Observations on the Constitution (Virginia)
GENTLEMEN, When you did me the honour to elect me into the Convention, to decide for you upon the constitution submitted to the states from Philadelphia, I had not at that time examined it with that attention its importance required, and of course could give you no decided opinion respecting it. Other cares had unavoidably taken my attention from it. After you had reposed that trust in me it became my duty to pay it a more serious attention. Having given it the best investigation that my limited capacity is capable of, and perhaps formed in some measure my opinion respecting it, subject however to alteration when I shall be convinced that I am in an error, I should think myself unpardonable if I withheld it from you. To you it belongs to approve or correct this opinion, for although it would give me pain to be compelled to take a course which my own mind did not approve, yet I have too high a respect for you[r] rights, to[o] just a sense of my duty, and too strong an impression of gratitude for the confidence you have reposed in me, to act contrary to your wishes. Under this impression I have thought proper to make to you the following unreserved communication of my sentiments upon this all important subject.
It will readily occur to you that this plan of government is not submitted for your decision in an ordinary way; not to one branch of the government in its legislative character and confined under the constitution to the sphere it has assigned it; but to the people to whom it belongs and from whom all power originates, in convention assembled. In this situation your present state constitution was, or should have been, formed, and in this situation you are of course able to alter, or change it at pleasure. You are therefore to observe that what-ever act you now enter into, will be paramount to all others either of law or constitution, and that in adopting this it becomes in reality the constitution of the state, and binding on you as such. Whether it will absolutely annul and do away that of the state is perhaps doubtful; my own apprehension is it will not, except in those cases wherein they disagree; in these it will of course prevail, and controul all the departments of the state government, being the ulterior act of the people. You will therefore perceive it is a subject of great extent and importance upon which you have to decide, and that you owe it to your country, yourselves, and posterity, that it be well examined in all its consequences before it is determined.
When we contemplate the causes that might probably have contributed to make it necessary to submit to your decision the propriety of such a change in your political situation, we are naturally led into one of the following conclusions—either that the morals of the people have become corrupted—that the passions of mankind by nature render them unfit for the enjoyment of equal liberty, or that the form of the government itself under which we live is radically defective, and capable of such improvement, as will extend to us its blessings in a higher degree, and make them of longer duration. Believing firmly that the body of the people are virtuous, at least sufficiently so to bear a free government; that it was the design of their Creator in forming such an order of beings that they should enjoy it, and that it is only by a strange and unaccountable perversion of his benevolent intentions to mankind, that they are ever deprived of it, I will proceed to examine the latter hypothesis which supposes such defects in the present form, as to make a change adviseable. If we find that they really do exist, I will then proceed to suggest such remedies as will enable us comparitively to determine on the merits of that proposed to be substituted in its stead. I feel myself deeply impressed with the importance of this undertaking and am too well acquainted with my own inability, even to hope that I shall conduct myself with propriety through it, but from a sincere desire to establish a perfect good understanding between us, and prevent the possibility of any future anxiety on this subject, I find myself constrained however painful it may be, and however ungracefully I may do it, not only to avow my sentiments respecting it, but the principles on which they are founded.
The present states were separate, from their first colonial establishments until the encroachments of Great Britain, compelled them into an union for their defence. But as their combined efforts soon promised to erect them into independent governments, the consideration which had united them for a time, and for the accomplishment of one object only, became perpetual, and the wisdom of their councils suggested the propriety of provisions that would secure them from like dangers for ever—under this impression they entered into the articles of confederation on the day of , 178 . To this instrument or bond of union therefore we are to look for the strength, or imbecility, for the perfection or demerits, of the present federal government. As this is the system whose defects we have to remedy, it will be proper to present to your view concisely a summary of its powers.
The powers which have been given by these articles of agreement or confederation to the general government are extensive They are to be found principally in the 9th and the 6th articles, in the former positively, and in the latter negatively by a qualification of the rights of the individual states. By the 9th, the United States are authorised to make war and peace—send and receive ambassadors—enter into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislature of the respective states shall be restrained from imposing such duties on foreigners as their own people are subject to, or from prohibiting the importation or exportation of any species of goods or commodities whatsoever—establishing rules for deciding what captures shall be legal by land and water, and how appropriated; grant letters of marque and reprisal in time of peace—appoint courts for determining finally in all cases of captures; appoint courts for the decision of territorial controversies between states and individuals claiming lands under different grants from two or more states, whose jurisdictions respecting such lands have already been adjusted by the said court;—coin and regulate exclusively the value of coin throughout the United States—fix the standard of weights and measures—regulate the trade with the Indians not members of a particular state—establish and regulate post-offices—appoint all officers of land and sea forces, except regimental; make rules for their government and regulation and direct their operations—ascertain the necessary sums of money to be raised for the service of the United States appropriate, and apply the same—borrow money and emit bills of credit on the faith of the United States—build and equip a navy—agree on the number of land forces and make requisitions for the same. Provided that none of the said powers shall be exercised without the consent of nine states. By the 6th, the individual states are prohibited from sending or receiving embassies, entering into conferences, treaties or alliances with any foreign power, and the servants of the United States or individual states from holding offices of profit or trust under any foreign prince or potentate whatever—from partial confederacies without consent of Congress—from keeping up troops or vessels of war in time of peace except such as shall be approved by Congress entering into a war with a foreign power unless invaded by an enemy—from granting letters of marque or reprisal except after declaration of war by the United States and then under particular restrictions only.
These articles give all the efficient powers to the United States—The 1st, 3d, 4th, 7th and 8th, although they establish some fundamental principles on which the government is to move, and especially the 8th the rule of apportionment, yet they give no real power; they are rather the rule by which the power already given is to be used than that they give any themselves. The 10th, 11th, 12th and 13th, fall still more under this exception or regulate other inferior objects of compact. But the 2d and 5th are of a different impression. By the former, each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, not expressly delegated to the United States and by the latter, that of appointing, continuing, or removing its own delegates at pleasure. These are the powers, and this the form, of the present government.
An attentive view of the subject will satisfy us that these powers are really great and extensive; they appear to have contemplated the greater part of those concerns wherein it might be supposed they had a national interest. Having made the United States the sovereign arbiters of war and peace, given them the right to require men and money, equip fleets and armies, to send and receive ambassadors, make treaties of alliance and commerce, with the very extensive catalogue which I have already enumerated, except the regulation of trade there seemed to be little left of external policy to the individual states. It is not my object to inquire here whether these powers should be more extensive. I may in the course of these observations; at present I shall examine more particularly the effect or operation of a government organised like this.
It is to be observed that by the 2d article the individual states retain their respective sovereignties, jurisdictions and rights in all cases no expressly ceded to the confederacy. And by the 5th they reserve the right of appointing, continuing or removing their respective delegations at pleasure. To these articles we are to look for the tone and character of this government, for upon these does its good or bad qualities depend. It is upon this point, that the present commotion hath taken place in America, and upon the merits of which we have to decide.
The deputies from each state being amenable for their conduct, and depending on it for their hopes and prospects, necessarily negociate for its interests. This property or distinction pervades the whole body and thus their general council or the Congress becomes a diplomatick corps, or a corps formed of ministers or representatives from sovereign states acting for the particular advantage of that to which they belong. The efforts therefore of each state, whatever may be the powers o the union over the several members that compose it, will be to shield itself from the common burdens of the government; and to effect this: all the arts of intrigue and negociation will be constantly exerted. What is the obvious course of a government organised on such principles? Are not the seeds of dissolution deeply ingrafted in it? The most powerful principles of human action the hope of reward and the fear of punishment are in the hands of each state, and whilst mankind are subject to their influence, or the passions and affections of the human heart continue as they have been, its course will always be the same. This government it is manifest can never be an efficient one. Strong necessity and emminent danger may make it so occasionally, but when. ever this cause ceases to operate, its repellent principles will prevail. If this position is just, I am perhaps right in supposing it a consequence necessarily resulting from it, that the stronger the powers of the government are, the more repellent will its qualities be, and the sooner its dissolution; at least certain it is that the conflict between the general and state governments, will be proportionally more violent, and its or their ruin the sooner accomplished, for it must soon terminate either in that of the one or the other, I mean as an efficient government. The higher toned those of the states were the more rapid would the progress be. I think I may venture to affirm that a confederacy formed of principalities would not last long, for the pride of princes would not brook those familiarities and insults which a free discussion of rights and interests, especially if they interfere, sometimes unavoidably occasions; and when an absolute prince takes offence he wields the state with him. But this is not the case with democracies, for although their chief magistrates may be offended, yet it is difficult for them to communicate at the same time, the same passions and dispositions to the whole community which they themselves possess. This is a caution however which I hope it is not necessary to suggest here, for I am satisfied the state governments will never take this turn of themselves, nor whilst that of the confederacy is preserved and properly supported. But to carry this government a little further into practice.
Let us submit the concerns and interests of different states or individuals within them to this corps formed of representatives from each negociating for that to which they respectively belong, and what kind of justice may we expect from its decisions? If magazines were to be established or troops raised and stationed in some quarter of the union for public defence, might we not expect that these arrangments would take stronger byas, from the combination of the day, than any sentiment of propriety? If states or individuals within them had claims founded on the same principles with those upon which a decision had already been had in favour of others, are we to calculate with certainty upon a similar decree? In short apply it to every case that may possibly arise, either of states or individuals, in the full scope of its powers, and we shall find its decisions depend, more upon negociation, the bargain of the day, than any established maxim of justice or policy.
On the other hand how are its treaties, laws, or ordinances to be carried into effect? Are they of authority and in force immediately within the states as soon as they are passed? Or does it require the intervention of a state law to give them validity? And if the law is necessary may not the state refuse to pass it, and if she does how shall she be compelled? It is well known from the practice of all the states in the confederacy that no act of Congress, of what nature soever it may be, is of force within them, until it is recognized by their own legislatures, prior to that event it is a nullity, and to that only does it owe its authority. This view of the subject demonstrates clearly that the present government, in its ordinary administration, though a league of independent states for common good, and possessed of extensive powers, must always be void of energy, slow in its operation, sometimes oppressive, and often altogether suspended—that it can never be calculated on by foreign powers, and of course that they will form no treaties or compacts whatever with it, that stipulate any thing, at least on equal terms, that in fine very little dependence can be placed in it by the states themselves, for destitute of the power of coercion, to say nothing as to the justice or propriety of the measures themselves, these will not be forward to comply with its demands, whilst those may refuse with impunity. On the other hand the illustrious event which hath placed them in the rank of independent states demonstrates with equal certainty, that it is competent to external defence, and perfect security from abroad, for how otherwise could it have been atchieved? These are the defects or the principal defects in the form of the present government, and they are inseparable from a league of independent states, for to that circumstance, and that alone they are to be attributed. We have then to weigh these evils, and compare them with the probable benefits and dangers that may accompany a change, and then see in which scale the balance preponderates.
It may be now asked are we reduced to this alternative either to subvert the state sovereignties or submit to these evils? Is the state sovereignty a vain and illusory hope, is it incompatible with its own and the general interests of the confederacy? Or is there any other alternative? The practice of nations and the field of enquiry is open before us, and we have every thing that is sacred and dear to mankind depending on the event. Two species of remedy only present them-selves to my mind, and these contemplate either a complete annihilation of the state governments, or a partial one or considerable reduction of their powers. A complete annihilation and the organization of a general government over the whole, would unquestionably remove all the objections which have been stated above, and apply to it as a federal government; and I will be free to own that if it were in reality a practicable thing, there is no object which my mind has ever contemplated, the attainment of which would give it such high gratification. To collect the citizens of America, who have fought and bled together, by whose joint and common efforts they have been raised to the comparitively happy and exalted theatre on which they now stand; to lay aside all those jarring interests and discordant principles, which state legislatures if they do not create, certainly foment and increase, arrange them under one government and make them one people, is an idea not only elevated and sublime, but equally benevolent and humane. Whether it contains within it a territory as extensive as the Russian or German empires, or is confined in its operation to the narrow scale of their smallest principallities or provinces, yet it is the business of state legislation to pursue its destined course “the interests of those who live under it.” For a legislature to contemplate other objects, and make a sacrifice of their own for the good of other people, or even decline availing itself of the legitimate exercise of its powers for that purpose, upon every opportunity which chance or fortune may present in its way, is a degree of liberality to which the human heart hath not as yet attained. A society of philosophers of the antient stoick sect might perhaps be capable of such extended philanthropy, but this sect is now altogether at an end, and at its height, never formed but an inconsiderable part of any community, and was by all the rest of the world considered as affecting objects without the pale of human nature. How much more delightful therefore is it to the mind to con-template one legislature organized over the whole continent, containing all the free inhabitants of the American states within it, nourishing, protecting, and promoting their interests in every line and extending its genial influence to every part; commerce flourishing, arts encreasing, lands rising in value, with all those other happy concomitants that attend a well formed and wisely directed government, than thirteen different legislatures, in pursuit of local objects, acting upon partial and confined considerations, without system or policy, jealous of their particular rights, dissatisfied with, and preying upon each other. If it were practicable, I should embrace this change with the utmost plea-sure, and consider it the goal at which all our efforts should bend, the polar star that should direct all our movements. I should consider the abolition of the state legislatures as a most fortunate event for America, and congratulate my country on the commencement of a new aera in her affairs from whence to date the dawn of better hopes and happier days. But is it practicable, can it be accomplished? Can a legislature be organized upon such principles as to comprehend the territory lying between the Mississippi, the St. Lawrence, the Lakes, and the Atlantic ocean, with such a variety of soil and climate, contain within it all the vital parts of a democracy, and those provisions which the wisdom of ages has pointed out as the best security for liberty, and be at the same time a strong, efficient, and energetic government? Would it be possible to form in every respect a complete consolidation of interest and how otherwise would its operation affect the weaker party? Or to accommodate its legislative acts so as to suit those of a local kind that were variant in the nature of things? To form a system of revenue, by direct taxation and excise, regulate the mode of collection, supervise it, without the establishment of a train of officers, and tribunal under tribunal, that would not be enormously expensive, free from more than ordinary imposition, and preserve the spirit of the government? Seperated at the distance of near 1200 miles, suppose the dispositions to do right the best that nature can infuse into the human heart, generally speaking in the operation of the government, will the man of Georgia possess sufficient information to legislate for the local concerns of New-Hampshire? Or of New-Hampshire for those of Georgia? Or to contract it to a smaller space of New-York for those of Virginia? Will not of course most of its measures be taken upon an imperfect view of the subject? A wise legislator should possess a precise knowledge of the situation and interests of all the territory and of the state of society, manners, and dispositions of the people within it committed to his care. Some men perhaps to whom a kinder fortune had dispensed her more liberal gifts, who had devoted their earlier life to travels, general science, and those researches that were particularly necessary for it, might succeed, but unfortunately for us the most sanguine admirer of this plan, could not promise to America that her national councils, should always be filled with men of this stamp. I would not wish to discolour this plan of a complete national government, acting in all cases for the common good, to the exclusion of subordinate legislatures, so delightful in theory, with the reverse of this picture, nor to depaint those consequences which might result from its maladministration, if instead of the best qualities that are the portion of humanity, it should be its fortune to have its councils filled, with men remarkable for their ignorance, or any great malignity of heart, con-tending against difficulties, under its best form and with its best hopes, which perhaps are insurmountable, what would be its situation and issue in that event? As this subject is of great importance and leads to a decision upon an important trait in the plan of government now before you, it will be proper to give it a more particular investigation.
Perhaps an attention for a moment in this respect to those political establishments which have been erected in different quarters of the globe, in antient and modern times, may furnish an instructive lesson, upon the present occasion. In but few instances, and those at distant intervals of time, hath a democracy or government of the people ever been established. To what cause it is to be attributed, philosophers and statesmen may differ, but it is an unquestionable truth, that there hath been a constant effort in all societies, to exterpate it from off the face of the earth. The contest hath been often violent, and the manly exertions which the friends of equal liberty, have made against this disease of human nature, is the great, the instructive subject of history. They have had to contend against difficulties thrown in their way by all ranks of society: If the poor and those in moderate circumstances only, where an union might have been expected had united, a tyranny had never been erected. But the ignorance, the folly, and often times the vices of the lower classes have perhaps favoured this tendency as strongly as the lust for dominion and power in the wealthy. To illustrate this position by a review of the commencement, progress, and decline of those nations with which history furnishes us examples, with the causes that have contributed to hurry them to this their last stage, would not only present to your view a melancholy monument of the weakness of human institutions, but lead me beyond the bounds of the present enquiry. Be assured however there is no fact better established by history, than this tendency or effort in all societies, to defeat the purpose of their own institution, and terminate in despot-ism. If then we are not the unfaithful guardians of those rights, which an all gracious providence hath bestowed upon us, should we not attend to every circumstance that may contribute to preserve them? And will it be questioned, that the extent of territory is one of those that will have no influence on the subject? The governments that have been purely democratic, to which only we should resort for satisfactory information upon this head, if any ever were, are but few. In several it is true the people have had some share of power, as in that of Rome. But it cannot be questioned that in this the Nobles or aristocracy had the prevailing influence. The endless quarrels between the different branches or rather orders of the people, the Senate and plebians, is perhaps the real cause of the perpetual warfare and extensive con-quests, made by this rapacious mistress of the world. When the people became incensed against the Senate, as they often had reason to be, the latter had always sufficient address, to give their passions other objects to act on, by turning them against foreign powers. With this view it seems to have been a political maxim with that branch, in whose hands the executive authority was also lodged, never to be at peace with all nations at the same time, and in this they succeeded tolerably well, for from the commencement to the final dissolution of the empire, the temple of Janus, always open in time of war, if we may credit the tradition of their best historians, was hardly ever closed. But so soon as the whole globe had acknowledged her authority, and bowed beneath the yoke, the immense fabric she had thus raised fell to pieces. External opposition that had raised it to the height it had attained, having ceased, its foundation was taken away. There was no principle within it to unite its parts together. From this it is to be presumed that if her government had been organized upon harmonious principles, and made the people happy under it, her dominion would never have extended over more than one-tenth the territory it did. But be this as it may, the government of Rome acknowledged distinct orders of people, in which indeed the aristocracy prevailed, and can of course furnish no example for us. This may be said of Lacedemon and of Carthage, for according to the opinion of a profound historian and observer on the subject of government, that of Carthage was also divided and the greater portion of power taken from the people and placed in the hands of the aristocracy If any ever were, Athens, Thebes, and Corinth, were for a time, pure democracies. But shall we draw our conclusion from their example, whose jurisdiction was more confined than that of some of our smallest states? In short, let us contemplate what forms, in what countries and times we please, where the rights of the people, and the spirit of liberty, were in any degree preserved, and we have the most solemn admonition to beware even making the attempt. The monarchy of Britain in which the executive power is armed with almost despotic authority, comprehends within it a territory smaller than that of this commonwealth, and yet it is believed its administration is happier than if it were more extensive. Even the king of France, sensible that his government will be happier for his subjects, and more faithful and beneficial for himself, has shewn a disposition to re-establish the provincial assemblies for this purpose, yet it cannot be denied that his powers are otherwise sufficiently great, or that any monarch was ever, in a greater degree, or more deservedly beloved by his people. But if these examples are not sufficient to warn us of the fatal consequences that will attend the vesting such powers in the Congress, let us turn our attention to those nearer at home, and which perhaps will make a deeper impression on our minds, and do we not behold the province of Maine separating from Massachusetts, Vermont from New York, Wyomin[g] from Pennsylvania, and the district of Kentucky from Virginia, on this very principle, with others no less striking that might be enumerated.
It is true the improvement of government under this form, by representation, the discovery of which is attributed to modern times, might make some difference in this respect, but are there no bounds within which it should still be restrained? Shall it attempt things that seem from the concurrent testimony of all history to be the appropriate object of despotism? Maladies that are incurable after they have afflicted the body with all the pain and anguish incident, to a frail and feverish being, exhausted its efforts, and worn out its constitution, complete the work by terminating its existence. This government too, after having experienced the vicisitudes of fortune that might accompany its natural imperfections, of laws badly formed and indifferently executed, of anarchy disorder and confusion, after having worn out and broken the spirits of the people, would also have its end. But what form it would then assume is left for time to develope. The diseases of every government suggest its remedy. Other circumstances it is true give it a byas, but these have a principal influence in directing its course. Those of the federal system and which owed their birth and enormity to the want of strength in the federal head, had disposed the people to agree to an annihilation of their state governments, which yielded to the present one. Had this change been accomplished, by the designs of wicked and abandoned men, by the usurpations of a tyrant, or the seductions of art and intrigue, it is to be presumed, and the experience of other countries hath approved it, that the people would now return to that they had forsaken, with a degree of zeal and fervor proportioned to the sufferings they had borne. But if a long and patient experience had shewn its defects, a calm and dispassionate appeal had been made to their understandings, and a recollection of the great calamities, it had inflicted on them, demonstrated it was neither calculated, for the care of their liberties, their safety or common interests, they would make a new experiment and take a different course. From the causes above stated the incapacity of the legislative branch to form happy, wise, or uniform laws for the government of a territory so extensive, and of a people in pursuit of objects so opposite in their nature, had perhaps already often clogged its operations and suspended its course. This had gradually alienated the affections of the people and created in them a contempt for this branch of the government. The powers of the executive had of course been proportionably increased, for it is natural for the latter to supply the defects of the former. Accustomed to behold it in miniature, and to derive relief from its friendly interference, the people are at length prepared to have recourse to a Royal government, as the last resort the only safe assylum for the miserable and oppressed. And this perhaps would be the issue of the present (a consolidated) government; and for these reasons I should dread its establishment over these states. For to however low and pitiable a condition we may have fallen; how-ever deservedly we may have acquired the contempt and scorn of nations, yet I had rather submit in peace and quiet, to those reproaches which the proud and disdainful may throw upon us, than by commencing on a stage upon which the fortunes of all nations have been wrecked, however splendid and meteor like our transient exhibition might be, risk the enjoyment of those blessings we now possess.
But may not some middle course be struck, some plan be adopted to give the general government those rights of internal legislation necessary for its safety, and well being, in all cases, and yet leave to the states other powers they might exercise to advantage? If by this it is intended to comprehend the right of direct taxation and excise with the absolute controul of the resources of the union, it will be easy to perceive its consequences. Those who are in any degree acquainted with the principles of government, or with those of the human heart well know that upon this point, the equal distribution of the resources of the union, between the two governments, will their balance depend. If you place the whole into the hands of one, it will require no casuistry, no great degree of depth in this science to determine which will preponderate. Acting on the bowels the body will soon decay and die away. The pageant ornaments and trappings of power will not last long, for the reason and good sense of mankind turn with disgust upon the mockery of empty forms. Such an arrangement would there-fore in my apprehension, embark us on a more perilous and stormy sea, than even a complete annihilation of the state governments.
If then such a government as I have above described in either view presents an impracticable alternative, or such an one as we should not without a nearer and better view of it embrace, the other mode only remains or that which proposes the organization of a general government over the states forming a part of and acknowledged by the constitution of each, leaving at the same time a qualified government in each state for local objects. Let us examine this then since it is the only safe or even plausible course for us to take.
To organize a general government, that shall contain within it a particular one for each state, or in other words, to form a constitution for each state, which shall acknowledge that of the union, is no easy thing, for there never was an example of the kind before. The Amphictionic council, Achaean, Belgic, or Helvetic confederacies were but leagues of independent states, somewhat similar to the present one. To mark the precise point at which the powers of the general government shall cease, and that from whence those of the states shall commence, to poise them in such manner as to prevent either destroying the other, will require the utmost force of human wisdom and ingenuity. No possible ground of variance or even interference should be left, for there would the conflict commence, that might perhaps prove fatal to both. As the very being or existence of the republican form in America, and of course the happiness and interests of the people depend on this point, the utmost clearness and perspicuity should be used to trace the boundary between them. The obvious line of separation is that of general and local interests. All those subjects that may fall within the former distinction, should be given to the confederacy, and those of the latter retained to the states. If the federal government has a right to exercise direct legislation within the states, their respective sovereignties are at an end, and a complete consolidation or incorporation of the whole into one, established in their stead. For in government it is, as in phisicks, a maxim, that two powers cannot occupy the same space at the same time. Let this therefore be the characteristic line of the division; internal legislation or the man-agement of those concerns which are entirely local shall belong to the states, and that of those which have a foreign aspect, and in which they have a national concern, to the confederacy. In forming a constitution on these principles, the same rule should be observed, that has been informing those of individual states; defining the powers given and qualifying the mode, in which they shall be exercised. All powers not ceded it is true belong to the people; but those given in a constitution are expressed in general terms, as that the Congress shall levy and collect duties; this involves in it the right of making laws for the purpose, for the means are included in the power; otherwise it is a nullity. The species of evidence and the mode of tryal are subordinate objects under it, and does it not follow that the Congress might regulate these at pleasure? How are we secured in the trial by jury? This most excellent mode of tryal which has been found, in those few countries where it has been adopted, the bulwark of their rights, and which is the terror of dispotic governments, for it disarms them of half their power, is but a matter of police, of human invention; if then we gave general powers unless we qualified their exercise by securing this, might they not regulate it otherwise? I would not be understood to insinuate it would be the case, but that it were possible is improper. The spirit of the times might secure the people of America maps for a great length of time against it; but fundamental principles form a check, even when the spirit of the times hath changed, indeed they retard and controul it. As it is with the trial by jury so with the liberty of conscience; that of the press and many others. As to the powers themselves, the distinction being drawn, the enumeration would be of course. To those of the former Congress some few might be added, or from those of the constitution, some few taken away, for nominally there is not so great a difference between them as some people sup-pose. To the former for instance, let the absolute controul of commerce with the revenues arising from it be added. Let the right of apportionment be as in the constitution, for the ground on which the states have met on that point is certainly a happy compromise being that indeed which had been long recommended by Congress. Let them regulate the disciplining and training of the militia—the calling them forth and commanding them in service; for the militia of a country, is its only safe and proper defence. All countries are more or less exposed to danger, either from insurrection or invasion and the greater the authority of Congress over this respectable body of men, in whose hands every thing would be safe, the less necessity there would be, to have recourse to that bane of all societies, the destroyer of the rights of men, a standing army. But it may be urged the revenues from the impost would not be sufficient for national purposes, and that without the right of direct taxation, the government would be forced to have recourse, to the expedient of requisitions, the inefficacy of which had already been sufficiently experienced. The position in the first instance, as to the insufficiency of the revenues is doubtful; but the apprehension of the states neglecting requisitions under this, as they have done under the late government still more so When the United States became in effect a national government, by being incorporated with those of the states, possessed considerable revenue, had at their command a fleet and army, with the absolute controul of trade; I cannot but believe that their constitutional demands, or requisitions, would be complied with. Let the individual states also be restrained from exercising im-proper powers, making war, emitting paper bills of credit and the like. All restraints that were necessary for the wise administration of a good and virtuous government, would have my ready assent. It is not my intention to draft a form, a general idea is all I aim at, and in this perhaps I am tedious.
Having defined the powers, marked the line between, and secured as far as possible the harmony of the two governments, by making the former a part of the latter, it will be necessary to organize it upon such principles, as to secure the wisdom and happiness of its administration; for I presume it does not necessarily follow, because the constitutional acts of the government will be executed and become the laws of the land in each state that our researches should be at an end, and that we should conclude we had remedied all the defects of the present one. On the contrary our anxiety should be increased tenfold. From that our safety was to be attributed to its imbicility; but from this we should not be able to shelter ourselves under that protection. We should therefore be the more zealous, proportioned to the prize we have at stake, to distribute the powers and poize the government, so as to secure equal justice in all its acts, to every part of the confederacy; for wretched and forlorn will the condition of that be, which shall not find itself equally secure under the protection, and in the enjoyment of its blessings, with every other part. From royalty (despotism) itself, where the power is concentered in but one person, fluctuating in its systems and unsettled in its course, sometimes a ray of benevolence and even of justice is reflected on those whom it had marked out as the object of its resentment. Nature has cast into but few characters such malign and unfriendly dispositions, that their revenge cannot be satiated. But from a combination of states, acting systematically in pursuit of particular and local interests, wielding in their hands the powers of the government, and of course secure not only from censure but of the approbation and applause of those whom they served, however severely the attainment of the objects it contem-plated, might bear upon the interests of the unfortunate minority, yet from their justice, it is to be feared, that neither moderation nor even mercy could be expected. But the present system is that we have to remedy and we should never loose sight of its defects. If the new government should be organized in the same manner with the old, consist of one branch only, each state appoint her own delegates and recall them at pleasure, I am satisfyed it would in the administration in Congress, or passage of the acts, be found in the experiment in that respect, just such a government as the other. There would be the same negociation, intrigue and management for the advantage of each state that now prevails. Its movements would be as slow and its decisions as unjust as they sometimes have been. In short it would still be a government of states in every respect and not a national one. How then shall we guard against, check and controul this intolerant and destructive state spirit? How infuse into all its departments a love, respect, and dread of the whole, for upon this [e]very thing depends?
It has been long established by the most celebrated writers, but particularly illustrated and explained by the President Montesquieu and Mr. Locke, that the division of the powers of a government over one state, or one people only, into three branches, the legislative, executive, and judiciary, is absolutely necessary for the preservation of liberty. This is now admitted by all who are not the friends of despotism, and I am persuaded it has already been demonstrated in the course of these observations, that such a division is, if possible, more necessary in a government to be organized over more than one. Taking this position then as established, I will proceed to an examination of the principles upon which this organization should be formed.
If the states as such or in their legislative character appoint any of the officers of this government, the effect will be the same, provided the rotative principle is preserved, which will I hope never be given up, that has already been experienced; for in the appointment is involved that of responsibility. It should therefore proceed from the people immediately, or by means of electors chosen for the purpose. This will make them amenable to the people only for their conduct, or to such constitutional tribunals where they are practicable, as they shall establish to take cognizance of offences. This we apprehend would contribute much to the establishment of a national government; each would move in the sphere the constitution had appointed for it, and be accountable to the people only for their conduct, the high and pure source, from whence they respectively derived their authorities.
The legislative branches are in all democratic governments, and of course would be so in this, the immediate representatives of the people. They should therefore be kept as dependent on them as possible, having in all respects the same interests with themselves. For offences in these branches the general government can provide no punishment, for there can be no tribunal under it, to take cognizance of them. Charges of corruption or prosecutions for it, or other offences, committed by those in these branches, should not be allowed from those in the others, for this might either unite them in malpractices against their country, or create endless strife between them, and thereby destroy the balance of the government. A free people are the only proper judges of the merits of those who serve them, and they only should bring them to justice. This shews the necessity of frequent elections. The members of each should in my opinion return to the body of the people, those of the house of representatives at the expiration of every two years, and those of the senate of every four years, capable however always of re-election. Both these branches should if possible be filled on the principles of representation from all the states. For the house of representatives, the rule adopted in the constitution, is perhaps the proper one. Let twice that number, or a still greater ratio of numbers to that of representation, be the rule for the senate. The members of both branches should be incapable of appointment to other offices whilst in these, otherwise a wide door will be left open for corruption. This is not an idle or visionary precaution, but in a great measure the pivot, upon which the upright and faithful administration of the government will depend. The experience of Britain hath demonstrated, how often the most valuable interests of the people, have been bartered away, by leading members of the house of commons for a seat in the house of peers, or some lucrative office in the government; how much greater then should our apprehension be, of danger in the present instance, when we recollect that the government is organized upon such principles as to acknowledge no responsibility to the states, and comprehends within it such an extent of territory, as to put it out of the power of those who inhabit its extremities, to have any knowledge of the conduct of their servants! The possibility of this kind of traffic should therefore be absolutely prohibited.
But the power of the legislature should be confined to those objects, which were intirely legislative in their nature, as the regulation of trade, requisitions for money, and the like. The soundest authorities and the melancholy experience of our state governments have shewn the propriety of this restraint, in a constitution over one state, and for reasons that are obvious the expedience, will be the more urgent, in the present instance. Its natural effort in all cases is, to grasp to itself all the powers delegated from the people,— and to prostrate the other branches before it; stimulated on by the state spirit, which will in some degree still remain, the difficulty here will be proportionably increased. The ingenuity of man can devise no other, without an appeal to the people, which if possible should always be avoided, than that of giving the Executive, the other active branch an absolute negative on the laws; for otherwise its enterprizes must be successful. Many restraints might be disignated by the constitution, but without effect. And from this at the same time that it preserved the balance of the government, no injury could be sustained. Against the encroachments of the Executive the fears and apprehensions of the whole continent would be awake, with a watchful jealousy they would observe its movements. But against the legislature (if we may reason by analogy of that branch in this) from those in other governments, no such apprehensions could be entertained. Its movements comparitively would be accompanied with the confidence of the people. Every incroachment upon its rights would be popular. In every contest between them it must of course yield the ground. In short unless the Executive had a negative on the laws of the legislature, it would soon exist only in name.
The right of impeachment and the mode of trial are of the first importance in this government. The former, if with the people or even the states themselves, would never be exerted or greatly abused; it should therefore belong to the house of representatives. And the latter should be vested in a court of that high confidence and respectability of character, as to partake of none of those passions that sway the bulk of mankind. Unconnected by office, and of course no way interested in the event; unacquainted with the crime except as it might appear before them by satisfactory testimony, they should hear calmly and judge dispassionately upon the merits of the cause. From their decision the guilty would receive a fair condemnation, or the innocent be restored again to the confidence of their country, and the people return satisfied that their passions had been awakened, and their fears alarmed without any just foundation. The sentence should be final, and not shifted off to another tribunal. A further prosecution may appear odious, and the just resentments of the people calm away, and totally subside. For these reasons the senate should form the court of impeachment.
But although the legislative branch shall be elected by the people, and amenable to them alone for their conduct, yet as the state sovereignties though qualified, will still remain, and of course the state spirit, in contradiction to a federal one, from necessity be more or less influential in its councils, we should turn our attention to the other branches of the government, as our firm resource. The Executive is that upon which, in many respects, we should rest our hopes, for an equal, a federal, and a wise administration. Every possible effort should therefore be used to expell from the hearts of those who fill it, a preference of one part of the community to another. The experience of other governments hath taught us, it is possible to devise checks, which from motives of policy and private interest, will even make bad men faithful public servants. The prospect of reward and the fear of punishment, as has already been observed, are the most powerful incentives to virtuous action. It should therefore be so organized, as to give every quarter indeed every man of the union, under the influence of these principles, as to those who fill it, an equal access to the human heart, whenever this equipoise is destroyed, and this high character taught to look up to this, or that state, or combination of states for the smiles or the frowns of government, from that moment will its oppression be felt, and a dreadful anarchy insue. And if you take from those whom the choice of their country hath called forth to this high station, the hope of further favour, and mark to them the extent of service, after the completion of which the door shall be forever closed upon them, in that degree will you deprive yourself of one of the principal instruments by which you are to preserve the equilibrium, and secure the public safety. Discharged forever from the service of the United States, will not the approbation of the union, cease to be the ruling passion, and an accommodation to state interests take its place and influence many of the public measures? For these reasons I could wish to see the right of impeachment, extended upon as liberal ground as possible, given for instance to the representatives of one third of the confederacy; and I could likewise wish to see the citizen at the head of this department, capable of re-election at the expiration of his service which should be at the end of every three or four years, so long as he should merit the confidence of his country.
The mode of election should also be a fundamental in the organization of this branch. If the command of this office was placed within the reach of court influence, the most alarming consequences were to be apprehended from it. If the ultimate decision should happen at the metropolis, it is easy to be perceived what an opportunity this would present for venality and corruption. It must be a great object particularly for either France or Britain to have the friend of their respective courts in this office, possessed of such extensive powers and which might dispense such important favours to them. The influence of the presiding magistrate himself, especially within the town in which he had for some time resided, and to whose citizens he had rendered many substantial services, and who of course would be averse to the introduction of a novus homo among them, would not be inconsiderable. In addition to which it is to be observed, that it forms a departure from a principle which should prevail through the whole, but particularly in the organization of this branch, a dependance of this officer, for every thing estimable among mankind, upon the people of America. By the people therefore should the appointment be made, not in per-son, but by the means of electors chosen for the purpose. To prevent the possibility of any interference, or byas on their free election, that of the electors by the people, should be on the same day in every state, and that of the President by the electors likewise on the same day and at some specified place in each, unless an invasion, or other extraordinary circumstance should prevent it; in which case perhaps the electors themselves, or the executive of the state might appoint some other. Whatever time might be employed in this mode of election is immaterial; it is of the first importance, and should never be dispensed with, that he be thus appointed.
But high power(s) in the Executive branch require in every respect, a direct and immediate responsibility; for although it should be so organized as that whilst to those who fill it, and act with propriety in the discharge of its functions, the door should be left open for a continuance of public favour, yet the sword of justice should be held constantly suspended over the heads of those, who shall be convicted of having basely sacrificed the interests, or made attempts upon the liberties of their country. There should be no constitutional restraint, no equivocation of office, to shield a traitor from the justice of an injured people. No circumstance to blunt or turn aside the keen edge of their resentment. With the charge should the powers of his office cease. He should stand alone unsupported, and unprotected except by the integrity of his heart and the rectitude of his conduct. For these reasons the executive power should be vested altogether in one person; unrestrained by a constitutional council, its operations will be more easy and regular, and its responsibility the greater and more immediate. And for these reasons if there is a constitutional council it must be from its nature the most improper tribunal, that can be formed or conceived, for the tryal of the offences of the principal, since they must be either partakers of the crime, or some way or other a party interested in it.
With an Executive organized on these principles, being independent of the legislature, and in a very responsible situation, I should be well content to intrust great powers, because I should calculate with tolerable certainty upon an honest and a wise execution of them. The constitution perhaps suggests those, with some exceptions that are proper; whether it would be safe to give it the absolute controul of the fleet and army at all times, in peace and war, the ordering them out, and laying them by, without consent of the legislature, or even knowledge, is at least doubtful. In Great Britain this power may be committed to the King with propriety; but he is the Lord of hereditary dominions, and transmits the inheritance in his line forever. By betraying his trust he might lose his crown, and perhaps gain nothing, even if he established despotism. But with the President who perhaps depends on a quadriennial election the case is different. It is certainly a formidable power to place in the hands of any one public servant. I would however in no event interpose the opinion of the legislature, so as to controul the movements of these forces, but merely to affix the condition, or emergency, upon which his absolute power over them should commence. As I would repose the whole trust of this department in one officer, so he alone should be responsible for all its trans-actions. He might associate whom he pleased, of the wise men of America in his councils, but they should be of his own association. An allowance might be made him, to compensate them for their services, for which he should be accountable.
Controversies between independent nations are usually settled by the sword. It is to the misfortune of mankind that no tribunal has ever been established to adjust their interfering claims, and inforce its decrees. It has been the defect of all other confederacies, of whose institutions history has given us any account, that although attempts in some have been made in this respect to preserve the harmony, and lessen the calamities of mankind, yet the courts to whom their controversies have been submitted, the council or representative body of each, have not been organized on such principles as to insure justice in all their decisions. To this circumstance perhaps many of their calamities were to be attributed. The framers of the confederation in some degree also fell into this error for those only of a territorial kind were to be submitted to a federal court Under that form its inconvenience has been often very sensibly felt, but under the present it would be insupportable. Great care should therefore be used, in the organization of this branch, to remedy this defect. The judiciary in this, as in all free governments, should be distinct from, and independent of the other branches, and equally permanent in its establishment. Performing its appropriate functions, the extent of its authority should be commensurate with theirs. As it forms the branch of a national government, so it should contemplate national objects only. Whatever cases might arise under the constitution, the laws of the legislature, and the acts of the Executive in conformity thereto, (however trifling or important the interests it affected might be) should have their final decision from this court. All cases affecting ambassadors, other public ministers and consuls-of admiralty and maritime jurisdiction-all controversies between different states-between the United States and a state-a state and the citizens of another state, citizens of the same state claiming lands under different states, should of course be submitted to its decision. In cases affecting ambassadors, other public ministers and consuls, and in which a state shall be a party, the Supreme Court should have original jurisdiction; in the other cases above mentioned appellate jurisdiction as to law only, and from the Supreme Courts of the respective states. The laws of the United States becoming under the constitution those of each state, their courts of course take cognizance of them, from whose decisions, the object of the union will be completely answered by an appeal to their court as to law only, and with great accommodation to the interests of the people. In the organization of this branch, the object should be to found it on the state establishments, and not independently of them, for in the latter case new and very extraordinary difficulties present themselves to view, among which the clashing of jurisdictions would perhaps be the least important. The judges should be appointed by the President, who would of course take them from among the meritorious of our citizens in the different quarters of the union.
Having shewn the defects of our present federal system, pointed out those remedies or amendments both as to its powers, and their distribution or organization, that have appeared to me advisable, I am naturally led in conformity to the plan I had laid down in the beginning of these observations, into a more minute comparison or examination, of the constitution now before you, by the standard or test of those principles I have endeavoured to establish. And this I will confess, is the most painful part of the present enquiry. But where there is a contrariety of sentiment, in any degree, there can be no other mode of investigation; and it is I am persuaded the fairer course, for if the principles themselves cannot be supported it necessarily results, that all reasoning or deductions from them fall to the ground.
It may be recollected that I have not objected to any of those powers which were necessary to add, to the energy, strength, resource, or respectability of the government, but have fought to divest it of those only which I conceived it could never exercise, were impracticable, and whilst they remained even if not brought forth into action, would lessen it in the confidence of the people, but if ever exerted prove the source of endless strife between the states and the general government, that must terminate in the ruin of either the one or the other, which I have considered, (perhaps improperly) as a great national calamity. Those to which I have particularly alluded are the right of direct taxation and of excise through all the states; and the more I have reflected on this subject the better satisfied I have been, that if the other powers were vested in it, and the government made as thereby it would be, strong, energetic and efficient, that the leaving those with the states would not only be happier for them, but more beneficial for it. For whether we examine it as an abstract proposition, or avail ourselves of those lights which the history of all times hath presented to our view, yet the demonstration, at least to my mind, seems satisfactory and conclusive, that under such a government, able and willing to compel the states to perform their duty, the want of which is the great defect of the present system, and which would thereby be completely remedied that the same objects might be attained to better advantage through their intravention, than by any other mode or institution that could be adopted for the purpose. As this is perhaps the only objection which I have to the powers contained in the constitution, and is founded on principles I have already fully explained; it will be unnecessary to attempt a further illustration of it here. I shall therefore proceed, admitting the propriety of the general division into three branches, to an examination of the subordinate organization of the government, and first of the legislature.
Its division into two branches an house of representatives and senate has appeared to me to be perfectly right; and the mode prescribed for the election of the members of the former by the people not only practicable, but highly commendable. The right of originating money bills, and of impeachment, have also been properly assigned to this branch; the term of service and the principle of representation upon which its house will be formed appear likewise inexceptionable. In short this branch of the legislative is organized entirely to my wishes. I must however confess my mind has not as yet acknowledged in these respects, the same prepossessions in favour of the senate. The great defect as has been already often observed in the present form, is that of its being a diplomatic corps, a government by and for states, and not in any view of it a national one. In changing it, the object should be to correct that defect in all cases whatever, so far as it might be practicable, which can only be done by taking the appointment of all its officers out of the hands of the states, in their legislative characters, and placing it in those of the people, or electors by them appointed for the purpose. This has been done with the members of the house of representatives, but departed from with those of the Senate. This branch will therefore be in every respect the representative of the states, dependent on and responsible to them for their conduct. In forming a right estimate of the consequences resulting from this property in the character of this body, and of the tone it may give to the measures of the government, we must examine its powers in every direction, and pursue its operation upon every subject. And first as to its share in the legislature or its influence upon all legislative acts.
The senate has an absolute negative upon all laws; from this it results that those not for the advantage of the states, or the prevailing faction in the government, to which they respectively belong will by those thus circumstanced be rejected; for is it to be presumed that because ten members from Virginia, eight from Massachusetts or Pennsylvania in the house of representatives, have passed a bill, whilst one from Rhode Island or Delaware only had rejected it, that these states will give up their equal suffrage in the senate? Is it not more presumable that their senators will look on at the nominal and unimportant superiority of those states, in the other house, laugh at their supposed triumph, and await coolly its submission to their board, where its fate will be in-evitable? Or is it to be supposed, that the right to originate money bills, a thing proper in itself, being the more democratic branch, in the house of representatives, will controul this disposition, especially when we recollect that they are both only representative branches, equally dependent on the passage of such a bill for their wages or salary, and that the members of the latter holding their offices for a shorter term, have perhaps not been able to introduce such a degree of economy and order into their finances. This is a check of great importance in the English constitution, and indeed the preservation of the democracy, but the construction and principles of the two governments are so radically different, that it will be easily perceived by the slightest observer, the same effects are not to be expected from it, at least not to the same extent in this, that are experienced in that. Making due allowance for those considerations that should be taken into view, I am therefore led to believe that the defective principles of the present government, through the means of the senate, in respect to form and representation, have been communicated to this branch of the constitution. Appointed by the states and of course responsible to them for their conduct, the senators will act for those to which they respectively belong; nor can we reasonably expect from their concession any great accommodation. Thus the state spirit, with an equality among the members of the union, will be preserved in this branch of the government, and if there was an absolute necessity for yielding the point of representation, yet none suggests itself, at least to me, for not remedying the defect in the form, which has been found so pernicious in the present one.
By the consent of two thirds of the senators present, treaties shall be formed; by that of a majority, ambassadors, other public ministers, and consuls, judges of the supreme court and other public officers not otherwise provided for by law, shall be appointed. The subjecting the decision of important questions to a dependance on the occasional presence or absence of any of the members, more especially as no quorum is established, appears to me improper. If the vote of two thirds of the body is in any instance necessary, for the security of the interests of any part of the union, why should the death or delinquency of a member deprive it of this safeguard, by submitting them to the controul of perhaps less than one fourth? It is further to be observed that whatever influence this branch may have in directing the measures of the executive, from the nature of its appointment, will be exerted to give it a narrow state byas, and that from this source alone, constructed as the two branches are, much injury is to be expected from this extraordinary coalition.
“The senate shall have the sole power to try all impeachments.” The president is to act under their controul in the cases above stated, if in any instance a wanton violation by their direction or permission should be made, which though not probable is yet practicable, of the rights or interests of any part of the community, and after solemn debate in the house of representatives, this high officer should be brought by impeachment before this body to expiate his offence, what would be his fate, especially as he still held his office and might wield his powers in his defence? A king of England involved himself in great difficulties by an attempt to establish the validity of a general pardon, but had the constitution submitted the trial of state offenders to him-self, there would have been no occasion for the contest.—— Admitting however the members of this body to be incapable of moral turpitude, may we not suppose, as might be the case in that of any individual state; in the operation of this government, that offences might be committed against one quarter of the community, and which before a dispassionate court would receive severe reprehension, that would be highly beneficial to the others? And in such a case could we expect from the representatives of these states a candid or impartial decision against the interests of their constituents?
The placing the executive power in the hands of one person, appears to be perfectly right. If this branch had been put into commission, the state spirit would have been communicated to it, and have tainted all its measures; in addition to this there would have been less responsibility. But the mode of election, does not in all respects appear, to merit such commendation. A departure from the strict representative line, by adding the equal vote of the senate to the number each state hath in the house of representatives, is made in the first instance; but it is still more exceptionable in other respects. If an election shall not be made, and in all probability this will often be the case, indeed the presumption is the contrary will seldom happen, a very extraordinary subsidiary mode is resorted to. Those having the five highest votes are to be ballotted for by the house of representatives, the vote to be taken by states, and one member from each giving the vote of the state. All cases that the constitution will admit of, should be considered as likely to happen some time or other. No person then I am persuaded who will make the calculation, can behold the facility by which the chair of the United States may be approached and atchieved, even contrary to the wishes of the people, without equal anxiety and surprize. Let it be admitted that the temper of the times and the ardent spirit of liberty which now prevails, will guard it for the present from such easy access; but that person has profited but little, from the faithful admonition which all history has given him, who shall conclude from thence, that this will always be the case. His right to remain in office after impeachment, with the influence though diminished, still attending it, appears to be highly improper. That of adjournment in case of impeachment, (disagreement) between the two branches, to such time as he shall think fit, is certainly too unqualified and extensive. The impropriety of the union of this branch with the senate has already been sufficiently dilated on; it will therefore be unnecessary to repeat the same arguments here. Contemplating how-ever the consequences of this union, the expiration of his service, should in my opinion be accompanied with a temporary disqualification. The senators, would to save the commonwealth from injury, be able to give instruction to a new president, and it would perhaps be better, to change occasionally the acting party, of a combination that might otherwise be dangerous.
From the first clause respecting the judiciary it is obvious, that the Congress, although there shall be one Supreme Court only, may establish as many subordinate to it, as they shall think fit. The presumption is, they will establish so many as shall be necessary for the discharge of the functions of the department, to the advantage of the government, and benefit of the people. The extent therefore of the duties which become the exclusive object of a federal court, may give some insight into that establishment they might probably adopt; and when we observe that the cognizance of all cases arising under the constitution and the laws, either of a civil or criminal nature, in law or equity, with those other objects which it specifies, even between the citizens of the same state, are taken from those of each state and absolutely appropriated to the courts of the United States, we are led into a view of the very important interests it comprehends, and of the extensive scale upon which it operates. It will therefore be the duty of Congress to organize this branch, by the establishment of such subordinate courts, throughout the whole confederacy, in such manner as shall be found necessary to support the authority of the government, and carry justice home, so far as it may be practicable, to the doors of all its inhabitants. What mode may be best calculated to accomplish this end, belongs to that body to determine. Bound by no rule they may it is true (as in the commencement they probably would) avail themselves of those of each state; but this would be a measure of expedience only and not of right, and may hereafter be changed as the fortunes of the government, and considerations of expedience may dictate. How far it might be proper to authorise the subjects of foreign powers to carry the citizens of any state into a federal court, and afterwards by appeal into the Supreme Court, is of questionable propriety. The principal argument in its favour appears to be that of securing the United States from the danger of controversies with such powers, under the partial decisions of those of the individual states. But if they knew such cases, were by a fundamental of our government submitted to them, it were reasonable to suppose, that all just cause of complaint, would be removed. The submission to a federal court of contests upon ordinary subjects, between citizens of the same state, or even of different states, or indeed upon any subject, that did not arise under territorial controversies between states, and which originally belonged to that court, appears to be highly improper and al-together unnecessary. The appeal as to fact is still more extraordinary and exceptionable. The verdict which has been found must of course be set aside, and the court subjected to the necessity of either trying the cause upon the evidence already given, with liberty to construe it at pleasure; of hearing it over again admitting other evidence, being judges of the fact themselves; or submitting it to another jury to find a second verdict, either of which modes appears to be highly exceptionable; for if the court become judges of fact under the old or a new trial, the right of trial by jury is dispensed with; and if a second jury shall be summoned, independent of the difficulty and hardship, attending the submission of controversies contracted at the extremities of the union, by people in some degree variant in their manners, customs, and prejudices, to a jury formed of those of any one town, the parties are necessarily exposed to the loss of time, (of importance especially to the lower classes of society) and the enormous expence inseparable from a tryal carried on at a great distance from home. What necessity there can be, so effectually to lay aside the state courts, (which though perhaps improperly organized at present are yet capable of improvement) and subject the good people of America to such new and unheard of difficulties, I must confess I am not able to comprehend, nor can I readily forsee the very important consequences into which it may lead.
Having now taken a view as concisely as I have been able, of the defects of the present system, suggested their remedy with the principles upon which it is founded, examined the constitution by that standard, and shewn wherein I have either approved or disapproved of it; perhaps it may be expected (as a deduction from the foregoing principles) that I should make some calculation, of the probable course and ultimate fate of the government, should it be adopted in its present form, since it might have some influence upon your opinion in the present instance. This must however be altogether conjectural, for in the operation of government, as in that of all other powers after con-sequences, have been clearly demonstrated, as resulting from certain causes, oftentimes some incident, not contemplated, nor taken into the combination, or extra circumstance arises, that gives it a different direction. To form any estimate in this respect some peculiarities pre-sent themselves to view very deserving of attention. The mixture between the general and state governments, being partly a consolidated and partly a confederated one, suggests a balance between sovereign-ties that is new and interesting. So far as it proceeds from the people and its powers embrace the care of their interests, it partakes of the qualities of the former; and so far as the state governments remain of the latter. In weighing the momentum of their relative strength or force it is no less difficult to determine which will preponderate. Founded alike by the people, by the people also may either be changed at pleasure. If the precise boundary had been drawn between them, the proper checks established, and the general government well poised, (it) might for a long time, and I should hope forever, be stationary; defective in these respects it will probably soon experience a change. Pursuing a natural course under those shocks it must expect, without any foreign impression to give it the fairest hopes, let us enquire what the interests of the people will dictate, for let that be its direction. Independent state sovereignties, or partial confederacies, have been reprobated in its commencement. Its foundation has been laid on the ruin of all schemes that had that tendency, and it is presumeable it would in no event embrace either, at least until it had experienced a great vicissitude of fortunes. If then it escaped the first paroxisms, the severe struggles, and violent efforts against it, exposed it to, its establishment might be considered as complete. And suppressing the spirit of opposition, its constitutional basis will be found broad and extensive. It is not the aid of the Delphic oracle, the blind zeal of enthusiasim, that will be called in to its support. It has the protection of the true religion, of divine authority itself, to shield it from danger. The exercise of powers in common that will be allowed of in its commencement, must yield on the part of the states, to its acquiring strength. And wielding those the constitution has given it without availing itself of such as were constructive, the state governments, under this progress, would soon become a burthen to the people. The confederated principle, or the spirit of state sovereignty, would however not be inactive, but operate so as to bring on the crisis; and the constitution itself presents a fruitful source of controversy, for the spirit of accommodation, or the mutual fear of danger, must be great, where the line between them is, not exactly drawn, if they do not interfere. If this government had been organized over one state, with a moderate extent of territory, its natural progress, through the Senate, would be to aristocracy. But as it is I am inclined to believe, that although in its operation it may bear that tone, yet when it becomes convulsed and experiences a change, it will hold a different direction. Even the construction of that branch in its operation will contribute to hurry it into monarchy,8 and our earnest hopes and prayers should be, every circumstance considered, that it be a limitted one. For these reasons and not that I fear any danger to the liberties of our country, from the effective force of the government, exerted immediately against the good people of America, could I wish those checks and guards adopted, omitted at present from neglect and an over confidence of our security, but which it is possible if the present opportunity is lost, we may contend for hereafter in vain. Political institutions, we are taught by melancholy experience, have their commencement, maturity and de-cline; and why should we not in early life, take those precautions that are calculated to prolong our days, and guard against the diseases of age? Or shall we rather follow the example of the strong, active, and confident young man, who in the pride of health, regardless of the admonition of his friends, pursues the gratification of unbridled appetites, and falls a victim to his own indiscretion, even in the morn of life, and before his race had been fairly begun.
I have to apologize for the trouble I have given you in the perusal of the observations. I owe it to myself however to observe that the bounds within which I have been under the necessity of confining this letter has prevented my going into that detail, often necessary, especially on so int(r)icate a subject for the sake of illustration; and the want of leisure has I fear, prevented even a tolerable degree of correctness. But if I have been able to explain myself to your satisfaction I shall be contented. Upon the whole it results that although I am for a change, and a radical one, of the confederation, yet I have some strong and invincible objections to that proposed to be substituted in its stead. Those of less weight might be yielded for the sake of accomodation; but until an experiment shall prove the contrary, I shall always believe that the exercise of direct taxation and excise, by one body, over the very extensive territory contained within the bounds of the United States, will terminate either in anarchy and a dissolution of the government, or a subversion of liberty. The judiciary I consider as illy organized and its powers as too extensive, the whole government in a great measure without responsibility, and the rights of men too loosely guarded. And when I behold the Senate, a corps more deplomatic in its principle, permanent in its station, and systematic in its operations, than even the late Congress itself, wielding in the one hand the strong powers of the Executive, and with the other controuling and modifying at pleasure, the movements of the legislature, I must confess that not only my hopes of the beneficial effects of the government, are greatly diminished, but that my apprehensions of some fatal catastrophe are highly awakened. We have struggled long to bring about this revolution, we have fought and bled freely to accomplish it, and in other respects braved difficulties almost without a parellel. Why then this precipitation, why this hurry upon a subject so momentous, and equally interesting to us all? Is it to be supposed that unless we immediately adopt this plan, in its fullest extent, we shall forever loose the opportunity of forming for ourselves a good government? That some wild phrensy or delirium of the brain will seize upon us, and losing all recollection of things past, and abandoning the social ties that bind mankind together, we shall fall into some strange and irritrievable disorder? Or is it not more natural to suppose that perfection in any science, if attainable at all, is to be approached by slow and gradual advances, and that the plan of government now presented for your inspection, though a powerful effort of the human mind, is yet to be improved by a second essay?
The subject now submitted to you, is no less interesting than it is important. Providence hath long seen nine-tenths of the habitable globe immersed, and groaning under the dreadful oppressions of slavery. To the people of America, to you it belongs to correct the opposite extremes. To form a government that shall shield you from dangers from abroad, promote your general and local interests, protect in safety the life, liberty, and property, of the peaceful, the virtuous and the weak, against the encroachments of the disorderly and licentious. Whether they are now endangered, whether the plan now before you, presented under the most faithful and illustrious auspices; under the auspices of men of whose abilities and integrity you have long had the most satisfactory proofs, and who to the most important services, by abandoning the enjoyments of a peaceful and happy retirement, have added this further testimony, of their never failing attachments to the interests of their country, will accomplish this end, or is capable of still further improvement, belongs to you to determine. To differ in any respect from these men, is no pleasant thing to me; but being called upon an awful stage upon which I must now bear a part, I have thought it my duty to explain to you the principles on which my opinions were founded, under this further assurance, that if after a candid review, they shall appear indefensible, I will most chearfully submit to be governed by your wishes, and obey other instructions.
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