power, but from a particular power expressly enumerated. This is an exception from the power given them of regulating commerce.6
He asks, where is the power to which the prohibition of suspending the habeas corpus is an exception. I contend that by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus.—This is therefore an exception to that power.
The third restriction is, that "No bill of attainder, or ex post facto law shall be passed."—This is a manifest exception to another power. We know well that attainders, and ex post facto laws, have always been the engines of criminal jurisprudence. This is therefore an exception to the criminal jurisdiction vested in that body.
The fourth restriction is, that no capitation, or other direct tax shall be laid, unless in proportion to the census before directed to be taken. Our debates shew from what power this is an exception.
The restrictions in the fifth clause, are an exception to the power of regulating commerce.
The restriction of the sixth clause, that no money shall be drawn from the treasury, but in consequence of appropriations made by law, is an exception to the power of paying the debts of the United States; for the power of drawing money from the treasury is consequential of that of paying the public debts.
The next restriction is, that no titles of nobility shall be granted by the United States. If we cast our eyes to the manner in which titles of nobility first originated, we shall find this restriction founded on the same principles. These sprung from military and civil offices: Both are put in the hands of the United States, and therefore I presume it to be an exception to that power.
The last restriction restrains any persons in office from accepting of any present or emolument, title or office, from any foreign Prince or State. It must have been observed before, that though the Confederation had restricted Congress from exercising any powers not given them, yet they inserted it, not from any apprehension of usurpation, but for greater security. This restriction is provided to prevent corruption. All men have a natural inherent right of receiving emoluments from any one, unless they be restrained by the regulations of the community. An accident which actually happened, operated in producing the restriction. A box was presented to our Ambassador by the King of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit anyone in office from receiving or holding any emoluments from foreign States. I believe, that if at that moment, when we were in harmony with the King of France, we had supposed that he was corrupting our Ambassador, it might have disturbed that confidence, and diminished that mutual friendship, which contributed to carry us through the war.
The Honorable Gentleman observed, that Congress might define punishments, from petty larceny to high treason. This is an unfortunate quotation for the Gentleman; because treason is expressly defined in the third section, of the third article, and they can add no feature to it. They have not cognizance over any other crime, except piracies, felonies committed on the high seas, and offences against the law of nations.
But the rhetoric of the Gentleman has highly coloured the dangers of giving the General Government an indefinite power of providing for the general welfare. I contend that no such power is given. They have power "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." Is this an independent, separate, substantive power, to provide for the general welfare of the United States?—No, Sir.—They can lay and collect taxes, &c—For what?—To pay the debts and provide for the general welfare. Were not this the case the following part of the clause would be absurd. It would have been treason against common language. Take it altogether, and let me ask if the plain interpretation be not this—a power to lay and collect taxes, &c. in order to provide for the general welfare, and pay debts.
On the subject of a Bill of Rights, the want of which has been complained of I will observe that it has been sanctified by such reverend authority, that I feel some difficulty in going against it. I shall not, however, be deterred from giving my opinion on this occasion, let the consequence be what it may. At the beginning of the war we had no certain Bill of Rights: For our charter cannot be considered as a Bill of Rights. It is nothing more than an investiture in the hands of the Virginian citizens, of those rights which belonged to the British subjects. When the British thought proper to infringe our rights, was it not necessary to mention in our Constitution, those rights which ought to be paramount to the power of the Legislature? Why are the Bill of Rights distinct from the Constitution? I consider Bills of Rights in this view, that the Government should use them when there is a departure from its fundamental principles, in order to restore them. This is the true sense of a Bill of Rights. If it be consistent with the Constitution, or contains additional rights, why not put it in the Constitution? If it be repugnant to the Constitution, there will be a perpetual scene of warfare between them. The Honorable Gentleman has praised the Bill of Rights of Virginia, and called it his guardian angel, and vilified this Constitution for not having it. Give me leave to make a distinction between the Representatives of the people of a particular country, who are appointed as the ordinary Legislature, having no limitation to their powers, and another body arising from a compact and certain delineated powers. Were a Bill of Rights necessary in the former, it would not in the latter; for the best security that can be in the latter is the express enumeration of its powers. But let me ask the Gentleman where his favourite rights are violated? They are not violated by the tenth section, which contains restrictions on the States. Are they violated by the enumerated powers? (Here his Excellency read from the eighth to the twelfth article of the Declaration of Rights)9—Is there not provision made in this Constitution for the trial by jury in criminal cases? Does not the third article provide, that the trial of all crimes shall be by jury, and held in the State where the said crimes shall have been committed? Does it not follow, that the cause and nature of the accusation must be produced, because otherwise they cannot proceed on the cause? Everyone knows, that the witnesses must be brought before the jury, or else the prisoner will be discharged. Calling for evidence in his favor is co-incident to his trial. There is no suspicion, that less than twelve jurors will be thought sufficient. The only defect is, that there is no speedy trial.—Consider how this could have been amended. We have heard complaints against it, because it is supposed the jury is to come from the State at large. It will be in their power to have juries from the vicinage. And would not the complaints have been louder, if they had appointed a Federal Court to be had in every county in the State—Criminals are brought in this State from every part of the country to the General Court, and jurors from the vicinage are summoned to the trials. There can be no reason to prevent the General Government from adopting similar regulation.
As to the exclusion of excessive bail and fines, and cruel and unusual punishments, this would follow of itself without a Bill of Rights. Observations have been made about watchfulness over those in power, which deserve our attention. There must be a combination—We must presume corruption in the House of Representatives, Senate, and President, before we can suppose that excessive fines can be imposed, or cruel punishments inflicted. Their number is the highest security.— Numbers are the highest security in our own Constitution, which has attracted so many eulogiums from the Gentleman. Here we have launched into a sea of suspicions. How shall we check power?—By their numbers. Before these cruel punishments can be inflicted, laws must be passed, and Judges must judge contrary to justice. This would excite universal discontent, and detestation of the Members of the Government. They might involve their friends in the calamities resulting from it, and could be removed from office. I never desire a greater security than this, which I believe to be absolutely sufficient.
That general warrants are grievous and oppressive, and ought not to be granted, I fully admit I heartily concur in expressing my detestation of them. But we have sufficient security here also. We do not rely on the integrity of anyone particular person or body; but on the number and different orders of the Members of the Government: Some of them having necessarily the same feelings with ourselves. Can it be believed, that the Federal Judiciary would not be independent enough to prevent such oppressive practices? If they will not do justice to persons injured, may they not go to our own State Judiciaries and obtain it?
Gentlemen have been misled to a certain degree, by a general declaration, that the trial by jury was gone. We see that in the most valuable cases, it is reserved. Is it abolished in civil cases? Let him put his finger on the part where it is abolished. The Constitution is silent on it.—What expression would you wish the Constitution to use, to establish it? Remember we were not making Constitution for Virginia alone, or we might have taken Virginia for our directory. But we were forming Constitution for thirteen States. The trial by jury is different in different States. In some States it is excluded in cases in which it is admitted in others. In Admiralty causes it is not used. Would you have a jury to determine the case of a capture? The Virginian Legislature thought proper to make an exception of that case. These depend on the law of nations, and no twelve men that could be picked up would be equal to the decision of such a matter.
Then, Sir, the freedom of the press is said to be insecure. God forbid that I should give my voice against the freedom of the press. But I ask, (and with confidence that it cannot be answered) where is the page where it is restrained? If there had been any regulation about it, leaving it insecure, then there might have been reason for clamours. But this is not the case. If it be, I again ask for the particular clause which gives liberty to destroy the freedom of the press.
He has added religion to the objects endangered in his conception. Is there any power given over it? Let it be pointed out. Will he not be contented with the answer which has been frequently given to that objection? That variety of sects which abounds in the United States is the best security for the freedom of religion. No part of the Constitution, even if strictly construed, will justify a conclusion, that the General Government can take away, or impair the freedom of religion.
The Gentleman asks with triumph, shall we be deprived of these valuable rights? Had there been an exception, or express infringement of those rights, he might object.—But I conceive every fair reasoner will agree, that there is no just cause to suspect that they will be violated.
But he objects, that the common law is not established by the Constitution. The wisdom of the Convention is displayed by its omission; because the common law ought not to be immutably fixed. Is it established in our own Constitution, or the Bill of Rights which has been resounded through the House? It is established only by an act of the Legislature, and can therefore be changed as circumstances may require it. Let the Honorable Gentleman consider what would be the destructive consequences of its establishment in the Constitution. Even in England, where the firmest opposition has been made to encroachments upon it, it has been frequently changed. What would have been our dilemma if it had been established?—Virginia has declared, that children shall have equal portions of the real estates of their intestate parents, and it is consistent to the principles of a Republican Government.—The immutable establishment of the common law, would have been repugnant to that regulation. It would in many respects be destructive to republican principles, and productive of great inconveniencies. I might indulge myself by shewing many parts of the common law which would have this effect. I hope I shall not be thought to speak ludicrously, when I say, that the writ of burning heretics,12 would have been revived by it. It would tend to throw real property in few hands, and prevent the introduction of many salutary regulations. Thus, were the common law adopted in that system, it would destroy the principles of Republican Government. But it is not excluded. It may be established by an act of the Legislature. Its defective parts may be altered, and it may be changed and modified as the convenience of the public may require it.
I said when I opened my observations, that I thought the friends of the Constitution were mistaken, when they supposed the powers granted by the last clause of the eighth section, to be merely incidental; and that its enemies were equally mistaken when they put such an extravagant construction upon it.
My objection is, that the clause is ambiguous, and that that ambiguity may injure the States. My fear is, that it will by gradual accessions gather to a dangerous length. This is my apprehension, and I disdain to disown it. I will praise it where it deserves it, and censure it where it appears defective. But, Sir, are we to reject it, because it is ambiguous in some particular instances? I cast my eyes to the actual situation of America; I see the dreadful tempest, to which the present calm is a prelude, if disunion takes place. I see the anarchy which must happen if no energetic Government be established. In this situation, I would take the Constitution were it more objectionable than it is—For if anarchy and confusion follow disunion, an enterprising man may enter into the American throne. I conceive there is no danger. The Representatives are chosen by and from among the people. They will have a fellow-feeling for the farmers and planters. The twenty-six Senators, Representatives of the States, will not be those desperadoes and horrid adventurers which they are represented to be. The State Legislatures, I trust, will not forget the duty they owe to their country so far, as to choose such men to manage their federal interests. I trust, that the Members of Congress themselves, will explain the ambiguous parts: And if not, the States can combine in order to insist on amending the ambiguities. I would depend on the present actual feelings of the people of America, to introduce any amendment which may be necessary. I repeat it again, though I do not reverence the Constitution, that its adoption is necessary to avoid the storm which is hanging over America, and that no greater curse can befal her, than the dissolution of the political connection between the States. Whether we shall propose previous or subsequent amendments, is now the only dispute. It is supererogation to repeat again the arguments in support of each.—But I ask Gentlemen, whether, as eight States have adopted it, it be not safer to adopt it, and rely on the probability of obtaining amendments, than by a rejection to hazard a breach of the Union? I hope to be excused for the breach of order which I have committed.
Mr. Henry lamented, that he could not see with that perspicuity which other Gentlemen were blessed with. But the ninth section struck his mind still in an unfavourable light He hoped, as the Gentleman had been indulged in speaking of the Constitution in general, that he would be allowed to answer him before they adopted or rejected it.
(The first clause of the tenth section, read.)
Mr. Henry apologized for repeatedly troubling the Committee with his fears. But he apprehended the most serious consequences from these restrictions on the States. As they could not emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, pass ex post facto laws, or impair the obligation of contracts; though these restrictions were founded on good principles, yet he feared they would have this effect—That this State would be obliged to pay for her share of the continental money, shilling for shilling. He asked Gentlemen who had been in high authority, whether there were not some State speculations on this matter?—He had been informed that some States had acquired vast quantities of that money, which they would be able to recover in its nominal value of the other States.13
Mr. Madison admitted there might be some speculations on the subject. He believed the old continental money was settled in a very disproportionate manner. It appeared to him, however, that it was unnecessary to say any thing on this point, for there was a clause in the Constitution which cleared it up. The first clause, of the sixth article, provides, that "All debts contracted, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation." He affirmed that it was meant there should be no change with respect to claims by this political alteration; and that the public would stand, with respect to their creditors, as before. He thought that the validity of claims ought not to diminish by the adoption of the Constitution. But, however, it could not increase the demands on the public.
Mr. George Mason declared, he had been informed that some States had speculated most enormously in this matter. Many individuals had speculated so as to make great fortunes on the ruin of their fellow citizens. The clause which has been read as a sufficient security, seemed to him to be satisfactory far as it went.—That is, that the continental money ought to stand on the same ground as it did previously, or that the claim should not be impaired. Under the Confederation there were means of settling the old paper money, either in Congress or in the State Legislatures. The money had at last depreciated to a thousand for one. The intention of State speculation, as well as individual speculation, was to get as much as possible of that money, in order to recover its nominal value.—The means, says he, of settling this money were in the hands of the old Congress. They could discharge it at its depreciated value. Is there that means here? No, Sir, we must pay it shilling for shilling, or at least at the rate of one for forty. The amount will surpass the value of the property of the United States. Neither the State Legislatures nor Congress can make an ex post facto law.— The nominal value must therefore be paid. Where is the power in the new Government, to settle this money so as to prevent the country from being ruined?
When they prohibit the making ex post facto laws, they will have no authority to prevent our being ruined by paying that money at its nominal value. Without some security against it, we shall be compelled to pay it to the last particle of our property. Shall we ruin our people by taxation, from generation to generation, to pay that money? Should any ex post facto law be made to relieve us from such payment, it will not be regarded, because ex post facto laws are interdicted in the Constitution.16
We may be taxed for centuries, to give advantage to a few particular States in the Union, and a number of rapacious speculators. If there be any real security against this misfortune, let Gentlemen shew it.—I can see none. The clause under consideration does away the pretended security in the clause which was adduced by the Honorable Gentleman. This enormous mass of worthless money, which has been offered at a thousand for one, must be paid in actual gold or silver at the nominal value. Mr. Madison,—Mr. Chairman.—It appears to me immaterial who holds those great quantities of paper money, which were in circulation before the peace, or at what value they acquired it; for it will not be affected by this Constitution. What would satisfy Gentlemen more than that the new Constitution would place us in the same situation with the old? In this respect it has done so. The claims against the United States are declared to be as valid as they were, but not more so. Would they have a particular specification of these matters? Where can there be any danger?—Is there any reason to believe that the new rulers, one branch of which will be drawn from the mass of the people, will neglect or violate our interests more than the old?—It rests on the obligation of public faith only in the articles of Confederation. It will be so in this Constitution should it be adopted. If the new rulers should wish to enhance its value, in order to gratify its holders, how can they compel the States to pay it if the letter of the Constitution be observed? Do Gentlemen wish the public creditors should be put in a worse situation? Would the people at large wish to satisfy creditors in such a manner as to ruin them? There cannot be a majority of the people of America that would wish to defraud their public creditors. I consider this as well guarded as possible. It rests on plain and honest principles. I cannot conceive how it could be more honorable or safe.—(Mr. Madison made some other observations, which could not be heard.)
Mr. Henry,—Mr. Chairman.—I am convinced, and I see clearly that this paper money must be discharged, shilling for shilling. The Honorable Gentleman must see better than I can, from his particular situation and judgment, but this has certainly escaped his attention. The question arising on the clause before you, is, whether an act of the Legislature of this State, for scaling money, will be of sufficient validity to exonerate you from paying the nominal value, when such a law called ex post facto, and impairing the obligation of contracts, are expressly interdicted by it?—Your hands are tied up by this clause, and you must pay shilling for shilling; and, in the last section, there is a clause that prohibits the General Legislature from passing any ex post facto law—So that the hands of Congress are tied up, as well as the hands of the State Legislatures.
How will this thing operate, when ten or twenty millions are demanded as the quota of this State? You will cry out that speculators have got it at one for a thousand, and that they ought to be paid so. Will you then have recourse for relief to Legislative interference? They cannot relieve you because of that clause. The expression includes public contracts, as well as private contracts between individuals.— Notwithstanding the sagacity of the Gentleman, he cannot prove its exclusive relation to private contracts. Here is an enormous demand, which your children to the tenth generation will not be able to pay.
Should we ask, if there be any obligation in justice to pay more than the depreciated value, we shall be told that contracts must not be impaired. Justice may make a demand of millions, but the people cannot pay them.17
I remember the clamours and public uneasiness concerning the payments of British debts, put into the treasury. Was not the alarm great and general lest these payments should be laid on the people at large? Did not the Legislature interfere and pass a law to prevent it? Was it not re-echoed every where, that the people of this country ought not to pay the debts of their great ones? And though some urged their patriotism, and merits in putting money on the faith of the public into the treasury, yet the outcry was so great, that it required Legislative interference. Should those enormous demands be made upon us, would not Legislative interference be more necessary than it was in that case? Let us not run the risk of being charged with carelessness, and neglect of the interest of our constituents and posterity. I would ask the number of millions? It is without exaggeration, immense. I ask Gentlemen if they can pay one hundred millions, or two hundred millions? Where have they the means of paying it? Still they would make us proceed to tie the hands of the States and of Congress.
A Gentleman has said with great force, that there is a contest for empire: There is also a contest for money. The States of the North wish to secure a superiority of interest and influence. In one part their deliberation is marked with wisdom, and in the other with the most liberal generosity. When we have paid all the gold and silver we could to replenish the Congressional coffers, here they ask for confidence. Their hands will be tied up. They cannot merit confidence. Here is a transfer from the old to the new Government, without the means of relieving the greatest distresses which can befall the people. This money might be scaled, Sir, but the exclusion of ex post facto laws, and laws impairing the obligation of contracts, steps in and prevents it. These were admitted by the old Confederation.—There is a contest for money as well as empire, as I have said before. The Eastern States have speculated chiefly in this money. As there can be no Congressional scale, their speculation will be extremely profitable. Not satisfied with a majority in the Legislative Councils, they must have all our property. I wish the Southern genius of America had been more watchful.
This State may be sued in the Federal Court, for those enormous demands; and judgment may be obtained, unless ex post facto laws be passed. To benefit whom are we to run this risk? I have heard there were vast quantities of that money packed up in barrels—Those formidable millions are deposited in the Northern States, and whether in public or private hands, makes no odds. They have acquired it for the most inconsiderable trifle. If you accord to this part, you are bound hand and foot. Judgment must be rendered against you for the whole. Throw all pride out of the question, this is a most nefarious business. Your property will be taken from you to satisfy this most infamous speculation. It will destroy your public peace, and establish the ruin of your citizens. Only general resistance will remedy it. You will shut the door against every ray of hope, if you allow the holders of this money, by this clause, to recover their formidable demands. I hope Gentlemen will see the absolute necessity of amending it, by enabling the State Legislatures to relieve their people from such nefarious oppressions.
Mr. George Nicholas,—Mr. Chairman.—I beg Gentlemen to consider most attentively the clause under consideration, and the objections against it. He says there exists the most dangerous prospect. Has the Legislature of Virginia any right to make a law or regulation to interfere with the continental debts? Have they a right to make ex post facto laws, and laws impairing the obligation of contracts for that purpose? No, Sir. If his fears proceed from this clause, they are without foundation. This clause does not hinder them from doing it, because the State never could do it—The jurisdiction of such general objects being exclusively vested in Congress.
But, says he, this clause will hinder the General Government from preventing the nominal value of those millions from being paid. On what footing does this business stand if the Constitution be adopted? By it all contracts will be as valid, and only as valid as under the old Confederation. The new Government will give the holders the same power of recovery as the old one. There is no law under the existing system which gives power to any tribunal to enforce the payment of such claims. On the will of Congress alone the payment depends. The Constitution expressly says, that they shall be only as binding as under the present Confederation. Cannot they decide according to real equity? Those who have this money must make application to Congress for payment. Some positive regulation must be made to redeem it. It cannot be said, that they have power of passing a law to enhance its value. They cannot make a law that that money shall no longer be but one for one.—For though they have power to pay the debts of the United States, they can only pay the real debts, and this is no farther a debt than it was before. Application must therefore be made by the holders of that money, to Congress, who will make the most proper regulation to discharge its real and equitable, and not its nominal value.
We are told of the act passed to exonerate the public from the payments of the British debts put into the treasury.—That has no analogy to this: Those payments were opposed, because they were unjust. But he supposes that Congress may be sued by those speculators. Where is the clause that gives that power? It gives no such power. This, according to my idea, is inconsistent. Can the Supreme Legislature be sued in their own subordinate Courts, by their own citizens, in cases where they are not a party? They may be plaintiffs, but not defendants. But the individual States perhaps may be sued? Pennsylvania or Virginia may be sued—How is this? Do I owe the man in New-England any thing? Does Virginia owe any thing to the Pennsylvanian holder of such money? Who promised to pay it? Congress, Sir. Congress are answerable to the individual holders of this money, and individuals are answerable over to Congress. Therefore no individual can call on any State.
But the Northern States struggle for money as well as for empire. Cannot Congress make such a regulation as they please at present? If the Northern States wish to injure us, why do they not do it now? What greater dangers are there to be dreaded from the new Government, since there is no alteration? If they have a majority in the one case, they have in the other. The interests of those States would be as dangerous for us under the old as under the new Government, which leaves this business where it stands, because the conclusion says, that all debts contracted, or engagements entered into, shall be only as valid in the one case as the other.
Governor Randolph—Mr. Chairman—This clause in spite of the invective of the Gentleman [Patrick Henry], is a great favourite of mine; because it is essential to justice. I shall reserve my answer respecting the safety of the people, till the objection be urged: But I must make a few observations. He says, this clause will be injurious, and that no scale can be made, because there is a prohibition on Congress of passing ex post facto laws, if the Gentleman did not make such strong objections to logical reasoning, I could prove by such reasoning, that there is no danger. Ex post facto laws, if taken technically, relate solely to criminal cases; and my honorable colleague tells you it was so interpreted in Convention. What greater security can we have against arbitrary proceedings in criminal jurisprudence than this? In addition to the interpretation of the Convention, let me shew him still greater authority. The same clause provides, that no bill of attainder shall be passed. It shews that the attention of the Convention was drawn to criminal matters alone.—Shall it be complained against this Government, that it prohibits the passing of a law annexing punishment to an act which was lawful at the time of committing it? With regard to retrospective laws there is no restraint.
Let us examine the cause of the clamours which are made with regard to the continental money. A friend James Madison] has mentioned a clause which shews there is no danger from the new Congress. Does it not manifestly appear, that they are precisely in the same predicament as under the old Confederation? And do Gentlemen wish that this should be put in a worse condition? If they have equity under the old Confederation, they have equity still. There is no tribunal to recur to by the old Government. There is none in the new for that purpose. If the old Congress can scale that money, they have this power still. But he [Patrick Henry] says not, because the States cannot impair the obligation of contracts. What is to be done by the States with regard to it? Congress, and not they, have contracted to pay it. It is not affected by this clause at all. I am still a warm friend to the prohibition, because it must be promotive of virtue, and justice, and preventive of injustice and fraud. If we take a review of the calamities which have befallen our reputation as a people, we will find they have been produced by frequent interferences of the State Legislatures with private contracts. If you inspect the great corner stone of republicanism, you will find it to be justice and honor.
I come now to what will be agitated by the Judiciary.—They are to inforce the performance of private contracts. The British debts, which are withheld contrary to treaty, ought to be paid. Not only the law of nations, but justice and honor require that they be punctually discharged. I fear their payment may press on my country, but we must retrench our superfluities, and profuse and idle extravagance, and become more oeconomical and industrious. Let me not be suspected of being interested in this respect; for without a sad reverse of my fortune, I shall never be in a situation to be benefited by it. I am confident the honest Convention of Virginia will not oppose it. Can any society exist without a firm adherence to justice and virtue? The Federal Judiciary cannot intermeddle with those public claims without violating the letter of the Constitution. Why then such opposition to the clause? His Excellency then concluded, that he would, if necessary, display his feelings more fully on the subject another time.
Mr. George Mason—Mr. Chairman.—
The debt is transferred to Congress, but not the means of paying it. They cannot pay it any other way than according to the nominal value: For they are prohibited from making ex post facto laws; and it would be ex post facto to all intents and purposes, to payoff creditors with less than the nominal sum, which they were originally promised. But the Honorable Gentleman [Edmund Randolph] has called to his aid technical definitions. He says, that ex post facto laws relate solely to criminal matters. I beg leave to differ from him. Whatever it may be at the bar, or in a professional line, I conceive, that according to the common acceptation of the words, ex post facto laws, and retrospective laws, are synonimous terms. Are we to trust business of this sort to technical definitions? The contrary is the plain meaning of the words. Congress has no power to scale this money. The States are equally precluded. The debt is transferred without the means of discharging it. Implication will not do. The means of paying it are expressly withheld. When this matter comes before the Federal Judiciary, they must determine according to this Constitution. It says expressly, that they shall not make ex post facto laws. Whatever may be the professional meaning, yet the general meaning of ex post facto law, is, an act having a retrospective operation. This construction is agreeable to its primary etymology. Will it not be the duty of the Federal Court to say, that such laws are prohibited?—18
This goes to the destruction and annihilation of all the citizens of the United States, to enrich a few. Are we to part with every shilling of our property, and be reduced to the lowest insignificance, to aggrandize a few speculators?—Let me mention a remarkable effect this Constitution will have. How stood our taxes before this Constitution was introduced? Requisitions were made on the State Legislatures, and if they were unjust, they could be refused. If we were called upon to pay twenty millions, shilling for shilling, or at the rate of one for forty, our Legislature could refuse it, and remonstrate against the injustice of the demand. But now this could not be done; for direct taxation is brought home to us. The federal officer collects immediately of the planters. When it withholds the only possible means of discharging those debts, and by direct taxation prevents any opposition to the most enormous and unjust demand, where are you?—Is there a ray of hope?—As the law has never been my profession, if I err, I hope to be excused. I spoke from the general sense of the word. The worthy Gentleman has told you, that the United States can be plaintiffs, but never defendants.—If so, it stands on very unjust grounds. The United States cannot be come at for any thing they may owe, but may get what is due to them.—There is therefore no reciprocity. The thing is so incomprehensible, that it cannot be explained. As an express power is given to the Federal Court, to take cognizance of such controversies, and to declare null all ex post facto laws, I think Gentlemen must see there is danger, and that it ought to be guarded against.
Mr. Madison—Mr. Chairman—I did expect from the earnestness he has expressed, that he would cast some light upon it—But the ingenuity of the Honorable Member could make nothing of this objection. He argues from a supposition that the State Legislatures individually, might have passed laws to affect the value of the continental debt. I believe he did not well consider this, before he hazarded his observations. He says, that the United States being restrained in this case, will be obliged to pay it at an unjust rate.—It has been so clearly explained, by the Honorable Gentleman over the way, that there could be no danger, that it is unnecessary to say more on the subject. The validity of these claims will neither be increased nor diminished by this change.—There must be a law made by Congress respecting their redemption,—The States cannot interfere.—Congress will make such a regulation as will be just.—There is, in my opinion, but one way of scaling improperly and unjustly, and that is, by acceding to the favourite mode of the Honorable Gentleman,—by requisitions. Is it to be presumed, any change can be made in the system inconsistent with reason or equity? Strike the clause out of the Constitution—what will it be then?—The debt will be as valid only, as it was before the adoption.—Gentlemen will not say, that obligations are varied. This is merely a declaratory clause, that things are to exist in the same manner as before.
But I fear the very extensive assertions of the Gentleman, may have misled the Committee. The whole of that continental money amounted to but little more than one hundred millions.—A considerable quantity of it has been destroyed.—At the time when no share of it had been destroyed, the quota of this State did not amount to more than twenty-six millions.—At forty for one, this is but five hundred thousand dollars at most. In every point of view it appears to me that it cannot be on a more reasonable, equitable, or honorable footing, than it is. Do Gentlemen suppose, that they will agree to any system or alteration, that will place them in a worse situation than before? Let us suppose this Commonwealth was possessed of the same money that the Northern States have; and suppose that an objection was made by them to its redemption at its real value—what would be the consequence? We should pronounce them to be unreasonable, and on good grounds. This case is so extremely plain, that it was unnecessary to say as much as has been said.
Mr. Mason was still convinced of the rectitude of his former opinion. He thought it might be put on a safer footing, by three words. By continuing the restriction of ex post facto laws to crimes—It would then stand under the new Government as it did under the old.
Governor Randolph could not coincide with the construction put by the Honorable Gentleman on ex post facto laws.—The technical meaning which confined such laws solely to criminal cases, was followed in the interpretation of treaties between nations, and was concurred in by all civilians. The prohibition of bills of attainder, he thought a sufficient proof that ex post facto laws related to criminal cases only, and that such was the idea of the Convention.
Mr. George Mason,—Mr. Chairman.—If Gentlemen attend to this clause, they will see we cannot make any inspection-law but what is subject to the controul and revision of Congress.—Hence Gentlemen, who know nothing of the business, will make rules concerning it, which may be detrimental to our interests. For forty years we have laid duties on tobacco to defray the expences of the inspection and to raise an incidental revenue for the State. Under this clause that incidental revenue which is calculated to pay for the inspection, and to defray contingent charges, is to be put into the Federal treasury.—But if any tobacco house is burnt, we cannot make up the loss.—I conceive this to be unjust and unreasonable.—When any profit arises from it, it goes into the Federal treasury:—But when there is any loss or deficiency from damage, it cannot be made up. Congress are to make regulations for our tobacco.—Are the men in the States where no tobacco is made, proper judges of this business?—They may perhaps judge as well, but surely not better than our own immediate Legislature, who are accustomed and familiar with this business. This is one of the most wanton powers of the General Government. I would concede any power that was essentially necessary for the interests of the Union.—But this instead of being necessary, will be extremely oppressive.
Mr. George Nicholas,—Mr. Chairman.—I consider this clause as a good regulation. It will be agreed to that they will impose duties in the most impartial manner, and not throw the burdens on a part of the community. Everyman who is acquainted with our laws, must know that the duties on tobacco were as high as sixteen shillings a hogshead. The consequence was, that the tobacco-makers have paid upwards of 20,000 pounds, annually, more than the other citizens; because they paid every other kind of tax as well as the rest of the community. We have every reason to believe that this clause will prevent injustice and impartiality.—Tobacco-makers will be benefited by it. But the Gentleman says, that our tobacco regulations will be subject to the controul of Congress, who will be unacquainted with the subject. The clause says, that all such laws shall be subject to the revision and controul of Congress. What laws are meant by this?—It means laws imposing duties on the exports of tobacco. But it does not follow, that laws made for the regulation of the inspection shall be subject to the revision of Congress. He may say, that the laws for imposing duties on the exports of tobacco, and laws regulating the inspection, must be blended in the same acts. Give me leave to say, that they need not be so: For the duties on exports might be in one law, and the regulation of the inspection in another. The States may easily make them separately. But, he says, we shall loose the profit. We shall then find equity in our Legislature, which we have not found heretofore: For as they will lay it, not for their own exclusive advantage, but partly for the benefit of others, they will not be interested in laying it partially. As to the effect of ware-houses being burnt, I differ from him. A tax may be laid to make up this loss.—Though the amount of the duties go into the Federal treasury, yet a tax may be laid for that purpose. Is it not necessary and just, if the inspection law obliges the planter to carry his tobacco to a certain place, that he should receive a compensation for the loss, if it be destroyed? The Legislature must defray the expences and contingent charges by laying a tax for that purpose: For such a tax is not prohibited. The nett amounts only go into the Federal treasury, after paying the expences. Gentlemen must be pleased with this part, especially those who are tobacco makers.
Mr. George Mason replied, that the State Legislatures could make no law but what would come within the general controul given to Congress; and that the regulation of the inspection and the imposition of duties, must be inseparably blended together.
Mr. Madison,—Mr. Chairman.—Let us take a view of the relative situation of the States. Some States export the produce of other States. Virginia exports the produce of North-Carolina; Pennsylvania those of Jersey and Delaware; and Rhode-Island those of Connecticut and Massachusetts. The exporting States wished to retain the power of laying duties on exports, to enable them to pay the expences incurred. The States whose produce is exported by other States, were extremely jealous, lest a contribution should be raised of them by the exporting States, by laying heavy duties on their commodities. If this clause be fully considered, it will be found to be more consistent with justice and equity than any other practicable mode: For if the States had the exclusive imposition of duties on exports, they might raise a heavy contribution of the other States, for their own exclusive emoluments. The Honorable Member [George Nicholas] who spoke in defence of the clause, has fairly represented it. As to the reimbursement of the loss that may be sustained by individuals, a tax may be laid on tobacco when brought to the ware-houses, for that purpose. The sum arising therefrom may be appropriated to consistently with the clause. For it only says, that "The nett produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States," which necessarily implies that all contingent charges shall have been previously paid.
(The 1st section, of the 2d article, read.)
Mr. George Mason,—Mr. Chairman.—There is not a more important article in the Constitution than this. The great fundamental principle responsibility in republicanism is here saped. The President is elected without rotation.—It may be said that a new election may remove him, and place another in his stead. If we judge from the experience of all other countries, and even our own, we may conclude, that as the President of the United States may be re-elected, so he will. How is it in every Government where rotation is not required? Is there a single instance of a great man not being re-elected? Our Governor is obliged to return after a given period, to a private station. It is so in most of the States. This President will be elected time after time—He will be continued in office for life.—If we wish to change him, the great powers in Europe will not allow us.
The Honorable Gentleman my colleague in the late Federal Convention, mentions with applause those parts of which he had expressed his approbation; but when he comes to those parts of which he had expressed his disapprobation, he says not a word. If I am mistaken, let me be put right I shall not make use of his name, but in the course of this investigation, I shall use the arguments of that Gentleman against it.
Will not the great powers of Europe, as France and Great-Britain, be interested in having a friend in the President of the United States; and will they not be more interested in his election, than in that of the King of Poland? The people of Poland have a right to displace their King. But do they ever do it? No. Prussia and Russia, and other European powers, would not suffer it. This clause will open a door to the dangers and misfortunes which the people of Poland undergo. The powers of Europe will interpose, and we shall have a civil war in the bowels of our country, and be subject to all the horrors and calamities of an elective Monarchy. This very executive officer, may, by consent of Congress, receive a stated pension from European Potentates. This is an idea not altogether new in America. It is not many years ago, since the revolution, that a foreign power offered emoluments to persons holding offices under our Government. It will moreover be difficult to know, whether he receives emoluments from foreign powers or not. The Electors who are to meet in each State to vote for him, may be easily influenced. To prevent the certain evils of attempting to elect a new President, it will be necessary to continue the old one. The only way to alter this, would be to render him ineligible after a certain number of years, and then no foreign nation would interfere to keep in a man who was utterly ineligible. Nothing is so essential to the preservation of a Republican Government, as a periodical rotation. Nothing so strongly impels a man to regard the interest of his constituents, as the certainty of returning to the general mass of the people, from whence he was taken; where he must participate their burdens. It is a great defect in the Senate, that they are not ineligible at the end of six years. The biennial exclusion of one third of them, will have no effect, as they can be re-elected. Some stated time ought to be fixed, when the President ought to be reduced to a private station. I should be contented that he might be elected for eight years: But I would wish him to be capable of holding the office only eight years, out of twelve or sixteen years. But as it now stands, he may continue in office for life; or in other words, it will be an elective Monarchy.
Governor Randolph,—Mr. Chairman.—The Honorable Gentleman last up, says that I do not mention the parts to which I object. I have hitherto mentioned my objections with freedom and candour. But, Sir, I considered that our critical situation rendered adoption necessary, were it even more defective than it is. I observed, that if opinions ought to lead the Committee on one side, they ought on the other. Every Gentleman who has turned his thoughts to the subject of politics, and has considered of the most eligible mode of Republican Government, agrees that the greatest difficulty arises from the Executive, as to the time of his election, mode of his election, quantum of power, &c. I will acknowledge that at one stage of this business, I had embraced the idea of the Honorable Gentleman, that the re-eligibility of the President was improper. But I will acknowledge, that on a further consideration of the subject, and attention to the lights which were thrown upon it by others, I altered my opinion of the limitation of his eligibility. When we consider the advantages arising to us from it, we cannot object to it. That which has produced my opinion against the limitation of his eligibility, is this—that it renders him more independent in his place, and more solicitous of promoting the interest of his constituents: For, unless you put it in his power to be re-elected, instead of being attentive to their interests, he will lean to the augmentation of his private emoluments. This subject will admit of high coloring and plausible arguments; but on considering it attentively and coolly, I believe it will be found less exceptionable than any other mode.
The mode of election here, excludes that faction which is productive of those hostilities and confusion in Poland. It renders it unnecessary and impossible for foreign force or aid to interpose. The Electors must be elected by the people at large. To procure his re-election, his influence must be co-extensive with the Continent. And there can be no combination between the Electors, as they elect him on the same day in every State. When this is the case, how can foreign influence or intrigues enter? There is no reason to conclude, from the experience of these States, that he will be continually re-elected.19
There has been several instances, where officers have been displaced where they were re-eligible. This has been the case with the Executive of Massachusetts, and I believe of New-Hampshire. It happens from the mutation of sentiments though the officers be good.
There is another provision against the danger mentioned by the Honorable Member, of the President receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeachable he may be displaced at the end of the four years. By the ninth section, of the first article, "No person holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the Representatives of the people;" and by the first section, of the second article, his compensation is neither to be increased or diminished, during the time for which he shall have been elected; and he shall not, during that period, receive any emolument from the United States or any of them. I consider therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption. The Honorable Member seems to think, that he may hold his office without being re-elected. He cannot hold over four years, unless he be re-elected, anymore than if he were prohibited. As to forwarding and transmitting the certificates of the Electors, I think the regulation as good as could be provided.
Mr. George Mason,—Mr. Chairman.—The Vice-President appears to me to be not only an unnecessary but a dangerous officer. He is, contrary to the usual course of Parliamentary proceedings, to be President of the Senate. The State from which he comes may have two votes, when the others will have but one. Besides, the Legislative and Executive are hereby mixed and incorporated together. I cannot at this distance of time foresee the consequences; but I think, that in the course of human affairs, he will be made a tool of in order to bring about his own interest, and aid in overturning the liberties of his country. There is another part which I disapprove of but which perhaps I do not understand. "In case of removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may by law provide for the case of removal, death, resignation, or inability both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected."—The power of Congress is right and proper so far as it enables them to provide what officer shall act, in case both the President and Vice-President be dead or disabled. But Gentlemen ought to take notice that the election of this officer is only for four years. There is no provision for a speedy election of another President, when the former is dead or removed. The influence of the Vice-President may prevent the election of the President. But perhaps I may be mistaken.
Mr. Madison,—Mr. Chairman—I think there are some peculiar advantages incident to this office, which recommend it to us. There is in the first place a great probability this officer will be taken from one of the largest States, and if so, the circumstance of his having an eventual vote will be so far favorable. The consideration which recommends it to me, is, that he will be the choice of the people at large.—There are to be ninety one Electors, each of whom has two votes: If he have one-fourth of the whole number of votes, he is elected Vice-President. There is much more propriety in giving this office to a person chosen by the people at large, than to one of the Senate who is only the choice of the Legislature of one State. His eventual vote is an advantage too obvious to comment upon. I differ from the Honorable Member [George Mason] in the case which enables the Congress to make a temporary appointment. When the President and Vice-President die, the election of another President will immediately take place, and suppose it would not, all that Congress could do, would be to make an appointment between the expiration of the four years and the last election, and to continue only till such expiration. This can rarely happen. This power continues the Government in motion, and is well guarded.
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.