A Freeman Essay I (Pennsylvania)
To the MINORITY of the CONVENTION of Pennsylvania
Gentlemen, The great question which at this time engages the attention of the United States calls for the fairest and most dispassionate discussion. Mistakes in taking up the subject must lead to erroneous conclusions, and men of pure intentions, both among yourselves and the people at large, should misconceptions have arisen, may continue avers to the system, after it has received the fiat of all the conventions. Well intended attempts to throw light upon the interesting subject cannot, therefore, be unpleasing to you. Without further introduction, then, I will proceed to a point of considerable importance in itself and in its consequences, on which I conceive your opinions have been erroneously formed, and on which I earnestly hope we shall finally concur.
The consolidation of the United States into one government by the operation of the proposed constitution (in contradistinction from a confederacy) appears to you to be the consequence of the system, and the intention of its framers. This is the point of the difference which I mean to treat of, and for the present I shall confine my observations to it alone.
Were the parts of the federal government which you have particularized as much of the nature of consolidation as you seem to suppose, real nature and design, and the state sovereignties, would indeed be finally annihilated. The appearances which have misled you I shall remark on in the course of these papers, and I shall endeavour to exhibit clear and permanent marks and lines of separate sovereignty, which must ever distinguish and circumscribe each of the several states, and prevent their annihilation by the federal government, or any of its operations.
When the people of America dissolved their connexion with the crown of Britain, they found themselves separated from all the world, but a few powerless colonies, the principal of which indeed they expected to induce into their measures. The crown having been merely a centre of union, the act of independence dissolved the political ties that had formerly existed among the states, and it was attended with no absolute confederacy; but many circumstances conspired to render some new form of connexion desirable and necessary. We wished not to continue distinct bodies of people, but to form a respectable nation. The remains of our ancient governments kept us in the form of thirteen political bodies, and from a variety of just and prudent considerations, we determined to enter into an indissoluble and perpetual union. Though a confederacy of sovereign states was the mode of connexion which was wisely desired and actually adopted, yet in that feeble and inadequate bond of union to which we assented, articles strongly partaking of the nature of consolidation are observable.
We see, for example, that the free inhabitants of each state were rendered, to all intents and purposes, free citizens of all the rest. Persons fleeing from justice in one state were to be delivered up by any other in which they might take refuge, contrary to the laws prevailing among distinct sovereignties, whereby the jurisdiction of one state pervaded the territories of all the rest, to the effectual length of trial, condemnation and punishment. The right to judge of the sums that should be expended for the use of the nation lies, even under the old confederation, solely with Congress, and after the demand is fixed by them, and formally make, the states are bound, as far as they can be bound by any compact, to pay their respective quotas into the federal treasury, by which the power of the purse is fully given to them; nor can the states constitutionally refuse to comply. It is very certain that there is not in the present federal government vigor enough to carry this actually delegated power into execution; yet, if Congress has possessed energy sufficient to have done it, there is no doubt but they would have been justifiable in the measure, though the season of invasion was unfavorable for internal contests.
We shall also find, that the right to raise armies and build navies is also vested in Congress by the present confederation, and they are to be the sole judges of the occasion, and the force required. The state, therefore, that refuses to fulfil the requisitions of Congress on either of these articles, acts unconstitutionally. It appears, then, that it was thought necessary at the time of forming the old federal constitution, that Congress should have what is termed “the powers of the purse and the sword.” That constitution contained a delegation of them, because the framers of it saw that those powers were necessary to the perpetuity and efficiencyof the union, and to obtain the desirable ends of it. It is certainly very true, that the means provided to enable Congress to apply those powers, which the constitution vested in them, were so liable to opposition, interruption and delay, that the clauses containing them became a mere dead letter. This however was not expected or desired by any of the states at the time, and their subsequent defaults are infringements of the letter and spirit of the confederation. On these circumstances I entreat your most dispassionate and candid consideration. I beg leave to remark, however, that as in the present constitution they are only appearances of consolidation, irrefragably contradicted by other facts and circumstances, so also are the facts and observations in your address merely appearances of a consolidation, which I hope to demonstrate does not exist. The matter will be better understood by proceeding to those points which shew, that, as under the old so under the new federal constitution, the thirteen United States were not intended to be, and really are not consolidated, in such manner as to absorb or destroy the sovereignties of the several states. In order to [have] a perfect understanding of each other, it may be proper to observe here, that by your term consolidation I understand you mean the final annihilation of separate state government or sovereignty, by the nature and operations of the proposed constitution. Among the proofs you adduce of such consolidation being the intention of the late convention, is the expression of “We the People.” Tho’ this is a mere form of words, it will be well to see what expressions are to be found in the constitution in opposition to this, and indicative of the intentions of the convention, before we consider those things, which, as I conceive, secure the states from a possibility of losing their respective sovereignties.
First, then, tho’ the convention propose that it should be the act of the people, yet it is in their capacities as citizens of the several members of our confederacy for they are expressly declared to be “the people of the United States” to which idea the expression is strictly confined, and the general term of America, which is constantly used in speaking of us as a nation, is carefully omitted: a pointed view was evidently had to our existing union. But we must see at once, that the reason of “the People” being mentioned was, that alterations of several constitutions were to be effected, which the convention well knew could be done by no authority but that of “the people,” either determining themselves in their several states, or delegating adequate powers to their state conventions. Had the federal convention meant to exclude the idea of “union,” that is, of several and separate sovereignties joining in a confederacy, they would have said, we the people of America; for union necessarily involves the idea of component states, which complete consolidations exclude. But the severalty of the states is frequently recognized in the most distinct manner in the course of the constitution. The representatives are to be inhabitants of the state they represent each state is to have a representative the militia officers are to be appointed by the several states and many other instances will be found in reading the constitutions. These, however, are all mere expressions, and I should not have introduced them, but to overbalance the words you have mentioned by a superior weight of the same kind. Let us, then, proceed to evidences against consolidation, of more force than the mere forms of words.
It will be found, on a careful examination, that many things, which are indispensably necessary to the existence and good order of society, cannot be performed by the federal government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.
1st. Congress, under all the powers of the proposed constitution, can neither train the militia, nor appoint the officers thereof.
2dly. They cannot fix the qualifications of electors of representatives, or of the electors of the electors of the President or Vice-President.
3dly. In case of a vacancy in the senate or the house of representatives, they cannot issue a writ for a new election, nor take any of the measures necessary to obtain one.
4thly. They cannot appoint a judge, constitute a court, or in any other way interfere in determining offences against the criminal law of the states, nor can they in any way interfere in the determinations of civil causes between citizens of the same state, which will be innumerable and highly important
5thly. They cannot elect a President, a Vice-President, a Senator, or a federal representative, without all of which their own government must remain suspended, and universal Anarchy must ensue.
6thly. They cannot determine the place of chusing senators, because that would be derogatory to the sovereignty of the state legislatures, who are to elect them.
7thly. They cannot enact laws for the inspection of the produce of the country, a matter of the utmost importance to the commerce of the several states, and the honor of the whole.
8thly. They cannot appoint or commission any state officer, legislative, executive or judicial.
9thly. They cannot interfere with the openings of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.
10thly. They cannot interfere with, alter or amend the constitution of any state, which, it is admitted, now is, and, from time to time, will be more or less necessary in most of them.
The proper investigation of this subject will require more of your time than I can take the liberty of engaging at present. I shall therefore leave what I have now written to your honest and cool reflection.
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