Mr. PIERCE rose, he said, to make a few observations on the powers of Congress, in this section.
Gentlemen, he said, in different parts of the house, (Messrs. Dalton, Phillips, and Gore,) had agreed that Congress will not lay direct taxes, except in cases of war; for that, to defray the exigencies of peace, the impost and excise would be sufficient; and, as that mode of taxation would be the most expedient and productive, it would undoubtedly be adopted. But it was necessary Congress should have power to lay direct taxes at all times, although they will not use it, because, when our enemies find they have sufficient powers to call forth all the resources of the people, it will prevent their making war, as they otherwise would. As the Hon. Mr. Phillips used this proverb, "A stitch in time will save nine," his meaning, I suppose, was, that we should have war nine times, if Congress had not such powers, where we should once if they had such powers. But these arguments to me are not conclusive; for, if our enemies know they do not use such powers except in a war, although granted to them, what will be the difference if they have the powers only in the time of war? But, Mr. President, if Congress have the powers of direct taxes, in the manner prescribed in this section, I fear we shall have that mode of taxation adopted, in preference to imposts and excises; and the reasons of my fears are these: When the impost was granted to Congress in this state, I, then being a member of court, well remember the gentlemen in trade, almost with one consent, agreed that it was an unequal tax, bearing hard on them; for, although it finally was a tax on the consumer, yet, in the first instance, it was paid by persons in trade; and also that they consumed more than the landed interest of dutied articles; and nothing but necessity induced them to submit to grant said impost, as that was the only way Congress could collect money to pay the foreign debt, under the regulations they were then under; and I fear part of this state's members in Congress, when this Constitution is adopted, will resume their own opinion, when they can lay direct taxes; and, as Rhode Island has always been against an impost, and as they have an equal representation in the Senate, and part of Connecticut will be interested with them, and the Southern States having no manufactures of their own, and consuming much more foreign articles than the Northern, it appears to me, we are not certain of availing ourselves of an impost, if we give Congress power to levy and collect direct taxes in time of peace.
While I am up, Mr. President, I would make some observations on what has been passed over, as I think it is within the orders of the house. The Hon. Mr. Sedgwick said, if I understood him right, that, if he thought that this Constitution consolidated the union of the states, he should be the last man that should vote for it; but I take his meaning to be this, according to the reasoning of Mr. Ames — that it is not a consolidation of the Union, because there are three branches in the Union; and therefore it is not a consolidation of the Union; but, sir, I think I cannot conceive of a sovereignty of power existing within a sovereign power, nor do I wish any thing in this Constitution to prevent Congress being sovereign in matters belonging to their jurisdiction; for I have seen the necessity of their powers in almost all the instances that have been mentioned in this Convention; and also, last winter, in the rebellion, I thought it would be better for Congress to have stilled the people, rather than the people from amongst themselves, who are more apt to be governed by temper than others, as it appeared to me we were, in the disqualifying act, as, in my opinion, we then did not keep strictly to our own constitution; and I believe such a superior power ought to be in Congress. But I would have it distinctly bounded, that every one may know the utmost limits of it; and I have some doubts on my mind, as to those limits, which I wish to have solved. I have also an objection as to the term for which the Senate are to be in office; for, as the democratical branch of the federal legislature is to continue in office two years, and they are the only check on the federal, and they, the Senate, to continue in office six years, they will have an undue influence on the democratic branch; and I think they ought not to continue in office for a longer time than the other; and also, that, if they conduct ill, we may have a constitutional revolution in as short a period as two years, if needed. The Hon. Mr. King said, some days past, that the Senate going out by classes, if rightly considered, were not for but four years; because one third part was never more than six, another four, and a third two; therefore the medium was four; but I think that way of arguing would argue, that if they were all to go out at the end of six years, that they were but three years in office; because half their time they were under the age of three years, and the other half over the age of three years in office; therefore his arguing to me in that respect was not well founded.
Col. VARNUM, in answer to an inquiry, why a bill of rights was not annexed to this Constitution, said, that, by the constitution of Massachusetts, the legislature have a right to make all laws not repugnant to the Constitution. Now, said he, if there is such a clause in the Constitution under consideration, then there would be a necessity for a bill of rights. In the section under debate, Congress have an expressed power to levy taxes, &c., and to pass laws to carry their requisitions into execution: this, he said, was express, and required no bill of rights. After stating the difference between delegated power and the grant of all power, except in certain cases, the colonel proceeded to controvert the idea that this Constitution went to a consolidation of the Union. He said it was only a consolidation of strength, and that it was apparent Congress had no right to alter the internal relations of a state. The design in amending the Confederation, he said, was to remedy its defects. It was the interest of the whole to confederate against a foreign enemy, and each was bound to exert its utmost ability to oppose that enemy; but it had been done at our expense in a great measure, and there was no way to provide for a remedy, because Congress had not the power to call forth the resources of every state, nor to coerce delinquent states. But under the proposed government, those states which will not comply with equal requisitions, will be coerced; and this, he said, is a glorious provision. In the late war, said the colonel, the states of New Hampshire and Massachusetts, for two or three years, had in the field half the Continental army under General Washington. Who paid those troops? The states which raised them were called on to pay them. How, unless Congress have a power to levy taxes, can they make the states pay their proportion? In order that this and some other states may not again be obliged to pay eight or ten times their proportion of the public exigencies, he said, this power is highly necessary to be delegated to the federal head. He showed the necessity of Congress being enabled to prepare against the attacks of a foreign enemy; and he called upon the gentleman from Andover, (Mr. Symmes,) or any other gentleman, to produce an instance where any government, consisting of three branches, elected by the people, and having checks on each other, as this has, abused the power delegated to them.
Mr. CHOATE said, that this clause gives power to Congress to levy duties, excises, imposts, &c., considering the trust delegated to Congress, that they are to "provide for the common defence, promote the general welfare," &c. If this is to be the object of their delegation, the next question is, whether they shall not be vested with powers to prosecute it. And this can be no other than an unlimited power of taxation, if that defence requires it. Mr. C. contended that it was the power of the people concentred to a point; that, as all power is lodged in them, this power ought to be supreme. He showed the necessity of its being so, not only for our common defence, but for our advantage in settling commercial treaties. Do we wish to make a treaty with any nation of Europe, we are told we have no stability as a nation. As Congress must provide for the common defence, shall they, asked Mr. C., be confined for the impost and excise? They are alone the judges whether five or one per cent. is necessary or convenient. It has been the practice of all nations to anticipate their resources by loans; this will be the case of the United States in war; and he asked, if our resources are competent and well established, and that no doubt remained of them, whether, in that case, the individuals who have property will not cheerfully offer it for the general defence. After adverting to the idea of some, of its being a consolidation of the Union, Mr. Choate concluded by a brief display of the several checks contained, and securities for the people to be found, in this system.
Gen. THOMPSON. Sir, the question is, whether Congress shall have power. Some say that, if this section was left out, the whole would fall to the ground. I think so too, as it is all of a piece. We are now fixing a national consolidation. This section, I look upon it, is big with mischiefs. Congress will have power to keep standing armies. The great Mr. Pitt says, standing armies are dangerous — keep your militia in order — we don't want standing armies. A gentleman said, We are a rich state: I say so too. Then why shall we not wait five or six months, and see what our sister states do? We are able to stand our ground against a foreign power; they cannot starve us out; they cannot bring their ships on the land; we are a nation of healthy and strong men; our land is fertile, and we are increasing in numbers. It is said we owe money: no matter if we do; our safety lies in not paying it — pay only the interest. Don't let us go too fast. Shall not Massachusetts be a mediator? It is my wish she may be one of the four dissenting States; then we shall be on our old ground, and shall not act unconstitutionally. Some people cry, It will be a great charge; but it will be a greater charge, and be more dangerous, to make a new one. Let us amend the old Confederation. Why not give Congress power only to regulate trade? Some say, that those we owe will fall upon us; but it is no such thing: the balance of power in the old countries will not permit it; the other nations will protect us. Besides, we are a brave and happy people. Let us be cautious how we divide the states. By uniting we stand, by dividing we fall. We are in our childhood yet: don't let us grow too fast, lest we grow out of shape. I have proved that we are a respectable people, in possession of liberty, property, and virtue, and none in a better situation to defend themselves. Why all this racket? Gentlemen say we are undone if we cannot stop up the Thames; but, Mr. President, nations will mind their own interest, and not ours. Great Britain has found out the secret to pick the subjects' pockets, without their knowing of it: that is the very thing Congress is after. Gentlemen say this section is as clear as the sun, and that all power is retained which is not given. But where is the bill of rights which shall check the power of this Congress; which shall say, Thus far shall ye come, and no farther. The safety of the people depends on a bill of rights. If we build on a sandy foundation, is it likely we shall stand? I apply to the feelings of the Convention. There are some parts of this Constitution which I cannot digest; and, sir, shall we swallow a large bone for the sake of a little meat? Some say, Swallow the whole now, and pick out the bone afterwards. But I say, Let us pick off the meat, and throw the bone away.
This section, sir, takes the purse-strings from the people. England has been quoted for their fidelity; but did their constitution ever give such a power as is contained in this Constitution? Did they ever allow Parliament to vote an army but for one year? But here we are giving Congress power to vote an army for two years — to tax us without limitation; no one to gainsay them, and no inquiry yearly, as in Britain; therefore, if this Constitution is got down, we shall alter the system entirely, and have no checks upon Congress.
Rev. Mr. NILES wished the honorable gentleman would point out the limits to be prescribed to the powers given in this section.
Hon. Mr. BOWDOIN. Mr. President, on the subject of government, which admits of so great a variety in its parts and combinations, a diversity of opinions is to be expected; and it Was natural to suppose that, in this Convention, respectable for its numbers, but much more so for the characters which compose it, there would be a like diversity concerning the federal Constitution, that is now the subject of our consideration.
In considering it, every gentleman will reflect how inadequate to the purposes of the Union the Confederation has been. When the plan of the Confederation was formed, the enemy were invading us; and this inspired the several states with such a spirit of union and mutual defence, that a mere requisition or recommendation of Congress was sufficient to procure the needful aids, without any power of coercion; and for that reason, among others, no such power was given by the Confederation. But since that reason bad ceased, and the idea of danger being removed by the peace, the requisitions of Congress have, in most of the states, been little regarded, notwithstanding they solemnly pledged their faith to comply with them.
This non-compliance has compelled Congress to increase the foreign debt of the Union, by procuring further loans to pay the interest and instalments due on former loans; and in that way to preserve the public faith, which had been pledged to foreign powers. It has compelled them, in order to prevent the consequences of a breach of faith, as relative to those powers, to enter repeatedly into those ruinous negotiations, by which "the United States jointly, and each of them in particular, together with all their lands, chattels, revenues, and products, and also the imposts and taxes already laid and raised in the same, or in time to come to be laid and raised, are for the whole," mortgaged for the re payment of those loans by instalments, and for the payment of the interest on them annually. These debts must be paid, bona fide, according to contract, or be further increased by procuring, if procurable, further loans; which, ruinous as the measure is, must be continued, unless the states empower Congress to raise money for the discharging those debts. It will not be in the power of the United States, and I am sure it will not be in their inclination, to rid themselves of those debts in the same base and ignominious manner in which a faction, in one of them, are endeavoring to get rid of theirs. To the same cause (a non-compliance with congressional requisitions) are owing the repeated but necessary breaches of public faith in regard to the payment of the federal domestic debt. And hence, as relative to the joint consolidated debt, the inefficiency of the public finances, and the bankrupt state of the federal treasury, which can never be remedied without empowering Congress to levy adequate duties and taxes. Without such a power, the accumulating debt will never be paid, but by a forcible collection, which our foreign creditors know how, and are able to apply, if, unhappily, it should be necessary. The several loans, which by contract are to be paid by instalments, will, in case of the failure of any of the stipulated payments, become, the whole of them, immediately payable; and any of the property of any of the states, whether public or private, that can be most easily come at, will, in that case, be seized and applied for that purpose.
This mode of reimbursement, or reprisal, will be upon the trade and navigation of the United States; and in proportion as ours of this state may be larger and more extensive than the trade and navigation of other states, we shall be the greatest sufferers. This ruin of our trade will involve in it not only the ruin of the mercantile part of the state, and of the numerous body of mechanics dependent upon it, but will most essentially affect every other class of citizens, and operate most extensively to the injury of the commonwealth.
These are some of the consequences, certain and in fallible, that will flow from the denial of that power to Congress. Shall we then, we of this state, who are so much interested in this matter, deny them that power — a power so essential to our political happiness?
But if we attend to our trade, as it is at present, we shall find that the miserable state of it is owing to a like want of power in Congress. Other nations prohibit our vessels from entering their ports, or lay heavy duties on our exports carried thither; and we have no retaliating or regulating power over their vessels and exports, to prevent it. Hence a decrease of our commerce and navigation, and the duties and revenue arising from them. Hence an insufficient demand for the produce of our lands, and the consequent discouragement of agriculture. Hence the inability to pay debts, and particularly taxes, which by that decrease are enhanced. And hence, as the necessary result of all these, the emigration of our inhabitants. If it be asked, How are these evils, and others that might be mentioned, to be remedied? the answer is short — By giving Congress adequate and proper power. Whether such power be given by the proposed Constitution, it is left with the Conventions from the several states, and with us, who compose one of them, to determine.
In determining on this question, every gentleman will, doubtless, consider the importance of cultivating a spirit of union among ourselves, and with the several states. This spirit procured our emancipation from British tyranny; and the same spirit, by uniting us in the necessary means, must secure to us our dear-bought, blood-purchased liberty and independence, and deliver us from evils which, unless remedied, must end in national ruin. The means for effecting these purposes are within our reach; and the adoption of the proposed Constitution will give us the possession of them. Like all other human productions, it may be imperfect; but most of the imperfections imputed to it are ideal and unfounded, and the rest are of such a nature that they cannot be certainly known but by the operations of the Constitution; and if, in its operation, it should in any respect be essentially bad, it will be amended in one of the modes prescribed by it. I say, will be amended, because the Constitution is constructed on such principles, that its bad effects, if any such should arise from it, will injure the members of Congress equally with their constituents; and, therefore, both of them must be equally induced to seek for, and effectuate, if possible, the requisite amendments.
There have been many objections offered against the Constitution; and of these the one most strongly urged has been, the great power vested in Congress. On this subject, I beg leave to make a few general observations, which ought to be attended to, as being applicable to every branch of that power.
It may, therefore, be observed, that the investiture of such power, so far from being an objection, is a most cogent reason for accepting the Constitution. The power of Congress, both in the legislative and executive line, is the power of the people, collected through a certain medium, to a focal point, at all times ready to be exerted for the general benefit, according as circumstances or exigencies may require. If you diminish or annihilate it, you diminish or annihilate the means of your own safety and prosperity; which means, if they were to be measured like mathematical quantities, would be in exact proportion, as the power is greater or less. But this is not the case; for power that does not reach, or is inadequate to the object, is worse than none. An exertion of such power would increase the evil it was intended to remove, and at the same time create a further evil, which might be a very great one — the expense of a fruitless exertion.
If we consider the objects of the power, they are numerous and important; and as human foresight cannot extend to many of them, and all of them are in the womb of futurity, the quantum of the power cannot be estimated. Less than the whole, as relative to federal purposes, may, through its insufficiency, occasion the dissolution of the Union, and a subjugation or division of it among foreign powers. Their attention is drawn to the United States; their emissaries are watching our conduct, particularly upon the present most important occasion; and if we should be so unhappy as to reject the federal Constitution proposed to us, and continue much longer our present weak, unenergetic federal government, their policy will probably induce them to plan a division or partition of the states among themselves, and unite their forces to effect it.
But, however that may be, this is certain — that the respectability of the United States among foreign nations, our commerce with them on the principles of reciprocity, and our forming beneficial treaties with them on those principles, their estimation of our friendship and fear of losing it, our capacity to resent injuries, and our security against interior as well as foreign attacks, must be derived from such a power. In short, the commercial and political happiness, the liberty and property, the peace, safety, and general welfare, both internal and external, of each and all the states, depend on that power; which, as it must be applied to a vast variety of objects, and to cases and exigencies beyond the ken of human prescience, must be very great; and which cannot be limited without endangering the public safety.
It will be, and has been said, this great power may be abused, and, instead of protecting, may be employed by Congress in oppressing, their constituents. A possibility of abuse, as it may be affirmed of all delegated power whatever, is by itself no sufficient reason for withholding the delegation. If it were a sufficient one, no power could be delegated; nor could government of any sort subsist. The possibility, however, should make us careful, that, in all delegations of importance, like the one contained in the proposed Constitution, there should be such checks provided as would not frustrate the end and intention of delegating the power, but would, as far as it could be safely done, prevent the abuse of it; and such checks are provided in the Constitution. Some of them were mentioned the last evening by one of my worthy colleagues; but I shall here exhibit all of them in one view.
The two capital departments of government, the legislative and executive, in which the delegated power resides, consisting of the President, Vice-President, Senate and Representatives, are directly, and by the respective legislatures and delegates, chosen by the people.
The President, and also the Vice-President, when acting as President, before they enter on the execution of the office, shall each "solemnly swear or affirm, that he will faithfully execute the office of President of the United States, and will, to the best of his ability, preserve, protect, and defend, the Constitution of the United States."
"The senators and representatives before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this Constitution."
"The President and Vice-President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanors."
"No senator or representative shall, during the time for which he was elected, be appointed to any civil office; which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United Slates shall be a member of either house, during his continuance in office."
"No title of nobility shall be granted by the United States, or by any particular state; and no person holding any office of profit or trust Under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state."
"The United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion and domestic violence."
To these great checks may be added several other very essential ones, as, the negative which each house has upon the acts of the other; the disapproving power of the President, which subjects those acts to a revision by the two houses, and to a final negative, unless two thirds of each house shall agree to pass the returned acts, notwithstanding the President's objections; the printing the journals of each house, containing their joint and respective proceedings; and the publishing, from time to time, a regular statement and account of receipts and expenditures of all public money, none of which shall be drawn from the treasury but in consequence of appropriations made by law.
All these checks and precautions, provided in the Constitution, must, in a great measure, prevent an abuse of power, at least in all flagrant instances, even if Congress should consist wholly of men who were guided by no other principle than their own interest. Under the influence of such checks, this would compel them to a conduct which, in the general, would answer the intention of the Constitution. But the presumption is, — and, if the people duly attend to the objects of their choice, it would be realized, — that the President of the United States and the members of Congress would, for the most part, be men, not only of ability, but of a good moral character; in which case, an abuse of power is not to be apprehended, nor any error in the government, but such as every human institution is subject to.
There is a further guard against the abuse of power, which, though not expressed, is strongly implied in the federal Constitution, and, indeed, in the constitution of every government founded on the principles of equal liberty; and that is, that those who make the laws, and particularly laws for the levying of taxes, do, in common with their fellow-citizens, fall within the power and operation of those laws.
As, then, the individuals in Congress will all share in the burdens they impose, and be personally affected by the good or bad laws they make for the Union, they will be under the strongest motives of interest to lay the lightest burdens possible, and to make the best laws, or such laws as shall not unnecessarily affect either the property or the personal rights of their fellow-citizens.
With regard to rights, the whole Constitution is a declaration of rights, which primarily and principally respect the general government intended to be formed by it. The rights of particular states, or private citizens, not being the object or subject of the Constitution, they are only incidentally mentioned. In regard to the former, it would require a volume to describe them, as they extend to every subject of legislation, not included in the powers vested in Congress; and, in regard to the latter, as all governments are founded on the relinquishment of personal rights in a certain degree, there was a clear impropriety in being very particular about them. By such a particularity the government might be embarrassed, and prevented from doing what the private, as well as the public and general, good of the citizens and states might require.
The public good, in which private is necessarily involved, might be hurt by too particular an enumeration; and the private good could suffer no injury from a deficient enumeration, because Congress could not injure the rights of private citizens without injuring their own, as they must, in their public as well as private character, participate equally with others in the consequences of their own acts. And by this most important circumstance, in connection with the checks above mentioned, the several states at large, and each citizen in particular, will be secured, as far as human wisdom can secure them, against the abuse of the delegated power.
In considering the Constitution, we shall consider it, in all its parts, upon those general principles which operate through the whole of it, and are equivalent to the most extensive bill of rights that can be formed.
These observations, which are principally of a general nature, but will apply to the most essential parts of the Constitution, are, with the utmost deference and respect, submitted to your candid consideration; with the hope that, as they have influenced my own mind decidedly in favor of the Constitution, they will not be wholly unproductive of a like influence on the minds of the gentlemen of the Convention.
If the Constitution should be finally accepted and established, it will complete the temple of American liberty, and, like the keystone of a grand and magnificent arch, be the bond of union to keep all the parts firm and compacted together. May this temple, sacred to liberty and virtue, sacred to justice, the first and greatest political virtue, and built upon the broad and solid foundation of perfect union, be dissoluble only by the dissolution of nature; and may this Convention have the distinguished honor of erecting one of its pillars on that lasting foundation!
Dr. TAYLOR said, the consideration of the 8th section had taken up a great deal of time; that gentlemen had repeated the same arguments over and over again; and, although the order of the Convention was, that the proposed Constitution should be considered by paragraphs, he was pleased, he said, to observe that the honorable gentleman fast speaking had gone into the matter at large, and therefore he hoped that other gentlemen would take the same liberty, and that all further observations might be on the system at large.
Mr. PARSONS, (of Newburyport.) Mr. President, a great variety of supposed objections have been made against vesting Congress with some of the powers defined in the 8th section. Some of the objectors have considered the powers as unnecessary, and others, that the people have not the proper security that these powers will not be abused. To most of these objections, answers, convincing, in my opinion, to a candid mind, have been given. But as some of the objections have not been noticed, I shall beg the indulgence of the Convention, while I briefly consider them. And, as it is my intention to avoid all repetition, my observations will necessarily be unconnected and desultory.
It has been said that the grant in this section includes all the possessions of the people, and divests them of every thing; that such a grant is impolitic; for, as the poverty of an individual guards him against luxury and extravagance, so poverty in a ruler is a fence against tyranny and oppression. Sir, gentlemen do not distinguish between the government of an hereditary aristocracy, where the interest of the governors is very different from that of the subjects, and a government to be administered for the common good by the servants of the people, vested with delegated powers by popular elections at stated periods. The federal Constitution establishes a government of the last description, and in this case the people divest themselves of nothing; the government and powers which the Congress can administer, are the mere result of a compact made by the people with each other, for the common defence and general welfare. To talk, therefore, of keeping the Congress poor, if it means any thing, must mean a depriving the people themselves of their own resources. But if gentlemen will still insist that these powers are a grant from the people, and consequently improper, let it then be observed, that it is now too late to impede the grant; it is already completed; the Congress, under the Confederation, are invested with it by solemn compact; they have powers to demand what moneys and forces they judge necessary for the common defence and general welfare — powers as extensive as those proposed in this Constitution. But it may be said, as the ways and means are reserved to the several states, they have a check upon Congress, by refusing a compliance with the requisitions. Sir, is this the boasted check? — a check that can never be exercised but by perfidy and a breach of public faith; by a violation of the most solemn stipulations? It is this check that has embarrassed at home, and made us contemptible abroad; and will any honest man plume himself upon a check which an honest man would blush to exercise?
It has been objected that the Constitution provides no religious test by oath, and we may have in power unprincipled men, atheists and pagans. No man can wish more ardently than I do that all our public offices may be filled by men who fear God and hate wickedness; but it must remain with the electors to give the government this security. An oath will not do it. Will an unprincipled man be entangled by an oath? Will an atheist or a pagan dread the vengeance of the Christian's God, a being, in his opinion, the creature of fancy and credulity? It is a solecism in expression. No man is so illiberal as to wish the confining places of honor or profit to any one sect of Christians; but what security is it to government, that every public officer shall swear that he is a Christian? For what will then be called Christianity? One man will declare that the Christian religion is only an illumination of natural religion, and that he is a Christian; another Christian will assert that all men must be happy hereafter in spite of themselves; a third Christian reverses the image, and declares that, let a man do all he can, he will certainly be punished in another world; and a fourth will tell us that, if a man use any force for the common defence, he violates every principle of Christianity. Sir, the only evidence we can have of the sincerity of a man's religion is a good life; and I trust that such evidence will be required of every candidate by every elector. That man who acts an honest part to his neighbor,, will, most probably, conduct honorably towards the public.
It has been objected that we have not as good security against the abuse of power under the new Constitution as the Confederation gives us. It is my deliberate opinion that we have a better security. Under the Confederation, the whole power, executive and legislative, is vested in one body, in which the people have no representation, and where the states, the large and the small states, are equally represented; and all the checks the states have, is a power to remove and disgrace an unfaithful servant, after the mischief is perpetrated. Under this Constitution, an equal representation, immediately from the people, is introduced, who, by their negative, and the exclusive right of originating money bills, have the power to control the Senate, where the sovereignty of the states is represented. But it has been objected that, in the old Confederation, the states could at any time recall their delegates, and there was a rotation. No essential benefit could be derived to the people from these provisions, but great inconveniences will result from them. It has been observed by a gentleman who has argued against the Constitution, that a representative ought to have an intimate acquaintance with the circumstances of his constituents, and, after comparing them with the situation of every part of the Union, so conduct as to promote the common good. The sentiment is an excellent one, and ought to be engraved on the hearts of every representative. But what is the effect of the power of recalling? Your representative, with an operating revocation over his head, will lose all ideas of the general good, and will dwindle to a servile agent, attempting to serve local and partial benefits by cabal and intrigue. There are great and insuperable objections to a rotation. It is an abridgment of the rights of the people, and it may deprive them, at critical seasons, of the services of the most important characters in the nation. It deprives a man of honorable ambition, whose highest duty is the applause of his fellow-citizens, of an efficient motive to great and patriotic exertions. The people, individually, have no method of testifying their esteem hut by a reëlection; and shall they be deprived of the honest satisfaction of wreathing for their friend and patriot a crown of laurel more durable than monarchy can bestow?
It has been objected that the Senate are made too dependent upon the state legislatures. No business under the Constitution of the federal Convention could have been more embarrassing than the constructing the Senate; as that body must conduct our foreign negotiations, and establish and preserve a system of national politics, a uniform adherence to which can alone induce other nations to negotiate with and confide in us. It is certain the change of the men who compose it should not be too frequent, and should be gradual. At the same time, suitable checks should be provided to prevent an abuse of power, and to continue their dependence on their constituents. I think the Convention have most happily extricated themselves from the embarrassment. Although the senators are elected for six years, yet the Senate, as a body composed of the same men, can exist only for two years, without the consent of the states. If the states think proper, one third of that body may, at the end of every second year, be new men. When the Senate act as legislators, they are controllable at all times by the representatives; and in their executive capacity, in making treaties and conducting the national negotiations, the consent of two thirds is necessary, who must be united to a man, (which is hardly possible,) or the new men biennially sent to the Senate, if the states choose it, can control them; and at all times there will also be one third of the Senate, who, at the expiration of two years, must obtain a reëlection, or return to the mass of the people. And the change of men in the Senate will be so gradual as not to destroy or disturb any national system of politics.
It is objected that it is dangerous to allow the Senate a right of proposing alterations or amendments in money bills; that the Senate may by this power increase the supplies, and establish profuse salaries; that for these reasons the lords in the British Parliament have not this power, which is a great security to the liberties of Englishmen. I was much surprised at hearing this objection, and the grounds upon which it was supported. The reason why the lords have not this power, is founded on a principle in the English constitution, that the commons alone represent the whole property of the nation; and as a money bill is a grant to the king, none can make the grant but those who represent the property of the nation; and the negative of the lords is introduced to check the profusion of the commons, and to guard their own property. The manner of passing a money bill is conclusive evidence of these principles; for, after the assent of the lords, it does not remain with the clerk of the Parliament, but is returned to the commons, who, by their speaker, present it to the king as the gift of the commons. But every supposed control the Senate, by this power, may have over money bills, they can have without it; for, by private communications with the representatives, they may as well insist upon the increase of the supplies, or salaries, as by official communications. But had not the Senate this power, the representatives might take any foreign matter to a money bill, and compel the Senate to concur, or lose the supplies. This might be done in critical seasons, when the Senate might give way to the encroachments of the representatives, rather than sustain the odium of embarrassing the affairs of the nation; the balance between the two branches of the legislature would, in this way, be endangered, if not destroyed, and the Constitution materially injured. This subject was fully considered by the Convention for forming the constitution of Massachusetts, and the provision made by that body, after mature deliberation, is introduced into the federal Constitution.
It was objected that, by giving Congress a power of direct taxation, we give them power to destroy the state governments, by prohibiting them from raising any moneys; but this objection is not founded in the Constitution. Congress have only a concurrent right with each state, in laying direct taxes, not an exclusive right; and the right of each state to direct taxation is equally extensive and perfect as the right of Congress; any law, therefore, of the United States, for securing to Congress more than a concurrent right with each state, is usurpation, and void.
It has been objected that we have no bill of rights. If gentlemen who make this objection would consider what are the supposed inconveniences resulting from the want of a declaration of rights, I think they would soon satisfy themselves that the objection has no weight. Is there a single natural right we enjoy, uncontrolled by our own legislature. that Congress can infringe? Not one. Is there a single political right secured to us by our constitution, against the attempts of our own legislature, which we are deprived of by this Constitution? Not one, that I recollect. All the rights Congress can control we have surrendered to our own legislature; and the only question is, whether the people shall take from their own legislatures a certain portion of the several sovereignties, and unite them in one head, for the more effectual securing of the national prosperity and happiness.
The honorable gentleman from Boston has stated at large most of the checks the people have against usurpation, and the abuse of power, under the proposed Constitution; but from the abundance of his matter, he has, in my opinion, omitted two or three, which I shall mention. The oath the several legislative, executive, and judicial officers of the several states take to support the federal Constitution, is as effectual a security against the usurpation of the general government as it is against the encroachment of the state governments. For an increase of the powers by usurpation is as clearly a violation of the federal Constitution as a diminution of these powers by private encroachment; and that the oath obliges the officers of the several states as vigorously to oppose the one as the other. But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation. But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.