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;
I
DEBATES
IV TBI tlTKAAL
STATE CONVENTION
OV TBS ADOPTIOH OP TBI
FEDERAL CONSTITUTION,
▲t B.XCOMMKVOXD BT TBI
GENERAL CONVENTION AT PHILADELPHI
IV
1787.
TOOXTBXB. WITB TBX
. JOURNAL OF THE FEDERAL CONVENT
f LUTHER MARTIN'S LETTER, '
YATES'S MINUTES,
\ CONGRESSIONAL OPINIONS,
VIRGINIA AND KENTUCKY RESOLUTIONS OF W-W.
▲VD
OTHER ILLUSTRATIONS OF THE CONSTITUTIOV
IN FIVE YOLUMSS.
VOL. IV.
SECOND EDITION, WITH CONSIDERABLE ADDITIONS.
O0LL£CT£D AND REVISED FROM CONTEMPOBART PXTBUOATIONI
By JONATHAN ELLIOT.
rOBLTSHED UNDER THE SANCTION OF CONGRESS.
PHILADELPHIA:
J. B. LIPPINCOTT COMPANY.
1891.
^ H O
y«/
b«B
4f i«IA
/ /*^Jff
CONTENTS.
Ptge
Co5T£NTioN OF NORTH CAROLINA, I
Declaration of Rights, • . • • • • • 243
Amendments proposed, •••••• • • 244
The Question on Adoption, 250
SOUTH CAROLINA, (in L^slaiure,) 253
(in Convention,) 318
The Question on Ratification, 338
List of Del^;ates to the Congress of 1765, 341
Opinions, from 1789 to 1836, involving Constitutional Princi-
ples, from Congressional Debates, &c., 343 to 524 and 599
Virginia Resolutions of 1793, by Mr. Madison, • • • . 528
Answers of the States, 532
Kentucky Resolutions, by Mr. Jefferson, 540
Report on the Virginia Resolutions, by Mr. Madison, . . 546
President Jackson's Proclamation on the Ordinance of South
Carolina, 582
Mr. Madison's Letter on the TarifT, and Banks, .... 600
Mr. Jeflerson on Banks, 609
Mr. Madison to Mr. Stevenson, on Debts, <&c., • • . .612
Gren. Alexander Hamilton on Banks, 617
Various Papers on the Veto Power, 525, 620
Digest of Decisions in the Courts of the Union, involving
Constitutional Principles, 626
INDEX.
BY SPEAKERS' NAMES,
NORTH CAROLINA.
ORGANIZATION of the Convention, 1
RULES for the Government of the Convention, Electon, &c, 9
HENRY ABBOTT— Religion; oppowd to an eiclusive EtUbliahmeut ; no
religious Test ; Pagan or Deiat uia/ obUin Office ; Oath ', by whom are
we to swear ? Jupiter, &c., 191
Mr. BLOOD WORTH — opposed to Congrrwional Control over Election!, 67
Jurisdiction ; no Provision fur Juries in civil Causes, 142
Trial by Jury ; not on a satisfactory Footing,. 1^1
Defence nf its Omission not satisfactory ; Precaution in granting Powers,
107. Misaissiippi Casi% • • 168
Sovereignty of the Federal Government annihilates the States, 179
Powers of Congress dangerous to State Laws, IbO
AuiendmentSf for previous ones, 184. Southern and Northern Interests
divide at Susquehamiah, 186
Adverts to the Annapolis Convention, «Xdc., 235
Mr. NATHAN BRYAN — defends the Majority, 248
Mr. CABARRUS — Prohibitions against Paper Emissions ; ex poMfiuUo Laws, . . 184
Mr. CALDWELL — Maxims, fundamental Principles, 9
Convention not authorized to usie the Expression " We, the People," 15
Legislative Power controlled by Vice-President's Vote, 26
Elections liable to Abuse, 62
Abuse of Parliamentary Power, 65
Sweeping Clause, not plain ; ** Pursuance " equivocal and ambtgnous, 187
Relififion ; conceived that Jews, Mahometans, and Pagans, are mvited to the
United Sutes, 199
Mr. WILLIAM R. DAVIE (a Member of the Federal Convention) — for in-
vestigating the Subj<H*t, and discussing Clause by Clause, 8
System extensive, involving the Principles of Federal Government, 12
Powers of the F<'d«>ral Convention ; states some of the Events, and the
Defects of the Contederiition, which gave Birth to the Convention, 16
Negro Ri*presentation ; Jealousies of the East; one Kind of Property entitled
to Representntion as well as any other, &c., 30
Vice-Prenident, Reastms why introduced ; Consolidation not intended ;
Representatives, 58
Confederacies ; Amphintyonic ; European, • 59
Rhode Island, her Conduct ; Elections ; true Construction of the Clause,. . . (K)
Rhode Island ; Party Influence, &c, ; Elections, dec., 65
Journal ; Publication ; necessary to conceal it during the Confederation,. ... 72
Principle on which the Constitution was formed, 102
Treaty-making Power, in all Countries, placed in the Executive Depaji-
menl, 119. States would not confederate without an equal Voice in the
Formation nf Treaties ; Separation of Powers, 120. President's Election
on fair Principles ; his Nominations, '. 12S
Senatorial Term of Service ; thirteen Councillors would destroy Presidential
Responsibility, 12*2. State Sovereignty represented in the Senate ; Treaty ;
Laws, their Execution ; Judiciary ; prohibitory Provisions on^^ht to
INDEX. T
Mr DA V I£, eontinued — Pn je
tQpenede the Laws of particalar States, 155. Pine-barren Acts, Paper
money; Debts; executing the Laws, 157. Cognizance of Contro«
versies, 159. Federal Laws conflicting with those ot the States ; Legisla-
tion on Individuals instead of States ; Treaties ; Ends of the Constitution
accomplished by a paramount Judiciary, 16'J
Povers granted, «Xcc., 182. Operation on Paper Money ; its great Deprecia-
tion ; legal Tender, &c., 183
Securities, no Power to interfere with them, Ibl
Opposed to the previous Question; conditional Ratification alarming, 21o
Against standing out, and for Adoption, 4 2^i6
Mr. GOUDY — for certain Rules to govern the Proceedings, 10
Powers of Congress ; Tendency to destroy the State GoTemments, i)'3
Mr. JAMES GALLOWAY — Congress; Apprehension that it may perpetuate
itself, 70
Teas and Nays ; one fiflh required, 73
Slavery ; Manumission apprehended, 101
Laws supreme ; Obligation of Contracts ; Redemption of Securities, lUO
Mr. HARDIMAN •- Defence, where to apply, OU
Mr WHITMILL HILL — Requisition; Taxes, to be paid in Money Loons,.., {£1
Ml IREDELL — Full and fair Discuision necessary, 4
Nature of Government ; People may model it as they please, 9
Constitution not a Comoact. &c., 10
Farther Remarks on tne Necessity of fully debating the proposed Con-
stitution, 13
President s Objections to Bills, 27
Impeachment, a Security for good Behavior in Office, 3:2
Obedience to two Governments, 3o
Sf^nttorial Term ; Powers of the Senate ; Reference to British Government, 3o
Elections; Control by gener^ Government; executive, legislative, and
judicial, separate, an Improvement, 73
Veto by the President, 74
Taxation ; approves the Power by Congress, 91
Powers ought to be competent to the public Safety, ^ . 95
Slavery, no Power in Congress to abolish it, lOii
Election ; approves the Clause, lUo
Preridential Election ; Objections answered, 107. President's Power over
the Military; his Council, their Opinion to be given in Writing; Ex
ample of England, 108. Responsibility ; Pardon ; linpeochment, ^lijy
8o?ereignly of the States; Inequality of Suffrage in makingr Treaties, 125.
Bribes ; impeachment, not proper to render the Senate liable to it; Usage
of discussing Treaties in the British Parliament, 126. Surrender of Terri-
tory without an Act of Parliament; relative Influence of the two Houses
of Parliament, 128. Rulers should be watched; Amendments proposed by
the four Sutes, 130
No Danger from the Apprehension of Aristocracy ; Commons an Overmatch
for King and Lords,.... 132
Senate's Power ought to counteract that of the House, to preserve State
Sovereignty, 133. Choice of President and Senntfjrs ; Mode of nomiuat-
mg; Approval of the Senate; Influence of the House pn*ponderating, 134
Trial b^ Jury; the best; its Omission owing to the Difficulty of establishing
a uniform Mode, 144. Old Confederation; Quotas; Debts; Supreme
Coart ; Stamp Act ; Bill of Rights, absurd and dangerous, 147
Juries may be either in superior or infrrior Courts, 152
Trial by Jury; omitted from the Difficulty of the Case, in the Convention,
arising from the different Modes that obtain in the Slates, 164
Jury Trial further noticed; Constitution should define Authority, so as to
leave no Doubt; Congress claiming Power not given, a Usurpation 170
Slsves, emancipated in some of the Northern States ; ** Persons," escaping,
shall be delivemi up to those entitled to Service; Reasons why the
Northern Delegates objected to the word ** Slave " being mentioned in the
Constitution, 17b
Amendments may be made ; Ghiffhige in the Senate ; Compromise on
Slavery, &c., , 177
Three Fourths may call a Convention to amend, 17S
IjtwM ««asi8tent with the Constitution binding on the People; Powers
fl INDEX.
Ur. IREDELL, cootinoed— P^ll^
usurped ', Powers intended to be jri^^Ot 1^8*1 witlMHit new Anthor^j, &d., 179
Paper Money not affi?cted, id5. SeUtive 1m|iortaace of the Northern and
Southern States, 186
Replies to general Objections, 218
Exclusive Tiei^islation ; States will stipolate ; Insult to Congress in 1783 ;
Powers enumerated, excluded from all others; Abuse of Tower; Non-
Adoption out of the Union ; State of the Union in 1776 ; anticipates the
Interest of the First Congress ; Importance of framing the first Code of
Laws, 218, 223
"Nine,'* sufficient to establish the Constitution; Disadvantages in not
joining the Union under the Constitution, 228
His Resolution for Teas and Nays, 241
Religion; Tests; Persecutions; its Toleration in America; Sacrament in
Great Britain ; Office open to all Religions ; Guaranty explained ; Presi-
dent must be a Native ; Form of an Oath ; governed by the Religion of
the Person taking it ; Case of an East Indian, a Gentoo, in Char&s II.'s
Time, 197
Moves for Ratification and subsequent Amendments, 248
Gov. JOHNSTON— Vice-President's Vote defended, 96
Representative accountable only to his Constituents, 31^
Impeachment ; Removal ; Dismialification, ^^^
State Officers amenable to the Courts of Law, oO
Amendments ; no Danger apprehended, 56
Powers ; no Parallel between Congress and Parliament, 64
Taxation, in Kind, 77
Replies to Objections, 8A
Treaties ; Dinerence between Confederation and Constitution, 115
Jurisdiction, concurrent between State and Federal Courts, 141
Trial by Jury, dissimilar Modes, 150
Constitution must be the supreme Law, 15(i
Amendments ; adopting States ; no Office-Hunter, &c.y 226
Fallacy of the Opinion that the Pope, or a Foreigner, may be chosen
President ; Religion, ID8
Mr. WILLIE JONES — for putting the Question upon the Constitution im-
mediately, 4
Reasons for this Proposition, 7
Ratification ; wished to be out of the Union, 245
Though no Share in the new Appointments, common Interest with Virginia ;
Jenerson, he stated, wished Ratification only to preserve the Union ;
Office Expectants, their Bias, &c., 225
Defence of the Opposition, 234
Amendments, 240
Against Adoption; moved the previous Question ; refuses to withdraw his
Motion, 216 to 217
Mr. LANCASTER — his Apprehensions for Constitutional Amendments, 212.
Elections ; President's conditional Negative ; Two Thirds very rarely will
agree to a Law ; Appeals ; Armies ; Religion ; Papists or Mahometans
may occupy the Chair; Disqualification m the States; would oppose
Adoption, 215
Mr. LOCKE — Constitution grants unlimited Powers, 168. Necessity of Pine-
barren Acts ; expedient to make Paper Money a legal Tender, 169
Opposes the Adoption, 239
Mr. LENOIR — President's Treaty-making Power, a legislative Act, 27
Convention exceeded its Powers ; Reasons for opposmg, 201
Mr. MACLAINE — Distinction between a Monarchy and Republic, 10
"We, the People," proper, 16
Constitution a Blank till adopted, 24
Vice-President's casting Vote, JJfi
Biennial Elections defended.
Impeachment not extended to Representatives,.
Vice-President's Powers, 42
Impeachment, not to reach petty Officera, 43
Misdemeanors, by great State Officers, how redressed ? 46
Parliamentary Power ; Blackstone ; Militia Power, • 6»$
Elections ; Time, Manner, Place, «&c., .••... ^6^ ^
INOSX. vii
VbHaCLAIllE, eontinued— rufk
AjHwiotisf Powitr i Prewdeatml Py>w9ff0, ..«••• •«%««•• «•••• 1^
Jaaiciaryi State uid Federal CouxU aepaxAla^ 139
CoogreM, iU Povert limited and enumarated ,.......••» •»••••• 140
Stites^ their Interests connected ; Trial hyjfitjf 151
^mec in the People, uot in the States; Uistiootion betwatA Law and Fast;
Federal Jurisdictioo linuted,... • •• « 160-
Sute and Federal Courts, 164 to 172
Money Bilb ; Paper Money ; I>epreciation, though ultimately good, 179
Trial W Jury ; further Explanations, 175
St»ie dovttxeignty not in i>anger from Coiigrass, «....••••.. ...^ 180
Taxes will be inconsiderable; Congress will have Ciadii abroad ; Adoption
will bring out Specie, 188
Trade, its Resources ; lioans, 189
Mr. M'DOWALL — Elections; Control QTer Taxation,, opposed to its Surrender
to the general Govomment, 87
Power without Responsibility, 119
Senate, Danger of Combination with the President, • 134
Trial by Jury ; wealthy Suitox may prayail, • • 143
Jory Irtal, not secured, ,.••«• ••• 149
Taxes ; Consequence oi Ambiguity,. ,.»... • 139
Bill of Rights essential; Elections, 210
Mr. MILLER — Presidential Powers, a Defect in the Constitutioa, 114
Mr. PERSON — for preyioua Question, 217
Mr. PORTER -~ Money Clause, whence does the Powex originate ? 94-
Trea^-making Power in the Presideni and Senate, 113
Treaties ; House of Representatiyes ought to haye a Vote in making them, . . 1191
Mr. SHEPHERD— for full Discussion, 217
Mr. SPAIGHT (a Member of the Federal Con yontion) — Taxes, whether paid to
State or Federal Ooyernment, no Difl^rence, 81
Siayes, Compromise explained, 100
Electors, regiilarity required, 104, 106
Prpsidential Powers ; Command of the Army, • 114
Presidential and Senatorial Responsibility, • 124
Judiciary ; Federal Convention unanimous in keeping separate the Federal
and State Gvoyemments, 139
Trial bj Jury; in the Federal Conyention, considerable Time taken to
inyestigale the Subjeet, 144
Convention, denies that it exceeded its Powers, 206
Senate responsible to State Legislatures ; Federal Constitution farorable to
Trial by Jury ; Religion^ no Power oyer it ; an Infidel will never be chosen
for Omoe ; Amendments ; exclusive Legislation ; Liberty of the Press ;
Census ; Requisitione done away, 206, 210
Mr. SPENCER— Ooyernor»,SeryanU of the People, 13
Objections to the new Form of Government, 50
Refractory States ; Elections, 65
Taxes, Inlerfiiience between the States and tha Fsdaial Goyenraent;
Objections, «•....•.• 75
Taxes; laid by the State preferred, 80
Bnt in War by the general Government, . • 82
Executive Power; standing Council of one Member from each of the
States, &o., 116
Treaties should have the Sanction of all the Senate ; Aristocracy should be
ffuarded against, , *. 131
Judieiary, ODiections to the System, 136
Preamble, ''We, the People; '^^ Oath, 153. Trial by Jury, 154
Contends for a Bill of Rights ; Power, Jurisdiction, and R^fht, notgiyen up.
remain in the States ; oejeets to a Reyision of Fbcts hy Federal C&wt, ana
eoncorrent Jurisdiction dangerous, • 163
Boundary of a Bill of Rights wanted, 168
Behgkms Tests, Foundation of Perseoutioo, • 200
Amendments,!^. For Union, • 230
Mr. STEELE — Elections ; no Check in the old Confederation,^ 71
Jnamal, its Publication. ••.. 72
Taiation, in Payor of toe Clause, %?
Illi INDEX.
Mr. JOSEPH TAYLOR— Wordin|r, «« We, the People,'* an uninied Power,. . $^
Appointments ; Rights parted with, • • 26
Impeachment^ does it reach Collectors? 4r
Elections, their Control in yagne Terms, 70
Electors, Objections to the Power, 104,105
Mr. WILSON — wished Exclusion of Popish Priests from Office, 212
BILL OF RIGHTS, 243
TEAS AND NATS, at large, on Amendment, 250
CLOSING PROCEEDINGS— «« neither to ratify nor reject the ConsUtnUon,'*
adopted by a large M^ority, 25J
SOUTH CAROLINA.
ROBERT BARNWELL— for a limited Discossion, 263. Defence of the Con-
stitution, 291. President's Responsibility ; Treaties; Congressional Pay ;
Paper Medium ; Trial by Jury ; Preferences ; Importation of Negroes ;
Carrying Trade ; pleased with the Clause relative to Slayes, 293
PIERCE BUTLER (one of the Members of the Federal Convention) — Im-
peachment ; Senate ; Peace and War, 26?
Mr. PATRICK CALHOUN — Religion ; too great a Latitude allowed, 312
PATRICK DOLLARD (in Conventum) — his Constituents, to a Man, opposed
to the Constitution for Want of a Bill of RighU, 336
Com. GILLON — satisfied with the Doings of the Convention ; in Favor of
American Bottoms, 297
Hon. RALPH IZARD — Right of Kings to make Treaties, 268
Mr. RAWLINS LOWNDES— Senate and the old Confederation; Constitution
and Laws paramount ; Presidential Powers, 265
Treaties contrary to Law not valid ; £ul(Mrium on the Confederation, 271.
New Government an Experiment ; no aoeouate Advantage ; Slavery,. . . . 272
Importation of Negroes, 272. Evils apprehended from the Laws of Congress ;
local Legislature ; Fears for the Fate of the Southern States, 273
Defence of the Confederation ; Powers of the President ; Repreitentation ;
Senators ; Commercial Advantae;es enjoyed by the Eastern States ; Taxes ;
Congressional Pay ; recommends another Convention, ■ 287, 291
Explains his Argiiment on Treaties; Checks; limiting the Importation of
Negroes an Evil ; Navy to come from the East ; Taxes ; Expense of the
Government; Presidential Powers; the " Well-born ;" preparatory Plan
for a Monarchy ; Constitution ruinous to the Liberty of America, 308
Mr. JAMES LINCOLN — opposes the Constitution, as an aristocratic Govern-
ment; President may nold his Office for Life; Liberty of the Press
forgotten ; Bill of Rights essential, 312
Col. MASON — thanks Mr. Lowndes for his Opposition to the Constitution,... 316
Mr. JOHN MATTHEWS— denies the Efficiency of the ConfederaUon, 298
JUDGE PENDLETON — Impeachment, 263
Only three States sanctioned the Importation of Negroes, 272
CHARLES PINCKNET (a Member of the Federal Convention) — Motives as
a Member ol the Federal Convention ; Condition of the Country at the
•Close' of the War; Defects of the Confederation, &c., 253. Necessity '
of a Government to operate on the People ; Compromise ; rapid Glance
at different Parts of the System, 257
Presideut*s Power ; Responsibility, 280
Observations on Uie System (before the Convention May 12.) But one
Government in Europe that provides for civil Rii^hts. 318. People
Servants; Rulers supreme; Ireland; the Netlierlands; America taught
the Rights of Man, 319. Primogeniture, 320. Peopled classed ; commercial
foreign Trade, Root of public Distress ; mechanical ; agricultural, 221.
Merctisnts ; Mediocrity a leading Feature ; Division into States ; East-
ern, 322. Middle ; Maryland and the Southern States ; Outline of the
Legislation jf Pennsylvania ; Georgia ; Marvland, 323. New Tork,
MMsachuselts, 325. Foreign Governments; Evils of a Republic, 326
INDEX. U
Coostitution repreients States as well as GoTemments ; thi^e principal
Forms of OoTemment considered, 327
CUAAL£S COT£8 WORTH PINCKNET (a Member of the Federal Conven-
tion) — Treaties, where to be lodged ; President, the Power of proposing
Treaties, 263
Objections answered; Treaties not repugnant to Laws; Mode of Toting in
Seoate. dto^ 266
Treaty or Peaee, on its Promolgation ; Recogniianoes diseharged ; Case of
Love for Murder, 270
Explanations on Treaties; paramount under the Con&derationu 277. Vattel
and Burlamaqui quoted ; South Carolina interested in the Saciedness of
Treaties ; properly lodged in the Senate and President.. 278
Abuse of Power; Impeachment; Things under the Confederation pictured;
The ^ three fifUis,'^ 2d0. RepresenUtlon, 283. Suflbrings of the Eastern
States in the Cause of Independence ; Negroes necessary in Cultiyatron
for South Carolina ; Compromise ; Security against Emancipation ; Fugi-
tives recoverable, 284
Independent before the Treaty of Peace ; replies to Mr. Lowndes's Objec-
tions; Powers voted for the general Good; Elections; Representatives;
Senate ; Presidential Elections ; Foreign Influence to be guarded against;
commercial Preferences ; Judiciary, 3U0 to 308
Replies to Mr. Lincoln's Objections; Policy of the Refiligibility of the
rresident; General Government, no Powers but what are expressly
granted ; Reasons why a Bill of Rights was not inserted, 315
{In Canventwn) — 10th Sec. Art. 1. On the Restriotive Clauses ; Paper
Money ; Credit with Foreigners, • • 333
Mr. PRINGLE (Speaker) — Treaty-making belongs to the executive Depart-
ment; President and Senate do not possess legislative Power, 268
DAVID RAMSAY — Treaties superior to local Laws, 270
Continental Debt ; old Confederation dissolved, 286
HoQ. JACOB READ — Confederation; Congress; its Efficiency farcical;
Instances, 286
Hon. JOHN RUTLEDGE (a Member of the Federal Convention) — Treaties
paramount; their Mode of Ratification in England, and Operation in
Afoerica, 267. Difficulties in *82 because nine States aid not attend, 268
Treaties, the paramount Law ; Eulogium on the Constitution, 311
Hon. EDWARD RUTLEDGE— Weakness of the Confederation; defends the
Constitution, 274. Taxes, in Favor of the South ; $K) a head on Negroes
eouivalent to 5 per cent on Importations; all Free taxed; only two
fifths of the Slaves taxed, 277
Federal Convention did not exceed its Powers ; Navigation ; Exclusion from
West India Trade, du:. 298
Gen. SUMPTER (in Convention) — moved an Adjournment, to give further
Time for Consideration ; rejected, yeas, 89 ; nays, 135, • 338
ALEXANDER TWEED (tn OmvsiUum)— denies the Restrictions of his Con-
•tituents ; open to Conviction ; Reform needed ; Importance of the Con-
stitution, 329
QUESTION— To assemble at Charleston the 12th of May; ayes, 76;
nays, 75, 316,317
RATIFICATION, (m Convention ;) yeu, 149; nays, 73, 338,340
CONGRESS of 1765. JVeCs — List of Delegates and Extract from the Jour-
nal, 341. Extract from Ramsay on Ratification, 341
OPINIONS.
ABOLITION. Right of PeUUon. H. R. January, 1836. — Cashing, 594, 596
AUEN AND SEDITION LAWS. June, 1798. — E. Livingston, Taiewell,
440. Report,1799, 441
VIRGINIA RESOLUTIONS of 1798, pronounciiy the Sedition Laws to be un-
constitutioiial, and defining the Rights of the Dtates, drawn by Mr. Maiiison, COS
VOL. IT. B
INDEX.
ANSWERS OF THE STATES —
Bute of Delaware, 532
SteteoflUMde 1iUm4, 633
Commonwealth of ManacliiiMtto, 533
Bute of New YoA, 537
State of Connecticut, 538
StM^ofNewHaoiiMkinf. 538
8t«te of Vermottt, 539
KENTUCKY RESOLUTIONS of 1798 and 1799. (The original Draft
prepared by Mr. Jefferaon.) 540 to 545
MADISON'S REPORT OB the Virginia ReMlutiona, 546io5dU
ALl&N AND SEDITION LAWS. M.Lyon. Senate, March, 1811.— Smith,
of South Carolina, ••...- 474
AMENDMENTS TO THE CONSTITUTION. H. R. Angort 13, 1789. —
Gerry, Ames, Madiaon, 404
AMENDMENT TO THE CONSTITUTION ; Election of Preaident, Senate,
January23,I800. — C. Pinckney, ofS. C, tJt
. H. R. August, 1804. — Jackaon, 453
. Senate, March, 1886. — Dicker-
•on, 494. (With Extraela from the Journal of the Federal Convention on
the Presidential Term.)
APPOINTMENT; Panama Mtttion. Senate, March, 1826. — Berrien, . . 480 to 483
APPROPRIATIONS OF MONEY, for Vesaela of War. H. R. February 25,
1797.— GaUatin, Nicholas, 439
ARMY, STANDING, Regulation of. H. R. Januaiy 5, 1800. — Randolph,. ... 441
BANKS. Hamilton's Exposition to Congress, 1791. Extract, 617 to 620
BANK, Esublishment of. H. R. February % 1791. — Giles, 411. Vining, Madi-
son, 412. Ames, 414 to 417. Sedgwick, Madison, 417. Lawrence, Jack-
son, Boudinot, Stone, 418. G«rry, 419 to 422
BANK OF THE UNITED STATES. Renewal of Charier. H. R.
April 13, 1810. — Love^ Troup, Key, Abion, 456. Bnrwell, P. B. Porter,
Eppea, Crawford, 457. Clay, 45f
. H. R. April 13, 1830. — M'Duffie, . . 52^
(J{oU. Jackson's Message of December 7, 1630.)
BANKS. Mr. Jefllerson. Extract referred to by Mr. Madison, 609 to 61
J^bU on Banks, from Jefferson's Memoirs, March 1 1, 1798, 61
JYbte on the Tariff, furnishing a Summary of the Argument of the South
Carolina Exposition. See page 580.
. Mr. Madison to C. J. Ingenoll, February, 1831, GOk
BANKRUPT BILL. H. R. Februarv 16, 1818. — Hopkinson, 470. Tyler,
Sergeant, MiUs, 471. March 12, 'l822. — Buchanan, 47i^
BANKRUPT LAW. Senate, May 1, 1826. — Hayne, 490 to 493. Woodbury, 493
BANKRUPTCY. Senate, January, 1826. — Van Burcn, 47S
COLUMBIA. DISTRICT of; Case of J. P. Van Ness. H. R, January,
17, 1803. — Van Ness, Bacon, 451
To re-cede the District H. R. February 9, 1803. — Bayard, 451
CONTRACTORS. March 23,1806.— Eppes, :.... 454
DEBT, DOMESTIC. H. R. February 22, 1790. — Smith, S. C. 405. Madison, 406
, PUBLIC. Reduction of the Public Debt. H. R. November 20, 1792.
— Mercer,429. Ames, 430. Madison, 431
DEBTS. Mr. Madison to Mr. Stevenson, 27th November, 1830, examining
the Origin and Progress of the Clause of the Constitution, ^ To pay the
Debts, and provide for common Defence,*' &c.. Extract bl2 lo 615
DIGEST OF DECISIONS in the CourU of the Union, involving Constitu-
tional Principles, 626
DUTIES. May 15, 1789.— White, Madiion, Cfymer, Carroll, 345. Wadsworth,
Ames, Fitzsimons, Hartley, Bland, Boudinot, 346. Sinnickson, Lawrence,
Smith, S. C. ; Messages of Washington, Jefferson, Madison, Monroe ; W.
H. Crawfcvd't Report, 347
DUTIES OR LICENSES. H. R. Deoember 31, 1800. —Bird, 442
DUELLING. Persons engaged in a Duel to be disqualified from holding Office.
H.R. December 31, Rill -i^Dani, w. 451
£MBARaO,toiruapett€. H. K. Apird t9, 1806. -^ ^uinfty, 186. Ccy, 456
UStOBL.
flUURGOES, to regulate and reToke. H. R. Hay 529, 17M. — MaditoD, ••••433
EXFONGHVO BESOLUTION. Senate, 1836.— Leigh, 60a RiYea, 599
nSHUlY, OOO. OMttting BoimlKa. H. R. Fbtniary 3, 1793. -- GUee, 426.
WiUiaBMiNi. AUaMon. « 427
FRENCH REPUBLIC, on itrU'uMr out eompUiBentaiy Renlr to. Senate, Jan-
0117 C 1796. -- Elliworth, Botler, 434
IHTEUIAli IMPROy£Bl£NT. H. R. February 11, 1796.— Madwon, Bald-
win, Bourne, Williama, 434. Thacher, 435
■■■■ ]>eeember5|1816.-~BIadMon, 461
■ BoBueBiU. H.R.Febrau7,1817. — Picker-
i^Cki|r,467. Madiaea'a Objeetiowi to tlw abore Bonus BUI, 468
— X>iHnal Swamp Canal, Senate, May, IdSM.
VanBuiM, 477
" . H. R. Jaaiia^ 18, 1885. — Cambieleng,
Berrien, 479
. Florida Cana],Febniar7 14, 1896.— Braneh,
Bowan, 480
IMPBACmMBNT OF JUDGE CHASE. H. R. Febraaiy 81, 1806. — Hop-
kineon, 453. (ffoU from Story's Comaealariea.)
mOlAN TREATIES. Senatt, May, 1830.— Bpragne^ 4S3
AJDIdART. Senate, iaauaiy 8, 1800. — J. Maaon, 449. Stone, N. a 443.
Breckmridge, HentphiU, 444. Bayaid, Rutledge, 445. Van Buran, 485,
486. Woodbury, 487, 488
— — — — . H. R. January 10, 18S5. — Webeter, 478
JUDICIAL SYSTEM. Senate, April 7, 1896.— Mr. Van Buien, 486. Wood-
bury, %^. • 487
UyUISIANA TREATY. H. R. Ootober 96, 1803. — ClHol, Mitchell, Smilie,
r, Tracy, 448. J. Q. AdaiM, 449. (Abte. Mr. Jeibraon'e Opinion
added.)
LYON, MATTHEW, Petition of Senate, Marcb, 1891.— Smith, 474
MILITARY APPROPRIAHON BILL. H. R. January 4, 1819.^ Lowndea, 472
MILTXIA BILL. H.R. December 94, 1790. — Bloodword^Sbemlan,MadiMm,
LiTennore, 438. Williamaon, 493. Boudinot, Jaekaon, LiYermore, 434
MILITIA. Bill for organixing, &o. H. R. December, ]796^^Rutlierlbrd, . . . . • 438
MISSOURI QUESTION. U. R. Deoember 13, 1881.— Lowndea, 474
NULUFIGATION. Senate, April 8, 1830.— Joaiah 8. Johnson, 593
OATH to support the Constithtion, May 6, 1789. — Geny, 343. Bfamd, Jackson,
Lawtenoe, «n4 Sherman, , 344
FATBONAOE, Foreign Intoreourse BiD. H. R. January 18, 1798. — GaUatin,
439. Pmokney, Bayard, 440
fOBT OFFICE. BiU to authorise the President to ehoose a MaU Route.
H. B. Deeemfcer 6, 1791. — Sedgwiek, Geary, Bonme, 485
r08T-<»*nCfiS AND POST^ROADS. H. R. Jaa.3, 1798. — Fitxsimons,. 426
PRESIDENTIAL ELECTION. BUI to determine the 'Hme When Electors
ahaO be chosen, Ac, H. R. January 14, 1791. -^ Sherman, ...» 424
' ■, ( Amendmeot,) Senate, 1896. — Van Bqrenf::488-^
PVBUC LANDS lor Internal Improfemmis, F^mry 13, 18QT. — Bayard,. . . ^
, Disposal of. Senate, May, 1826.- Van Buien, 488
, Senate, February 23, 1830. — Woodbury, 628
REFUGEES, ST. DOMINGO, BiU for the Relief of. H. R. January 10, 1794.
— Madison, Nicholas, Boudinot. Dexter, 431. (JfoU. Relief of tne Citizens
of Venezuela, to expend $50,000, passed, ayes, 45 ; noes, 29.)
REMOVAL, POWER OF, by the President, on the Bill establishing the <* De-
^partment of Foreign Affairs." H. R. June, 1789, 350
Wliite, 350. White, 357. Lawrence, 367 to 371.
Smith, S. C. 350 to 353. Boudinot, 357 to 361 . Jackson, 371 to 373.
Huntingdon, 353. Ames, 361 to 364. Clymer, 373 to 374.
Sedgwick, 353. Livermore, 364 to 366. Page, 374 to 375.
MadUon, 964 to 367 Hartley, 366 to 367. Sherman, 975 to 370
Ill INDEX.
REMOVAL, POWER OF, (cootmoed.)
Stone, 376 to 37a Lee, 388 to 389. Livermofe, 308.
Madbon, 378 to 383. Boodinot, 389 to 39L MmImod, 396 to 400.
Gerry, 363 to 386. Gerry, 301 to 393. Biddwin, 400 to 403.
Beitfon, 386 to 387. Sbennan, 393 to 394. Geny, 403 to 404
Sedgwick, 387 to 388. Amei, 394 to 396.
RESTRICTIONS, COMMERCIAL. H. R. Jumaiy 31, 1794. — Madina,. . . 439
. H. R. Febrouy 14, 1806.— Madimi's
■eTen Reeolationf, • •••••••• 453
RETALUTION for A^i«a»>n- H. R. Maj 93, 179a — SitgreftTea, 440
RIGHT OF PETITION. (MoUium.) Senate, 1836. — Cnahtng, 694. Pren-
tiaa, 595. Hugh L. Wnite, 596. Gnindj, King, of Alabama, Buchanan,
597. King, ofGeorgia, Calhoun, 596
SEAMEN'S BILL. Regolation of Seamen, in Public and PriTate Veasels.
H. R. February, 1813. — Seybert, 460. Archer, 461
SEMINOLE WAR. H. R. January 21 , 1819. — Richard M. JohnK>ni 47S
SLAVE TRADE. Commitment of the Quaken' Memorial. H. R. Blarch, 1790.
— Tucker, 406. Gerry, Burke, SoDtt, Jackaon, Sherman, Baldwin, Smith,
S. C, 407. Page, Madwon, Gerry, 40a Boudinot, Stone, Tucker, S. C,
Jackaon,409. ISmitb, S. C, Boudinot, 410. AoCa, 411
SLAVERY. Panama BliHion. Senate, March, 182&—Hayne, 483
. {JiboUtion,) Report on circulating, through the United States
Mails, inflammatory Appeals. Calhoun. Senate, lebraaiy 4, 1836, 593
STATE RIGHTS. (D^aU am FooU't Resolntiont.) Senate, January, 1830,. • 496^.
Webster, 496 to 509. Hayne, [in replyJ 509 to 5ia V
Webster, [closing remarks,] 516, 519. Ed. Lirrngston, 519.
Woodbury, 520. Grundy, 531.
TARIFF. H.R. April 26, 1820.— Clay, 473
^, its ConstitutioraOity. Senate, 1824.— Hayne, 475
. South Carolina Protest, 580
. (JS'ua^Han^ President Jackson's PROCLAMATION, of the 10th
of December, 183o, concerning the Ordinance of South Carolina of the
24th of November, 1832, 582to59B
. Mr. Madison to Mr. Cabell, dated September— October, 1826, 600 to 606
TAXES, DIRECT. H. R. May 6, 1794. — Sedgwick, 433
TREATY, COMMERCIAL, with Great Britain. H. R. January 8.1816.—
Hopkinson ; Calhoun, 462. Tucker, 464. Pinckney, 465. rickering,
Pinckney, .• 466
TREATY-MAKING POWER, (JayV) H. R. March 23, 1796.— Murray,
GaUatin,435. Madison, 436. Lyman, 437
VOLUNTEER CORPS. H. R. January 12, 1812. — Poindexter, Grundy,
Porter, Cheves, Clay, 459
VETO. Monroe's Objections to An Act for the Preserration of the Cumberland
Road, 525
. Jackson's Objections to *'An Act authorising a Subseription to the *
Mayaville, 4DC.,Road," 526
, a short History of the, 620
VETOES bydiifisfentPieBdents,Listofthe, 6M
DEBATES
IN
THE CONVENTION
OF THS
STATE OF NORTH CAROLINA,
ON THK
ADOPTION OF THE FEDERAL CONSTITUTION.
Al a Convention f begun and held at Hillsborough , the2lst day of July^
in the year of our Lord one thousand seven hundred and eighty-eighty
and of the Independence of America the ISth, in pursuance of a resolu'
tioH of the last Genercd Assembly, for the purpose of deliberating and
determining on the proposed Plan of Federal Government , —
A MAJORITY of those who were duly elected as members of this Conven-
tion being met at the church, they proceeded to the election of a presi-
dent, when his excellency, Samuel Johnston, Esq., was unanimously chosen,
and conducted to the chair accordingly.
The house then elected Mr. John Hunt and Mr. James Taylor clerks
to the Convention, and also appointed door-keepers, &c.
The house then appointed a select committee to prepare and propose
certain rules and regulations for the government of the Convention in the
discussion of the Constitution.
The committee consisted of Messrs. Davie, Person, Iredell, I. M'Donald,
Battle, Spaight, and the Hon. Samuel Spencer, Esq.
The Convention then appointed a committee of three members from
etch district, as a committee of privileges and elections, consisting of
Messrs. Spencer, Irwin, Caldwell, Person, A. Mebane, Joseph Taylor,
M'Dowall, J. Brown, J. Johnston, Davie, Peebles, E. Gray, Gregory, Ire-
dell, Cabarrus, I. G. Blount, Keais, B. Williams, T. Brown, Maclaine,
Foster, Clinton, J. Willis, Grove, J. Stewart, Martin, and Tipton
The Convention then adjourned till to-morrow morning.
Tuesday, July 22, 1788.
The Convention met according to adjournment.
The committee appointed for that purpose reported certain rules and
regulations for the government of the Convention, which were twice read,
and, with the exception of one article, were agreed to, and are as fol-
lows, viz : —
VOL. IV. 1 '
2 DEBATES.
'' 1. When the president assumes the chair, the members shall take
their seats.
" 2. At the opening of the Convention, each day, the minutes of the
preceding day shall be read, and be in the power of the Convention to be
corrected, afler which any business addressed to the chair may be pro-
ceeded upon.
** *^. No member shall be allowed to speak but in his place, and, after
rising and addressing himself to the president, shall hot proceed until per-
mitted by the president.
** 4. No member speaking shall be interrupted but by a call to order by
the president, or by a member through the president.
** 5. No person shall pass between the president and the person speak-
ing.
*' 6. No person shall be called upoo for any words of heat, but on the
day on which they were spoken.
** 7. No member to be referred to in debate by name.
"8. The president shall be heard without interruption, and when he
rises, the member up shall sit down.
"9. The presid€nt himself, or by request, may call to order any mem-
ber who shall transgress the rules ; if a second time, the president may
refer to him by name; the Crmvention may then examine and censure the
member's conduct, he being allowed to extenuate or justify.
*' 10. When two or more members are up together, the president shall
determine who rose first.
'Ml. A motion made and seconded shall be repeated by the president.
A motion shall be reduced to writing if the president requires it. A mo-
tion may be withdrawn by the member making it, before any decision is
had upon it.
'* 12. The name of him who makes, and the name of him who seconds,
the motion, shall be entered upon the minutes.
** 13. No member shall depart the service of the house without leave.
** 14. Whenever the house shall be divided upon any question, two or
more tellers shall be appointed by the president, to number the members
on each side.
** 15. No member shall come into the house, or remove from one place
Co another, with his hat on, except those of the Quaker profession.
** 16. Every member of a committee shall attend at the call of his
chairman.
** 17. The yeas and nays may be called and entered on the minutes,
when any two members require it.
*' 18. Every member actually attending the Convention shall be in his
place at the time to which the Convention stands adjourned, or within
half an hour thereof."
Mr. Lenoir moved, and was seconded by Mr. Person, that the return
for Dobbs county snould be read, which was accordingly read ; whereupon
Mr. Lenoir presented the petition of sundry of the inhabitants of Dobbs
county, complaining of an illegal election in the said county, and praying
relief; which beinsr also road, on motion of Mr. Lenoir, seconded by Mr.
Davie, Resolved, That the said petition be referred to the committee of
elections.
Mr. Spaight presented the deposition of Benjamin Caswell, sheriff of
Dobbs county, and a copy of the poll of an election held in the said
county, fiir members to this Coavention, and the depositions of William
NORTH CAROLINA. d
Crom, Neil Hopkins, Robert White, John Hartsfield, Job Smith, and
Frederick Baker, which, being severally read, were referred to the com*
nittee of elections.
Mr. Cabarrus presented the dq>08ition8 of Charles Markland, Juo., and
Luther Spalding, relative to the election of Dobbs county ; which, being
read, were referred to the committee of elections.
The Conrention then adjourned to 10 o'clock to-morrow rooming.
WSDNBSDAT, Jll/jf 23, 1788.
The house met according to adjournment.
Mr. Gregory, from the committee of elections, to whom were referred
the returns from Dobbs county, and sundry other papers, and the petition
of sundry of the inhabitants of Dobbs county relative to the election of
the said county, delivered in a report; which, being read, was agreed to
in the following words, viz : —
" Resolved, That it is the opinion of this committee, that the sitting
members returned from the county of Dobbs vacate their seats, as it does
not appear that a majority of the county approved of a new election under
the recommendation of his excellency, the governor ; but the contrary is
more probable.
" That it appears to this committee, that there was a disturbance and
rk)t at the first election, (which was held on the days appointed by the re-
solve of the General Assembly,) before all the tickets could be taken out
of the box, and the box was then taken away by violence; at which time
it appears there were a sufficient number of tickets remaining in the box
to hive given a majority of the whole poll to five others of the candidates,
besides those who had a majority of the votes at the time when the dis-
turbance and riot happened. It is, therefore, the opinion of this commit-
tee, that the sheriff could have made no return of any five members
elected ; nor was there any evidence before the committee by which they
could determine, with certainty, which candidates had a majority of votes
of the other electors.
" The committee are therefore of opinion that the first election is void,
u well as the latter.*'
On a motion made by Mr. Galloway, seconded by Mr. Macon, —
" Resohert, Thit the Bill of Rights and Constitution of this state, the
Articles of Confederation, the resolve of Congress of the 21st of Febru-
ary, 1787, recommending a Convention of Delegates to meet at Philadcl-
phii the second Monday in May, 1787, for the purpose of revising the
said Articles of Confederation, together with the act of Assembly of this
itite, passed at Fayetteville, the 6th day of January, 1787, entitled *An
act for appointing deputies from this state to a Convention proposed to
be held in the city of Philadelphia in May next, for the purpose of revis-
ing the Federal Constitution ; ' as also the resolve of Congress of the
2^h September last, accompanying the report of the Federal Convention,
together with the said report, and the resolution of the last General As-
sembly, be now read."
The Bill of Rights and Constitution of this state, the Articles of Con-
^deration, the act of Assembly of this state above referred to, and the
res'>Iutioa of Congress of the 2Sth September last, were accordingly read.
The honorable the president then laid before the Convention official
accounts of the ratification of the proposed Federal Constitution by the
4 DEBATES. [Iredell.
states of Massachasetts and South Carolina ; which were ordered to be
file^l with the secretary, subject to the perusal of the members
Mr. JAMES GALLOWAY moved that the Constitution
should be discussed clause by clause.
Mr. WILLIE JONES moved that the Question upon the
Constitution should be immediately put. He said that the
Constitution had so long been the subject of the deliberation
of every man in this country, and that the members of the
Convention had had such ample opportunity to consider it,
that he lielieved every one of them was prepared to give his
vote then upon the question ; that the situation of the pub-
lic funds would not admit of lavishing the public money, but
required the utmost economy and frugality ; that, as there
was a large representation from this state, an immediate de-
cision would save the country a considerable sum of money.
He thought it, therefore, prudent to put the question imme-
diately.
He was seconded by Mr. PERSON, who added to the reasoning of Mr
Jones, that he should be sorry if any man had come hither without ha?
ing determined in his mind a question which must have been so long the
object of his consideration.
Mr. IREDELL then arose, and addressed the president
thus : —
Mr. President, I am very much surprised at the motion
which has been made by the gentleman from Halifax. I am
greatly astonished at a proposal to decide immediately, with-
out the least deliberation, a question which is perhaps the
greatest that ever was submitted to any body of men. There
is no instance of any convention upon the continent, in
which the subject has not been fully debated, except in those
states which adopted the Constitution unanimously. If it
be thought proper to debate at large an act of Assembly,
trivial in its nature, and the operation of which may continue
but a few months, are we to decide on this great and impor-
tant question without a moment's consideration ? Are we
to give a dead vote upon it? If so, I would wish to know
why we are met together. If it is to be resolved now by
dead votes, it would have been better that every elector, in-
stead of voting for persons to come here, should, in their re-
spective counties, have voted or ballotted for or against the
Constitution. A decision by that mode would have been
as rational and just as by this, and would have been better
on economical principles, as it would have saved the public
Che expense of our meeting here.
Imdell., north CAROLINA. ^
This is a subject of great consideration. It is a Consti
tutioQ which has been formed after much deliberation. It
has had the sanction of men of the first characters for their
probity and understanding. It has also had the solemn rati-
fication of ten states in the Union. A Constitution like this,
sir, ought not to be adopted or rejected in a moment. If, in
consequence of either, we should involve our country in
misery and distress, what excuse could we make for our con-
duct? Is it reconcilable with our duty to our constituents?
\Vould it be a conscientious discharge of that trust which
they have so implicitly reposed in us ? Shall it be said, sir,
of the representatives of North Carolina, that near three
hundred of them assembled for the express purpose of de-
liberating upon the most important question that ever came
before a people, refused to discuss it, and discarded all rea-
soning as useless ? It is undoubtedly to be lamented that any
addition should be made to the public expense, especially at
this period, when the public funds are so low ; but if it be
ever necessary on any occasion, it is necessary on this, when
the question perhaps involves the safety or ruin of our coun-
try. For my own part, I should not choose to determine on
any question without mature reflection ; and on this occa-
sion, my repugnance to a hasty decision is equal to the mag-
nitude of the subject. A gentleman has said, he should be
sorry if any member had come here without having deter-
mined in his mind on a subject he had so long considered.
I should be sorry, sir, that I could be capable of coming to
this house predetermined for or against the Constitution. I
readily confess my present opinion is strongly in its favor.
I have listened to every objection, that I had an opportunity
of hearing, with attention, but have not yet heard any that I
thought would justify its rejection, even if it had not been
adopted by so many states. But notwithstanding this favor-
able opinion I entertain of it, I have not come here resolved,
at all events, to vote for its adoption. I have come here for
information, and to judge, after all that can be said upon it,
whether it really merits my attachment or not. My constit-
uents did me the honor to elect me unanimously, without the
least solicitation on my part. They probably chose me be-
cause my sentiments were the same with their own. But
highly as I value this honor, and much as I confess my am-
bition prompted me to aspire to it, had I been told that I
\
\
a DEBATES. [Ibbdeu.
should not be elected unless I pronoised to obey their direc-
tions, I should have disdained to serve on such dishonorable
terms. Sir, I shall vote perfectly independent, and shall
certainly avow a change of my present opinion, if I can be
convinced it is a wrong one. I shall not, in such a case, be
restrained by the universal opinion of the part of the country
from which I came. I shall not be afraid to go back, and
tell my constituents, "Gentlemen, I have been convinced I
was in an error. I found, on consideration, that the opinion
which I had taken up was ill founded, and have voted ac-
cording to my sincere sentiments at the time, though con-
trary to your wishes.'' I know that the honor and integrity of
my constituents are such, that they would approve of my act-
ing on such principles, rather than any other. They are the
principles, however, I think it my duty to act upon, and
shall govern my conduct.
This Constitution ought to be discussed in such a manner
that every possible light may be thrown upon it. If those
gentlemen who are so sanguine in their opinion that it is a
bad government will freely unfold to us the reasons on
which their opinion is founded, perhaps we may all concur
in it. I flatter myself that this Convention will imitate the
conduct of the conventions of other states, in taking the
best possible method of considering its merits, by debating
it article by article. Can it be supposed that any gentle-
men here are so obstinate and tenacious of their opinion,
that they will not recede from it when they hear strong rea-
sons offered ? Has not every gentleman. here, almost, received
useful knowledge from a communication with others ? Have
not many of the members of this house, when members of
Assembly, frequently changed their opinions on subjects of
legislation ? If so, surely a subject of so complicated a na-
ture, and which involves such serious consequences, as this,
requh'es the most ample discussion, that we may derive every
information that can enable us to form a proper judgment.
I hope, therefore, that we shall imitate the laudable example
of the other states, and go into a committee of the whole
house, that the Constitution may be discussed clause by
clause.
I trust we shall not go home and tell our constituents that
we met at Hillsborough, were afraid to enter into a discus-
sion of the subject, but precipitated a decision viithout a
moment's consideration.
GiuowAY.] NORTH CAROUNA. >
Mr. WILLIE JONES. Mr. President, my reasoji^ for
proposing an immediate decision were, that I was prepared
to give my vote, and believed that others were equally
prepared as myself. If gentlemen differ from me in the
propriety of this motion, I will submit. I agree with the
geolleman that economical considerations are not of equal
importance with the magnitude of the subject. He said that
it nould have been better, at once, for the electors to vote
in their respective counties than to decide it here without
diseussioQ. Does he forget that the act of Assembly points
out another mode ?
Mr. IREDELL replied, that what he meant was, that
the Assembly might as well have required that the electors
should vote or ballot for or against the Constitution in their
respective counties, as for the Convention to decide it in
this precipitate manner.
Mr. JAMES GALLOWAY. Mr. President, I had no
supposition that the gentlemsm on my right (Mr. Jones) was
afraid of a discussion. It is not so with me, nor do I be-
lieve that it is so with any gentleman here. I do not like
such reflections, and am surprised that gentlemen should
make them.
Mr. IREDELL declared that he meant not to reflect on
any gentleman ; but, for his part, he would by no means
choose to go home and tell his constituents that he had voted
without any previous consideration.
Afler some desultory conversation, the Convention adjourned till
Uymorrow, iO o'clock.
Thursday, July 24, 1788.
The Convention met according to adjournment
Rev. Mr. CALDWELL. Mr. President, the subject
before us is of a complicated nature. In order to obviate
the difficulty attending its discussion, I conceive that it will
be necessary to lay down such rules or maxims as ought to
be the fundamental principles of every free government :
and after laying down such rules, to compare the Constitu-
tion with them, and see whether it has attended to them ;
for if it be not founded on such principles, it cannot be
proper for our adoption. [Here he read those rules which
he said appeared to him most proper.]
Mr. JAMES GALLOWAY. Mr. President, I had thr
8 DEBATES. [Datib
honor yesterday of proposing the mode which I thought
most eligible for our proceeding. I wish the subject to be
fairly, coolly, and candidly discussed, that we may not go
away without knowing why we came hither. My intention
is, that we should enter into a committee of the whole house,
where we shall be at liberty to discuss it. Though I do not
object to the proposition of the honorable member, as the
groundwork of our proceeding, I hope he will withdraw his
motion, and I shall second him in the committee.
Mr. CALDWELL had no objection to that proposition.
Mr. PERSON op|X)sed the motion of entering into a
committee. He conceived it would be a useless waste of
time, as they would be obliged to reconsider the whole Con-
stitution in Convention again.
Mr. DAVIE largely expatiated on the necessity of en-
tering into a committee. He said, that the legislature, in
voting so large a representation, did not mean that they
should go away without investigating the subject, but that
their collective information should be more competent to a
just decision ; that the best means was, to deliberate and
( onfer together like plain, honest men. He did not know
how the ardor of opposition might operate upon some gen-
tlemen, yet he trusted that others had temper and modera-
tion. He hoped that the motion of the member from Rock-
ingham would be agreed to, and that the Constitution would
be discussed clause by clause. He then observed, that, if they
laid down a number of original principles, they must go
through a double investigation ; that it would be necessary
to establish these original principles, and compare them
with the Constitution ; that it was highly improbable that
they should agree on those principles ; that he had a respect
for the understanding of the honorable member, and trusted
he would reflect, that difference in opinion arose from the
nature of things ; and that a great deal of time might be
taken up to no purpose, if they should neither agree on those
principles nor their application. He said, he hoped they
would not treat this important business like a military en-
terprise, but proceed upon it like a deliberative body, and
that the debates would be conducted with decency and
moderation.
The Convention then resolved itself into a committee of the whole
Uoiise, Mr. Elisha Battle in the chair.
Caldwell.] NORTH CAROUNA. b
Mr. CALDWELL. Mr. Chairman, those maxims whicii
1 conceive to be the fundamental principles of every safe
and free government, are — 1st. A government is a compact
between the rulers and the people. 2d. Such a compact
ought to be lawful in itself. 3d. It ought to be lawfully
executed. 4th. Unalienable rights ought not to be given
up, if not necessary. 3th. The compact ought to be mutual.
And, 6th. It ought to be plain, obvious, and easily under-
stood. Now, sir, if these principles be just, by comparing
the Constitution with them, we shall be able to judge
whether it is fit for our adoption.
Mr. IREDELL. Mr. Chairman, I concur entirely in
the sentiments lately urged by the gentleman from Halifax,
and am convinced we shall be involved in very great diffi-
culties if we adopt the principles offered by the gentleman
from Guilford. To show the danger and impolicy of this
proceeding, I think I can convince the committee in a mo-
ment, that his very first principle is erroneous. In other
countries, where the origin of government is obscure, and
its formation different from ours, government may be deemed
a contract between the rulers and the people. What is the
consequence? A compact cannot be annulled but by the
consent of both parties; therefore, unless the rulers are
guilty of oppression, the people, on the principle of a com-
pact, have no right to new-model their government. This
is held to be the principle of some monarchical governments
in Europe. Our government is founded on much nobler
principles. The people are known with certainty to have
originated it themselves. Those in power are their servants
and agents; and the people, without their consent, may
new-model their government whenever they think proper,
not merely because it is oppressively exercised, but because
they think another form will be more conducive to their
welfare. It is upon the footing of this very principle that
we are now met to consider of the Constitution before us.
If we attempt to lay down any rules here, it will take us* as
much time to establish their validity as to consider the system
itself.
Mr. CALDWELL observed, that, though this government
did not resemble the European governments, it still partook
«/ the nature of a compact ; that he conceived those prin-
ciples which he proposed to be just, but was willing that
VDL. IV. 2
10 DEBATES. [Irbdbll
an J otheis, which should be thought better, should be sub-
stituted in their place.
Mr. MACLAINE. Mr. Chairman, the gentleman has
taken his principles from sources which cannot hold here.
In England, the government is a compact between the king
and the people. I hope it is not so here. We shall have
no officers in the situation of a king. The people here are
the origin of all power. Our governors are elected tempo
rarily. We can remove them occasionally, and put others in
their stead. We do not bind ourselves. We are to consider
whether this system will promote our happiness.
Mr. GOUDY. Mr. Chairman, I wonder that these gentle-
men, learned in the law, should quibble upon words. I care
not whether it be called a compact^ agreement^ covefiantj bar-
gaijiy or what. Its intent is a concession of power, on the
part of the people, to their rulers. We know that private
interest governs mankind generally. Power belongs origin-
ally to the people ; but if rulers be not well guarded, that
power may be usurped from them. People ought to be
cautious in giving away power. These gentlemen say there
is no occasion for general nrles: every one has one for
himself. Every one has an unalienable right of thinking
for himself. There can be no inconvenience from laying
down general rules. If we give away more power than we
ought, we put ourselves in the situation of a man who puts
on an iron glove, which he can never tadke off till he breaks
his arm. Let us beware of the iron glove of tyranny.
Power is generally taken from the people by imposing on
their understanding, or by fetters. Let us lay down certain
rules to govern our proceedings. It will be highly proper, in
my opinion, and I very much wonder that gentlemen should
object to it.
Mr. IREDELL. Mr. Chairman, the gentleman who
spoke last mistook what the gentleman from Wilmington
and myself have said. In my opinion, there ought to be a
line drawn, as accurately as possible, between the power
which is given and that which is retained. In this system,
the line is most accurately drawn by the positive grant of
the powers of the general government. But a compact be-
tween the rulers and the ruled, which gentlemen compare
this government with, is certainly not the principle of our
government. Will any man say that, if there be a compart,
aiTiBtFOBD.j NORTH CAROLINA 11
it can be altered without the consent of Ixyth parties ? Those
who govern, unless they grossly abuse their trust, (which is
held an implied violation of the compact, and therefore a
dissolution of it,) have a right to say they do not choose the
government should be changed. But have any of the officers
of our government a right to say so if the people choose to
chauge it ? Surely they have not. Therefore, as a general
principle, it can never apply to a government where the
people are avowedly the fountain of all power. I have no
manner' of objection to the most explicit declaration that all
power depends upon the people ; because, though it will not
strengthen their rights, it may be the means of fixing them
on a plainer foundation. One gentleman has said that we
were quibbling upon words. If I know my own heart, I am
incapable of quibbling on words. I act on as independent
principles as any gentleman upon the floor. If I make use
of quibbles, there are gentlemen here who can correct me.
If my premises are w;rong, let them be attacked. If my
conclusions be wrong, let me be put right. I am sorry that,
in debating on so important a subject, it could be thought
that we were disputing about words. I am willing to apply
as much time as is necessary for our delil>erations. I have
no objection to any regular way of discussing the subject ;
but this way of proceeding will waste time, and not answer
any pur|)ose. Will it not be in the power of any gentleman,
in the course of the debates, to say that this plan militates
against those principles which the reverend gentleman rec-
ommends? Will it not be more proper to urge its incom-
patibility with those principles during that dis<!Ussion, than
to attempt to establish their exclusive validity previous to
our entering upon the new plan of government? By the
former mode, those rules and the Constitution may be con-
sidered together. By the latter, much time may be wasted
to no purpose. I trust, therefore, that the reverend gentle-
man will withdraw his motion.
Mr. RUTHERFORD. Mr. Chairman, I conceive those
maxims will be of utility. I wish, as much as any one, to
have a full and free discussion of the subject. To facilitate
this desirable end, it seems highly expedient that some
groandwork should be laid, some line drawn, to guide our
proceedings. I trust, then, that the reverend gentleman'^
proposal will be agreed to.
(2 DEBATES. [Person
Mr. SPENCER. I conceive that it will retard the busi-
ness to accede to the proposal of the learned gentleman.
The observation which has been made in its behalf does not
apply to the present circumstances. When there is a king
or other governor, there is a compact between him and the
people. It is then a covenant. But in this case, in regard
to the government which it is proposed we should adopt,
there are no governors or rulers, we being the people who
possess all power. It strikes me that, when a society of
free people agree on a plan of government, there are no
governors in existence ; but those who administer the gov-
ernment are their servants. Although several of those prin-
ciples are proper, 1 hope they will not be part of one dis-
cussion, but that every gentleman will consider and discuss
the subject with all the candor, moderation, and deliberation,
which the magnitude and importance of the subject require.
Mr. CALDWELL observed, that he would agree that
any other word should be substituted to the word compact;
but, after all that had been said, the Constitution appeared
to him to be of the nature of a compact. It could not be
fully so called till adopted and put in execution; when so
put in execution, there were actual governors in existence.
Mr. DAVIE. Mr. President, what we have already said
may convince the reverend gentleman what a long time it
will take us to discuss the subject in the mode which he
has proposed : those few solitary propositions which he has
put on paper, will make but a small part of the principles
of this Constitution. I wish the gentleman to reflect how
dangerous it is to confine us to any particular rules. This
system is most extensive in its nature, involving not only
the principles of governments in general, but the compli-
cated principles of federal governments. We should not,
perhaps, in a week lay down all the principles essential to
such a Constitution. Any gentleman may, in the course of
the investigation, mention any maxims he thinks proper, and
compare them with the Constitution. It would take us more
time to establish these principles, than to consider the Con-
stitution itself. It will be wrong to tie any man's hands. 1
hope the question will be put.
Mr PERSON insisted on the propriety of the principles,
and that tney ought to be laid on the table with the Dec-
laration of Rights, Constitution of the state, and the Con-
federation.
Iredell] NORTH CAROLINA. 1 J
Mr LENOIR approved of the principles, but disapproved
of being bound by any rules.
Mr. 5IACLAINE was of the same opinion as to the im-
propriety of iieins; bound.
Mr. JAMES GALLOWAY wished to leave the hands of
the members free, but he thought these principles were un-
exceptionable. He saw no inconvenience in adopting them,
and wished they would be agreed to.
Mr. LENOIR answered, that the matter had been largely
debated. He siiid, that he thought the previous question
ought to be put, whether they should lay down certain prin-
ciples to be governed by, or leave every man to judge as his
own breast suggested.
After some little altercation, the previous question was put
— for the principles, 90 ; against them, 163 ; majority against
them, 73.
His excellency. Gov. JOHNSTON, then moved to discuss
it by sections. This was opposed, because it would take up
too much time.
After some altercation about the mode of considering the
Constitution, Mr. IREDELL arose, and spoke as follows : —
Mr. President, whatever delay may attend it, a discussion
is indispensable. We have been sent hither, by the people,
to consider and decide this important business for them.
This is a sacred trust, the honor and importance of which, I
hope, are deeply impressed on every member here. We ought
to discuss this Constitution thoroughly in all its parts. It
was useless to come hither, and dishonorable, unless we dis-
charge that trust faithfully. God forbid that any one of us
should be determined one way or the other. I presume that
every man thinks it his duty to hold his mind open to con-
riction ; thu whatever he may have heard, whether against
or for the Constitution, he will recede from his present
opinion, if reasons of sufficient validity are offered. The
gentleman from Granville has told us, that we had since
March to consider it, and that he hoped every member was
ready to give his vote upon it. 'Tis true, we have had since
that time to consider it, and I hope every member has taken
pains to inform himself. I trust they have conscientiously
considered it ; that they have read on both sides of the ques-
tion, and are resolved to vote according to the dictates of
their consciences. I can truly say, that I believe there are few
members in this house who have taken more pains to con-
2
14 DEBATES. [Iredell
sider it than myself. But I am still by no means confident
that I am right. I have scarcely ever conversed on the sub-
ject with any man of understanding, who has not thrown
some new light upon the subject which escaped me i)efore.
Those gentlemen who are so self-sufficient that they believe
that they are never in the wrong, may arrogate infallibility to
themselves, and conclude deliberation to be useless. For
my part, 1 have often known myself to be in the wrong, and
have ever wished to be corrected. There is nothing dis-
honorable in changing an opinion. Nothing is more fallible
than himian judgment. No gentleman will say that his is
not fallible. Mine, I am sure, has often proved so. The
serious importance of the subject merits the utmost atten-
tion ; an erroneous decision may involve truly awful and
calamitous consequences. It is incumbent on us, therefore,
to decide it with the greatest deliberation. The Consti-
tution is at least entitled to a regular discussion. It has had
the sanction of many of the best and greatest men upon
the continent — of those very men to whom, perhaps, we
owe the privilege of debating now. It has also been adopted
by ten states since. Is it prob:ible that we are less fallible
than they are? Do we suppose our knowledge and wisdom
to be su|)erior to their aggregate wisdom and information?
I agree that this question ought to be determined on the
footing of reason, and not on that of authority ; and if it
be found defective and unwise, I shall be for rejecting it ;
but it is neither decent nor right to refuse it a fair trial. A
system supported by such characters merits at least a serious
consideration. I hope, therefore, that the Constitution will
be taken up paragraph by paragraph. It will then be in
the power of any gentlemen to offer his opinion on every
part, and by comparing it with other opinions, he may obtain
useful information. If the Constitution be so defective as
it is represented, then the inquiry will terminate in favor of
those who oppose it. But if, as I believe and hope, it be
discovered to be so formed as to be likely to promote the
happiness of our country, then I hope the decision will be,
accordingly, in its favor. Is there any gentleman so in-
different to a union with our sister states, as to hazard dis-
union rashly, without considering the consequences? Had
my opinion been different from what it is, I am sure I
should have hesitated and reflected a long time before I had
offered it against such respectable authorities. 1 am sorry
CiLDWELL] NORTH CAROUNA 15
iur the exi)ense which may be incurred, when the community
is so distressed ; but this is a trivial consideration compared
to the consequences of a rash proceeding upon this impor-
tant question. Were any member to determine against it
without proper consideration, and afterwards, upon his return
home, on an impartial consideration, to be convinced it was a
good system, bis reflections on the temerity and precipitation
of his conduct might destroy his peace of mind forever. I
doubt not the members in general who condemn it, do so
from a sincere belief that the system is a liad one ; but at
the same time, I believe there are many who. are ready to
relii^quish that opinion, if they can be convinced it is er-
roneous, and that they sincerely wish for a fair and full dis-
cussion of the subject. For these reasons I am of opinion
that the motion made by the honorable member is proper to
be adopted.
Mr. RUTHERFORD was surprised at the arguments
used by gentlemen, and wished to know how they should
Fote, whether on the paragraphs, and how the report should
be made when the committee rose.
His excellency. Gov. JOHNSTON. If we reject any one
part, we reject the whole. We are not to form a constitu-
dou, but to say whether we shall adopt a Constitution to
which ten states have already acceded. If we think it a
bad government, it is not binding to us ; we can reject it.
If it be proper for our adoption, we may adopt it. But
a rejection of a single article will amount to a rejection of
the whole.
Mr. RUTHERFORD. The honorable gentleman has
tttistaken me. Sorry I am that it is so late taken up by North
Carolina, if we are to be influenced and persuaded in this
manner. I am unhappy to hear gentlemen of learning and
integrity f)reach up the doctrine of adoption by ten states
Sir, it is my opinion that we ought to decide it as if no state
had adopted it. Are we to be thus intimidated into a
measure of which we may disapprove ?
The question was then put, and carried by a great majority, to discuss
(tte CoQstitution chuse by clause.
The preamble of the Constitution was then read.
Mr. CALDWELL. Mr. Chairman, if they mean, fVe,
the people, — the people at large, — I conceive the expres-
sion is improper. Were not they who framed this Constitu-
16 D£BATES. [Davib
tion the representatives of the legislatures of the different
states ? In my opinion, they had no power, from the people
at large, to use their name, or to act for them. They were
not delegated for that purpose.
Mr. MACLAINE. The reverend gentleman has told us,
that the expression, fTe, the people, is wrong, because the
gentlemen who framed it were not the representatives of the
people. I readily grant that they were delegated by states.
But they did not think that they were the people, but in-
tended it for the people, at a future day. The sanction of
the state legislatures was in some degree necessary. It was
to be submitted by the legislatures to the people ; so that,
when it is adopted, it is the act of the people. When it is
the act of the people, their name is certainly proper. This
is very obvious and plain to any capacity.
Mr. DAVIE. Mr. Chairman, the observation of the rev-
erend gentleman is grounded, I suppose, on a supposition
that the Federal Convention exceeded their powers. This
objection has been industriously circulated ; but I believe, on
a candid examination, the prejudice on which this error is
founded will be done away. As I had the honor, sir, to be a
member of the Convention, it may be expected I would
answer an objection personal in its nature, and which con-
tains rather a reflection on our conduct, than an objection
to the merits of the Constitution. After repeated and de-
cisive proofs of the total inefficiency of our general government,
the Slates deputed the members of the Convention to revise
and strengthen it. And permit me to call to your considera-
tion that, whatever form of confederate government they
might dense, or whatever powers they might propose to give
this new government, no part of it was binding until the
whole Constitution had received the solemn assent of the
people. What was the object of our mission? "To decide
upon the most eflfectual means of removing the defects of our
federal union." This is a general, discretional authority to
propose any alteration they thought proper or necessary.
Were not the state legislatures afterwards to review our pro-
ceedings ? Is it not immediately through their recommenda-
tion that the plan of the Convention is submitted to the
people ? And this plan must still remain a dead letter, or
receive its operation from the fiat of this Convention. AI
though the Federal Convention might recommend the con-
Datie] north CAROLINA. 17
cession of the most extensive powers, yet they could not put
one of them into execution. What have the Convention
done that can merit this species of censure ? They have
odI) recommended a plan of government containing some
additional powers to those enjoyed under the present feeble
system ; amendments not only necessary, but which were the
express object of the deputation. When we investigate
this system candidly and accurately, and compare all its
parts with one another, we shall find it absolutely necessary
to confirm these powers, in order to secure the tranquillity of
the states and the liberty of the people. Perhaps it would
be necessary, to form a true judgment of this important
question, to state some events, and develop some of those
defects, which gave birth to the late Convention, and which
have produced this revolution in our federal government.
With the indulgence of the committee, I will attempt this
detail with as much precision as I am capable of. The
general objects of the union are, 1st, to protect us against
foreign invasion ; 2d, to defend us against internal commo-
tions and insurrections; 3d, to promote the commerce, agri-
culture, and manufactures, of America. These objects are
requisite to make us a safe and happy people, and they can-
not he attained without a firm and efficient system of union.
\s to the first, we cannot obtain any effectual protection
from the present Confederation. It is indeed universally
acknowledged, that its inadequacy in this case is one of its
greitest defects. Examine its ability to repel invasion. In
the late glorious war, its weakness was unequivocally experi-
enced. It is well known that Congress had a discretionary
right to raise men and money ; but they had no power to do
either. In order to preclude the necessity of examining the
whole progress of its imbecility, permit me to call to your
recollection one single instance. When the last great stroke
was made which humbled the pride of Britain, and put us in
possession of peace and independence, so low were the
finances and credit of the United States, that our army could
not move from Philadelphia, until the minister of his most
Chnstian majesty was prev:uled upon to draw bills to defray
the expense of the expedition. These were not obtained
on the credit or interest of Congress, but by the personal
nfliience of the commander-in-chief.
Had this great project miscarried, what fatal events might
VOL. IV. 3
18 DEBATES. [DAvit
have ensued I It is a very moderate presumption, that what
has once happened may happen again. The next important
consideration, which is involved in the external powers of the
Union, are treaties. Without a power in the federal govern-
ment to compel the performance of our engagements with
for(»ign nations, we shall be perpetually involved in de-
structive wars. The Confederation is extremely defective in
this point also. I shall only mention the British treaty as a
siuisfactory proof of this melancholy fact. It is well known
that, although this treaty was ratified in 1784, it required
the sanction of a law of North Carolina in 1787; and that
our enemies, presuming on the weakness of our federal
government, have refused to deliver up several important
|K)sts within the territories of the United States, and still
liold them, to our shame and disgrace. It is unnecessary to
reason on facts, the perilous consequences of which must in
a mouH»nt strike every mind capable of reflection.
The next head under which the general government may
Im» considered, is the regulation of commerce. The United
Statt^s should be empowered to compel foreign nations into
eonnuercial regulations that were either founded on the prin-
ciple's of justice or reciprocal advantages. Has the present
( IcnUederation effected any of these things? Is not our
ronunerce equally unprotected abroad by arms and negotia-
ticui ? Nations have refused to enter into treaties with us.
What was the language of the British court on a proposition
of this kind? Such as would insult the pride of any man
of fec^ling and independence. — "You can make engagements,
bill yoii fiinnot compel your citizens to com[)ly with them.
Wo derive greater profits from the present situation of your
eoiiimeree than we could expect under a treaty; and you
have no kind of power that can compel us to surrender any
advantage to you." This was the language of our enemies ;
and while our government remains as fc^eble as it has been,
no nation will form any connection with us that will involve
the relinquishment of the least advantage. What has been
the eonse<|iienee ? A general decay of trade, the rise of im
porttMl merchandise, the fall of produce, and an uncommon
di»erenst» of the value of lands. Foreigners have been
reaping the benefits and emoluments which our citizens
ouf»ht to enjoy An unjustifiable perversion of justice has
|H*rvaded almost all the states, and every thing presented to
Datie.] north CAROLINA. 19
our view a spectacle of public poverty and private wretch-
edness !
While this is a true representation of our situation, can oui
general government recur to the ordinary expedient of loans?
During the late war, large sums were advanced to us by
foreign states and individuals. Congress have not been
enabled to pay even the interest of these debts, with honor
and punctuality. The requisitions made on the states have
been every where unproductive, and some of them have not
paid a stiver. These debts are a part of the price of our
liberty and independence — debts which ought to be re-
garded with gratitude and discharged with honor. Yet
many of the individuals who lent us money in the hour
of our distress, are now reduced to indigence in conse-
quence of our delinquency. So low and hopeless are the
finances of the United States, that, the year before last.
Congress were obliged to borrow money even to pay the
interest of the principal which we had borrowed before.
This wretched resource of turning interest into principal, is
the most humiliating and disgraceful measure that a nation
could take, and approximates with rapidity to absolute ruin.
Yet it is the inevitable and certain consequence of such a
system as the existing Confederation.
There are several other instances of imbecility in that
system. It cannot secure to us the enjoyment of our own
territories, or even the navigation of gur own rivers. The
want of power to establish a uniform rule for naturalization
through the United States is also no small defect, as it must
unavoidably be productive of disagreeable controversies with
foreign natrons. The general government ought in this, as
in every other instance, to possess the means of preserving
the peace and tranquillity of the Union. A striking proof
of the necessity of this power recently happened in Rhode
Island : A man who had run off with a vessel and cargo, the
property of some merchants in Holland, took sanctuary in
that place : application was made for him as a citizen of the
United Netherlands by the minister, but, as he had taken the
oath of allegiance, the state refused to deliver him up, and
protected him in his villany. Had it not been for the pecu-
liar situation of the states at that time, fatal consequences
might have resulted from such a conduct, and the contempt-
ible state of Rhode Island might have involved the whole
Uuion in a war.
20 DEBATES. [DAvre.
The encroachments of some states on the rights of others,
and of all on those of the Confederacy, are incontestable
proofs of the weakness and imperfection of that system.
Maryland lately passed a law granting exclusive privileges
to her own vessels, contrary to the Articles of the Confeder-
ation. Congress had neither power nor influence to altei
it ; all they could do was to send a contrary recommenda-
tion. It is provided, by the 6th Article of the Confederation,
that no compact shall be made between two or more states
without the consent of Congress; yet this has been recently
violated by Virginia and Maryland, and also by Pennsylvania
and New Jersey. North Carolina and Massachusetts have
had a considerable body of forces on foot, and those in this
state raised for two years, notwithstanding the express pro-
vision in the Confederation that no force should be kept up
by any state in time of peace.
As to internal tranquillity, — without dwelling on the un-
happy commotions in our own back counties, — I will only add
that, if the rebellion in Massachusetts had been planned and
executed with any kind of ability, that state must have been
ruined ; for Congress were not in a situation to render them
any assistance.
Another object of the federal union is, to promote the
agriculture and manufactures of the states — objects in which
we are so nearly concerned; Commerce, sir, is the nurse
of both. The merchant furnishes the planter with such
articles as he cannot manufacture himself, and finds him a
market for his produce. Agriculture cannot flourish if com-
merce languishes; they are mutually dependent on each
other. Our commerce, as I have before observed, is unpro-
tected abroad, and without regulation at home, and in this
and many of the states ruined by partial and iniquitous laws
— laws which, instead of having a tendency to protect prop-
erty and encourage industry, led to the depreciation of the
one, and destroyed every incitement to the other — laws
which basely warranted and legalized the payment of just
debts by paper^ which represents nothing, or property of
very trivial value.
These are some of the leading causes which brought
forward this new Constitution. It was evidently necessary
to infuse 'a greater portion of strength into the national gov
ernment. But Congress were but a single body, with whom
it was dangerous to lodge additional powers. Hence arose
DAfii-l NORTH CAROLINA. ?l
the necessity of a diflferent organization. In order to form
some balance, the departments of government were separated,
and as a necessary check, the legislative body was composed
oftwo branches. Steadiness and wisdom are better insured
when there is a second branch, to balance and check the first
The stability of the laws will be greater when the popular
branch, which might Jbe influenced by local views, or the
violence of party, is checked by another, whose longer con-
tinuance in office will render them more experienced, more
temperate, and more competent to decide rightly.
The Confederation derived its sole support from the state
legislatures. This renderexl it weak and ineflectual. It
was therefore necessary that the foundations of this govern-
meat should be laid on the broad basis of the people. Yet
the state governments are the pillars upon which this gov-
ernment is extended over such an immense territory, and are
essential to its existence. The House of Representatives
are immediately elected by the people. The senators repre^
sent the sovereignty of the states ; they are directly chosen
by the state legislatures, and no legislative act can be done
without their concurrence. The election of the executive
is in some measure under the control of the legislatures ot*
the stales, the electors being appointed under their direction.
The difference, in point of magnitude and importance,
ui the members of the confederacy, was an additional
reason for the division of the legislature into two branches,
and for establishing an equality of suffrage in the Senate.
The protection of the small states against the ambition and
bfluence of the larger members, could only he effected by
arming them with an equal power in one branch of the legis-
lature. On a contemplation of this matter, we shall find
that the jealousies of the states could not be reconciled any
other way. The lesser states would never have concurred
unless this check had been given them, as a security for their
political existence, against the power and encroachments of
the great states. It may be also proper to observe, that the
executive is separated in its functions from the legislature,
as well as the nature of the case would admit, and the ju-
diciary from both.
Another radical vice in the old system, which was neces^
sary to be corrected, and which will be understood without
a long deduction of reasoning, was, that it legislated on
^t<!9, iD^ead of individuals ; and that its powers could not
2^ DEBATES. [DAYih
be nxecuted but by fire or hy the sword — by military force,
and not by the intervention of the civil magistrate. Every
one who is acquainted with the relative situation of the
states, and the genius of our citizens, must acknowledge
that, if the government was to be carried into effect by
military force, the most dreadful consequences would ensue.
It. would render the citizens of America the most implacable
enemies to one another. If it could be carried into effect
against the small states, yet it could not be put in force
against the larger and more powerful states. It was there-
fore absolutely necessary that the influence of the magistrate
should be introduced, and that the laws should be carried
home to individuals themselves.
In the formation of this system, many difficulties presented
themselves to the Convention.
Every member saw that the existing system would ever
be ineffectual, unless its laws operated on individuals, as
military coercion was neither eligible nor practicable. Their
own experience was fortified by their knowledge of the in-
herent weakness of all confederate governments. They
knew that all governments merely federal had been short-
lived, or had existed from principles extraneous from their
constitutions, or from external causes which had no depend-
ence on the nature of their governments. These consid-
erations determined the Convention to depart from that
solecism in politics — the principle of legislation for states
in their political capacities.
The great extent of country appeared to some a formida-
ble difficulty ; but a confederate government appears, at
least in theory, capable of embracing the various interests of
the most extensive territory. Founded on the state govern-
ments solely, as I have said before, it would be tottering and
inefficient. It became, therefore, necessary to bottom it on
the people themselves, by giving them an immediate interest
and agency in the government. There was, however, some
real difficulty in conciliating a number of jarring interests,
arising from the incidental but unalterable diflerence in the
states in point of territory, situation, climate, and rivalshij)
in commerce. Some of .the states are very extensive, others
very limited : some are manufacturing states, others merely
agricultural: some of these are exporting states, while the
carrying and navigation business are in the possession of
others. It was not easy to reconcile such a multiplicity ot
Taylor.] NORTH CAROLINA. 2J
discordant and clashing interests. Mutual concessions \^ *re /
necessary to come to any concurrence. A plan that would
promote the exclusive interests of a few states would be m-
lurious to others. Had each state obstinately insisted on ^
the security of its particular local advantages, we should
never have come tasi conclusion. Each, therefore, amicably
and wisely relinquished its particular views. The Federal
Convention have told you, that the Constitution which they
formed " was the result of a spirit of amity, and of tha\
mutual deference and concession which the peculiarity of ^ ,
their political situation rendered indispensable." I hope the
same laudable spirit will govern this Convention in their
decision on this important question.
The business of the Convention was to amend the Con-
federation by giving it additional powers. The present form
of Congress being a single body, it was thought unsafe to
augment its powers, without altering its organization. The
act of the Convention is but a mere proposal, similar to the
production of a private pen. I think it a government which,
if adopted, will cherish and protect the happiness and liberty
of America; but I hold my mind open to conviction. I
am ready to recede from my opinion if it be proved to he
ill-founded. I trust that every man here is equally ready to
change an opinion he may have improperly formed. The
\veakness and inefficiency of the old Confederation produced
the necessity of calling the Federal Convention. Their plan
is now before you;. and I hope, on a deliberate consideration,
everv man will see the necessitv of such a system. It has
been the subject of much jealousy and censure out of doors.
I hope gentlemen will now come forward with their objec-
tions, and that they will be thrown out and answered with
candor and moderation.
Mr. CALDWELL wished to know why the gentlemen
who were delegated by the states, styled themselves fVcj
(he people. He said that he only wished for information.
Mr. IREDELL answered, that it would be easy to satisfy
the gentleman ; that the style, fVe^ the people, was not to
^ applied to the members themselves, but was to be the
St vie of the Constitution, when it should be ratified in their
respective states.
Mr. JOSEPH TAYLOR. Mr. Chairman, the very
Hording of this Constitution seems to carry with it an
Z4 DEBATES. [Maclaine.
assumed power. fTe, the people^ is surely an assumed
power. Have they said, We, the delegates of the people ?
it seems to me that, when they met in Convention, ihey
assumed more power than' was given them. Did the people
give them the power of using their name ? This power was
in the people. They did not give it up to the members of
the Convention. If, therefore, they had not this power, they
assumed it. It is the interest of every man, who is a friend
to liberty, to oppose the assumption of power as soon as
possible. I see no' reason why they assumed this pow^r.
Matters may be carried still farther. This is a consolidation
of all the states. Had it said, We^ the states^ there would
have been a federal intention in it. But, sir, it is clear that
a consolidation is intended. Will any gentleman say that a
consolidated government will answer this country ? It is
too large. The man who has a large estate cannot manage
it with convenience. I conceive that, in the present case,
a consolidated government can by no means suit the genius
of the people. The gentleman from Halifax (Mr. Davie)
mentioned reasons for such a government. They have their
weight, no doubt ; but at a more ccmvenient time we can
show their futility. We see plainly that men who come
from New England are different from us. They are igno-
rant of our situation ; they do not know the state of our
country. They cannot with safety legislate for us. I am
astonished that the servants of the legislature of North
Carolina should go to Philadelphia, and, instead of speaking
of the state of North Carolina, should speak of the people.
I wish to stop power as soon as possible ; for they- may carry
their assumption of power to a more dangerous length. I
wish to know where they found the power of saying We^
tlie people, and of consolidating the states.
Mr. MACLAINE. Mr. Chairman, I confess myself as-
tonished to hear objections to the preamble. They say that
the delegates to the Federal Convention assumed powers
which were not granted them; that they ought not to have
used the words fVe, the people. That they were not the
delegates of the people, is universally acknowledged. The
Constitution is only a mere proposal. Had it been binding
on us, there might be a reason for objecting. After they
had finished the plan, they proposed that it should be
recommended to the people by the several state legislatures
OALLoWAt.] NORTH CAROLINA. 25
If the people approve of it, it becomes their act. Is not this
merely a dispute about words, without any meaning what
ever? Suppose any gentleman of this Convention had
drawn up this government, and we thought it a good one ;
we might respect his intelligence and integrity, but It would
Bot be binding upon us. We might adopt it if we thought
it a proper system, and then it would be our act. Suppose
it had been made by our enemies, or had dropped from the
cloiids ; wt: might adopt it if we found it proper Tor our
adopcion. By whatever means we found it, it would be our
act as soon as we adopted it. It is no more than a blank
till it be adopted by the people. When thnt is done here,
is it not the people of the state of North Carolina that do it,
joiued with the people of the other states who have adopted
it? The expression is, then, right. But the gentleman
has gone farther, and says that the people of New England
are different from us. This goes against the Union alto-
gether. They are not to legislate lor us ; we are to be
represented as well as they. Such a futile objection strikes
at all union. We know that without union we should not
hare been debating now. 1 hope to hear no more objections
of this trifling nature, but that we shall enter into the spirit
of the subject at once.
Mr. CALDWELL observed, that he only wished to
fcttow why they had assumed the name of the people.
Mr. JAMES GALLOWAY. Mr. Chairman, I trust we
shall not take up more time on this point. I shall just make
a few remarks on what has been said by the gentleman from
Halifax. He has gone through our distresses, and those of
the other states. As to the weakness of the Confederation,
we all know it. A sense of this induced the different states
to send delegates to Philadelphia. They had given them
certain powers; we have seen them, they are now upon the
taWe. The result of their deliberations is now upon the
table also. As they have gone out of the line which the
states pointed out to them, we, the people, are to take it up*
and consider it. The gentlemen who framed it have ex-
ceeded their powers, and very far. They will be able,
perhaps, to give reasons for. so doing. If they can show us
ar reasons, we will, no doubt, take notice of them. But,
on the other hand, if our civil and religious liberties are not
«cured, and pMper checks piovided, we hare the p^wer in
VOL. IV. 4 8
iti* DEBATES. [Johnston
our own hands to do with it as we think proper. I hope
gentlemen will permit us to proceed.
The clerk then read the 1st section of the 1st article.
Mr. CALDWELL. Mr. Chairman, I am sorry to be
objecting, but I apprehend that all the legislative powers
granted by this Constitution are not vested in a Congress
consisting of the Senate and the House of Representatives,
because the Vice-President has a right to put a check on it.
This is known to every gentleman in the Convention. How
can all the legislative powers granted in that Constitution be
vested in the Congress, if the Vice-President is to have a vote
in case the Senate is equally divided ? I ask for information,
how it came to be expressed in this manner, when this power
is given to the Vice-President.
Mr. MACLAINE declared, that he did not know what
the gentleman meant.
Mr. CALDWELL said, that the Vice-President is made
a part of the legislative body, although there was an express
declaration, that all the legislative powers were vested in
the Senate and House of Representatives, and that he
would be glad to know how these things consisted together.
Mr. MACLAINE expressed great astonishment at the
gentleman's criticism. He observed, ibat the Vice-Presi-
dent had only a casting vote in case of an equal division in
the Senate — that a provision of this kind was to be found
in all deliberative bodies — that it was highly useful and ex-
pedient — that it was by no means of the nature of a check
which impedes or arrests, but* calculated to prevent the oper-
ation of the government from being impeded — that, if the
gentleman could show any legislative power to be given to
any but the two houses of Congress, his objection would be
worthy of notice.
Some other gentlemen said, they were dissatisfied with
Mr. Machine's explanation — that the Vice-President was
not a member of the Senate, but an officer of the United
States, and yet had a legislative power, and that it appeared
to them inconsistent — that it would have been more proper
to have given the casting vote to the President.
His excellency. Gov. JOHNSTOiN, added to Mr. Mac-
hine's reasoning, that it appeared to him a very good and
proper regulation — that, if one of the Senate was to be ap-
|K)inted Vice-President, the state which he represented would
Maclaine.! north CAROLINA 21
either lose a vote if he was not permitted to vote ou everj^
occasion, or if he was, he might, in some instances, have two
votes — that the President was already possessed of the
power of preventing the passage of a law by a bare majority ;
vet laws were said not to be made by the President, but by
the two houses of Congress exclusively.
Mr. LENOIR. Mr. Chairman, I have a greater objec-
tion on this ground than that which has just been mentioned.
I mean, sir, the legislative power given to the President
himself. It may be admired by some, but not by me. He,
sir, with the Senate, is to make treaties, which are to be the
supreme law of the land. This is a legislative power given
to the President, and implies a contradiction to that part
which says that all legislative power is vested in the two
houses.
Mr. SPAIGHT answered, that it was thought better
to put that power into the hands of the senators as rep-
resentatives of the states — that thereby the interest of
every state was equally attended to in the formation of trea-
ties — but that it was not considered as a legislative act
at all.
Mr. IREDELL. Mr. Chairman, this is an objection
against the inaccuracy of the sentence. I humbly conceive
it will appear accurate on a due attention. After a bill is
passed by both houses, it is to be shown to the President.
Within a certain time, he is to return it. If he disapproves
of it, he is to state his objections in writing ; and it depends
on Congress afterwards to say whether it shall be a law or
Dot. Now, sir, I humbly apprehend that, whether a law
passes by a bare majority, or by two thirds, (which are re-
quired to concur after he shall have stated objections,) what
gives active operation to it is, the will of the senators and
representatives. The President has no power of legislation.
If he does not object, the law passes by a bare majority; and
if he objects, it passes by two thirds. His power extends
only to cause it to be reconsidered, which secures a greater
probability of its being good. As to his power with respect
to treaties, I shall offer my sentiments on it wjien we come
properly to it.
Mr. MACLAINE intimated, that if any gentleman was
out of order,* it was the gentleman from Wilkes (Mr. Le-
Somethinfr Had been said aboot order which was not distinctly heard
2'i DEBATES [BiACLAiNB.
noir) — that treaties were the supreme law of the land in
all countries, for the most obvious reasons — that laws, or
legislative acts, operated upon individuals, but that treaties
acted upon states — that, unless they were the supreme law
of the land, they could have no validity at all — that the
President did not act in this case as a legislator, but rather
in his executive capacity.
Mr. LENOIR replied that he wished to be conformable
to the rules of the house ; but he still thought the President
was possessed of legislative powers, while he could make
treaties, joined with the Senate.
Mr. IREDELL. Mr. Chairman, I think the gentleman
is in order. When treaties are made, they become as valid
as legislative acts. I apprehend that every act of the gov-
ernment, legislative, executive, or Judicial, if in pursuance
of a constitutional power, is the law of the land. These dif-
ferent acts become the acts of the state by the instrumen-
tality of its officers. When, for instance, the governor of
this stale grants a pardon, it becomes the law of the land,
and is valid. Every thing is the law of the land, let it
come from what power it will, provided it be consistent with
the Constitution.
Mr. LENOIR answered, that that comparison did not
hold.
Mr. IREDELL continued. If the governor grants a par-
don, it becomes a law of the land. Why ? Because he has
power to grant pardons by the Constitution. Suppose this
Constitution is adopted, and a treaty made ; that treaty is
the law of the land. Why? Because the Constitution grants
the power of making treaties.
Several members expressed dissatisfaction at the inconsistency (as they
conceived it) of the expressions, when —
Mr. JAMES GALLOWAY observed, that their obser-
vations would be made more properly when they come
TO that clause which gave the casting vote to the Vice-Presi-
dent, and the qualified negative to the Pn^sident.
The first three clauses of the 2d section read.
Mr. MACliAINE. Mr. Chairman, as many objections
have been made to biennial elections, it will be necessary to
obviate them. J beg leave to state their superiority to an-
nual elections. Our elections have been annual for some
years. People are apt to be attached to old customs. An
Maclainb.1 north CAROUNA. 29
Dual elections may be proper in our state governments, but
not in the general government. The seat of government is
at a considerable distance; and in case of a disputed election
it would be so long before it could be settled, that the statt
H^oiild be totally without representation. There is another
Reason, still more cogent, to induce us to prefer biennial to
Annual elections. The objects of stale legislation are narrow
dnd confined, and a short time will render a man sufficiently
acquainted with them ; but those of the general government
are infinitely more extensive, and require a much longer time
to comprehend them. The representatives to the general
government must l>e acquainted not only with the internal
situation and circumstances of the United States, but also
with the state of our commerce with foreign nations, and
our relative situation to those nations. They must know
the relative situation of those nations to one another, and bt
able to judge with which of them, and in what manner, our
commerce should be regulated. These are good reasons to
extend the time of elections to two years. I believe you
remember, — and perharps every member here remembers, —
that this country was very happy under biennial elections.
In North Carolina, the representatives were formerly chosen
by bidlot biennially. It was changed under the royal gov-
ernment, and the mode pointed out by the king. Notwith-
standing the contest for annual elections, perhaps biennial
elections would still be better for this country. Our laws
would certainly be less fluctuating.
Mr. SHEPPERD observed, that he could see no pro-
priety in the friends of the new system making objections,
when none were urged by its opposers; that it was very
uncommon for a man to make objections and answer them
himself; and that it would take an immense time to men-
tion every objection which had been mentioned in the
country.
Mr. MACLAINE. It is determined already by the Con-
vention to debate the Constitution section by section. Are
we then to read it only ? Suppose the whole of it is to be
passed over without saying any thing;- will not that amount
to a dead vote ? Sir, I am a member of this Convention *
and if objections are made here, I will answer them to the
l)est of my ability. If I see gentlemen pass by in silence
snch parts as they vehemently decry out of doors, or such
511 DEBATES. [Davie.
part.s as have l)een loudly complained of in the country, 1
shall answer them also.
After some desultory conversation, Mr. WILLIE JONES
observed, that he would easily put the friends of the Con-
stitution in a way of discussing it. Let one of them, said
he, make objections and another answer them.
Mr. DAVIE. Mr. Chairman, I hope that reflections ot
a personal nature will be avoided as much as possible. What
is there in this business should make us jealous of each
other .'^ We are all come hither to serve one common cause
of one country. Let us go about it openly and amicably.
There is no necessity for the employment of underhanded
means. Let every objection be made. Let us examine the
plan of government submitted to us thoroughly. Let us
deal with each other with candor. I am sorry to see so
much impatience so early in the business.
Mr. SHEPPERD answered, that he spoke only because
he was averse to unnecessary delays, and that he had no
finesse or design at all.
Mr. RUTHERFORD wished the system to be thoroughly
discussed. He hoped that he should be excused in making
a few observations, in the Convention, after the commit-
tee rose, and that he trusted gentlemen would make no
reflections.
Mr. BLOODWORTH declared, that every gentleman
had a right to make objections in both cases, and that he
was sorry to hear reflections made.
Mr. GOUDY. Mr. Chairman, this clause of taxation
will give an advantage to some states over the others. It
will be oppressive to the Southern States. Taxes are equal
to our representation. To augment our taxes, and increase
our burdens, our negroes are to be represented. If a state
has fifty thousand negroes^ she is to send one representative
for them. I wish not to be represented with negroes, espe-
cially if it increases my burdens.
Mr. DAVIE. Mr. Chairman, I will endeavor to obviate
what the gentleman last up said. I wonder to see gentle-
men so precipitate a'nd hasty on a subject of such awful
importance. It ought to be considered, that some of us are
<low of apprehension, or not having those quick conceptions,
and luminous understandings, of which other gentlemen may
ne j)ossessed. The gentleman "does not wish to be repre
Spaight.] north CAROLINA. 31
sented with negroes." This, sir, is an unhappy species of
population; but we cannot at present alter their situation.
The Eastern States had great jealousies on this subject.
They insisted that their cows and horses were equally en-
titled to representation ; that the one was property as well
as the other. It became our duty, on the other hand, to
acquire as much weight as possible in the legislation of the
Union ; and, as the Northern States were more populous in
wrhites, this only could be done by insisting that a certain
proportion of our slaves should make a part of the computed
population. It was attempted to form a rule of representa-
tion from a compound ratio of wealth and population ; but,
on consideration, it was f^und impracticable to determine
the comparative value of lands, and other property, in so ex-
tensive a territory, with any degree of accuracy ; and popu-
lation alone was adopted as the only practicable rule or
criterion of representation. It was urged by the deputies
of the Eastern States, that a representation of two fifths
would be of little utility, and that their entire representation
would be unequal and burdensome — that, in a time of war,
slaves rendered a country more vulnerable, while its defence
devolved upon its free inhabitants. On the other hand, we
insisted that, in time of peace, they contributed, by their
lalx)r, to the general wealth, as well as other members of the
community — that, as rational beings, they had a right of
representation, and, in some instances, might be highly use-
ful in war. On these principles the Eastern States gave the
matter up, and consented to the regulation as it has been
read. I hope these reasons will appear satisfactory. It is
the same rule or principle which was proposed some yeafs
ago by Congress, and assented to by twelve of the states.
It may wound the delicacy of the gentleman from Guilford,
(Mr. Goudy,) but I hope he will endeavor to accommodate
his feelings to the interest and circumstances of his country.
Mr. JAMES GALLOWAY said, that he did not object
to the representation of negroes, so much as he did to the
fewness of the number of representatives. He was surprised
how we came to have but five, including those intended to
represent negroes. That, in his humble opinion. North
Carolina was entitled to that number independent of the
^eg^oe^.
Mr. SPAIGHT endeavored to satisfy him, that the Con-
SZ DEBATES. [Iredell.
vention had no rule to go hy in this case — that they could
not proceed upon the ratio mentioned in the Constitution
till the enumeration of the people was made — that some
states had made a return to Congress of their numbers, and
others had not — that it was mentioned that we had had
time, but made no return — that the present number was
only temporary — that in three years the actual census would
l>e taken, and our number of representatives regulated ac-
cordingly.
His excellency. Gov. JOHNSTON, was perfectly satis-
fied with the temporary number. He said that it could
not militate against the people of North Carolina, because
they paid in proportion; that no great inconvenience could
happen, in three years, from their paying less than their full
projX)rtion ; that they were not very flush of money, and that
he hoped for better times in the course of three years.
The rest of the 2d section read.
Mr. JOSEPH TAYLOR objected to the provision made
for impeaching. He urged that there could be no security
from it, as the persons accused were triable by the Senate,
who were a part of the legislature themselves ; that, while
men were fallible, the senators were liable to errors, especially
in a case where they were concerned themselves.
Mr. IREDELL. Mr. Chairman, I was going to observe
that this clause, vesting the power of impeachment in the
House of Representatives, is one of the greatest securities
for a due execution of all public offices. Every government
requires it. Every man ought to be amenable for his con-
duct, and there are no persons so proper to complain of the
public officers as the representatives of the people at large.
The representatives of the people know the feelings of the
people at large, and will be ready enough to make com-
plaints. If this power were not provided, the consequences
might be fatal. It will be not only the means of punishing
misconduct, but it will prevent misconduct. A man in pub-
lic office who knows that there is no tribunal to punish him,
may be ready to deviate from his duty ; but if he knows
there is a tribunal for that purpose, although he may be a
man of no principle, the very terror of punishment will per-
haps deter him. I beg leave to mention that every man has
a right to express his opinion, and point out any part of the
Constitution which he either thinks defective, or has heard
JoawsToif.l NORTH CAROLINA. 33
represented to be so. What will be the consequence if they
who have objections do not think proper to commuQicato
ihem, and they are not to be mentioned by others ? Many
gentlemen have read many objections, which perhaps have
made impressions on their minds, though they are not com-
municated to us. I therefore apprehend that the member
was perfectly regular in mentioning the objections made out
of doors. Such objections may operate upon the minds of
gentlemen, who, not being used to convey their ideas in
public, conceal them out of diffidence.
Mr. BLOODWORTH wished to be informed, whether
this sole power of impeachment, given to the House of Rep-
resentatives, deprived the state of the power of impeaching
any of its members.
Mr. SPAIGHT answered, that this impeachment ex-
tended only to the officers of the United States — that it
would be improper if the same body that impeached had
the power of trying — that, therefore, the Constitution had
wisely given the power of impeachment to the House of
Representatives, and that of try'mg impeachments to the
Senate.
Mr. JOSEPH TAYLOR. Mr. Chairman, the objection
is very strong. If there be but one body to try, where are
we ? If any tyranny or oppression should arise, how are
those who perpetrated such oppression to be tried and pun-
ished ? By a tribunal consisting of the very men who assist
ia such tyranny. Can any tribunal be found, in any com-
munity, who will give judgment against their own actions?
is it the nature of man to decide against himself ? I am
obliged to the worthy member from New Hanover for assist-
mg me with objections. None can impeach but the repre-
sentatives ; and the impeachments are to be determined by
the senators, who are one of the branches of |K)wer which
We dread und(*r this Constitution.
His excellency. Gov. JOHNSTON. Mr. Chairman, the
worthy member from Granville surprises me by his objection.
It h:is been explained by another member, that only officers
of the United States were impeachable. I never knew any
itistance of a man being impeached for a legislative act ; nay,
1 never heard it suggested before. No member of the House
3f Commons, in England, has ever been impeached before
the Lords^ nor any lord, for a legislative mlsdemeaoor. A
VOL. IV. 6
S4 DEBATES. [Maclaine
representative is answerable to no power but his constituents.
He is accountable to no being under heaven but the people
who appointed him.
. Mr. TAYLOR replied, that it now appeared to him in a
still worse light than before.
Mr. BLOOD WORTH observed, that as this was a Con-
stitution for the United States, he should not have made the
observation he did, had the subject not been particularly
mentioned — that the words "sole power of impeachment"
were so general, and mie;ht admit of such a latitude of con-
struction, as to extend to every legislative member upon the
continent, so as to preclude the representatives of the dif-
ferent states from impeaching.
Mr. MACLAINE. Mr. Chairman, if I understand the
gentleman rightly, he means that Congress may impeach all
the people or officers of the United States. If the gentle-
man will attend, he will see that this is a government for
confederated states ; that, consequently, it can never inter-
meddle where no power is given. I confess I can see no more
reason to fear in this case than from our own General As-
sembly. A power is given to our own state Senate to try
impeachments. Is it not mjcessary to point out some tribu-
nal to try great offences ? Should there not be some mode
of punishment for the offences of the officers of the general
government ? Is it not necessary that such officers should
be kept within proper bounds? The officers of the United
States are excluded from offices of honor, trust, or profit,
under the United States, on impeachment for, and convic-
tion of, high crimes and misdemeanors. This is certainly
necessary. This exclusion from offices is harmless in com-
parison with the regulation made, in similar cases, in our own
government. Here it is expressly provided how far the
punishment shall extend, and that it shall extend no farther.
On the contrary, the limits are not marked in our own Con-
stitution, and the punishment may be extended too far. I
believe it is a certain and known fact, that members of the
legislative body are never, as such, liable to impeachment,
but are punishable by law for crimes and misdemeanors in
their personal capacity. For instance ; the members of As-
sembly are not liable to impeachment, but, like other people,
are amenable to the law for crimes and misdemeanors com-
nntted as individuals. But in Congress, a member of either
house can be no officer.
liiDELL.] NORTH CAROLINA. So
Gov. JOHNSTON, Mr. Chairman, I find that making
objections is useful. I never thought of the objection made
bv the member from New Hanover. I never thought that
impeachments extended to any but officers of the United
States. When you look at the judgment to be given on im-
peachments, you will see that the punishment goes no far-
ther than to remove and disqualify civil officers of the United
States, who shall, on impeachment, be convicted of high
misdemeanors. Removal from office is the punishment —
to which is added future disqualification. How could a man
be removed from office who had no office ? An officer of
this state is not liable to the United States. Congress could
not disqualify an officer of this state. No body can dis-
qualify, but that body which creates. We have nothing to
apprehend from that article. We are perfectly secure as to
this point. I should laugh at any judgment they should give
against any officer of our own.
Mr. BLOOD WORTH. From the complexion of the
paragraph it appeared to me to be applicable only to officers
of the United States; but the gentleman's own reasoning
convinces me that he is wrong. He says he would laugh at
them. Will the gentleman laugh when the extension of
their powers takes place ? It is only by our adoption they can
have any power.
Mr. IREDELL. Mr. Chairman, the argument of the
gentleman last up is founded upon misapprehension. Every
article refers to its particular object. We must judge of ex-
pressions from the subject matter concerning which they are
used. The sole power of impeachment extends only to
objects of the Constitution. The Senate shall only try im-
peachments arising under the Constitution. In order to
confirm and illustrate that position, the gentleman who spoke
before explained it in a manner perfectly satisfactory to my
apprehension — "under this Constitution." What is^he
meaninjr of these words? They signify those arising under
the government of the United States. When this govern-
ment is adopted, there will be two governments to which we
shall owe obedience. To the government of the Union, in
cprt:iin defined cases — to our own state government in every
other case. If the general government were to disqualify
nie from any office which I held in North Carolina under its
'aws, [ wc aid refer to the Constitution, and say that they
36 DEBATES. ' [SpAiiiHT
violated it, as it only extended to officers of the United
States.
Mr, JJLOODWORTH. The penalty is only removal
from office. It does not mention from what office. 1 do
not see any thing in the expression that convinces me tha^
1 was mistaken. I still consider it in the same light.
Mr. PORTER wished to be informed, if every officer,
who was a creature of that Constitution, was to be tried by
the Senate — whether such officers, and those who had com-
plaints against them, were to go from the extreme parts
of the continent to the seat of government, to adjust dis-
putes.
Mr. DAVIE answered, that impeachments were confmed
to cases under the Constitution, but did not descend to petty
offices ; that if the gentleman meant that it would be trouble-
some and inconvenient to recur to the federal courts in case
of oppressions by officers, and to carry witnesses such great
distances, he would satisfy the gentleman, that Congress
would remove such inconveniences, as they had the power
of appointing inferior tribunals, where such disputes would
be tried.
Mr. J. TAYLOR. Mr. Chairman, I conceive that, if
this Constitution be adopted, we shall have a large number
of officers in North Carolina under the appointment of Con-
gress. We shall undoubtedly, for instance, have a great
number of tax-gatherers. If any of these, officers shall do
wrong, when we come to fundamental principles, we find
that we have no way to punish them but by going to Con-
gress, at an immense distance, whither we must carry our
witnesses. Every gentleman must see, in these cases, that
oppressions will arise. I conceive that they cannot be tried
elsewhere. I consider that the Constitution will be ex-
plained by the word " sole." If they did not mean to retain
a general power of impeaching, there was no occasion for
saying the " sole power." I consider therefore that oppres-
sions will arise. If I am oppressed, I must go to the House
of Representatives to complain. I consider that, when man-
kind are about to part with rights, they ought only to part
with those rights which they can with convenience relin-
quish, and not such as must involve them in distresses.
In answer to Mr. Taylor, Mr. SPAIGHT observed that,
though the power of impeachment was given, yet it did noi
IMDELL.J NORTH CAROLLNA. 37
say that there was no other manner of giving redress — thai
it was very certain and clear that, if any man was injured
by an officer of the United States, he could get redress by a
suit at law.
Mr. MACLAINE. Mr. Chairman, I confess I never heard
before that a tax-gatherer was worthy of impeachment. It
is one of the meanest and least offices. Impeachments are
only for high crimes and misdemeanors. If any one is in-
jured in his person or property, he can get redress by
a suit at law. Why does the gentleman talk in this man-
ner ? It shows what wretched shifts gentlemen are driven
to. I never heard, in my life, of such a silly objection.
A poor, insignificant, petty officer amenable to impeach-
ment!
Mr. IREDELL. Mr. Chairman, the objection would be
right if there was no other mode of punishing. But it is
evident that an officer may be tried by a court of common
law. He may be tried in such a court for common-law
offences, whether impeached or not. As it is to be presumed
that inferior tribunals will be constituted, there will be no
occasion for going always to the Supreme Court, even in
cases where the federal courts have exclusive jurisdiction.
Where this exclusive cognizance is not given them, redress
mav be had in the common-law courts in the state : and I
have no doubt such regulations will be made as will put it
out of the power of officers to distress the people with
impunity.
Gov. JOHNSTON observed, that men who were in very
high offices could not be come at by the ordinary course of
justice ; but when called before this high tribunal and con-
victed, they would be stripped of their dignity, and reduced
to the rank of iheir fellow-citizens, and then the courts of
common law might proceed against them.
Friday, Jiu/y 25, UW
The Convention met according to adjournment.
Mr. BATTLE in the chair. 1st article of the 3d sec-
tion read.
Mr. CABARRUS wished to be informed of the reason
why the senators were to be elected for so long a time.
Mr. IREDELL. Mr. Chairman, I have waited for some
time in hopes that a gentleman better qualified than myself
4
i5i DEBATES. [Iredell
would explain this part. Every objection to every part
of this Constitution ought to be answered as fully as pos-
sible.
I believe, sir, it was the general sense of all America,
with the exception only of one state, in forming their own
state constitutions, that the legislative body should he divid-
ed into two branches, in order that the people might have
a double security. It will often happen that, in a single
body, a bare majority will carry exceptionable and pernicious
measures. The violent faction of a party may often form
such a majority in a single body, and by that means the
particular views or interests of a part of the community may
be consulted, and those of the rest neglected or injured. Is
there a single gentleman in this Convention, who has been
a member of the legislature, who has not found the minority
in the most important questions to be often right ? Is there
a man here, who has been in either house, who has not at
some times found the most solid advantages from the coop-
eration or opposition of the other ? If a ineasure be right,
which has been approved of by one branch, the other will
probably confirm it ; if it be wrong, it is fortunate that there
is another branch to oppose or amend it. These principles
probably formed one reason for the institution of a Senate,
in the form of government before us. Another arose from
the peculiar nature of that government, as connected with
the government of the particular states.
The general government will have the protection and
management of the general interests of the United States.
The local and particular interests of the different states are
left to their respective legislatures. All affairs which con-
cerA this state only an? to be determined by our represent-
atives coming from all parts of the state ; all affairs which
concern the Union at large are to be determined by repre-
sentatives coming from all parts of the Union. Thus, then,
the general government is to be taken care of, and the state
governments to be preserved. The former is done by a nu-
merous representation of the people of each state, in propor-
tion to its importance% The latter is effected by giving each
state an equal representation in the Senate. The people
will be represented in one house, the state legislatures in the
other.
Many are of the opinion that the power of the Senate is
Iredell.] NORTH CAROLINA. 3^
too great ; but I cannot think so, considering the great weight
which the House of Representatives will have. Several rea-
sons may be assigned for this. The House of Representatives
will be more numerous than the Senate. They will represent
the immediate interests of the people. They will originate
all money bills, which is one of the greatest securities in any
republican government. The respectability of their constitu-
ents, who are the free citizens of America, will add great
weight to the representatives ; for a power derived from the
people is the source of all real honor, and a demonstration
of confidence which a man of any feeling would be more
ambitious to possess, than any other honor or any emolument
whatever. There is, therefore, always a danger of such a
house becoming too powerful, and it is necessary to counter-
act its influence by giving great weight and authority to the
other. I am warranted by well-known facts in my opinion
that the representatives of the people at large will have more
weight than we should be induced to believe from a slight
consideration.
The British government furnishes a very remarkable in-
stance to my present purpose. In that country, sir, is a
king, who is hereditary — a man, who is not chosen for his
abilities, but who, though he may be without principles or
abilities, is by birth their sovereign, and may impart the vices
of his character to the government. His influence and
)ower are so great, that the people would bear a great deal
)efore they would attempt to resist his authority. He is
one coniplete branch of the legislature — may make as many
peers as he pleases, who are immediately members of another
branch ; he has the disposal of almost all offices in the king-
dom, commands the army and navy, is head of the church,
and has the means of corrupting a large proportion of the
representatives of the people, who form the third branch of
the legislature. The House of Peers, which forms the
second branch, is composed of members who are hereditary,
and, except as to money bills, (which they are not allowed
either to originate or alter,) hath equal authority with the
other house. The members of the House of Commons, who
are considered to represent the people, are elected for seven
years, and they are chosen by a small proportion of the peo-
ple, and, I believe I may say, a large majority of them by
actual corruption. Under these circumstances, one would
40 DEBATES. [Ikedgll
suppose their influence, compared to that of the king and the
lords, was very inconsiderable. But the fact is, that they have,
by degrees, increased their power to an astonishing degree,
and, when they think proper to exert it, can command
almost any thing they please. This great power they enjoy,
by having the name of representatives of the people, and the
exclusive right of originating money bills. What authority,
then, will our representatives not |)ossess, who will really
represent the people, and equally have the right of originat-
ing money bills ?
The manner in which our Senate is to be chosen gives us an
additional security. Our senators will not be chosen by a
king, nor tainted by his influence. They are to be chosen
by different legislatures in the Union. Each is to choose
two. It is to be supposed that, in the exercise of this power,
the utmost prudence and circumspection will be observed.
We may presume that they will select two of the most
respectable men in the state, two men who had given the
strongest proofs of attachment to the interests of their country.
The senators are not to hold estates for life in the legisla-
ture, nor to transmit them to their children. Their families,
friends, and estates, will be pledges for their fidelity to their
country. Holding no office under the United States, they
will be under no temptation of that kind to forget the
interest of their constituents. There is every probability
that men elected in this manner will, in general, do their
duty faithfully. It may be expected, therefore, that they
will cooperate in every laudable act, but strenuously resist
those of a contrary nature. To do this to effect, their sta-
tion must have some permanency annexed to it.
As the representatives of the people may probably be more
popular, and it may l)e sometimes necessary for the Senate
to prevent factious measures taking place, which may be
highly injurious to the real interests of the public, the Senate
should not be at the mercy of every popular clamor. Men
engaged in arduous affairs are often obliged to do things
which may, for the present, be disapproved of, for want of
. full information of the case, which it is not in every man's
\ power immediately to obtain. In the mean time, every one
is eager to judge, and many to condemn ; and thus many
an action is for a time unpopular, the true policy and justice
of which afterwards very plainly appear. These observa-
Ibedell-I north CAROLINA. 41
fions apply even to acts of legislation concerning domestic
policy : they apply much more forcibly to the case of foreign
negotiations, which will form one part oi the business of the
Senate. I hope we shall not be involved in the labyrinths
of foreign politics. But it is necessary for us to watch th^
conduct of European powers, that we may be on our defence
and ready in case of an attack. All these things will re-
quire a continued attention ; and, in order to know whether
they were transacted rightly or not, it must take up a con-
siderable time.
A certain permanency in office is, in my opinion, useful
for another reason. Nothing is more unfortunate for a na-
tion than to have its affairs conducted in an irregular man-
ner. Consistency and stability are necessary to render the
laws of any society convenient for the people. If they were
to be entirely conducted by men liable to be called away
soon, we might be deprived, in a great measure, of their
utility ; their measures might be abandoned before they were
fully executed, and others, of a less beneficial tendency, sub-
stituted in their stead. The public also would be deprived
of that experience which adds so much weight to the great-
est abilities.
The business of a senator will require a great deal of
knowledge, and more extensive information than can be
acquired in a short time. This can be made evident by
facts well known. I doubt not the gentlemen of this house,
who have been members of Congress, will acknowledge that
they have known several instances of men who were mem-
bers of Congress, and were there many months before they
knew how to act, for want of information of the real state
of the Union. The acquisition of full information of this
kind must employ a great deal of time; since a general
knowledge of the affairs of all the states, and of the relative
situation of foreign nations, would be indispensable. Re
sponsibility, also, would be lessened by a short duration ; for
many useful measures require a good deal of time, and con-
tinued operations, and no man should be answerable for the
ill success of a scheme which was taken out of his hands by
others.
For these reasons, I hope it will appear that six years are
not too long a duration for the Senate. I hope, also, it will
he thought that, so far from being injurious to the liberties
VOL. IV. 6
4J; DEBATES. [Datib
and interest of the public, it will form a i additional securit}'
to K)ih, especially when the next clause is taken up, hy
which we shall see that one third of the Senate is to go out
every second year, and two thirds must concur in the most
important cases ; so that, if there be only one honest man
among the two thirds that remain, added to the one third
which has recently come in, this will be sufficient to prevent
the rights of the })eople being sacrificed to any unjust ambi-
tion of that body.
I was in hopes some other gentleman would have ex-
plained this paragraph, because it introduces an entire change
m our system ; and every change ought to be founded on good
reasons, and those reasons made plain to the people. Had
my abilities been greater, I should have answered the oljjec-
tion better. I have, however, done it in the best manner in
my power, and I hope the reasons I have assigned will be
satisfactorv to the committee.
Mr. MACLAINE. Mr. Chairman, a gentleman yester-
day made some objections to the power of the Vice-Presi-
dent, and insisted that he was possessed of le«iislative powers;
that, in case of equality of voice in the Senate, he had the
deciding vote, and that of course he, and not the Senate
legislated. I confess I was struck with astonishment at such
an objection, especially as it came from a gentleman of
character. As far as my understanding goes, the Vice-Presi-
dent is to have no acting part in the Senate, but a mere
casting vote. In every other instance, he is merely to pre-
side in the Senate in order to regulate their deliberations.
I think there is no danger to be apprehended from him in
particular, as he is to be chosen in the same manner with
the President, and therefore may be presumed to possess a
great share of the confidence of all the states. He has been
called a useless officer. I think him very useful, and I think
the objection very triffing. It shows the uniform opposi-
tion gentlemen are determined to make. It is very easy to
cavil at the finest government that ever existed.
Mr. DAVIE. Mr. Chairman, I will state to the commit-
tee the reasons upon which this officer was introduced. I
had the honor to observe to the committee, before, the causes
of the particular formation of the Senate — that it was owing,
with other reasons, to the jealousy of the states, and, par-
ncularly, to the extreme jealousy of the lesser states of the
s
\
Maclainb.] north CAROLINA. 45
jKiWer and influence of the larger members of the con-
federacy. It was in the Senate that the several political
interests of the states were to be preserved, and where all
their powers were to be perfectly balanced. The com-
mercial jealousy between the Eastern and Southern States
had a principal share in this business. It might happen, ir.
important cases, that the voices would be equally divided
Indecision might be dangerous and inconvenient to the pub-
lic. It would then be necessary to have some person who
should determine the question as impartially as possible.
Had the Vice-President been taken from the representation
of any of the states, the vote of that state would have been
under local influence in the second. It is true he must be ^
chosen from some state ; but, from the nature of his election
and oflice, he represents no one state in particular, but all
the states. It is impossible that any officer could be chosen ^'
more impartially. He is, in consequence of his election, the
creature of no particular district or state, but the offic(!r and
representative of the Union. He must possess the con-
fidence of the states in a very great degree, and consequent- ^
ly be the most proper person to decide in cases of this kind.
These, I believe, are the principles upon which the Conven-
tion formed this officer.
6th clause of the 3d section read.
Mr. JAMES GALLOWAY wished gentlemen to ofler
their objections. That they must have made objections to
it, and that they ought to mention them here.
Mr. JOHN BLOUNT said, that the sole power of im-
peachment had been objected to yesterday, and that it was
urged, officers were to be carried from the farthest parts of
the states to the seat of government. He wished to know if
gentlemen were satisfied.
Mr. MACLAINE. Mr Chairman, I have no inclination
to get up a second time, h\ t some gentlemen think this sub-
ject ought to be taken notice of. I recollect it was men-
tioned by one gentleman, that petty officers might be im-
peached. It appears to me, sir, to be the most horrid
ignorance to suppose that every officer, however trifling his
office, is to be impeached for every petty offence ; and that
every man, who should be injured by such petty officers,
could get no redress but by this mode of impeachment, at
the seat of government, at the distance of several hundred
44 DEBATES. [Maclaine.
miles, whither he would lie obliged to summon a great num-
l)er of witnesses. I hope every gentleman in this commit-
tee must see plainly that imjieachments cannot extend to
inferior officers of the United States. Such a construction
cannot be supported without a departure from the usual and
well-known practice both in England and America. But
this clause empowers the House of Representatives, which is
the grand inquest of the Union at large, to bring great
offenders to justice. It will lie a kind of state trial for high
crimes and misdemeanors. I rememl)er it was objected
yesterday, that the House of Representatives had the sole
power of impeachment. The word " sole " was supposed
to be so extensive as to include impeachable offences against
particular states. Now, for my part, I can see no impro-
priety in the expression. The Word relates to the general
objects of the Union. It can only refer to offences against
the United States ; nor can it be tortured so as to have any
other meaning, without a perversion of the usual meaning
of language. The House of Representatives is to have the
sole power of impeachment, and the Senate the sole power
of trying. And here is a valuable provision, not to be found
in other governments.
In England, the Lords, who try impeachments, declare
solemnly, upon honor, whether the persons impeached be
guilty or not. But here the senators are on oath. This is
a very happy security. It is further provided, that, when
the President is tried, (for he is also liable to be impeached,)
the chief justice shall preside in the Senate ; because it
might be supposed that the Vice-President might be con-
nected, together with the President, in the same crime, and
would therefore be an improper person to judge him. It
would be improper for another reason. On the removal ol
the President from office, it devolves on the Vice-President.
This being the case, if the Vice-President should be judge,
might he not look at the office of President, and endeavor to
influence the Senate against him ? This is a most excellent
caution. It has been objected by some, that the President
is in no danger from a trial by the Senate, because he does
nothing without its concurrence. It is true, he is expressly
restricted not to make treaties without the concurrence of
two thirds of the senators present, nor ap[x)int officers with-
out the concurrence of the Senate, (not requiring two ^irds.'i
Taflor.] north CAROLLNA. 46
The concurrence of all the senators, however, is not re-
quired in either of those cases. They may be all present
when he is impeached, and other senators in the mean timt-
introduced The chief justice, we ought to presume, would
not countenance a collusion. One dissenting person might
divulge their misbehavior. Besides, he is impeachable for
his own misdemeanors, and as to their concurrence with him,
it niight be effected by misrepresentations of his own, in
which case they would be innocent, though he be guilty. I
think, therefore, the Senate a very proper body to try him.
Notwithstanding the mode pointed out for impeaching and
trying, there is not a single officer but may be tried and
indicted at common law ; for it is provided, that a judgment,
in cases of impeachment, shall not extend farther than to
removal from office, and disqualification to hold and enjoy
any office of honor, trust, or profit, under the United States;
but the party convicted shall, nevertheless, be liable and
subject to indictment, trial, judgment, and punishment, ac*
cording to law. Thus you find that no offender can escape
the danger of punishment. Officers, however, cannot be
oppressed by an unjust decision of a bare majority ; for it
further provides, that no person shall be convicted without
the concurrence of two thirds of the members present; so
that those gentlemen who formed this government have been
particularly careful to distribute every part of it as equally
as possible. As the government is solely instituted for the
United States, so the power of impeachment only extends
to officers of the United States. The gentleman who is so
much afraid of impeachment by the federal legislature, is
totally mistaken in his principles.
Mr. J. TAYLOR. Mr. Chairman, my apprehension is,
that this clause is connected with the other, which gives the
sole power of impeachment, and is very dangerous. When
I was ofTering an objection to this part, I observed that it
was supposed by some, that no impeachments could l)e pre-
ferred but by the House of Representatives. I concluded
that perhaps the collectors of the United States, or gatherers
of taxes, might impose on individuals in this country, and
that these individuals might think it too great a distance to
go to the se.it of federal government to get redress, and would
therefore be injured with impunity. I observed that there
were some gentlemen, whose abilities are great, who con-
46 DEBATES. [Maclaink.
strue it in a difierent manner. They ought to be kind
enough lo carry their construction not to the mere letter, hut
to the meaning. I observe, that, when these great men are
met in Congress, in consequence of this power, they will
have the power of appointing all the officers of the United
States. My experience in life shows me that the friends of
the members of the legislature will get the offices. These
senators and members of the House of Representatives will
appoint their friends to all offices. These officers will be
great men, and they will have numerous deputies under
them. The receiver-general of the taxes of North Carolina
must be one of the greatest men in the country. Will he
come to me for his taxes ? No. He will send his deputy,
who will have special instructions to oppress me. How am
I to be redressed ? I shall be told that I must go to Con-
gress, to get him impeached. This being the case, whom
am I to impeach ? A friend of the representatives of North
Carolina. For, unhappily for us, these men will have too
much weight for us ; they will have friends in the govern-
ment who will be inclined against us, and thus we may be
oppressed with impunity.
I was sorry yesterday to hear personal observations drop
from a gentleman in this house. If we are not of equal
ability with the gentleman, he ought to possess charity to-
wards us, and not lavish such severe reflections upon us in
such a declamatory manner.
These are considerations I offer to the house. These op-
pressions may be committed by these officers. I can see no
mode of redress. If there be any, let it be pointed out.
As to personal aspersions, with respect to me, I despise them.
Let him convince me by reasoning, but not fall on detraction
or declamation.
Mr. MACLAINE. Mr. Chairman, if I made use of any
asperity to that gentleman yesterday, I confess I am sorry for
it. It was because such an observation came from a gentle-
man of his profession. Had it come from any other gentle-
man in this Convention, who is not of his profession, I
should not be surprised. But I was surprised that it should
come from a gentleman of the law, who must know the con-
trary perfectly well. If his memory had failed him, he mij^ht
have known by consulting his library. His l)ooks would
have told him that no petty officer was ever impeachable
Maclainb.] north CAROLINA. 47
tVhen such trivial, ill-founded objections were advanced, by
persons who ought to know better, was it not sufficient to ir-
ritate those who were determined to decide the question by
a regular and candid discussion ?
Wliether or not there will be a receiver-general in North
Carolina, if we adopt the Constitution, I cannot take upon
uiyself to say. I cannot say how Congress will collect their
money. It will depend upon laws hereafter to be made.
These laws will extend to other states as well as to us.
Should there be a receiver-general in North Carolina, he
certainly will not be authorized to oppress the people. His
deputies can have no power that he could not have himself.
As all collectors and other officers will he bound to act ac-
bording to law, and will, in all probability, be obliged to give
security for iheir conduct, we may expect they will not dare
to oppress. The gentleman has thought proper to lay it
down as a principle, that these receivers-general will give
special orders to their deputies to oppress the people. The
President is the superior officer, who is to see the laws put
in execution. He is amenable for any maladministration in
his office. Were it possible to suppose that the President
should give wrong instructions to his deputies, whereby the
citizens would be distressed, they would have redress in the
ordinary courts of common law. But, says he, parties in-
jured must go to the seat of government of the United States,
and get redress there. I do not think it will be necessary
to go to the seat of the general government for that purpose.
No persons will be obliged to attend there, but on extraordi-
nary occasions; for Congress will form regulations so as to
render it unnecessary for the inhabitants to go thither, but
on such occasions.
My reasons for this conclusion are these : I look upon it
as the interest of all the people of America, except those in
the vicinity of the seat of government, to make laws as easy
as [X)ssible for the people, with respect to local attendance.
Tlioy will not agree to drag their citizens unnecessarily six
or seven hundred miles from their homes. This would be
equally inconvenient to all except those in the vicinity ol*
the seat of government, and therefore will be prevented
But, says the gentleman from Granville, what redress have
we when we <jo to that place ? These great officers will be
the friends of the representatives of North Carolina. It is
i8 DEBATES. [Maclains.
possible they may, or they may not. They have the power
to appoint officers for each state from what place they please.
It is probable they will appoint them out of the state in
which they are to act. I will, however, admit, for the sake
of argument, that those federal officers who will be guilty
of misdemeanors in this state will be near relations of the
representatives and senators of North Carolina. What then ?
Are they to be tried by them only ? Will they be the near
friends of the senators and representatives of the other stait s ?
If not, his objection goes for nothing. I do not understand
what he says about detraction and declamation. My char-
acter is well known. I am no declaimer ; but when 1 see a
gentleman, ever so respectable, betraying his trust to the
public, I will publish it loudly ; and I say this is not detrac*
tion or declamation.
Gov. JOHNSTON. Mr. Chairman, impeachment is very
different in its nature from what the learned gentleman from
Granville supposes it to be. If an officer commits an offence
against an individual, he is amenable to the courts of law.
If he commits crimes against the state, he may be indicted
and punished. Impeachment only extends to high crimes
and misdemeanors in a public office. It is a mode of trial
pointed out for great misdemeanors against the public. But
I think neither that gentleman nor any other person need
be afraid that officers who commit oppressions will pass with
impunity. It is not to be apprehended that such officers
will be tried by their cousins and friends. Such cannot be
on the jury at the trial of the cause ; it being a principle of
law that no person interested in a cause, or who is a rela-
tion of the party, can be a juror in it. This is the light in
which it strikes me. Therefore the objection of the gentle-
man from Granville must necessarily fall to the ground on
that principle.
Mr. MACLAINE. Mr. Chairman, I must obviate some
objections which have been made. It was said, by way of
argument, that they could impeach and remove any officer,
whether of the United States or any particular state. This
was suggested by the gentleman from New Hanover. Noth-
ing appears to me more unnatural than such a construction.
The Constitution says, in one place, that the House of Rep-
resentatives shall have the sole power of impeachment. In
the clauses under debate, it provides that the Senate shal
MiCLAiwB.] NORTH CAROLINA. 49
have the sole power to try all impeachments, and then sub-
joins, that judgment, in cases of impeachment, shall not
extend further than to removal from office, and disqualifi
cation to hold and enjoy any office of honor, trust, or profit,
under the United States. And in the 4th section of the 2(1
article, it says that the President, Vice-President, and all
civil officers of the United States, shall be removed from of-
fice on i.npeachment for, and conviction of, treason, bribery,
or other high crimes and misdemeanors.
Now, sir, what can be more clear and pbvious than this ?
The several clauses relate to the same suhject, and ou^ht to
be considered together. If considered separately and un-
connectedly, the meaning is still clear. They relate to the
government of the Union altogether. Judgment on im-
peachment only extends to removal from office, and future
disqualification to hold offices tinder the United States. Can
those be removed from offices, and disqualified to hold offices
under the United States, who actually held no office undiT
the United States ? The 4th section of the 2d article pro-
vides expressly for the removal of the President, Vice-Pres-
ident, and all civil officers of the United States, on impeach-
ment and conviction. Does not this clearly prove that none
but officers of the United States are impeachable ? Had
any other been impeachable, why was not provision made
for the case of their conviction ? Why not point out the
punishment in one case as well as in others ? I heg leave
to observe, that this is a Constitution which is not made
with any ref(5rence to the government of any particular state,
or to officers of particular states, but to the government of
the United States at large.
We must suppose th it every officer here spoken of must
be an officer of the United States. The words discover
the meaning as plainly as possible. The sentence which
provides that "judgment, in cases of impeachment, shall
not extend further than to removal from office," is joined by
H conjunction copulative to the other sentence, — "and dis-
qualification to hold and enjoy any office of honor, trust, or
profit, under the United States," — which incontrovertibly
proves that officers of the United States only are referred to.
No other grammatical construction can be put upon it.
But there is no necessity to refer to grammatical construc-
tions, since the whole plainly refers to the government oi
VOL. IV. 7 5
50 DEBATES. [Spbncsb.
the United Stales at large. The general government can-
not intermeddle with the internal affairs of the state govern-
ments. They are in no danger from it. It has been urged
that it h:is a tendency to a consolidation. On the contrary, it
appears that the state legislatures must exist in full force,
otherv/ise the general government cannot exist itself. A
consolidated government would never secure the happiness
of the people of this country. It would be the interest of
the people of the United States to keep the general and in-
dividual governments as separate and distinct as possible.
Mr. BLOOD WORTH. Mr. Chairman, I confess I am
obliged to the honorable gentleman for his construction.
Were he to go to Congress, he might put that construction
on the Constitution. But no one can say what construction
Congress will put upon it. I do not distrust him, but I
distrust them. I wish to leave no dangerous latitude of
construction.
The 1st clause of the 4th section read.
Mr. SPENCER. Mr. Chairman, it appears to me that
chis clause, giving this control over the time, place, and
manner, of holding elections, to Congress, does away the
right of the people to choose the representatives every sec-
ond year, and impairs the right of the state legislatures to
choose the senators. I wish this matter to be explained.
Gov. JOHNSTON. Mr. Chuirman, I confess that I am
a very great admirer of the new Constitution, but I cannot
comprehend the reason of this part. The reason urged is,
that every government ought to have the power of continu-
ing itself, and that, if the general government had not this
power, the state legislatures might neglect to regulate elec-
tions, whereby the government might be discontinued. As
long as the state legislatures have it in their power not to
choose the senators, this power in Congress appears to me
altogether useless, because they can put an end to the gen-
cTal government by refusing to choose senators. But I do
not consider this such a blemish in the Constitution as that
it ought, for that reason, to be rejected. I observe that ev-'
cry state which has adopted the Constitution, and recom-
mended amendments, has given directions to remove this
objection ; and I hope, if this state adopts it, she will do
th(» same.
Mr. SPENCER. Mr. Chairman, it is with great relnc-
dpBNCER.] NORTH CAROLINA. 61
tance that I rise upon this important occasion. I have con-
sidered with some attention the subject before us. I have
paid attention to the Constitution itself, and to the writings
on both sides. I considered it on one side as well as on the
other, in order to know whether it would be best to adopi
it or not. I would not wish to insinuate any reflections on
those gentlemen who formed' it. I look upon it as a great
performance. It has a great deal of merit in it, and it is,
perhaps, as much as any set of men could have done. Even
if it be true, what gentlemen have observed, that the gen-
tlemen who were delegates to the Federal Convention were
not instructed to form a new constitution, but to amend the
Confederation, this will be immaterial, if it be proper to
be adopted. It will be of equal benefit to us, if proper to
be adopted in the whole, or in such parts as will be neces-
sary, whether they were expressly delegated for that purpose
or not. This appears to me to be a reprehensible clause ;
because it seems to strike at the state legislatures, and seems
to take away that power of elecitons which reason dictates
they ought to have among themselves. It apparently looks
forward to a consolidation of the government of the United
States, when the state legislatures may entirely decay
away.
This is one of the grounds which have induced me to
make objections to the new form of government. It ap-
pears to me that the state governments are not sufficiently
secured, and that they may be swallowed up by the great
mass of powers given to Congress. If that be the case,
such power should not be given ; for, from all the notions
which, we have concerning our happiness and well-being,
the state governments are the basis of our happiness, secu-
rity, and prosperity. A large extent of country ought to be
divided into such a number of states as that the people may
conveniently carry on their own government. This will
render the government perfectly agreeable to the genius
and wishes of the people. If the United States were to
consist of ten times as many states, they might all have a
degree of harmony. Nothing would be wanting but some
cement for their connection. On the contrary, if all the
Inited States were to be swallowed up by the great mass
of powers given to Congress, the parts that are more dis-
tant in this great empire would be governed with less and
&t DEBATES. [luEDBLL.
less energy. It would not suit the genius of the people to
assist in the government. Nothing would support govern-
ment, in such a case as that, but military coercion. Armies
would be necessary in different parts of the United States.
The expense which they would cost, and the burdens which
they would render necessary to be laid upon the people,
would be ruinous. I know of no way that is likely to pro-
duce the happiness of the people, but to preserve, as far as
possible, the existence of the several states, so that they
shall not be swallowed up.
It has been said that the existence of the state govern
ments is essential to that of the general government, because
they choose the senators. By this clause, it is evident that
it is in the power of Congress to make any alterations, ex-
cept as to the place of choosing senators. They may alter
the time from six to twenty years, or to any time ; for they
have an unlimited control over the time of elections. They
have also an absolute control over the election of the repre-
sentatives. It deprives the people of the very mode of
choosing them. It seems nearly to throw the whole power
of election into the hands of Congress. It strikes at the
mode, time, and place, of choosing representatives. It puts
all but the place of electing senators into the hands of Con-
gress. This supersedes the necessity of continuing the state
legislatures. This is such an article as I can give no sanc-
tion to, because it strikes at the foundation of the govern-
ments on which depends the happiness of the states and the
general government. It is with reluctance I make the ob-
jection. I have the highest veneration for the characters of
the framers of this Constitution. I mean to make objections
only which are necessary to be made. I would not take up
time unnecessarily. As to this matter, it strikes at the foun-
dation of every thing. I may say more w^hen we come to
that part which points out the mode of doing without the
agency of the state legislatures.
Mr. IREDELL. Mr. Chairman, I am glad to see so
much candor and moderation. The liberal sentiments ex-
pressed by the honorable gej^tleman who spoke last com-
mand my respect. No time can be better employed than in
endeavoring to remove, by fair and just reasoning, every ob-
jection which can be made to this Constitution. I appre-
hend that the honorable gentleman is mistaken as to the
IiBOELul NORTH CAROLINA. 53
extent of the operation of this clause. He supposes that the
control of the general government over elections looks for*
ward to a consolidation of the states, and that the general
word time may extend to twenty, or any number of years.
In my humble opinion, this clause does by no means warrant
such a construction. We ought to compare other parts with
it. Does not the Constitution say that representatives shah
be chosen every second year ? The right of choosing them,
therefore, reverts to the people every second year. No in*
strument of writing ought to be construed absurdly, when a
rational construction can be put upon it. If Congress can
prolong the election to any time they please, why is it said
that representatives shall be chosen every second year?
They must be chosen every second year ; but whether in the
month of March, or January, or any other month, may be
ascertained, at a future time, by regulations of Congress.
The word time refers only to the particular month and day
within the two years. I heartily agree with the gentleman,
(hat, if any thing in this Constitution tended to the annihila-
tion of the state government, instead of exciting the admira-
tion of any man, it ought to excite the resentment and
execration. No such wicked intention ought to be suffered.
But the gentlemen who formed the Constitution had no such
object; nor do I think there is the least ground for that,
jealousy. The very existence of the general government
depends on that of the state governments. The state legisla-
tures are to choose the senators. Without a Senate there
can be no Congress. The state legislatures are also to direct
the manner of choosing the President. Unless, therefore,
there are state legislatures to direct that manner, no Presi-
dent can be chosen. The same observation may be made
as to the House of Representatives, since, as they are to be
chosen by the electors of the most numerous branch of each
state legislature, if there are no state legislatures, there are
no persons to choose the House of Representatives. Thus
it is evidi»nt that the very existence of the general govern-
ment depends on that of the state legislatures, and of course,
that their continuance cannot be endangered by it.
An occasion may arise when the exercise of this ultimate
power in Congress may be necessary ; as, for instance, if a
state should be involved in war, and its legislature could nut
assemble, (as was the case of South Carolina, and occasion
54 DEBATES. [Si encer.
ally of some other states, during the late war ;) it might also
be useful for this reason — lest a few powerful states should
combine, and make regulations concerning elections which
mi^ht deprive many of the electors of a fair exercise of their
rights, and thus injure the community, and occasion great
dissatisfaction. And it seems natural and proper that every
government should have in itself the means of its own pres-
ervation. A few of the great states might combine to pre-
vent any election of representatives at all, and thus a major-
ity might be wanting to do business; but it would not be so
easy to destroy the government by the non-election of sena
tors, because one third only are to go out at a time, and all
the states will b(^ equally represented in the Senate. It is
not probable this power would be abused ; for, if it should
be, the state legislatures would immediately resent it, and
their authority over the people will always be extremely
great. These reasons induce me to think that the power is
both necessary and useful. But I am sensible great jealousy
has been entertained concerning it ; and as perhaps the
danger of a combination, in the manner I have mentioned,
to destroy or distress the general government, is not very
probable, it may be better to incur the risk, than occasion
any discontent by suffering the clause to continue as it now
stands. I should, therefore, not object to the recommenda-
tion of an amendment similar to that of other states — that
this power in Congress should only be exercised when a
state legislature neglected or was disabled from making the
regulations required.
Mr. SPENCER. Mr. Chairman, I did not mean to in-
sinuate that designs were made, by the honorable gentlemen
who composed the Federal Constitution, against our lib-
erties. I only meant to say that the w^ords in this place
were exceeding vague. It may admit of the gentleman's
construction; but it may admit of a contrary construction.
In a matter of so great moment, words ought not to be so
vague and indeterminate. I have said that the states are
the hASis on which the government of the United States
ought to rest, and which must render us secure. No man
wishes more for a federal government than I do. I think
it necessary for our happiness ; but at the same time, when
we torm a government which must entail happiness or
misery on posterity, nothing is of more consequence than
Bloodworth.] north CAROLINA. 65
settling it so as to exclude animosity and a contest betweeu
the general and individual governments. With respect ti
the mode here mentioned, they are words of very great ex
tent. This clause provides that a Congress may at any
time alter such regulations, except as to the places of choosing
senators. These words are so vague and uncertain, that it
must ultimately destroy the whole liberty of the United
States. It strikes at the very existence of the states, and
supersedes the necessity of having them at all. 1 would
therefore wish to have it amended in such a manner as that
the Congress should not interfere but when the states re-
fused or neglected to regulate elections.
Mr. BLOODWORTH. Mr. Chairman, I trust that
such learned arguments as are offered to reconcile our minds
to such dangerous powers will not have the intended weight.
The House of Representatives is the only democraticai
branch. This clause may destroy, representation entirely.
What does it say ? " The times, places, and manner, of hold-
ing elections for senators and representatives, shall be pre-
scribed in each state by the legislature thereof; but the
Congress may at any time, by law, make or alter such
regulations, except as to the places of choosing senators."
Now, sir, does not this clause give an unlimited and un-
bounded power to Congress over the times, places, and
manner, of choosing representatives ? They may make the
time of election so long, the place so inconvenient, and the
manner so oppressive, that it will entirely destroy repre-
sentation. I hope gentlemen will exercise their own under-
standing on this occasion, and not let their judgment be led
away by these shining characters, for whom, however, I
have the highest respect. This Constitution, if adopted in
its present mode, must end in the subversion of our liberties.
Suppose it takes place in North Carolina ; can farmers
elect them ? No, sir. The elections may be in such a
manner that men may be appointed who are not repre-
sentatives of the people. This may exist, and it ought to
be guarded against. As to the place, suppose Congress
should order the elections to be held in the most incon-
venient place in the most inconvenient district ; could every
person entitled to vote attend at such a place? Suppose
they should order it to be laid off into so many districts, and
order the election to be held within each district , yc^t may
6fa DEBATES. [JoMNiiToii
not their power over the manner of election enable them to
exclude from voting every description of men they please ^
The democratic branch is so much endangered, that no
arguments can be made use of to satisfy my mind to it.
The honorable gentleman has amused us with learned dis-
cussions, and told us he will condescend to propose amend-
ments. I hope the representatives of North Carolina will
never swallow the Constitution till it is amended.
Mr. GOUDY. Mr. Chairman, the invasion of these
states is urged as a reason for this clause. But why did
they not mention that it should be only in cases of inva-
sion ? But that was not the reason, in my humble opinion.
I fear it was a combination against our liberties. I ask,
when we give them the purse in one hand, and the sword
in another, what power have we left ? It will lead to an
aristocratical government, and establish tyranny over us.
We are freemen, and we ought to have the privileges of
such.
Gov. JOHNSTON. Mr. Chairman, I do not impute
any impure intentions to the gentlemen who formed this
Constitution. I think it unwarrantable in any one to do it.
I believe that were there twenty conventions appointed, and
as many constitutions formed, we never could get men
more able and disinterested than those who formed this ;
nor a constitution less exceptionable than that which is now
before you. I am not apprehensive that this article will be
attended with all the fatal consequences which the gentle-
man conceives. I conceive that Congress can have no other
power than the states had. The states, with regard to
elections, must be governed by the articles of the Constitu-
tion ; so must Congress. But I believe the power, as it
now stands, is unnecessary. I should be perfectly satisfied
with it in the mode recommended by the worthy member
on my right hand. Although I should be extremely can
tious to adopt any constitution that would endanger the
rights and privileges of the people, I have no fear in adopt-
ing this Constitution, and then proposing amendments. I
feel as much attachment to the rights and privileges of my
country as any man in it; and if I thought any thing in
this Constitution tended to abridge these rights, I would
not agree to it. I cannot conceive that this is the case. I
have not the least doubt but it will be adopted by a very ^reat
ItBOBLi..] NORTH CAROLINA. 67
majority of the states. For states who have been as jealous
of their liberties as any in the world have adopted it, and
they are some of the most powerful states. We shall have
the assent of all the states in getting amendments. Some
gentlemen have apprehensions that Congress will immedi-
ately conspire to destroy the liberties of their country. The
men of whom Congress will consist are to be chosen from
among ourselves. They will be in the same situation with
us. They are to be bone of our bone and flesh of our flesh.
They cannot injure us without injuring themselves. I have
no doubt but we shall choose the best men in the com-
munity. Should different men be appointed, they are
sufficiently responsible. I therefore think that no danger is
to be apprehended.
Mr. M'DOWALL. Mr. Chairman, I have the highest
esteem for the gentleman who spoke last. He has amused
us with the fine characters of those who formed that gov-
ernment. Some were good, but some were very imperious,
aristocratical, despotic, and monarchical. If parts of it are
extremely good, other parts are very bad.
The freedom of election is one of the greatest securities
we have for our liberty and privileges. It was supposed by
the member from Edenton, that the control over elections
was only given to Congress to be used in case of invasion.
I differ from him. That could not have been their intention,
otherwise they could have expressed it. But, sir, it points
forward to the time when there will be no state legislatures
— to the consolidation of all the states. The states will be
kept up as boards of elections. I think the same men could
raake a better constitution ; for good government is not the
work of a short time. They only had their own wisdom.
Were they to go now, they would have the wisdom of the
United States. Every gentleman who must reflect on this
must see it. The adoption of several other states is urged.
1 hope every gentleman stands for himself, will act accord-
ing to his own judgment, and will pay no respect to the
adoption by the other states. It may embarrass us in some
political difficulties, but let us attend to the interest of our
constituents.
Mr. IREDELL answered, that he stated the case of
invasion as only one reason out of many for giving the ulti-
mate control over elections to Congress.
VOL, IV. 8
.68 DEBATES. [Dayik.
Mr. DWIE. Mr. Chairman, a consolidation of the
states is said by some gentlemen to have been intended.
They insinuate that this was the cause of their giving this
power of elections. If there were any seeds in this Con-
stitution which might, one day, produce a consolidation,
it would, sir, with me, he an insuperable objection, I am
so perfectly convinced that so extensive a country as this
can never be managed by one consolidated government.
The Federal Convention were as well convinced as the
members of this house, that the state governments were ab-
solutely necessary to the existence of the federal government^
They considered them as the great massy pillars on which
this political fabric was to be extended and supported; and
were fully persuaded that, when they were removed, or
should moulder down by time, the general government must
tumble into ruin. A very little reflection will show that no
department of it can exist without the state governments.
Let us begin with the House if Representatives. Who
are to vote for the federal representatives? Those who vote
for the state representatives. If the state government van-
ishes, the general government must vanish also. This is
the foundation on which this government was raised, and
without which it cannot possibly exist.
The next department is the Senate. How is it formed ?
By the states themselves. Do they not choose them ? Are
they not created by them ? And will they not have the in-
terest of the states particularly at heart ? The states, sir,
can put a final period to the government, as was observed by a
gentleman who thought this power over elections unneces-
sary. If the state legislatures think proper, they may refuse
to choose senators, and the government must be destroyed.
Is not this government a nerveless mass, a dead carcase,
without the executive power? Let your representatives be
the most vicious demons that ever existed ; let them plot
against the liberties of America ; let them conspire against
its happiness, — all their machinations will not avail if not
put in execution. By whom are their laws and projects to
be executed ? By the President. How is he created ? By
electors appointed by the people under the direction of the
legislatures — by a union of the interest of the people and
the state governments. The state governments can put a
t?eto, at any time, on the general government, by ceasing to
continue the executive power. Admitting the representa*
Davie.] NORTH CAROLINA 69
1-ives or senators could make corrupt laws, they can neithei
execute them themselves, nor appoint the execiutive. Now,
sir, I think it must be clear to every candid mind, that no
part of this government can be continued after the state gov-
ernments lose their existence, or even their present forms.
It may also be easily proved that all federal governments
jiossess an inherent weakness, which continually tends to
their destruction. It is to be lamented that all governments
of a federal nature have been short-lived.
Such was the fate of the Achaean league, the Amphicty-
ouic council, and other ancient confederacies ; and this opin-
ion is confirmed by the uniform testimony of all history.
There are instances in Europe of confederacies subsisting a
considerable time ; but their duration must be attributed to
circumstances exterior to their government. The Germanic
confederacy would not exist a moment, were it not for fear
of the surrounding powers, and the interest of the emperor.
The history of this confederacy is but a series of factions,
dissensions, bloodshed, and civil war. The confederacies of
the Swiss, and United Netherlands, would long ago have
been destroyed, from their imbecility, had it not been for the
fear, and even the policy, of the bordering nations. It is
impossible to construct such a government in such a manner
as to give it any probable longevity. But, sir, there is an
excellent principle in this proposed plan of federal govern-
ment, which none of these confederacies had, and to the
want of which, in a great measure, their imperfections may
be justly attributed — I mean the principle of representation.
I hope that, by the agency of this principle, if it be not im-
mortal, it will at least be long-lived. I thought it necessary
to say this much to detect the futility of that unwarrantable
suggestion, that we are to be swallowed up by a great con-
solidated government. Every part of this federal govern-
ment is dependent on the constitution of the state legisla-
tures for its existence. The whole, sir, can never swallow
up its parts. The gentleman from Edenton (Mr. Iredell)
has pointed out the reasons of giving this control over elec-
tions to Congress, the principal of which was, to prevent a
dissolution of the government by designing states. If all the
Slates were equally possessed of absolute power over their
elections, without any control of Congress, danger might be
jusdy apprehended where one state possesses as much terri-
60 DEBATES. [DAYI&
lOry as four or five others ; and some of them, being thinly
peopled now, will daily become more numerous and formida-
ble. Without this control in Congress, those large states
might successfully combine to destroy the general govern-
ment. It was therefore necessary to control any combina-
tion of this kind.
Another principal reason was, that it would operate, in
favor of the people, against the ambitious designs of the fed-
eral Senate. I will illustrate this by matter of fact. The
history of the little state of Rhode Island is well known. An
abandoned faction have seized on the reins of government,
and frequently refused to have any representation in Con
gress. If Congress had the |)ower of making the law of
elections operate throughout the United States, no state
could withdraw itself from the national councils, without the
consent of a majority of the members of Congress. Had this
been the case, that trifling state would not have withheld its
representation. What once happened may happen again ;
and it was necessary to give Congress this power, to keep the
government in full operation. This being a federal govern-
ment, and involving the interests of several states, and some
acts requiring the assent of more than a majority, they ought
to be able to keep their representation full. It would have
been a solecism, to have a government without any means of
self-preservation. The Confederation is the only instance
of a government without such means, and is a nerveless sys-
tem, as inadequate to every purpose of government as it is to
the security of the liberties of the people of America. When
the councils of America have this power over elections, they
can, in spite of any faction in any particular state, give the
people a representation. Uniformity in matters of election
is also of the greatest consequence. They ought all to be
judged by the same law and the same principles, and not to
be different in one state from what thev are in another. At
present, the manner of electing is different in different states.
Some elect by ballot, and others viva voce. It will be more
convenient to have the manner uniform in all the states. I
shall now answer some observations made by the gentleman
from Mecklenburg He has stated that this power over
elections gave to Congress power to lengthen the time for
which they were < lected. Let us read this clause coolly,
all prejudice aside, and determine whether this construction
Dahe.] north CAROLINA. Ql
he warrantable. The clause runs thus : " The times
places, and manner, of holding elections for senators and
representatives, shall be prescribed in each state by the legis-
lature thereof; but the Congress may at any time, by law,
make or alter such regulations, except as to the place ot
choosing senators." I take it as a fundamental principle,
which is beyond the reach of the general or individual
governments to alter, that the representatives shall be chosen
every second year, and that the tenure of their office shall
be for two years ; that senators be chosen every sixth year,
and that the tenure of their office be for six years. F take it
also as a principle, that the electors of the most numerous
branch of the state legislatures are to elect the federal
representatives. Congress has ultimately no power over
elections, but what is primarily given to the state legisla-
tures. Ff Congress had the power of prolonging the time,
&c., as gentlemen observe, the same powers must be com-
pletely vested in the state legislatures. I call upon every
gentleman candidly to declare, whether the state legislatures
have the power of altering the time of elections for repre-
sentatives from two to four years, or senators from six to
twelve ; and whether they have the power to require any
other qualifications than those of the most numerous branch
of the state legislatures ; and also whether they have any
other power over the manner of elections, any more than the
mere mode of the act of choosing ; or whether they shall be
held by sheriffs, as contradistinguished from any other officer ;
or whether they shall be by votes, as contradistinguished from
ballots, or any other way. Ff gentlemen will pay attention,
they will find that, in the latter part of this clause, Congress
has no power but what was given to the states in the first part
of the same clause. They may alter the manner of holding the
election, but cannot alter the tenure of their office. They can-
not alter the nature of the elections ; for it is established, as
fundamental principles, that the electors of the most numerous
branch of the state legislature shall elect the federal repre-
sentatives, and that the tenure of their office shall be for two
years ; and likewise, that the senators shall be elected by
the legislatures, and that the tenure of their office shall be
for six years. When gentlemen view the clause accurately,
and see that Congress have only the same power which was
io the state legislature, they will not be alarmed. The
6
62 DEBATES. [Caluweli:-.
learned do( tor on my right (Mr. Spencer) has also said that
Congress might lengthen the time of elections. I am will-
ing to appeal to grammatical construction and punctuation.
Let me read this, as it stands on paper. [Here he read the
clause different ways, expressing the same sense.] Here,
in the first part of the clause, this power over elections is
given to the states, and in the latter part the same power is
given to Congress, and extending only to the time of hold-
ing, the place of holdingy and the manner of holdings the
elections. Is this not the plain, literal, and grammatical
construction of the clause ? Is it possible to put any other
construction on it, without departing from the natural order,
and without deviating from the general meaning of the words,
and every rule of grammatical construction ? Twist it, tor-
ture it, as you may, sir, it is impossible to fix a different sense
upon it. The worthy gentleman from New Hanover, (whose
ardor for the liberty of his country I wish never to be damped,)
has insinuated that high characters might influence the mem-
bers on this occasion. F declare, for my own part, I wish
every man to be guided by his own conscience and under-
standing, and by nothing else. Every man has not been
bred a politician, nor studied the science of government;
yet, when a subject is explained, if the mind is unwarped by
prejudice, and not in the leading-strings of other people,
gentlemen will do what is right. Were this the cas<% 1
would risk my salvation on a right decision.
Mr. CALDWELL. Mr. Chairman, those things which
can be may be. We know that, in the British government,
the members of Parliament were eligible only for three
years. They determined they might be chosen for seven
years. If Congress can alter the time, manner, and place,
I think it will enable them to do what the British Par-
liament once did. They have declared that the elections
of senators are for six years, and of representatives for two
years. But they have said there was an exception to this
general declaration, viz., that Congress can alter th(»m. If
the Convention only meant that they should alter them in
such a manner as to prevent a discontinuation of the gov-
ernment, why have they not said so? It must appear to
every gentleman in this Convention, that they can alter
the elections to what time they please. And if the British
Parliament did once give themselves the powder of sitting
four years longer than they had a right to do, Congress,
:.iACLUM..] NJRTH CAROLINA. 63
having a standing army, and the command of the militia,
may, with the same propriety, make an act to continue the
members for twenty years, or even for their natural lives.
This construction apj)ears perfectly rational to me. I shall
therefore think that this Convention will never swallow such
a government, without securing us against danger.
Mr. MACLAINE. Mr. Chairman, the reverend gentle-
man from Guilford has made an objection which astonishes
me more than any thing I have heard. He seems to be
acquainted with the history of England, but he ought to
consider whether his historical references apply to this
country. He tells us of triennial elections being changed
to septennial elections. This is an historical fact we well
know, and the occasion on which it happened is equally
well known. Tht»y talk as loudly of constitutional rights
and privileges in England as we do here, but they have
no written constitution. They have a common law, — which
has l)een altered from year to year, for a very lonij p(*riod,
— Magna Charta, and bill of rights. These they look upon
as their constitution. Yet this is such a constituti(m as it
is universally considered Parliament can change. Black-
stone, in his admirable Commentaries, tells us that the
power of the Parliament is transcendent and absolute, and
can do and undo every thing that is not naturally impos-
sible. The act, therefore, to which the reverend gentle-
man alludes, was not unconstitutional. Has any man said
that the legislature can deviate from this Constitution ?
The legislature is to be guided by the Constitution. They
cannot travel beyond its bounds. The reverend gentleman
says, that, though the representatives are to be (elected for
two years, they may pass an act prolonging their appoint-
ment for twenty years, or for natural life, without any vio-
lation of the Constitution. Is it possible for any common
understanding or sense to put this construction upon it ?
Such an act, sir, would be a palpable violation of the Con-
stitution : were they to attempt it, sir, the country would
rise against them. After such an unwarrantable suggestion
as this, any objection may be made to this Constitution. It
is necessary to give power to the government. I would
ask that gentleman who is so much afraid it will destroy
our liberties, why he is not as much afraid of our state legis-
lature ; for they have much more power than we are now
64 DEBATES. [JoHNSToii.
proposing to give this general government. They have an
unlimited control over the purse and sword ; yet no com-
plaints are made. Why is he not as much afraid that our
legislature will call out the militia to destroy our liberties ?
Will the militia be called out by the general government to
enslave the people — to enslave their friends, their families,
themselves ? The idea of the militia being m ide use of, as
an instrument to destroy our liberties, is almost too absurd
to merit a refutation. It cannot be supposed that the repre-
sentatives of our general government will be worse men
than the members of our state government. Will we be such
fools as to send our greatest rascals to the general govern-
ment ? We must be both fools as well as villains to do so.
Gov. JOHNSTON. Mr. Chairman, I shall offer some
observations on what the gentleman said. A parallel has
been drawn between the British Parliament and Congress.
The powers of Congress are all circumscribed, defined, and
clearly laid down. So far they may go, but no farther. But,
sir, what are the powers of the British Parliament ? They
have no written constitution in Britain. They have certain
fundamental principles and legislative acts, securing the
liberty of the people ; but these may be altered by their
representatives, without violating their constitution, in such
manner as they may think proper. Their legislature existed
long before the science of government was well understood.
From very early periods, you find their Parliament in full
force. What is their Magna Charta ? It is only an act of
Parliament. Their Parliament can, at any time, alter the
whole or any part of it. In short, it is no more binding on
the people than any other act which has passed. The pow-
t^r of the Parliament is, therefore, unfunded. But, sir, can
Congress alter the Constitution ? They have no such power.
They are bound to act by the Constitution. They dare not
recede from it. At the moment that the time for which
they are elected expires, they may be removed. If they
make bad laws, they will be removed ; for they will be no
longer worthy of confidence. The British Parliament can
do every thing they please. Their bill of rights is only an
act of Parliament, which may be, at any time, altered or
modified, without a violation of the constitution. The peo-
ple of Great Britain have no constitution to control theii
legislature. The king, lords, and commons, can do what
they please.
OjiviE.] NORTH CAROLINA. Bb
Mr. CALDWELL observed, that whatever nominal
powers the British Parliament might possess, yet they haa
infringed the liberty of the people in the most flagrfint man-
ner, by giving themselves power to continue four years in
l^arliament longer than they had been elected for — that
l-hough they were only chosen for three years by their con-
stituents, yet they passed an act that representatives should,
for the future, be chosen for seven years — that this Consti
t:ution would have a dangerous tendency — that this clause
>vould enable them to prolong their continuance in office as
long as they pleased — and that, if a constitution was not
agreeable to the people, its operation could not be happy.
Gov. JOHNSTON replied, that the act to which allusior.
was made by the gentleman was not unconstitutional ; bui
that, if Congress were to pass an act prolonging the term>
of elections of senators or representatives, it would be clearl}
unconstitutional.
Mr. MACLAINE observed, that the act of Parliament
referred to was passed on urgent necessity, when George I
ascended the throne, to prevent the Papists from getting
into Parliament ; for parties ran so high at that time, that
Papists enough might have got in to destroy the act of set-
tlement which excluded the Roman Catholics from the suc-
cession to the throne.
Mr. SPENCER. The gentleman from Halifax said, that
the reason of this clause was, that some states might be re-
fractory. I profess that, in my opinion, the circumstances
of Rhode Island do not appear to apply. 1 cannot conceive
the particular cause why Rhode Island should not send rep-
resentatives to Congress. If they were united in one gov-
ernment, is it presumed that they would waive the right of
representation r I have not the least reason to doubt they
would make use of the privilege. With respect to the con-
struction that the worthy member put upon the clause, were
that construction established, I would be satisfied ; but it is
susceptible of a different explanation. They may alter the
mode of election so as to deprive the people of the right of
choosing. I wish to have it expressed in a more explicit
manner.
Mr. DAVIE. Mr. Chairman, the gentleman has certainly
Misconceived the matter, when he says " that the circum-
stances of Rhode Island do not apply." It is a fact welt
VOL. IV. 9
66 DEBATES. [Davie.
known of which, pernaps, he may not be possessed, that
the state of Rhode Island has not been regularly represented
for several years, owing to the character and particular views
of the prevailing party. By the influence of this faction,
who are in possession of the state government, the people
have been frequently deprived of the benefit of a represen-
tation in the Union, and Congress often embarrassed by their
absence. The same evil may again result from the same
cause ; and Congress ought, therefore, to possess constitu-
tional power to give the people an opportunity of electing
representatives, if the states neglect or refuse to do it. The
gentleman from Anson has said, " that this clause is suscep-
tible of an explanation different from the construction I put
upon it." I have a high respect for his opinion, but that
alone, on this important occasion, is not satisfactory : we
must have some reasons from him to support and sahction
this opinion. Fie is a professional man, and has held an
office many years, the nature and duties of which would en-
able him to put a different construction on this clause, if it is
capable of it.
This clause, sir, has been the occasion of much groundless
alarm, and has been the favorite theme of declamation out
of doors. I now call upon the gentlemen of the opposition
to show that it contains the mischiefs with which they have
alarmed and agitated the public mind, and I defy them to
support the construction they have put upon it by one single
plausible reason. The gentleman from New Hanover has
said, in objection to this clause, " that Congress may appoint
the most inconvenient place in the most inconvenient dis-
trict, and make the manner of election so oppressive as
entirely to destroy representation." If this is considered as
possible, he should also reflect that the state legislatures
may do the same thing. But this can never happen, sir,
until the whole mass of the people become corrupt, when
all parchment securities will be of little service. Does that
gentleman, or any other gentleman who has the smallest
acquaintance with human nature or the spirit of America,
suppose that the p(*ople will passively relinquish privileges,
or suffer the usurpation of powers unwarranted by the Con-
stitution ? Docs not the right of electing representatives
revert to the people every second year ? There is nothing
in this clause that can impede or destroy this reversion ; and
BloodwoathJ north CAROLINA. 67
although the particular time of year, the particular place in a
county or a district, or the particular mode in which elec-
tions are to be held, as whether by vote or ballot, be left to
Congress to direct, yet this can never deprive the people of
the right or privilege of election. He has also added, " that
the deraocratical branch was in danger from this clause ; "
and, with some other gentlemen, took it for granted that an
aristocracy must arise out of the general government. This,
1 take it, from the very nature of the thing, can never happen.
Aristocracies grow out of the combination of a few powerful
families, where the country or people upon which they are
to operate are immediately under their influence ; whereas
the interest and influence of this government are too weak,
and too much diffused, ever to bring about such an event.
The x^onfidence of the people, acquired by a wise and
virtuous conduct, is the only influence the members of the
federal government can ever have. When aristocracies are
formed, they will arise within the individtial states. It is
therefore absolutely necessary that Congress should have a
constitutional power to give the people at large a represen-
tation in the government, in order to break and control such
dangerous combinations. Let gentlemen show when and
how this aristocracy they talk of is to arise out of this Con-
stitution. Are the first members to perpetuate themselves?
Is the Constitution to be attacked by such al)surd assertions
as these, and charged with defects with which it has no
possible connection r
Mr. BLOODWORTH. Mr. Chairman, the gentleman
has mistaken me. When we examine the gentleman's ar-
guments, they have no weight. He tells us that it is not
probable " that an aristocracy can arise." I did not say that
it would. Various arguments are brought forward in sup-
port of this article. They are vague and trifling. There is
nothing that can be offered to my mind which will reconcile
me to it while this evil exists — while Congress have this
control over elections. It was easy for them to mention
that this control should only be exerted when the state
W'ould neglect, or refuse, or be unable in case of invasion,
to regulate elections. If so, why did they not mention it
expressly ?
It appears to me that some of their general observations
imply a contradiction. Do they not tell us that there is no
t>& DEBATES. [HACLAfn
qanger of a consolida^iop ? that Congress can exist no longei
than the states — the massy pillars on which it is said. to be
raised? Do they not also tell us that the state governmeuts
,are to secure us against Congress ? At another time, they
tell u^ that it was unnecessary to^sejcure our liberty by giving
them power to prevent the state governments from oppressing
us. VVe know that there is a corruption iti human nature.
Without circumspection and carefulness, we shall throw
away our liberties. Why is this general expression used on
this great occasion ? Why not use expressions that were
clear and unequivocal ? If I trust my property with a man
and take security, shall I then barter away my rights ?
Mr. SPENCER. Mr. Chairman, this clause may operati
in such a manner as will abridge the liberty of the people
It is vvell known that men in power are apt to abuse it, and
extend it if possible. From the ambiguity of this expres-
sion, they may put such construction upon it as may suit
them. 1 would not h^ve it in such a manner as to endangei
the rights of the people. But it has been said that this
power is necessary to preserve their existence. There is
qot the least doubt but the people will keep them from losing
their existence, if they shall behave themselves in such a
manner as will merit it.
Mr. MACLAINE. Mr. Chairman, I thought it very ex-
traordinary that the gentleman who was last on the flooi
should say that Congress could do what they please with
respect to elections, and be warranted by this clause. The
gentleman from Halifax (Mr. Davie) has put that construc-
tion upon it which reason and con>mon sense will put upon
it. Lawyers will often differ on a point of law, but people
will seldom differ about so very plain a thing as this. The
clause enables Congress to alter such regulations as the
states shall have made with respect to elections. What
vvould he infer from this ? What is it to alter ? It is to
alter the time, place, and manner, established by the legis-
latures, if they do not answer the purpose. Congress ought
to have power to perpetuate the government, and not the
states, who might be otherwise inclined. I will ask the
gentleman — and I wish he may give me a satisfactory an-
swer— if the whole is not in the power of the people, as.
well when the elections are regulated by Congress, as when
by the states. Are not lK)th the agents of the people, ame-
Bloodwohth.] north CAROLINA. 69
liable to them ? Is there any thing in this Constitution which
f fives them the power to perpetuate the sitting members ?
s there any sMch strange absurdity? If the legislature of
this state has the power to fix the time, place, and manner,
of holding elections, why not place the same confidence in
the general government ? The members of the general gov-
ernment, and those of the state legislature, are both chosen
by the people. They are both from among the people, and are
in the same situation. Those who served in the state legisla-
ture are eligible, and may be sent to Congress. If the elec-
tions be regulated in the best manner in the state government,
can it be supposed that the same man will lose all his virtue,
his character and principles, when he goes into the general
government, in order to deprive us of our libert)' ?
The gentleman from New Hanover seems to think it
possible Congress will so far forget themselves as to point
out such improper seasons of the year, and such inconvenient
places for elections, as to defeat the privilege of the demo-
cratic branch altogether. He speaks of inconsistency in the
arguments of the gentlemen. 1 wish he would be consistent
himself. If 1 do not mistake the politics of that gentleman,
it is his opinion that Congress had sufficient power under
the Confederaitioin. He has said, without contradiction, that
we should be better without the Union than with it ; that it
would be better for us to be by ourselves than in the Union.
His antipathy to a general government, and to the Union, is
evidently inconsistent with his predilection for a federal
democratic branch. We should have no democratic "part of
the govefdrnent at all, under such a government as he would
recommend. There is no such part in the old Confeder-
ation. The body of the people had no agency in that system.
The metnbers of the present general government are selected
by the state legislatures, and have the power of the purse,
and other powers, and are not amenable to the pe^oplc at large.
Although the gentleman may deny my assertions, yet this
argument of his is inconsistent with his other assertions ancl
doctrines. It is impossible for any man in his senses to
think that we can exist by ourselves, separated from our
sister states. Whatever gentlemen niay pretend to say on
this point, it rrttist be a matter of serious alarm to every
reflecting mind, to be disunited from the other states.
Mr. BLOODWORTH begged leave to wipe off the asser-
70 DEBATES. [GiiLLowAY
tion of the gentleman ; that he could not account for anj
expression which he might drop among a laughing, jcK^ose
people, but that it was well known he was for giving power
to Congress to regulate the trade of the United States; that
he had said that Congress had exercised power not given
them by the Confederation, and that he was accurate in the
assertion ; that he was a freeman, and was under* the control
of no man.
Mr. MACLAINE replied, that he meant no aspersions;
that he only meant to point out a fact ; that he had com-
mitted mistakes himself in argument, and that he supposed
the gentleman not more infallible than other people.
JVfr. J. TAYLOR wished to know why the states had
control over the place of electing senators, but not over that
of choosing the representatives.
Mr. SPAIGHT answered, that the reason of that reser-
vation was to prevent Congress from altering the places for
holding the legislative assemblies in the different states.
Mr. JAMES GALLOWAY. Mr. Chairman, in the be-
ginning I found great candor in the advocates of this govern-
ment, but it is not so towards the last. I hope the gentleman
from Halifax will not take it amiss, if 1 mention how he
brought the motion forward. They began with dangers.
As to Rhode Island being governed by a faction, what has
that to do with the question before us ? I ask, What have the
state governments left for them, if the general government
is to be possessed of such extensive powers, without control
or limitation, without any responsibility to the states? He
asks. How is it possible for the members to perpetuate them-
selves? I think I can show how they can do it. For in-
stance, were they to take the government as it now stands
organized. We send five members to the House of Repre-
sentatives in the general government. They will go, no
doubt, from or near the seaj)orts. In other states, also, those
near the sea will have more interest, and will go forward to
Congress ; and they can, without violating the Constitution,
make a law continuing themselves, as they have control over
the place, time, and manner, of elections. This may happen ;
and where the great principles of liberty are endangered, no
general, indeterminate, vague expression ought to be suf-
fered. Shall we pass over this article as it is now? They
will be able to perpetuate themselves as well as if it had ex-
pressly said so.
Steele.] NORTH CAROLINA. 7i
Mr. STEELE. Mr. Chairman, the gentleman has said
that the five representatives which this state shall be entitled
to send to the general government, will go from the sea-
ishore. What reason has he to say they will go from the
sea-shore? The time, place, and manner, of holding elec-
tions are to be prescribed by the legislatures. Our legisla-
ture is to regulate the first election, at any event. They
will regulate it as they think proper. They may, and most
probably will, lay the state off into districts. Who are to
vote for them ? Every man who has a right to vote for a
representative to our legislature will ever have a right to
vote for a representative to the general government. Does
it not expressly provide that the electors in «»ach state shall
have the qualifications requisite for the most numerous branch
of the state legislature ? Can they, without a most manifest
violation of the Constitution, alter the qualifications of the
electors? The power over the manner of elections does not
include that of saying who shall vote : — the Constitution ex-
pressly says that the qualifications which entitle a man to
vote for a state representative. It is, then, clearly and in-
dubitably fixed and determined who shall be the electors;
and the power over the manner only enables them to deter-
mine how these electors shall elect — whether by ballot, or
by vote, or by any other way. Is it not a maxim of univer-
sal jurisprudence, of reason and common sense, that an
instrument or deed of writing shall be so construed as to give
validity to all parts of it, if it can be done without involving
any absurdity ? By construing: it in the plain, obvious way
I have mentioned, all parts will be valid. By the way, gen-
tlemen suggest the most palpable contradiction, and absurd-
ity will follow. To say that they shall go from the sea-
shore, and be able to perpetuate themselves, is a most
extravagant idea. Will the members of Congress deviate
from their duty without any prospect of advantage to them-
selves? What interest can they have to make the place of
elections inconvenient ? The judicial power of that govern-
ment is so well constructed as to be a check. There was
no check in the old Confederation. Their power was, m
principle and theory, transcendent. If the Congress make
laws inconsistent with the Constitution, independent judges
will not uphold them, nor will the people obey them. A
universal resistance will ensue. In some countries, the
72 DEBATES [DAim
arbitrary disposition of rulers may enable them to overturn
;the liberties of the people ; but in a country like this, where
every man is his own master, and where almost every man
is a freeholder, and has the right of election, the violations
of a constitution will not be passively permitted. Can it be
supposed that in such a country the rights of suffrage will be
tamely surrendered ? Is it to be supposed that 30^000 free
persons will send the most abandoned wretch in the district
to legislate for them in the general legislature ? I ^ould
rather think they would choose men of the most respectable
characters.
Saturday, July 26, 1788.
Mr. KENNION in the chair. The 5ih section of the 1st
article read.
Mr. STEELE observed, that he had heard objections to
the 3d clause of this section, with respect to the periodical
publication of the Journals, the entering the yeas and mays
on them, and the suppression of such parts as required
secrecy — that he had no otyection himself, for that he
thought the necessity of publishing their transactions was an
excellent check, and that every principle of prudence and
good policy pointed out the necessity of not publishing such
transactions as related to military arrangements and war —
that this provision was exactly similar to that which was in
the old Confederation.
Mr. GRAHAM wished to hear an explanation of the
words " from time to time," whether it was a short or a long
time, or how often they should be obliged to publish their
proceedings.
Mr. DAVIE answered, that they would be probably pub-
lished after the rising of Congress, every year — that if they
sat two or three times, or oftener, in the year, ihey might be
published every time they rose — that there could be no
doubt of their publishing them as often as it would be con-
venient and proper, and that they would conceal nothing but
what 11 would be unsafe to publish. He further observed, that
some states had proposed an amendment, that they should
be published annually ; but he thought it very safe and
proper as it stood — that it was the sense of the Convention
that they should be published at the end of every session.
The gentleman from Salisbury had said, that in this particu-
rRBosLL;| NORTH CAROLINA. 73
lar it resembled the old Confederation. Other gentlemen
have said there is no similarity at all. He therefore wished
^he difference to be stated.
Mr. IREDELL remarked, that the provision in the clause
under consideration was similar in meaning and substance to
that in the Confederation — that in time of war it was ab-
■Holutely necessary to conceal the operations of government;
otherwise no attack on an enemy could be premeditated
with success, for the enemy could discover our plans soon
enough to defeat them — that it was no less imprudent to
divulge our negotiations with foreign powers, and the most
salutary schemes might be prevented by imprudently pro-
mulgating all the transactions of the government indiscrimi-
nately.
Mr. J. GALLOWAY wished to obviate what gentlemen
had said with regard to the similarity of the old Confedera-
tion to the new system, with respect to the publication of
their proceedings. He remarked, that, at the desire of orte
member from any state, the yeas and nays were to be put
on the Journals, and published by ihe Confederation ; where-
as, by this system, the concurrence of one fifth was
necessary.
To this it was answered, that the alteration was made be-
<:au8e experience held showed, when any two members c*ould
require the yeas and nays, they were taken on many trifling
occasions; and there was no doubt one fifth would require
them on every occasion of importance.
The 6th section read without any observations.
1st clause of the 7th section likewise read without any
tihservations.
2d clause read.
Mr. IREDELL. Mr. Chairman, this is a novelty in
the Constitution, and is a regulation of considerable im
poriance. Permit me to state the reasons for which I im-
agine this regulation was made. They are such as, in my
opinion, fuMy justify it.
One great alteration proposed by the Constitution — and
which is a capital improvement- on the Articles of Confed-
eratJOfi — is, that the executive, legislative, and Judicial
powers should be separate and distinct. The best writers,
and ^11 the most enlightened part of mankind, agree that
it m esseatial to the preservation of liberty, that such dis*
VOL. IV. 10 7
74 DEBATES. [Iredeu
tinction and separation of powers should be made. But
this distinction would have very little efiicacy if each power
had no means to defend itself against the encroachment of
the others.
The British constitution, the theory of which is much ad-
mired, but which, however, is in fact liable to many objec
tions, has divided the government into three branches. The
king, who is hereditary, forms one branch, the Lords and
Commons the two others ; and no bill passes into a law
without the king's consent. This is a great constitutional
support of his authority. By the proposed Constitution, the
President is of a very different nature from a monarch. He
is to be chosen by electors appointed by the people ; to be
taken from among the people ; to hold his office only for the
short period of four years ; and to be personally responsible
for any abuse of the great trust reposed in him.
In a republican government, it would be extremely dan-
gerous to place it in the power of one man to put an abso-
lute negative on a bill proposed by two houses, one of which
represented the people, and the other the states of America.
It therefore became an object of consideration, how the ex-
ecutive could defend itself without being a competent part
of the legislature. This difficulty was happily remedied by
the clause now under our consideration. The executive is
not entirely at the mercy of the legislature ; nor is it put in
the power of the .executive entirely to defeat the acts ol
those two important branches. As it is provided in this
clause, if a bare majority of both houses should pass a bill
which the President thought injurious to his country, it is
in his power — to do what ? Not to say, in an arbitrary,
haughty manner, that he does not approve of it ; — but, if he
thinks It a bad bill, respectfully to offer his reasons to both
houses ; by whom, in that case, it is to be reconsidered, and
nut to become a law unless two thirds of both houses shall
concur; which they still may, notwithstanding the Presi-
dent's objection. It cannot be presumed that he would
venture to oppose a bill, under such circumstances, without
very strong reasons. Unless he was sure of a powerful sup-
port in the legislature, his opposition would be of no effect ;
and as his reasons are to be put on record, his fame is com-
mitted both to the present times and to posterity.
The exercise of this power, in a time of violent factions,
Spencer.] NORTH CAROLINA. 7i*
might l3e possibly hazardous to himself; but he can have; no
ill motive to exert himself in the face of a violent opposition.
Rt^gard to his duty alone could induce him to oppose, when
it was probable two thirds would at all events overrule him.
This power may be usefully exercised, even when no ill
intention prevails in the legislature. It might frequently
happen that, where a bare majority had carried a pernicious
bill, if there was an authority to suspend it, upon a cool
statement of reasons, many of that majority, on a recon-
sideration, might be convinced, and vote differently. 1
therefore think the method proposed is a happy medium be-
tween the possession of an absolute negative, and the ex-
ecutive having no control whatever on acts of legislation ;
and at the same time that it serves to protect the executive
from ill designs in the legislature, it may also answer the
purposes of preventing many laws passing which would be
immediately injurious to the people at large. It is a strong
guard against abuses in all, that the President's reasons are
to be entered at large on the Journals, and, if the bill
passes notwithstanding, that the yeas and nays are also
to be entered. The public, therefore, can judge fairly be-
tween them.
The 1st clause of the 8ih section read.
Mr. SPENCER. Mr. Chairman, I conceive this powei
to be too extensive, as it embraces all possible powers of
taxation, and gives up to Congress every possible article of
taxation that can ever happen. By means of this, there will
be no way for the states of receiving or collecting taxes at
all, but what may interfere with the collections of Congress.
Every power is given over our money to those over whom
we have no immediate control. I would ^ive them powers
to support the goverament, but would not agree to annihilate
the state governments in an article which is most essential
to their existence. 1 would give them power of laying im-
posts ; and I would give them power to lay and collect ex-
cises. I confess that this is a kind of tax so odious to a free
people, that I should with great reluctance agree to its
exercise ; but it is obvious that, unless such excises were
admitted, the public burden will be all borne by those parts
of the community who do not manufacture for themselves.
So manifest an inequality would justify a recurrence to this
species of taxes.
7b DEBATES. [Spencer
How are direct taxes to be laid ? By a poll tax, assess-
ments on land or other property ? Inconvehience and
oppression will arise from any of them. I would not be
understood thalt , I would not wish to have ah efficient
government for the United States. 1 am sensible that Ikws
operating on individuals cannot' be carried on against states;
because, if they do not comply with the general la[ws of the
Union, there is no way to compel a compliance but force.
There must be an army to compel them. Some states may
have some excuse for non-compliance. Others will feign
excuses. Several states may perhaps be in the same pre-
dicament. If force be used to compel them, they will
probably call for foreign aid ; and the very means of defetice
will operate to the dissolution of the system, and to the
destruction of the states. I would not, therefore, deny 'that
Congress ought to have the power of taking out of the
pockets of the individuals at large, if the states fail to pciy
those taxes in a convenient time. If requisitions were to be
made on the several states, proportionate to their abilities,
the several state legislatures, 'knowing the circutlistcinces of
their constituents, and that they would ultimately be cdra-
pelled to pay, would lay the tax in a convenient tnanner,
and would be able to pay their quotas at the end of the year.
They are better acquainted with the mode in which taxes
tvdii be raised, than the general government can possibly be.
It may happen, for instance, that if ready money cannot
be immediately received from the pockets of individuals for
their taxes, their estates, consisting of lands, negroes, stock,
and furniture, most l)e set up and sold at vendue. We can
easfily see, from the great scarcity of money at this day, that
great distresses must happen. There is tio hard money in
the country. It most come from other parts of the world.
Such property would sell for one tenth part of its vdlue.
Such a mode as this would, in a few years, deprive the
people of their estates. But, on the contrary, if articles
proper for exportation were either specifically taken for their
taxes imtncdiately by the state legislature, or if the collection
should be deferred till they had disposed of such articles, no
oppression or inconvenience woula happen. There is no
person so podr but who can raise something to dispose of
For a great part of the United States, those articles which
are proper for exportation would answer the puroose. 1
ioHNSTUM,] NORTH CAROLINA. IT
Would' have a t^ laid on estates where suph articles could
UQt b^ had, aiid such a tax. to be by iostalcoents for t>vo or
naore years.
I would admit, if the quotas were not punctually paid at
the end of the time, that Congress might collect taxes,
tjecause this povyer is absolutely necessary for the support
of the general government. But I would not give it in the
first instance ; for nothing would be more oppressive, as in a
short time people would be compelled to part with their
property. In the other case, they would part with none but
in such a manner as to encourage their industry. On the
other hand, if requisitions, ia cases of emergency, wen
proposed to the state assemblies, it would l)e a measure oi
c^ooveuience to the people, and would be a means of keeping*
up the importance of the state legislatures, and would con-
ciliate their affections ; and their knowledge of the ultimate
right of Congress to collect taxes would stimulate theii
exertions to raise money. But if the power of taxation be
given in the first instance to Congress, the state legislatures.
will be liable to be counteracted by the general government
in all their operations. These arc my reasons for objecting
to this article.
Gov. JOHNSTON. Mr. Chairman, this clause is ob-
jected to; and it is proposed to alter it in such a manner,
tihat the general government shall not have power to la}
taxes in the first instance, but shall apply to the states, and,
in case of reftisal, that direct taxation shall take place ; that
is to say, that the general government should pass an act to
levy money on the United States, and if the states did not,
within a limited time, pay their respective proportions, the
officers of the United States should proceed to levy money
on th^ inhabitants of the different states. The question has
been agitated by the conventions in different states, and
some very respectable states have proposed that there should
be an amendment, in the manner which the worthy member
last up has proposed. But, sir, although I pay very great
respect to the opinions and decisions of the gentlemen who
composed those conventions, and although they were wise
in many instances, I cannot concur with them in this par-
ticular. It appears to me that it will be attended with many
inconveniences. It seems to me probable that the money
arisiAg from duties and excises will be, in general, sufficient
78 DEBATES. [Johnston
to answer all the ordinary purposes of government ; but in
cases of emergency, it will be necessary to lay direct taxes
In cases of emergency, it will be necessary that these taxei
should be a responsible and established fund to support the
credit of the United States; for it cannot be supposed that,
from the ordinary sources of revenue, money can be brought
into our treasury in such a manner as to answer pressing
dangers; nor can it be supposed that our credit will enable
us to procure any loans, if our government is limited in the
means of procuring money. But, if the government have it
in their power to lay those taxes, it will give them credit tc
borrow money on that security, and for that reason it will
not be necessary to lay so heavy a tax ; for, if the tax ij
sufficiently productive to pay the interest, money may always
be had in consequence ot that security. If the state legis-
latures must be applied to, they must lay a tax for the ful
sum wanting. This will be much more oppressive than £
tax laid by Congress ; for 1 presume that no state legislature
will have as much credit individually as the United States
conjointly ; therefore, viewing it in this light, a tax laid bj
Conojress will be much easier than a tax laid by the states
Another inconvenience which will attend this proposec
amendment is, that these emergencies may happen a con-
siderable time before the meeting of some state legislatures
and previous to their meeting, the schemes of the governniem
may be defeated by this delay. A considerable time wil
elapse before the state can lay the tax, and a considerable
time before it be collected ; and perhaps it cannot be col-
lected at all. One reason which the worthy member has
offered in favor of the amendment was, that the genera
legislature cannot lay a tax without interfering with the
taxation of the state legislature. It may happen that the
taxes of both may be laid on the same article ; but I hope
and believe that the taxes to be laid on by the genera
legislature will be so very light that it will be no incon-
venience to the people to pay them ; and if you attend tc
the probable amount of the imjx)st, you must conclude thai
the small addition to the taxes will not make them so high
as they are at this time. Another reason offered by the
worthy member in support of the amendment is, that the
state legislature may direct taxes to be paid in specific
articles. We had full experience of this in the late wai
ionMTTON.] NORTH CAROLINA. 79
I call on the house to say, whether it was not th(, most
oppressive and least productive tax ever known in the state.
Many articles were lost, and many could not be disposed of
so as to be of any service to the people. Most articles are
perishable, and therefore cannot answer. Others are diffi-
cult to transport, expensive to keep, and very difficult to
dispose of. A tax payable in tobacco would answer very
well in some parts of the country, and perhaps would be
more productive than any other ; yet we feel that great losses
have been sustained by the public on this article. A tax
payable in any kind of grain would answer very little
purpose, grain being perishable. A tax payable in pitch and
tar would not answer. A mode of this kind would not be
at all eligible in this state : the great loss on the specific
articles, and inconvenience in disposing of them, would render
them productive of very little.
He says that this would be a means of keeping up the
importance of the state legislatures. I am afraid it would
have a different effect. If requisitions should not be com-
plied with at the time fixed, the officers of Congress would
then immediately proceed to make their collections. We
know that several causes would inevitably produce a failure.
The states would not, or could not, comply. In that case,
the state legislature would be disgraced. After having
done every thing for the support of their credit and impor-
tance without success, would they not be degraded in the
ejes of the United States? Would it not cause heart-burn-
ings between particular states and the United States? The
inhabitants would oppose the tax-gatherers. They would
say, "We are taxed by our own state legislature for the
proportionate quota of our state ; we will not pay you also."
This would produce insurrections and confusion in the
country. These are the reasons which induce me to sup-
port this clause. It is perhaps particularly favorable to this
stite. We are not an importing country: very little is here
raised by imposts. Other states, who have adopted the
Constitution, im|)ort for us. Massachusetts, South Carolina,
Maryland, and Virginia, are great importing states. From
them we procure foreign goods, and by that means they are
generally benefited ; for it is agreed upon by all writers,
ihif the consumer pays the impost.
Do we not^ then, pay a tax in support of theii revenue in
80 DEBATES. ISpbncu
|iroportioD to our consumption of foreign articles? Do ^e
not know that this, in our present situation, is without any
benefit to us ? Do we not pay a second duty when these
goods are imported into this state ? We now pay double du-
ties. It is not to be supposed that the mercliant will pay the
duty without wishing to get interest and profit on the money
he lays out. It is not to be presumed that he will not add
to the price a sum sufificient to indemnify himself for the
inconvenience of parting with the money he pays as a duty.
We therefore now pay a much higher price foir European
manufactures than the people do in the great importing
states. Is it not laying heavy burdens on the people of this
country, not only to compel them to pay duties for the sup
port of the importing states, but to pay a second duty on thu
importation into this state by our own merchants ? By adop»
tion, we shall participate in the amount of the imposts. Upon •
the whole, I hope this article will meet with the appro-
bation of this committee, when they consider the necessit}'
of supporting the general government, and the many im^on-
veniences, and probable if not certain inefficacy, of requi
sitions.
Mr. SPENCER. Mr. Chairman, I cannot, notwithstand-
ing what the gentleman has advanced, agree to this clause
unconditionally. The most certain criterion of happiness
that any people can have, is to be taxed by their own imme-
diate representatives, — by those representatives who in-
termix with them, and know their circumstances, — not by
those who cannot know their situation. Our federal repre-
sentatives cannot sufficiently know our situation and cir-
cumstances. The worthy gentleman said that it would be
necessary for the general government to have the power
of laying taxes, in order to have credit to borrow money.
But 1 cannot think, however plausible it may appear, that
his argument is conclusive. If such emergency happens as
will render it necessary for them to borrow money, it will
be necessary for them to borrow before they proceed to lay
the tax. I conceive the government will have credit suffi-
cient to borrow money in the one case as well as the other.
If requisitions be punctually complied with, no doubt they
can borrow; and if not punctually complied with. Congress
can ultimately lay the tax.
I wish to have the most easy way for the people to pay
fipAiGHT.l NORTH CAROLINA. 81
ihcir taxes. The state legislature will know every method
and expedient by which the people can pay, and they will
recur to the most convenient. This will he agreeable to the
people, and will not create insurrections and dissensions in
the country. The taxes might be laid on the most produc-
tive articles: I wish not, for my part, to lay them on per-
ishable articles. There are a number of other articles
besides those which the worthy gentleman enumerated.
There are, besides tobacco, hemp, indigo, and cotton. In
the Northern States, where they have manufactures, a con-
trary system from ours would be necessary. There the
principal attention is paid to the giving their children trades
They have few articles for exportation. By raising the taN
in this manner, it will introduce such a spirit of industry as
cannot fail of producing happy consequences to posterity.
He objected to the mode of paying taxes in specific articles
May it not be supposed that we shall gain something b}
experience, and avoid those schemes and methods which
shall be found inconvenient and disadvantageous? If ex-
penses should be incurred in keeping and disposing of such
articles, could not those expenses be reimburst^d by a judi-
cious sale ? Cannot the legislature be circumspect as to the
choice and qualities of the objects to be selected for raising
the taxes due to the Continental treasury? The worthy
gentleman has mentioned that, if the people should not
comply to raise the taxes in this way, then, if they were sub-
ject to the law of Congress, it would throw them into con-
fusion. I would ask every one here, if there be not more
reason to induce us to believe that they would be thrown
into confusion, in case the power of Congress was exercised
by Congress in the first instance, than in the other case.
After having so long a time to raise the taxes, it appears to
me then^ could be no kind of doubt of a punctual com-
pliance. The rio:ht of Congress to lay taxes ultimately, in
case of non-compliance with requisitions, would operate as a
penalty, and would stimulate the states to discharge their
quotas faithfully. Between these two modes there is an
immense difference. The one will produce the happiness,
ease, and prosperity of the people ; the other will destroy
them, and produce insurrections.
Mr. SPAIGHT. Mr. Chairman, it was thought abso-
lutely necessary for the support of the general government
VOL. IV. 11
K2 DEBATES. ISfkngbb.
10 give it power to raise taxes. Government cannot exist
without certain and adequate funds. Requisitions cannot
be depended upon* For my part, I think it indifferent
whether I pay the tax to the officers of the continent or to
those of the state. I would prefer paying to the Continental
officers, because it will be less expensive.
The gentleman last up has objected to the propriety of
the tax being laid by Congress, because they could not
know the circumstances of the people. The state legis-
lature will have no source or opportunity of information
which the members of the general government may not
have. They can avail themselves of the experience of the
state legislature. The gentleman acknowledges the ineffi-
cacy of requisitions, and yet recommends them. He has
allowed that laws cannot operate upon political bodies with-
out the agency of force. His expedient of applying to the
states in the first instance will be productive of delay, and
will certainly terminate in a disappointment to Congress.
But the gentleman has said that we had no hard money, and
that the taxes might be paid in specific articles. It is well
known that if taxes are not raised in medium, the state
loses by it. If the government wishes to raise one thousand
pounds, they must calculate on a disappointment by specific
articles, and will therefore impose taxes more in proportion
to the expected disappointment. An individual can sell his
commodities much better than the public at large. A tax
payable in any produce would be less productive, and more
oppressive to the people, as it would enhance the public
burdens by its inefficiency. As to abuses by the Continental
officers, I apprehend the state officers will more probably
commit abuses than they. Their conduct will be more
narrowly watched, and misconduct more severely punished.
I'hey will be therefore more cautious.
Mr. SPENCER, in answer to Mr. Spaight, observed,
that, in case of war, he was not opposed to this article, be-
cause, if the states refused to comply with requisitions, there
was no way to compel them but military coercion, which
would induce refractory states to call for foreign aid, which
might terminate in the dismemberment of the empire. But
he said that he would not give the power of direct taxation
to Congress in the first instance, as he thought the states
would lay the taxes in a less oppressive manner.
diLL.] NORTH CAROLINA. 83
Mr. WHITMILL HILL. Mr. Chairman, the subjec-
now before us is of the highest importance. The object of
all government is the protection, security, and happiness of
the people. To produce this end, government must be pos-
sessed of the necessarv means.
Every government must be empowered to raise a suffi-
cient rerenue ; but I believe it will be allowed, on all hands,
that Congress has been hitherto altogether destitute of that
power so essential to every government. I believe, also,
that it is generally wished that Congress should be possessed
of power to raise such sums as are requisite for the support
of the Union, though gentlemen may differ with regard to
the mode of raising them.
Our past experience shows us that it is in vain to expect
any possible efficacy from requisitions. Gentlemen, recom-
mend these, as if their inutility had not l>een experienced.
But do we not all know what effects they have produced?
Is it not to them that we must impute the loss of our credit
and respectability ? It is necessary, therefore, that govern-
ment have recourse to some other mode of raising a revenue.
Had, indeed, every state complied with requisitions, the old
Confederation would not have been complained of; but as
the several states have already discovered such repugnancy
to comply with federal engagements, it must appear abso-
lutely necessary to free the general government from such a
state of dependence.
The debility of the old system, and the necessity ot sub-
stituting another in its room, are the causes of calling this
Convention.
I concygive, sir, that the power given by that clause is ab-
solutely nA^essary to the existence of the government. Cien-
tlemen say that we are in such a situation that we cannot
pay taxes. This, sir, is not a fair representation, in my
opinion. The honest people of this country acknowledge
themselves sufficiently able and willing to pay them. . Were
it a private contract, they would find means to pay them.
The honest part of the community complain of the acts of
the legislature. They complain that the legislature makes
laws, not to suit their constituents, but themselves. The
legislature, sir, never means to pay a just debt, as their con-
stituents wish to do. Witness the laws made in this coun-
try. I will, however, be bold enough to say, that it is the
84 DEBATES. [Hill.
wish of the honest people to pay those taxes which are
necessary for the support of the government. We have for
a long time waited, in hope that our legislature would point
out the manner of supporting the general government, and
relieving us from our present ineligible situation. Every
body was convinced of the necessity of this ; but how is it
to be done? The legislature have pointed out a mode —
their old, favorite mode — they have made paper money ;
purchased tobacco at an extravagant price, and sold it at
a considerable loss ; they have received about a dollar in the
pound. Have we any ground to hope that we shall be in a
better situation ?
Shall we be bettered by the alternative proposed by gen
tlemen — by levying taxes in specific articles ? How will
you dispose of them ? Where is the merchant to buy them:
Your business will be put into the hands of a commissioner
who, having no business of his own, will grasp at it eagerly,
and he, no doubt, will manxige it. But if the payment of
the tax be left to the people, — if individuals are told thai
they must pay such a certain proportion of their income to
support the general government, — then each will consider il
as a debt ; he will exert his ingenuity and industry to raise
it; he will use no agent, but depend on himself. By these
means the money will certainly be collected. I will pledge
myself for its certainty. As the legislature has never here
tofore called upon the people, let the general government
apply to individuals : it cannot depend upon states. If the
people have articles, they can receive money for them
Money is said to be scarce ; but, sir, it is the want of in-
dustry which is the source of our indigence and difficulties.
If people would be but active, and exert every p©wer, they
might certainly pay, and be in easy circumstances ; and the
people are disposed to do so ; — I mean the good part of
the community, which, I trust, is the greater part of it.
Were the money to be paid into our treasury first, instead
of recommitting it to the Continental treasury, we should
apply it to discharge our own pressing demands; by which
means, a very small proportion of it would be paid to Con-
gress. And if the tax were to be laid and collected by the
several slates, what would be the consequence ? Congress
must depend upon twelve funds for its support. The gen-
eral government must depend on the contingency of sue-
Bill.] NORTH CAROLINA. 85
ceeding in twelve different applications to twelve different
bodies. What a slender and precarious dependence woula
this be ! The states, when called upon to pay these demands
of Congress, would fail; they would pay every other de-
mand before those of Congress. They have hitherto done
it. Is not this a true statement of facts ? How is it with
the Continental treasury.^ The true answer to this question
must hurt every friend to his country.
I came in late ; but I believe that a gentleman (Governor
Johnston) said, that if the states should refuse to pay requi-
sitions, and the Continental officers were sent to collect, the
states ^'ould be degraded, and the people discontented. I
believe this would be the case. The states, by acting dis-
honestly, would appear in the most odious light ; and the
people would be irritated at such an application, after a re-
jection by their own legislature. But if the taxes were to
be raised of individuals, 1 believe they could, without any
difficulty, be paid in due time.
But, sir, the United States wish to be established and
known among other nations. This will be a matter of great
utility to them. We might then form advantageous connec-
tions. When it is once known among foreign nations that
our general government and our finances are upon a respect-
able footing, should emergencies happen, we can borrow
money of them without any disadvantage. The lender
would be sure of being reimbursed in time. This matter
is of the highest consequence to the United States. Loans
must be recurred to sometimes. In case of war they would
be necessary. All nations borrow money on pressing oc-
casions.
The gentleman who was last up mentioned many specnic
articles which could be paid by the people in discharge of
iheir taxes. He has, I think, been fully answered. He
must see the futility of such a mode. When our wants
would be greatest, these articles would be least productive 5
I mean in time of war. But we still have means; such
means as honest and assiduous men will find. He says
that Congress cannot lay the tax to suit us. He has foi-
gotten that Congress are acquainted with us — go from us
— are situated like ourselves. 1 will be lx)ld to say, it will
be most thisir own interest to behave with propriety and
moderation. Their own interest will prompt them to lay
8
86 DEBATES. [lIiLL
taxes moderately ; and nothing but the last necessity will
urge them to recur to that expedient.
This is a most essential clause. Without money, govern-
ment will answer no purpose. Gentlemen compare this to
a foreign tax. It is by no means the case. It is laid by
ourselves. Our own representatives lay it, and will, no
doubt, use the most easy means of raising it, possible. Why
not trust our own representatives ? We might, no doubt,
have confidence in them on this occasion, as well as every
other. If the Continental treasury is to depend on the
states, as usual, it will be always poor. But gentlemen
are Jealous, and unwilling to trust government, thoitgh they
are their own representatives. Their maxim is. Trust them
with no power. This holds against all government. An
archy will ensue if government be not trusted. I think that
I know the sentiments of the honest, industrious part of the
community, as well as any gentleman in this house. They
wish to discharge these debts, and are able. If they can
raise the interest of the public debt, it is sufficient. They
will not be called upon for more than the interest, till such
time as the country be rich and populous. The principal
•:an then be paid with great facility.
We can borrow money with ease, and on advantageous
terms, when it shall be known that Congress will have that
power which all governments ought to have. Congress will
not pay their debts in paper money. I am willing to trust
this article to Congress, because I have no reason to think
that our government will be better than it has been. Per-
haps I have spoken too liberally of the legislature before ;
but I do not expect that they will ever, without a radical
change of men and measures, wish to put the general gov-
ernment on a better footing. It is not the poor man who
opposes the payment of those just debts to which we owe
our independence and |)olitical existence, but the rich miser.
Not the poor, but the rich, shudder at the idea of taxes. 1
have no dread that Congress will distress us ; nor have I any
fear that the tax will be embezzled by officers. Industry
and economy will be promoted, and money will be easier
got than ever it has been yet. The taxes will be paid by
the people when called upon. I trust that all honest, in-
dustrious people will think, with me, that Congress ought to
be possessed of the power of applying immediately to the
WDowALL.! NORTH CAROLINA. 8>
people for its support, without the interposition of the state
legislatures. 1 have uo confidence in the legislature : the
people do not $up))ose them to be honest men.
Mr. S TEELE was decidedly in favor of the clause. A
government without revenue he compared to a jioor, forlorn,
dependent individual, and said that the one would be as
helpless and contemptible as the other. He wished the
government of the Union to be on a respectable footing.
Congress, he said, showed no disposition to tax us — that •
it was well known that a poll tax of eighteen pence per
poll, and six pence per hundred acres of land, was appro-
priated and offered by the legislature to Congress — that
Congress was solicited to send the oflficers to collect those
taxes, but they refused — that if this power was not given
to Congress, the people must be oppressed, especially in
time of war — that, during the last war, provisions, horses,
tc., had been taken from the people by force, to supply the
wants of government — that a respectable government would
not be under the necessity of recurring to such unwarrant-
able means — that such a method was unequal and oppres-
sive to the last degree. The citizens, whose property was
pressed from them, paid all the taxes ; the rest escaped.
The press-masters went often to the poorest, and not to the
richest citizens, and took their horses, &c. This disabled
them from making a crop the next year. It would be bet-
ter, he said, to lay the public burdens equally upon the peo-
ple. Without this power, the other powers of Congress
would be nugatory. He added, that it would, in his opin-
ion, give strength and respectability to the United States in
rime of war, would promote industry and frugality, and
would enable the government to protect and extend com-
merce, and consetjuently increase the riches and population .
of the country.
Mr. JOSEPH M'DOWALL. Mr. Chairman, this is a
power that I will never agree to give up from the hands of
the people of this country. We know that the amount of
the imposts will be trifling, and that the expenses of this
government will be very great ; Consequently the taxes will
be very high. The tax-gatherers will be sent, and our
property will be wrested out of our hands. The Senate is
most dangerously constructed. Our only security is the House
t»l Representatives. They may be continued at Congress?
88 DEBATES. [JouNSToii.
eight or ten years. At such a distance from their homes,
and for so long a time, they will have no feeling for, nor
any knowledge of, the situation of the people. If elected
from the seaports, they will not know the western part of
the country, and vice versa. Two cooperative powers can-
not exist together. One must submit. The inferior must
give up to the superior. While I am up, I will say some-
thing to what has been said by the gentleman to ridicule the
General Assembly. He represents the legislature in a very
opprobrious light. It is very astonishing that (he people
should choose men of such characters to represent them. If
the people be virtuous, why should they put confidence in
men of a contrary disposition ? As to paper money, it was
the result of necessity. We were involved in a great war.
What money had been in the country was sent to other
parts of the world. What would have been the consequence
if paper money had not been made ? We must have been
undone. Our political existence must have been destroyed.
The extreme scarcity of specie, with other good causes,
particularly the solicitation of the officers to receive it at its
nominal value, for their pay, produced subsequent emissions.
He tells us that all the people wish this power to be given
— that the mode of payment need only be pointed out, and
that they will willingly pay. How are they to raise the
money ? Have they it in their chests ? Suppose, for in-
stance, there be a tax of two shillings per hundred laid on
land ; where is the money to pay it ? We have it not. I
am acquainted with the people. I know their situation.
They have no money. Requisitions may yet be complied
with. Industry and frugality may enable the people to pay
moderate taxes, if laid by those who have a knowledge of
their situation, and a feeling for them. If the tax-gatherers
come upon us, they will, like the locusts of old, destroy us.
They will have pretty high salaries, and exert themselves to
oppress us. When we consider these things, we should be
cautious. They will be weighed, I trust, by the House.
Nothing said by the gentlemen on the other side has obvi-
ated my objections.
Gov. JOHNSTON. Mr. Chairman, the gentleman who
was last up, still insists on the great utility which would re
suit from that mode which has hitherto been found ineffect
ual. It is amazing that past experience will not instruct
him. When a merchant follows a similar mode, — when he
/0HN9TON.] NORTH CAROLINA. 89
purchases dear and sells cheap, — he is called a swindler
and must soon become a bankrupt. This state deserves
(hat most disgraceful epithet. We are swindlers ; we gave
three pounds per hundred weight for tobacco, and sold it
three dollars per hundred weight, after having paid very
considerable expenses for transporting and keeping it. Th^
United States are bankrupts. They are considered such in
every part of the world. They borrow money, and promise
to pay : they have it not in their power, and they are obliged
to ask of the people, whom they owe, to lend them money
to pay the very interest. This is disgraceful and humiliating.
By these means we are paying compound interest. No pri-
vate fortune, however great, — no estate, however affluent,
— can stand this most destructive mode. This has proceed-
ed from the inefficacy of requisitions. Shall we continue the
same practice? Shall we not rather struggle to get over our
misfortunes ? I hope we shall.
Another member, on the same side, says that it is im-
proper to take the power of taxation out of the hands of
the people. I deny that it is taken out of their hands by
this system. Their iniimediate representatives lay these
taxes. Taxes are necessary for every government. Can
there be any danger when these taxes are laid by the rep-
resentatives of the people ? If there be, where can political
safety be found ? But it is said that we have a small proportion
of that representation. Our proportion is equal to the propor-
tion of money we shall have to pay. It is therefore a full
proportion ; and unless we suppose that all the members of
Congress shall combine to ruin their constituents, we have
no reason to fear. It is said (I know not from what prin-
'uple) that our representatives will be taken from the sea-
«;oast, and will not know in what manner to lay the tax
lo suit the citizens of the western part of the country. I
know not whence that idea arose. The gentlemen from
the westward are not precluded from voting for representa-
tives. They have it, therefore, in their power to send them
from the westward, or the middle part of the state. They
•ire more numerous, and can send them, or the greater
part of them. I do not doubt but they will send the most
proper, and men in whom they can put confidence, and
will give them, from time to time, instructions to enlighten
their minds.
VOL. IV. 12
90 DEBATES [JouNHTiiN.
Something has been said with regard to their paper money.
1 think very little can be done in favor of it ; much may be
said, very justly, in favor of it.
Every man of property — every man of considerable trans-
actions, whether a merchant, planter, mechanic, or of any
other condition — must have felt the baneful influence of
that currency. It gave us relief for a moment. It assisted
us in the prosecution of a bloody war. It is destructive,
however, in general, in the end. It was struck, in the last
instance, for the pur|X)se of paying the officers and soldiers.
The motive was laudable.
I then thought, and still do, that those gentlemen might
have had more advantage by not receiving that kind of pay-
ment. It would have been better for them, and for the
country, had it not been emitted. We have involved our-
selves in a debt of £200,000. We have not, with this sum,
honestly and fairly paid £50,000. W^as this right ? But,
say they, there was no circulating medium. This want was
necessary to be supplied. It is a doubt with me whether
the circulating medium be increased by an emission of paper
currency. Before the emission of the paper money, there
was a great deal of hard money among us. For thirty years
past, I had not known so much specie in circulation as we
had at the emission of paper money, in 1783. That medium
was increasing daily. People from abroad bring specie ; for,
thank God, our country produces articles which are every
where in demand. There is more specie in the country
than is generally imagined ; but the proprietors keep it locked
up. No man will part with his specie. It lies in his chest.
It is asked, Why not lend it out ? The answer is obvious
— that, should he once let it get out of his power, he never
can recover the whole of it. If he bring suit, he will obtain
a verdict for one half of it. This is the reason of our pov-
erty. The scarcity of money must be, in some degree, owing
to this ; and the specie which is now in this country might
as well be in any other part of the world. If our trade
was once on a respectable footing, we should tind means
of paying that enormous debt.
Another observation was made, which has not yet been
answered, viz., that the demands of the United States will be
smaller than those of the states, for this reason — the United
States will only make a demand of the interest of the public
debts: the states must demand both principal and ioterevt*
IwtoELL.] NORTH CAROLINA. :)1
for I presume no state can, on an emergency, producoy
without the aid of individuals, a sum sufficient for that pur-
pose ; but the United States can borrow, on the credit of
the fundi arising from their power of laying taxes, such
sums as will be equal to the emergency.
There will be always credit given, where there is good
security. No man, who is not a miser, will hesitate to trus*
where th^re is a respectable security; but credulity itselt
would not trust where there was no kind of security, bu
an absolute certainty of losing. Mankind wish to make their
money productive; they will therefore lend it where there is
a security and certainty of recovering it, and no longer keep
it hoarded in strong boxes.
This power is essential to the very existence of the gov-
ernment. Requisitions are fruitless and idle. Every expe-
dient proposed as an alternative, or to qualify this power, is
replete with inconvenience. It appears to me, therefore, upon
the whole, that this article stands much better, as it is, than
in any other manner.
Mr. IREDELL. Mr Chairman, I do not presume to
rise to discuss this clause, after the very able, and, in my
opinion, unanswerable arguments which have been urged in
favor of it ; but merely to c6rrect an error which fell from a
respectable member (Mr. M'Dowall) on the other side.
It was, that Congress, by interfering with the mode of
elections, might continue themselves in office. I thought
that this was sufficiently explained yesterday. There is
nothing in the Constitution to empower Congress to con-
tinue themselves longer than the time specified. It says,
expressly, that the House of Representatives shall consist
of members chosen for two years, and that the Senate shall
be composed of senators chosen for six years. At the ex-
piration of these terms, the right of election reverts to the
people and the states ; nor is there any thing in the Con-
stitution to warrant a contrary supposition. The clause al-
luded to has no reference to the duration of members in
Congress, but merely as to the time and manner of their
election.
Now that I am up, I beg leave to take notice of a sug
gestion, that Congress could as easily borrow money when
they had the ultimate power of laying taxes, as if they pos-
sessed it in the first instance. I entirely differ from that
{>?. DEBATES. [Iredell.
opinion. Had Congress the immediate power, tnere would
be no doubt the money would be raised. In the other mode,
doubts might be entertained concerning it. For can any man
suppose that if, for any reasons, the state legislatures did
not think proper to pay their quotas, and Congress should be
r.ompelled to lay taxes, it would not raise alarms in the
state ? Is it not reasonable the people would be more apt
to side with their state legislature, who indulged them, than
with Congress, who imposed taxes upon them r They would
say, " Had we been able to pay, our state legislature would
have raised the money. They know and feel for our dis-
tresses ; but Congress have no regard for our situation, and
have imposed taxes on us we are unable to bear." This is,
sir, what would probably happen. Language like this would
be the high road to popularity. In all countries, particularly
in free ones, there are many ready to catch at such opportu-
nities of making themselves of consequence with the people:
General discontent would probably ensue, and a serious
quarrel take place between the general and the state govern-
ments. Foreigners, who would view our situation narrowly
before ihey lent their money, would certainly be less willing
to risk it on such contingencies as these, than if they knew
there was a direct fund for their payment, from which no ill
consequences could be apprehended. The difference be-
tween those who are able to borrow, and those who are not,
IS extremely great. Upon a critical emergency, it may be
mipossible to raise the full sum wanted immediately upon
the people. In this case, if the public credit is good, they
may borrow a certain sum, and raise for the present only
enough to pay the interest, deferring the payment of the
principal till the public is more able to bear it. In the other
case, where no money can be borrowed, there is no resource,
if the whole sum cannot be raised immediately. The dif-
ference, perhaps, may be stated as twenty to one. A hun-
dred thousand pounds, therefore, may be wanted in the one
case ; five thousand pounds may be sufficient, for the present,
in the other. Sure this is a difference of the utmost moment.
I should not have risen at all, were it not for the strong im-
pression which might have been made by the error com
mitted by the worthy gentleman on the other side. I hope
[ shall be excused for the time I have taken up with the ad-
ditional matter, though it was only staling what had been
urged with great propriety before.
Johnston.] NORTH CAROLINA. 9J
Mr. GOUDY. Mr. Chairman, this is a dispute whether
ongress shall have great, enormous powers. I am not
ble to follow these learned gentlemen through all the laby-
**inths of their oratory. Some represent us as rich, and not
Soonest ; and others again represent us as honest, and not
K-ich. We have no gold or silver, no substantial money, to
j)ay taxes with. This clause, with the clause of elections,
'Will totally destroy our liberties. The subject of our con-
sideration therefore is, whether it be proper to give any man,
€)r set of men, an unlimited power over our purse, without
any kind of control. The purse-strings are given up by this
clause. The sword is also given up by this system, h
there no danger in giving up lx)th? There is no diingei,
we are told. It may be so ; but I am jealous and suspicious
of the liberties of mankind. And if it be a character which
no man wishes but myself, I am willing to take it. Suspi-
cions, in small communities, are a pest to mankind ; but in a
matter of this magnitude, which concerns the interest of
millions yet unborn, suspicion is a very noble virtue. Let
us see, therefore, how far we give power ; for when it is once
given, we cannot take it away. It is said that those who
formed this Constitution were great and good men. We do
not dispute it. We also admit that great and learned people
have adopted it. But I have a judgment of my own ; and,
though not so well informed always as others, yet I will exert
it when manifest danger presents itself. When the power of
the purse and the sword is given up, we dare not think foi
ourselves. In case of war, the last man and the last penny
would be extorted from us. That the Constitution has a
tendency to destroy the state governments, must be clear to
every man of common understanding. Gentlemen, by their
learned arguments, endeavor to conceal the danger from us.
I have no notion of this method of evading arguments, and
of clouding them over with rhetoric, and, I must say, soph-
istry too. But I hope no man will be led astray with
them.
Gov. JOHNSTON observed, that if any sophistical argu-
ments had been made use of, they ought to be pointed out ,
and nobody could doubt that it was in the power of a
learned divine (alluding to Mr. Caldwell) to show their
suphistry.
Gov. Johnston, being informed of his mistake in taking
Mr. Goudy for Mr. Caldwell, apologized for it.
94 DEBATES. [Maclaikb
Mr PORTER. Mr Chairman, I must say that I think
the gentleman last up was wrong; for the other gentleman
was, in my opinion, right. This is a money clause. I
would fain know whence this power originates. I have
heard it said that the legislature were villains, and that this
power was to be exercised by the representatives of the
people. When a building is raised, it should be on solid
ground. Every gentleman must agree that we should not
build a superstructure on a foundation of villains. Gentle-
men say that the mass of the people are honest. I hope
gentlemen will consider that we should build the structure
on the people, and not on the representatives of the people
Agreeably to the gentleman's argument, (Mr Hill,) our rep-
resentatives will be mere villains. I expect that very
learned arguments, and powerful oratory, will be displayed
on this occasion. I ex|>ect that the great cannon from Hali-
fax (meaning Mr Davie) will discharge fire-balls among us ;
but large batteries are often taken by small arms.
Mr. BLOODWORTH wished that gentlemen would
desist from making personal reflections. He was of opinion
that it was wrong to do so, and incompatible with their duty
to their constituents ; that every man had a right to dis-
play his abilities, and he hoped they would no longer reflect
ui)on one another.
From the 2d to the 8th clause read without any observa-
tion.
9th clause read
S(»veral members wished to hear an explanation of this
chaise. Mr. MACLAINE looked upon this as a very val-
uable part of the Constitution, because it consulted the
ease and convenience of the people at large ; for that, if
the Supreme Court were at one fixed place, and no other
tribunals established, nothing could possibly be more in-
jurious ; that it was therefore necessary that Congress
should have power to constitute tribunals in different states,
for th(» trial of common causes, and to have appeals to the
Supreme Court in matters of more magnitude — that that
was his idea, but, if not satisfactory, he trusted other gen-
tlemen would explain it — that it would be more explained
when they came to the judiciary.
The 10th and 11th clauses read without any observation.
12th clause read
/£Bi>tLL.] NORTH CAROLINA. 96
Mr. IREDELL. Mr. Chairman, this clause is of sc>
much importance, that we ought to consider it with the
loost serious attention. It is a power vested in Congress,
which, in my opinion, is absolutely indispensable ; yet there
have been, perhaps, more objections made to it than any
)lher power vested in Congress. For my part, I will ob-
serve generally that, so far from being displeased with that
jealousy and extreme caution with which gentlemen consider
every power proposed to be given to this government, they
give me the utmost satisfaction.
I believe the passion for liberty is stronger in America
than in any other country in the world. Here every man
fi strongly impressed with its importance, and every breast
glows for the preservation of it. Every jealousy, not in-
compiitible with the indispensable principles of government,
is to be commended ; but these principles must at all events
be observed. The powers of government ought to be com-
petent to the public safety. This, indeed, is the primary
object of all governments. It is the duty of gentlemen who
form a constitution to take care that no power should be
wanting which the safety of the community requires. The
exigencies of the country must be provided for, not only in
respect to common and usual cases, but for occasions which
do not frequently occur. If such a provision is not made,
critical occasions may arise, when there must be either a
usurpation of power, or the public safety eminently endan-
gered ; for, besides the evils attending a frequent change of
a constitution, the case may not admit of so slow a remedy.
In considering the powers that ought to be vested in any gov-
ernment, possible abuses ought not to be pointed out, with-
out at the same time considering their use. No power, of
any kind or degree, can be given but what may be abused;
we have, therelbre, only to consider whether any particular
power is absolutely necessary. If it be, the power must
be given, and we must run the risk of the abuse, considering
our risk of this evil as one of the conditions of the imperfect
state of human nature, where there is no good without the
mixture of some evil. At the same time, it is undoubtedly
our duly to guard against abuses as much as possible. In
America, we enjoy peculiar blessings ; the people are dis-
tinguished by the possession of freedom in a very high de-
gree, unmixed with those oppressions the freest countries
96 DEBATES. [iREDELi,
in Europe sufler. But we ought to consider that in this
country, as well as in others, it is equally necessary to re-
strain and suppress internal commotions, and to guard against
foreign hostility. There is, I believe, no govenmient in the
world without a power to raise armies. In some countries
in Europe, a great force is necessary to be kept up, to guard
against those numerous armies maintained by many sover-
eigns there, where an army belonging to one government
alone sometimes amounts to two hundred thousand or four
hundred thousand men. Happily, we are situated at a
great distance from them, and the inconsiderable power to
the north of us is not likely soon to he very formidable
But though our situation places us at a remote danger, i"
cannot be pretended we are in no danger at all. I believe
there is no man who has written on this subject, but han
admitted that this power of raising armies is necessary in
time of war ; but they do not choose to admit of it in a
time of peace. It is to be hoped that, in time of peace,
there will not be occasion, at any time, but for a very small
number of forces; possibly, a few garrisons may be neces-
sary to guard the frontiers, and an insurrection like that
lately in Massachusetts might require some troops. But a
time of war is the time when the power would probably
be exerted to any extent. Let us, however, consider the
consequences of a limitation of this power to a time of war
only. One moment's consideration will show the impolicy
of it in the most glaring manner. We certainly ought to
guard against the machinations of other countries. We
know not what designs may be entertained against us ; but
surely, when known, we ought to endeavor to counteract
their effects. Such designs mav be entertained in a time
of profound peace, as well as after a declaration of war.
Now suppose, for instance, our government had received
i-ertain intelligence that the British government had formed
a scheme to attack New York, next April, with ten thou-
sand men ; would it not be proper immediately to prepare
against it ? — and by so doing the scheme might be defeated.
But if Congress had no such power, because it was a time
of peace, the place must fall the instan* it was attacked ;
and it might take years to recover what might at first have
been seasonably defended. This restriction, therefore, can-
not take place with safety to the community, and the power
Uedeix.] north CABXXLINA. 97
HKist of course be left to the direction of the general govern-
ment. I hope there will be little necessity for the exercise
of this power ; and I trust that the universal resentment
and resistance of the people will meet every attempt to
abuse this or aoy other power. That high spirit for which
they are distinguished, I hope, will ever exist; and it
probably will as long as we have a republican form of gov-
ernment. Every man feels a consciousness of a personal
equality and independence. Let him look at any part of
the continent, — he can see no superiors. This personal in-
dependence is the surest safeguard of the public freedom.
But is it probable that our own representatives, chosen for a
limited time, can be capable of destroying themselves, their
families and fortunes, even if they have no regard to their
public duty ? When such considerations are involved, surely
it is very unlikely that they will attempt to raise an army
against the liberties of their country. Were we to establish
an hereditary nobility, or a set of men who were to have
exclusive privileges, then, indeed, our jealousy might be well
grounded. But, fortunately, we have no such. The re-
striction contended for, of no standing army in time of peace,
forms a part of our own state Constitution. What has been
the consequence ? In December, 1786, the Assembly
flagrantly violated it, by raising two hundred and one men,
for two years, for the defence of Davidson county. I do
not deny that the intention might have been good, and that
the Assembly really thought the situation of that part of
the country required such a defence. But this makes the
argument still stronger against the impolicy of such a re-
striction, since our own experience points out the danger
resulting from it ; for I take it for granted, that we could
not at that time be said to be in a state of war. Dreadful
might the condition of this countiy«be without this power.
We must trust our friends or trust o«lr enemies. There is
one restriction on this [lower, whicih I believe is the only
one that ought to be put upon it. ^t)*i
Though Congress are to have the power of raising and
supporting armies, yet they cannot appropriate money for
th «t purpose for a longer time than two years. Now, we
will suppose that the majority of the two houses should be
capable of making a bad use of this power, and should ap-
propriate more money to raise an army than is necessary
VOL. IV. 13 ^
98 DEBATES. [Ircobix.
Tlie appropriation, we have seen, cannot be constitutional for
more than two years. Within that time it might command
obedience. But at the end of the second year from the first
choice, the whole House of Representatives must l)e re
chosen, and also one third of the Senate. The people,
being inflamed with the abuse of power of the old members,
would turn them out with indignation. Upon their return
home, they would meet the universal execrations of their
fellow-citizens. Instead of the grateful plaudits of their
country, so dear to every feeling mind, they would be treated
with the utmost resentment and contempt; their names
would be held in everlasting infamy ; and their measures
would be instantly reprobated and changed by the new
members. In two years, a system of tyranny certainly could
not succeed in the face of the whole people ; and the appro-
priation could not be with any safety for less than that
period. If it depended on an annual vote, the consequence
might be, that, at a critical' period, when military operations
were necessary, the troops would not know whether they
were entitled to pay or not, and could not safely act till
they knew that the annual vote had passed. To refuse this
power to the government, would be to invite insults and
attacks from other nations. Let us not, for God's sake, be
guilty of such indiscretion as to trust our enemies' mercy,
but give, as is our duty, a sufficient power to government to
protect their cfjuntry, — guarding, at the same time, against
abuses as well as we can. We well know what this country
suffered by the ravages of the British army during the war.
How could we have been saved but by an army? Without
that resource we should soon have felt the miserable conse-
quences; and this day, instead of having the honor — the
greatest any peo|)le ever enjoyed — to choose a government
which our reason recommends, we should have been groan-
ing under the most intolerable tyranny that was ever felt.
We ought not to think these dangers are entirely over. The
British government is not friendly to us. They dread the
rising glory of America. They tremble for the West Indies,
and their colonies to the north of us. They have counter-
acted us on every occasion since the peace. Instead of a
jberal and reciprocal commerce, they hiive attempted to
confine us to a most narrow and ignominious one. Their
pride is still irritated with the disappointment of their en-
JtiDELu] NORTH CAROLINA. 9?
deavors to enslave us. They know that, on the record of
history, their conduct towards us must appear in the most dis-
graceful light. Let it also appear, on the record of history,
that America was equally wise and fortunate in peace as well
as in war. Let it be said that, with a temper and unanimity
unexampled, they corrected the vices of an imperfect gov-
ernment, and framed a new one on the basis of justice and
liberty ; that, though all did not concur in approving the
particular structure of this government, yet that the minority
peaceably and respectfully submitted to the decision of the
greater number. This is a spectacle so great, that, if it
should succeed, this must be considered the greatest country
under heaven; for there is no instance of any such deliber-
ate change of government in any other nation that ever
existed. But how would it gratify the pride of our enemy
to say, " We could not conquer you, but you have ruined
yourselves. You have foolishly quarrelled about trifles. You
are unfit for any government whatever. You have separated
from us, when you were unable to govern yourselves, and
you now deservedly feel all the horrors of anarchy." I beg
pardon for saying so much. 1 did not intend it when I be-
gan. But the consideration of one of the most important
parts of the plan excited all my feelings on the subject. I
speak without any affectation in expressing my apprehension
of foreign dangers: the belief of them is strongly impressed
on my mind. I hope, therefore, the gentlemen of the com-
mittee will excuse the warmth with which I have spoken.
I shall now take leave of the subject. I flatter myself that
gentlemen will see that this power is absolutely necessary,
and must be vested somewhere ; that it can be vested no-
where so well as in the general government; and that it is
guarded by the only restriction which the nature of the thing
will admit of.
Mr. HARDIMAN desired to know, if the people were
attacked or harassed in any part of the state, — if on the
frontiers, for instance, — whether they must not apply to the
state legislature for assistance.
Mr. IREDELL replied, that he admitted that application
might be immediately m ide to the state legislature, and that,
tiy the plan under consideration, the strength of the Union
was to be exerted to repel invasions of foreign enemies and
suppress domestic insurrections ; and that the possibilitv of
100 DEBATES. llnwjxL.
an instantaneous and unexpected attack, in time of profound
peace, illustrated the danger of restricting the power of rais-
ing and supporting armies.
The rest of the 8th section read without any observation*
1st clause of the 9th section read.
Mr. J. M'DOWALL wished to hear the reasons of thisi
restriction.
Mr. SPAIGHT answered, that there was a contest be-
tween the Northern and Southern States ; that the Southern
States, whose principal support depended on the labor ot
slaves, would not consent to the desire of the Northern
States to exclude the importation of slaves absolutely ; that
South Carolina and Georgia insisted on this clause, as they
were now in want of hands to cultivate their lands; that in
the course of twenty years they would be fully supplied ;
that the trade would be abolished then, and that, in the
mean time, some tax or duty might be laid on.
Mr. M'DOWALL replied, that the explanation was just
Ruch as he expected, and by no means satisfactory to him,
and that he looked upon it, as a very objectionable part of
the system.
Mr. IREDELL. Mr. Chairman, I rise to express senti-
ments similar to those of the gentleman from Craven. For
my part, were it practicable to put an end to the importa-
tion of slaves immediately, it would give me the greatest
pleasure ; for it certainly is a trade utterly inconsistent with
the rights of humanity, and under which great cruelties
have been exercised. When the entire abolition of slavery
takes place, it will be an event which must be pleasing to
every generous mind, and every friend of human nature ; but
we often wish for things which are not attainable. It was
the wish of a great majority of the Convention to put an
end to the trade immediately ; but the states of South Car-
olina and Georgia would not agree to it. Consider, then,
what would be the difference between our present situation
in this respect, if we do not agree to the Constitution, and
what it \vill be if we do agree to it. If we do not agiee
to it, do we remedy the evil ? No, sir, we do not. For if
the Constitution be not adopted, it will be in the power of
every state to continue it forever. They may or may no!
abolish it, at their discretion. ' But if we adopt ♦h** Con-
stitution, the trade must cease after twenty years, it Con-
Galloway.] NORTH CAROLINA. lOl
gress declare so, whether particular states please so or not ;
surely, then, we can gain by it. This was the urinost that
could be obtained. 1 heartily wish more could have been
done. But as it is, this government is nobly distinguished
above others by that very provision. Where is there another
country in which such a restriction prevails? We, there-
fore, sir, set an example of humanity, by providing for the
abolition of this inhuman traffic, though at a distant period.
1 hope, therefore, that this part of the Constitution will not
be condemned because it has not stipulated for what was
impracticable to obtain.
Mr. SPAIGHT further explained the clause. That the
limitation of this trade to the term of twenty years was a^
compromise between the Eastern States and the Southern
States. South Carolina and Georgia wished to extend the
term. The Eastern States insisted on the entire abolition
of the trade. That the state of North Carolina had not
thought proper to pass any law prohibiting the importation
of slaves, and therefore its delegation in the Convention did
not think themselves authorized to contend for an immediate
prohibition of it.
Mr. IREDELL added to what he had said before, that
the states of Georgia and South Carolina bad lost a great
many slaves during the war, and that they wished to supply
the loss.
Mr. GALLOWAY. Mr. Chairman, the explanation giv-
en to this clause does not satisfy my mind. I wish to see
this abominable trade put an end to. But in case it be
thought proper to continue this abominable traffic for twenty
years, yet I do not wish to see the tax on the importatioq
extended to all persons whatsoever. Our situation is dif-
ferent from the people to the north. We want citizens;
they do not. Instead of laying a tax, we ought to give a
bounty to encourage foreigners to come among us. With
respect to the abolition of slavery, it requires the utmost
consideration. The property of the Southern States consists
principally of slaves. If they mean to do away slavery al-
together, this property will be destroyed. I apprehend it
means to bring forward manumission. If we must manu-
mit our slaves, what country shall we send them to? It it
impossible for us to be happy, if, after manumission, thev
are to stay amonfr us.
102 DEBATES. [Datib
Mr. IREDFLL. Mr. Chairman, the worthy gentleman,
I believe, has misunderstood this clause, which runs in the
following words : " The migration or importation of such
persons as any of the states now existing shall think ()roper
to admit, shall not be prohibited by the Congress prior to
the year 1808; but a tax or duty may be imposed on such
importation, not exceeding ten dollars for each person."
Now, sir, observe that the Eastern States, who long ago
have abolished slaves, did not approve of the expression
slaves; they therefore used another, that answered the same
purpose. The committee will observe the distinction be-
tween the two words migration and importation. The first
part of the clause will extend to persons who come into this
country as free people, or are brought as slaves. But the last
part extends to slaves only. The word migration refers to
free persons ; but the word importation refers to slaves, be-
cause free people cannot be said to be imported. The tax,
therefore, is only to be laid on slaves who are imported, and
not on free persons who migrate. I further beg leave to say
that the gentleman is mistaken in another thing. He seems
to say that this extends to the abolition of slavery. Is there
anything in this Constitution which says that Congress shall
have it in their power to abolish the slavery of those slaves
who are now in the country ? Is it not the plain meaning
of it, that after twenty years they may prevent the future
importation of slaves ? It does not extend to those now in
the country. There is another circumstance to be observed.
There is no authority vested in Congress to restrain the
states, in the interval of twenty years, from doing what they
please. If they wish to prohibit such importation, they may
do so. Our next Assembly may put an entire end to the
importation of slaves.
The rest of the 9lh section read without any observation.
Article 2d, section 1st.
Mr. DAVIE. Mr. Chairman, I must express my aston
ishment at the precipitancy with which we go through this
business. Is it not highly improper to pass over in silence
any part of this Constitution which has been loudly objected
tor We go into a committee to have a freer discussion. I
am sorry to see gentlemen hurrying us through, and sup-
pressing their objections, in order to bring them forward at
an unseasonable hour. We are assembled here to deliberate
Di?iE.] NORTH CAROLINA 103
for our own common welfare, and to decide upon a question
of infinite importance to our country. What is the cause ol
this silence and gloomy jealousy in gentlemen of the oppo-
sition ? This department has been universally objected tc
by them. The most virulent invectives, the most oppro-
brious epithets, and the most indecent scurrility, have been
used and applied against this part of the Constitution. Ir
has been represented as incompatible with any degree of
freedom. Why, therefore, do not gentlemen offer their ob-
jections now, that we may examine their force, if they have
any? The clause meets my entire approbation. I only
rise to show the principle on which it was formed. The
principle is, the separation of the executive from the legis-
lative— a principle which pervades all free governments.
A dispute arose in the Convention concerning the reeligi-
bility of the President. It was the opinion of the deputation
from this state, that he should be elected for five or seven
years, and be afterwards ineligible. It was urged, in sup-
port of this opinion, that the return of public officers into the
common mass of the people, where they would feel the tone
they had given to the administration of the laws, was the
best security the public had for their good behavior ; that it
would operate as a limitation to his ambition, at the same
^ime that it rendered him more independent; that when
once in possession of that office, he would move heaven and
earth to secure his reelection, and perhaps become the crin-
ging dependant of influential men ; that our opinion was
supported by some experience of the effects of this principle
in several of the states. A large and very respectable ma-
jority were of the contrary opinion. It was said that such
an exclusion would be improper for many reasons ; that if
an enlightened, upright man had discharged the duties of
the office ably and faithfully, it would be depriving the peo-
ple of the benefit of his ability and experience, though they
highly approved of him ; that it would render the President
less ardent in his endeavors to acquire the esteem and ap-
probation of his country, if he knew that he would be abso-
lutely excluded after a given period ; and that it would be
depriving a man of singular merit even of the rights of citi
zenship. It was also said, that the day might come, when
the confidence of America would be put in one man, and
*hat it might be dangerous to exclude such a man from the
t U4 DEBAT ES. [Sr Aiort
service of his country. It was urged, likewise, fhat no un-
due influence could take place in his election; that, as he
was to be elected on the same day throughout the United
J^tates, no man could say to himself, / am to he the man.
tinder these considerations, a large, respectable majority
voted for it as it now stands. With respect to the unity of
the executive, the superior energy and secrecy wherewith
one person can act, was one of the principles on which the
Convention went. But a more predominant principle was,
the more obvious responsibility of one person. It was ob-
served that, if there were a plurality of persons, and a crime
should be committed, when their conduct came to be ex
amined, it would be impossible to fix the fact on any one of
them, but that the public were never at a loss when there
was but one man. For these reasons, a great majority con-
curred in the unity, and reeligibility also, of the executive.
I thought proper to show the spirit of the deputation from
this state. However, I heartily concur in it as it now stands,
and the mode of his election precludes every possibility of
corruption or improper influence of any kind.
Mr. JOSEPH TAYLOR thought it improper to object
on every trivial case ; that this clause had been argeied on in
some degree before, and that it would lie a useless waste
of time to dwell any longer upon it ; that if they had the
power of amending the Constitution, every part need not
be discussed, as some were not objectionable ; and that,
for his own part, he would object when any essential defect
came before the house.
2d, 3d, and 4th clauses read.
Mr. J. TAYLOR objected to the power of Congress to
determine the time of choosing the electors, and to deter-
n.ine the time of electing the President, and urged that it
was improper to have the election on the same day through-
cut the United States ; that Congress, not satisfied with
their power over the time, place, and manner of elections of
representatives, and over the time and manner of elections
,)f senators, and their power of raising an army, wished like-
wise to control the election of the electors of the President ,
that by their army, and the election being on the same day
in all the* states, they might compel the electors to vote as
ti.ey please.
Mr SPAIGHT answered, that the time of choosing 'ihe
TifLo*.] NORTH CAROLINA. |A.tI
electors was to be determined by Congress, for the sake ot
regularity and uniformity ; that, if the states were to deter-
mine it, one might appoint it at one day, and another at
another, &c. ; and that the election being on the same day
10 all the states, vvpnld prevent a combination between the
electors.
Mr. IREDELL. Mr. Chairman, it gives me great aston-
ishment to hear this objection, because I thought this to be
a most excellent clause. Nothing is more necessary than to
prevent every danger of influence. Had the time of election
been different in diflerent states, the electors chosen in one
state might have gone from state to state^ and conferred
with the other electors, and the election might have l)een
thus carried on under undue influence. But by this pro-
vision, the electors must meet in the different states on the
same day, and cannot confer together. They may not even
know who are the electors in the other states. There can
be, therefore, no kind of combination. It is probable that
the man who is the olgect of the choice of thirteen different
states, the electors in each voting unconnectedly with the
rest, must be a person who possesses, in a high degree, the
confidence and respect of his country.
Gov. JOHNSTON expressed doubts with respect to the
persons by whom the electors were to be appointed. Some,
he said, were of opinion that the people at large were to
choose them, and others thought the state legislatures were
to appoint them.
Mr. IREDELL was of opinion that it could not be done
uith propriety by the state legislatures, because, as they
were to direct the manner of appointing, a law would look
very awkward, which should say, " They gave the power of
such appointments to themselves."
Mr. MACLAINE thought the state legislatures might
direct the electors to be chosen in what manner they thought
proper, and they might direct it to be done by the people at
larise.
Mr. DAVIE was of opinion, that it was left to the wisdom
of the legislatures to direct their election in whatever manner
they thought proper.
Mr. TAYLOR still thought the |X)wer improper with re-
spect to the time of choosing the electors. This power ap-
peared to him to belong properly to the state legislatures;
VOL. IV. 14
106 DEBATES. [luDKL^
nor could he see any purpose it could answer but that of an
augmentation of the congressional i)owers, which, he said,
were too great already ; that by this i)ower they might pro-
long the elections to seven years, and that, though this would
be in direct opposition to another part of the Constitution,
sophistry would enable them to reconcile them.
Mr. SPAIGHT replied, that he was surprised that the
gentleman objected to the power of Congress to determine
the time of choosing the electors, and not to that of fixing
tlie day of the election of the President ; that the power in
the one case could not possibly answer the purpose of uni
formity without having it in the other ; that the power, in
both cases, could be exercised properly only by one general
superintending power; that, if Congress had not this power,
there would be no uniformity at all, and that a great deal of
time would be taken up in order to agree upon the time.
Monday, July 28, 1788.
The 2d section of the 2d article read.
Mr. IREDELL. Mr. Chairman, this part of the Con
stitution has been much objected to. The office of superin-
tending the execution of the laws of the Union is an office
of the utmost importance. It is of the greatest consequence
to the happiness of the people of America, that the person to
whom this great trust is delegated should be worthy of it.
It would require a man of abilities and experience ; it would
also require a man who possessed, in a high degree, the con-
fidence of his country. This being the case, it would be a
great defect, in forming a constitution for the United States,
if it was so constructed that, by any accident, an improper
person could have a chance to obtain that office. The com-
mittee will recollect that the President is to be elected b^
electors appointed by each state, according to the number of
senators and representatives to which the state may be en-
titled in the Congress ; that they are to meet on the same
day throughout the states, and vote by ballot for two persons,
one of whom shall not be an inhabitant of the same state with
themselves. These votes are afterwards to be transmitted,
under seal, to the seat of the general government. The per-
son who has the greatest number of votes, if it be a majority
of the whole, will be the President. If more than one havti
a majority, and equal votes, the House of Representatives
iRiDELL.] NORTH CAROUNA. 107
are to choose one of them. If none have a majority of votes,
then the House of Representatives are to choose which of thu
persons they think proper, out of the five highest on the list.
The person having ihe next greatest number of votes is to
be the Vice-President, unless two or more should have equal
votes, in which case the Senate is to choose one of them for
V'ice-President. If I recollect right, these are the principal
characteristics. Thus, sir, two men will be in office at the
same time ; the President, who possesses, in the highest de-
gree, the confidence of his country, and the Vice-President,
who is thought to be the next person in the Union most fit
to perform this trust. Here, sir, every contingency is pro-
vided for. No faction or combination can bring about the
election. It is probable that the choice will always fall U|)on
a man of experienced abilities and fidelity. In all human
prob.ibility, no better mode of election could have been
devised.
The rest of the 1st section read without any observations
2d section read.
Mr. IREDELL. Mr. Chairman, I was in hopes that
some other gentleman would have spoken to this clause.
It conveys very important powers, and ought not to l)e
passed by. I beg leave, in as few words as possible, to speak
ray sentiments upon it. I believe most of the governors of
the different states have powers similar to those of the Pres-
ident. In almost every country, the executive has the com-
mand of the military forces. From the nature of the thing, the
command of armies ought to be delegated to one person only.
The secrecy, despatch, and decision, which are necessary in
military operations, can only be expected from one person.
The President, therefore, is to command the military forces
of the United States, and this power I think a proper one ;
at the same time it will be found to be sufficiently guarded.
A very material difference may be observed between this
power, and the authority of the king of Great Britain under
similar circumstances. The king of Great Britain is not
onlv the commander-in-chief of the land and naval forces,
hut has power, in time of war, to raise fleets and armies.
He has also authority to declare war. The President has
not the power of declaring war by his own authority, nor
that of raising fleets and armies. These powers are vested
in other hands. The power of declaring war is expressly
lOe DEBATES. [Iredell.
given to Congress, that is, to the two branches of the legi^
lature — ihe Senate, composed of representatives of the state
legislatures, the House of Representatives, deputed by the
people at large. They have also expressly delegated to
them the povrers of raising and supporting armies, and of
providing and maintaining a navy.
With regard to the militia, it must be observed, that though
he has the command of them when called into the actual
service of the United States, yet he has not the power of
calling them out. The power of calling them out is vested
in Congress, for the purpose of executing the laws of the
Union. When the militia are called out for any purpose,
some person must command them ; and who so proper as
that person who has the best evidence of his possessing the
general confidence of the people? I trust, therefore, that
the power of commanding the militia, when called forth into
the actual service of the United States, will not be object-
ed to.
The next part, which says " that he may require the opin-
ion in writing of the principal officers," is, in some degree,
substituted for a council. He is only to consult them if he
thinks proper. Their opinion is to be given him in writing.
By this means he will be aided by their intelligence ; and
the necessity of their opinions being in writing, will render
them more cautious in giving them, and make them respon-
sible should they give advice manifestly improper. This
does not diminish the responsibility of the President himself.
They might otherwise have colluded, and opinions have
been given too much under his influence.
it has l)een the opinion of many gentlemen, that the Pres-
ident should have a council. This opinion, probably, has
been derived from the example in England. It would be
very proper for every gentleman to consider attentively
whether that example ought to be imitated by us. Although
it be a respectable example, yet, in my opinion, very satis-
factory reas')ns can be assigned for a de|)arture from it in
this Constitution.
It was very difficult, immediately on our separation from
Great Britain, to disengage ourselves entirely from ideas of
government we had been used to. We had been accustomed
to a council under the old government, and took it for
granted we ought to have one under the new. But ex-
EDELu] NORTH CAROUNA. 109
^mples ought not to be implicitly followed ; and the feasants
'^vhich prevail in Great Britain for a council do not apply
^ually to us. In that country, the executive authority is
nested in a magistrate who holds it by birthright. He has
l^reat powers and prerogatives, and it is a constitutional
maxim, that he can do no wrong. We have experienced
that he can do wrong, yet no man can say so in his okvu
country. There are no courts to try him for any high
crimes ; nor is there any constitutional method of depriving
him of his throne. If he loses it, it must be by a general
resistance of his people, contrary to forms of law, as at the
revolution which took place about a hundred years ago. It
is, therefore, of the utmost moment in that country, that
whoever is the instrument of any act of government should
be personally responsible for it, since the king is not ; and,
for the same reason, that no act of government should be
exercised but by the instrumentality of some person who can
be accountable for it. Every thing, therefore, that the king
does, must be by some advice^ and the adviser of course
answerable. Under our Constitution we are much happier.
No man has an authority to injure another with impunity.
No man is better than his fellow-citizens, nor cm pretend to
any superiority over the meanest man in the country. If the
President does a sinde act by which the people are preju-
diced, he is punishable himself, and no other man merely
10 screen him. If he commits any misdemeanor in office, he
is impeachable, removable from office, and incapacitated to
hold any office of honor, trust, or profit. If he commits any
crime, he is punishable by the laws of his country, and in
capital cases may be deprived of his life. This being the
case, there is not the same reason here for having a council
which exists in England. It is, however, much to be desired,
that a man who has such extensive and important business
to perform should have the means of some assistance to
enable him to discharge his arduous employment. The
advice of the principal executive officers, which he can at all
tiaies command, will, in my opinion, answer this valuable
Purpose. He can at no time want advice, if he desires it,
as the principal officers will always be on the spot. Those
officers, from their abilities and experience, will probably be
able to give as good, if not better, advice than any coun-
sellors would do ; and the solemnity of the advice in writing,
10
110 DEBATES. [Iredell
which must be preserved, would be a great check upon m
them.
Besides these considerations, it was difficult for the Con- —
vention to prepare a council that would be unexceptionable. «
That jealousy which naturally exists between the difTerentJ
states enhanced this difficulty. If a few counsellors were^^
tolHj chosen from the Northern, Southern, or Middle States, ««
or from a few states only, undue preference might be given m
to those particular states from which they should come. If, -.
to avoid this difficulty, one counsellor should be sent from -
each state, this would require great expense, which is a.
consideration, at this time, of much moment, especially as it
is probable that, by the method proposed, the President
may be equally well advised without any expense at all.
We ought also to consider that, had he a council by whose
advice he was l)ound to act, his responsibility, in all such
cases, must be destroyed. You surely would not oblige him
to follow their advice, and punish him for obeying it. If
called upon on any occasion of dislike, it would be natural
for him to say, " You know my council are men of integrity
and ability: I could not act against their opinions, though
I confess my own was contrary to theirs." This, sir, would
be pernicious. In such a situation, he might easily combine
with his council, and it might be impossible to fix a fact
upon him. It would be difficult often to know whether the
President or counsellors were most to blame. A thousand
plausible excuses might be made, which would escape de-
tection. But the method proposed in the Constitution
creates no such embarrassment. It is plain and open.
And thiB President will personally have the credit of good,
or the censure of bad measures ; since, though he may ask
advice, he is to use his own judgment in following or re-
jecting it. For all these reasons, I am clearly of opinion that
the clause is better as it stands than if the President were
to have a council. I think every good that can be derived
from the institution of a council may be expected from the
advice of these officers, without its being liable to the dis-
advantages to which, it appears to me, the institution of a
council would be.
Another power that he has is to grant pardons, except in
rases of impeachment. I believe it is the sense of a great
part of America, that this power should be exercised by their
Ibcdei.1^] north CAROLINA 111
governors. It is in several states on the same footing
that it is here. It is the genius of a republican government
that tlie laws should be rigidly executed, without the in-
fluence of favor or ill-will — that, when a man commits a
crime, however powerful he or his friends may be, yet he
should be punished for it ; and, on the otheV hand, though
he should be universally hated by his country, his real guilt
alone, as to the particular charge, is to operate against him.
This strict and scrupulous observance of justice is proper in
all governments; but it is particularly indispensable in a
republican one, because, in such a government, the law is
superior to every man, and no man is superior to another.
But, though this general principle be unquestionable, surely
there .is no gentleman in the committee who is Miot aware
that there ought to be exceptions to it ; because there may
be many instances where, though a man offends against the
letter of the law, yet peculiar circumstances in his case may
entitle him to mercy. It is impossible for any general law
to foresee and provide for all possible cases that may arise ;
and therefore an inflexible adherence to it, in every instance,
might frequently be the cause of very great injustice. For
this reason, such a power ought to exist somewhere ; and
where could it be more properly vested, than in a man who
had received such strong proofs of his possessing the highest
confidence of the people ? This power, however, only refers
to offences against the United States, and not against
particular states. Another reason for the President pos-
sessing this authority, is this : it is often necessary to convict
a man by means of his accomplices. We have sufficient
experience of that in this country. A criminal would often
go unpunished, were not this method to be pursued against
iiim. in my opinion, till an accomplice's own danger is
removed, his evidence ought to be regarded with great
diffidence. If, in civil causes of property, a witness must
be entirely disinterested, how much more proper is it he
should be so in cases of life and death ! This power is
naturally vested in the President, because it is his duty tn
watch over the public safety ; and as that may frequently
require the evidence of accomplices to bring great offenders
to- justice, he ought to be intrusted with the most effectual
means of procuring it.
I heg leave further to observe, that, for another reason, I
1 12 DEBATES. [Iaedell.
think there is a propriety in leaving this power to the general
discretion of the executive magistrate, rather than to fetter
it in any manner which has been pro})ose<L It may happen
that many men, u|)on plausible pretences, may be seduced
into very dangerous measures against their country. They
may aim, by an insurrection, to redress imaginary grievances,
at the same time believing, upon false suggestions, that their
exertions are necessary to save their country from destruc-
tion. Upon cool reflection, however, they |)ossibly are con-
vinced of their error, and clearly see through the treachery
and villany of their leaders. In this situation, if the Presi-
dent possessed the power of pardoning, they probably would
throw themselves on the equity of the government, and the
whole body be peaceably broken up. Thus, at a critical
moment, the President might, perhaps, prevent a civil war.
But if there was no authority to pardon, in that delicate
exigency, what would be the consequence ? The principle
of self-preservation would prevent their parting. Would it
not be natural for them to say, "We shall be punished if we
disband. Were we sure of mercy, we would peaceably part.
But we know not that there is any chance of this. We
may as well meet one kind of death as another. We may
as well die in the field as at the gallows." I therefore sub-
mit to the committee if this power be not highly necessary
for such a purpose.
We have seen a happy instance of the good effect of such
an exercise of mercy in the state of Massachusetts, where,
very lately, there was so formidable an insurrection. I be-
lieve a great majority of the insurgents were drawn into it
by false artifices. They at length saw their error, and were
willing to disband. Government, by a wise exercise of len-
ity, after having shown its power, generally granted a pardon ;
and the whole party were dispersed. There is now as much
peace in that country as in any state in the Union.
A particular instance which occurs to me shows the utility
of this power very strongly. Suppose we were involved in
war. It would be then necessary to know the designs of
the enemy. This kind of knowledge cannot always be pro-
cured but by means of spies — a set of wretches whom all
nations despise, but whom all employ ; and, as they would
assuredly be used against us, a principle of self-defence
would urge and justify the use of them on our part. Sup-
Iredell,] NORTH CAROLINA. 113
pose, therefore, the President could prevail upon a man of
some importance to go over to the enemy, in order to give him
secret information of his measures. He got^s off privately
to the enemy. He feigns resentment against his country
for some ill usage, either real or pretended, and is received,
possibly, into favor and confidence. The people would not
know the purpose for which he was employed. In the mean
time, he secretly informs the President of the enemy's de-
signs, and by this means, perhaps, those designs are counter-
acted, and the country saved from destruction. After bis
business is executed, he returns into his own country,
where the people, not knowing he had rendered them any
service, are naturally exasperated against him for his sup-
posed treason. I would ask any gentleman whether the
President ought not to have the power of pardoning this
man. Suppose the concurrence of the Senate, or any other
body, was necessary ; would this obnoxious person be prop-
erly safe ? We know in every country there is a strong
prejudice against the executive authority. If a prejudice of
this kind, on such an occasion, prevailed against the Presi-
dent, the President might be suspected of being influenced
by corrupt motives, and the application in favor of this man
be rejected. Such a thing might very possibly happen when
the prejudices of party were strong ; and therefore no man,
so clearly entitled as in the case I have supposed, ought to
have his life exposed to so hazardous a contingency.
The power of impeachment is given by this Constitution,
to bring great offenders to punisliment. It is calculated to
bring them to punishment for crime which it is not easy to
describe, but which every one must be convinced is a high
crime and misdemeanor against the government. This
power is lodged in those who represent the great body of
the people, because the occasion for its exercise will arise
from acts of great injury to the community, and the objects
of it may be such as cannot be easily reached by an ordina-
ry tribunal. The trial belongs to the Senate, lest an inferior
tribunal should be too much awed by so powerful an accuser.
After trial thus solemnly conducted, it is not probable that
it would happen once in a thousand times, that a man actu-
ally convicted would be entitled to mercy ; and if the Presi-
dent had the power of pardoning in such a case, this great
check upon high officers of state would lose much of its in-
VOL. IV. 15
114 DEBATES. [Sfaigbt
fluenct^. It seems, therefore, proper that the general power
of pardoning should be abridged in this particular instance.
The punishment annexed to this conviction on impeachment
can only be removal from office, and disqualification to bold
any place of honor, trust, or profit. But the person convict-
ed is further liable to a trial at common law, and may receive
such common-law punishment as belongs to a description of
such offiinces, if it be punishable by that law. I hope, for
the reasons I have stated, that the whole of this clause will
be approved by the committee. The regulations altogether,
in my opinion, are as wisely contrived as they could be. It
is impossible for imperfect beings to form a perfect system.
If the present one may be productive of possible inconve-
niences, we are not to reject it for that reason, but inquire
whether any other system could be devised which would be
attended with fewer inconveniences, in proportion to the
advantages resulting. But we ought to be exceedingly at-
tentive in examining, and still more cautious in deciding, lest
we should condemn what may be worthy of applause, or
approve of what may be exceptionable. I hope that, in the
iixplanation of this clause, I have not improperly taken up
«he time of the committee.
Mr. MILLER acknowledged that the explanation of this
ilause by the member from Edenton had obviated some ob-
jections which he had to it ; but still he could .not entirely
approve of it. He could not see the necessity of vesting
this power in the President. He thought that his influence
would be too great in the country, and particularly over the
military, by bc»ing the commander-in-chief of the army, navy,
and militia. He thought he could too easily abuse such ex-
tensive powers, and was of opinion that Congress ought to
have |K)wer to direct the motions of the army. He consid-
ered it as a defect in the Constitution, that it was not ex-
pressly provided that Congress should have the direction of
the motions of the army.
Mr. SPAIGHT answered, that it was true that the com-
mand of the army and navy was given to the President ;
but that Congress, who had the power of raising armies,
could certainly prevent any abuse of that authority in the
President — that they alone had the means of supporting
armies, and that the President was impc^achabh* if he in any
manner abused his trust. He was surprised that any objec-
JoemyroN.] NORTH CAROLINA. 116
«
tion should be made to giving the command of the army to
one man ; that it was well known that the direction of an
army could not be properly exercised by a numerous liody
of men ; that Congress had, in the last war, given the ex-
clusive command of the army to the commander-in-chief,
and that if they had not done so, perhaps the independence
of America would not have been established.
Mr. PORTER. Mr. Chairman, there is a power vested
in the Senate and President to make treaties, which shall l)e
the supreme law of the land. Which among us can call
them to account ? I always thought that there could be no
proper exercise of power without the suffrage of the people ;
yet the House of Representatives has no power to intermed-
dle with treaties. The President and seven senators, as
nearly as I can remember, can make a treaty which will be
of great advantage to the Northern States, and equal injury
to the Southern States. They might give up the rivers and
territory of the Southern States. Yet, in the preamble of
(he Constitution, they say all tiie people have done it. I
should be glad to know what power there is of calling the
President and Senate to account.
Mr. SPAIGHT answered that, under the Confederation,
two thirds of the states might make treaties; that, if the
senators from all the states attended when a treaty was
about to be made, two thirds of the states would have a
voice in its formation. He added, that he would be glad to
ask the gentleman what mode there was of calling the pres-
ent Congress to account.
Mr. PORTER repeated his objection. He hoped thai
gentlemen would not impose on the house ; that the Presi
dent could make treaties with two thirds of the senate <
that the President, in that case, voted rather in a legislative
than in an executive capacity, which he thought impolitic.
Gov. JOHNSTON. Mr. Chairman, in my opinion, if
there be any difference between this Constitution and the
Confederation, with respect to treaties, the Constitution is
more safe than the Confederation. We know that two
members from each state have a right, by the Conf(?deration,
to give the vote of that state, and two thirds of the states
have a right also to make treaties. By this Constitution,
'wo thirds of the senators cannot make treaties without the
toQcunrence of the President. Here is, then, an additional
lit DEBATES. [Spencer.
guard. The calculation that seven or eight senators, with
the President, can make treaties, is totally erroneous. Four-
teen is a quorum ; two thirds of which are ten. It is upon
the improbable supposition that they will not attend, that
the objection is founded that ten men, with the President,
can make treaties. Can it Ire reasonably supposed that
they will not attend when the most important business is
agitated — when the interests of their respective states are
most immediately affected ?
Mr. MACLAINE observed, that the gentleman was out
of order with his objection — that they had not yet come to
the clause which enables the Senate and President to make
treaties.
The 2d clause of the 2d section read.
Mr. SPENCER. Mr. Chairman, I rise to declare my
disapprobation of this, likewise. It is an essential article in
our Constitution, that the legislative, the executive, and the
supreme judicial powers, of government, ought to be forever
separate and distinct from each other. The Senate, in the
proposed government of the United States, are possessed
of the legislative authority in conjunction with the House
of Representatives. They are likewise possessed of the sole
power of trying all impeachments, which, not being re-
strained to the officers of the United States, may be in-
tended to include all the officers of the several states in
the Union. And by this clause they possess the chief of
the executive power ; they are, in effect, to form treaties,
which are to be the law of the land ; and they have obvi-
ously, in effect, the appointment of all the officers of the
United Stales. The President may nominate, but they
have a negative u])on his nomination, till he has exhausted
the number of those he wishes to be appointed. He will
be obliged, finally, to acquiesce in the appointment of those
whom the Senate shall nominate, or else no appointment
will take place. Hence it is easy to perceive that the Presi-
dent, in order to do any business, or to answer any purpose
in this department of his office, and to keep himself out of
perpetual hot water, will be under a necessity to form a
connection with that powerful body, and be contented to
()ut himself at the head of the leading members who com-
pose it. I do not expect, at this day, that the outline and
organization of this proposed government will be materially
SwitcBm.1 NORTH CAROLINA. 117
altered. But I cannot but be of opinion that the govern-
ment would have been infinitely better and more secure, if
the President had been provided with a standing council,
composed of one member from each of the states, the dura-
tion of whose office might have been the same as that of
the President's office, or for any other period that might
have been thought more proper ; for it can hardly be sup-
posed, if two senators can be sent from each state, who are
fit to give counsel to the President, that one such cannot
be found in each state qualified for that purpose. Upon this
plan, one half the expense of the Senate, as a standing
council to the President in the recess of Congress, would
evidently be saved ; each state would have equal weight in
this council, as it has now in the Senate. And what ren-
ders this plan the more eligible is, that two very important con-
sequences would result from it, which cannot result from the
present plan. The first is, that the whole executive de-
partment, being separate and distinct from that of the legis-
lative and judicial, would be amenable to the justice of the
land : the President and his council, or either or any of
them, might be impeached, tried, and condemned, for any
misdemeanor in office. Whereas, on the present plan pro-
posed, the Senate, who are to advise the President, and
who, in effect, are possessed of the chief executive powers,
let their conduct be what it will, are not amenable to the
public justice of their country : if they may be impeached,
ihere is no tribunal invested with jurisdiction to try them.
It is^rue that the proposed Constitution provides that, when
the President is tried, the chief justice shall preside. But
1 take this to be very little more than a farce. What can
the Senate try him for ? For doing that which they have
advised him to do, and which, without their advice, he would
not have done. Except what he may do in a military ca-
pacity— when, I presume, he will be entitled to be tried by
a court martial of general officers — he can do nothing in the
executive department without the advice of the Senate, un-
less it be to grant pardons, and adjourn the two Houses of
Congress to some day to which they cannot agree to adjourn
themselves — probably to some term that may be con-
venient to the leading members of the Senate.
I cannot conceive, therefore, that the President can evci
he tried by the Senate with any effect, or to any purpose
nS DEBATES. [PoKTEm
fm an J misdemeanor in his office, unless it should extend
to high treason, or unless they should wish to fix the odium
of any measure on him, in order to exculpate themselves ;
the latter of which I cannot suppose will ever happen.
Another important consequence of the plan I wish had
taken place is that, the office of the President being thereby
unconnected with that of the legislative, as well as the
judicial, he would have that independence which is necessary
to form the intended check upon the acts passed by the legis-
lature before they obtain the sanction of laws. But, on the
present plan, from the necessary connection of the Presi-
dent's office with that of the Senate, I have little ground to
hope that his firmness will long prevail against the over-
bearing power and influence of the Senate, so far as to
answer the purpose of any considerable check upon the acts
they may think proper to pass in conjunction with the
House of Representatives ; for he will soon find that, un-
less he inclines to compound with them, they can easily
hinder and control him in the principal articles of his office.
But, if nothing else could be said in favor. of the plan of a
standing council to the President, independent of the Sen*
ate, the dividing the power of the latter would be sufficient
to recommend it ; it being of the utmost importance to-
wards the security of the government, and the liberties of
the citizens under it. For I think it must be obvious to
every unprejudiced mind, that the combining in the Senate
the power of legislation, with a controlling share in the ap-
pointment of all the officers of the United States, (eJcept
those chosen by the people,) and the power of trying all
impeachments that may be found against such officers, in-
vests the Senate at once with such an enormity of power,
and with such an overbearing and uncontrollable influence,
as is incompatible with every idea of safety to the liberties
of a free country, and is calculated to swallow up all othe*
powers, and to render that body a despotic aristocracy.
Mr. PORTER recommended the most serious consider-
ation when they were about to give away power; that they
were not only about to give away power to legislate or make
laws of a supreme nature, and to make treaties, which might
sacrifice the most valuable interests of the community, but
to give a power to the general government to drag the in-
habitants to any part of the world as long as they pleased :
DiT«.] NORTH CAROLINA. 11 J)
that they ought not to put it in the power ot any man, or
any set of men, to do so; and that the representation was
detective, being not a substantial, immediate representation.
He observed that, as treaties were the supreme law of the
land, the House of Representatives ought to have a vote in
making them, as well as in passing them.
Mr. J. M'DOWALL. Mr. Chairman : permit me, sir,
to make a few observations, to show how improper it is to
place so much power in so few men, without any responsi-
bility whatever. Let us consider what number of them is
necessary to transact the most important business. Two
thirds of the members present, with the President, can make
a treaty. Fourteen of them are a quorum, two thirds of
which are ten. These ten may make treaties and alliances.
They may involve us in any difficulties, and dispose of us in
any manner, they please. Nay, eight is a majority of a
quorum, and can do every thing but make treaties. How
unsafe are we, when we have no power of bringing those to
an account ! It is absurd to try them before their own body.
Our lives and property are in the hands of eight or nine men.
Will these gentlemen intrust their rights in this manner?
Mr. DAVIE. Mr. Chairman, although treaties are mere
conventional acts between the contracting parties, yet, by
the law of nations, they are the supreme law of the land to
their respective citizens or subjects. All civilized nations
have concurred in considering them as paramount to an
ordinary act of legislation. This concurrence is founded on
the reciprocal convenience and solid advantages arising from
it. A due observance of treaties makes nations more friendly
to each other, and is the only means of rendering less fre
quent those mutual hostilities which tend to depopulate and
min contending nations. It extends and facilitates that
commercial intercourse, which, founded on the universal
protection of private property, has, in a measure, made the
world one nation.
The power of making treaties has, in all countries and
governments, been placed in the executive departments.
This has not only been grounded on the necessity and reason
arising from that degree of secrecy, design, and despatch,
which is always necessary in negotiations between nations,
but to prevent their being impeded, or carried into effect,
by the violence, animosity, and heat of parties, which too
120 DEBATES. TDavik
often infect numerous bodies. Both of these reasons pre-
ponderated in the foundation of this part of the system. It
IS true, sir, that the late treaty between the United States
and Great Britain has not, in some of the states, been held
as the supreme law of the land. Even in this state, an act
of Asseml)ly passed to declare its validity. But no doubt
that treaty was the supreme law of the land without the
sanction of the Assembly; because, by the Confederation,
Congress had [)Ower to make treaties. It was one of those
original rights of sovereignty which were vested in them;
and it was not the deficiency of constitutional authority in
Congress to make treaties that produced the necessity of a
law to declare their validity ; but it was owing to the entire
imbecility of the Confederation.
On the principle of the propriety of vesting this power in
the executive department, it would st»em that the whole
power of making treaties ought to be left to the President,
who, being: elected by the people of the United States at
large, will have their general interest at heart. But that
jealousy of executive power which has shown itself so
strongly in all the American governments, would not admit
this improvement. Interest, sir, has a most powerful influ-
ence over the human mind, and is the basis on which all the
transactions of mankind are built. It was mentioned before
that the extreme jealousy of the little states, and between
the commercial states and the non-importing states, pro-
duced the necessity of giving an equality of suffrage to the
Senate. The same causes made it indispensable to give to
the senators, as representatives of states, the power of
making, or rather ratifying, treaties. Although it militates
against every idea of just proportion that the little state of
Rhode Island should have the same suffrage with Virginia,
or the great commonwealth of Massachusetts, yet the small
states would not consent to confederate without an equal
voice in the formation of treaties. Without the equality,
they apprehended that their interest would be neglected or
sacrificed in negotiations. This difficulty could not be got
over. It arose from the unalterable nature of things. Every-
man was convinced of the inflexibility of the little states in
this point. It therefore became necessary to give them an
absolute equality in making treaties.
The learned gentleman on my right, (Mr. Spencer,) atte*-
Datie.] north CAROUNA. 121
saying that this was an enormous power, and that blending
♦he different branches of government was dangerous, said,
that such accumulated powers were inadmissible, and con-
rrarj to all the maxims of writers. It is true, the great
Montesquieu, and several other writers, have laid it down as
a maxim not to be departed from, that the legislative, exec-
utive, and judicial powers should be separate and distinct.
But the idea that these gentlemen had in view has been
misconceived or misrepresented. An absolute and complete
separation is not meant by them. It is impossible to form a
government upon these principles. Those states who had
rmade an absolute separation of these three powers their
leading principle, have been obliged to depart from it. It is
principle, in fact, which is not to be found in any of the
tate governments. In the government of New York, the
xecutive and judiciary have a negative similar to that of the
resident of the United States. This is a junction of all
the three powers, and has been attended with the most
•nappy effects. In this state, and most of the others, the
'Executive and judicial powers are dependent on the legis-
l.ature. Has not the legislature of this state the power of
appointing the judges ? Is it not in their power also to fix
iheir compensation ? What independence can there be in
persons who are obliged to be obsequious and cringing for
their office and salary ? Are not our judges dependent on
the legislature for every morsel they eat? It is not difficult
to discern what effect this may have on human nature. The
meaning of this maxim I take to be this — that the whole
leo:islative, executive, and judicial |X)wers should not be exclu-
sively blended in any one particular instance. The Senate
try impeachments. This is their only judicial cognizance.
As to the ordinary objects of a judiciary — such as the decis-
ion of controversies, the trial of criminals, &c. — the judiciary
is perfectly separate and distinct from the legislative and ex-
ecutive branches. The House of Lords, in England, have
great judicial powers ; yet this is not considered as a blemish
in their constitution. Why ? Because they have not the
whole leo:islative power. Montesquieu, at the same time
that he laid down this maxim, was writing in praise of the
British government. At the very time he recommended this
distinction of powers, he passed the highest eulogium on a
constitution therein they were all partially blended. So
VOL. IV. 16 11
122 DEBATES. [Datik.
that the meaning of the maxim, as laid d%iwn bj him and
other writersi must be, that these three branches mnst
not be entirely blended in one body. And this system
before you comes up to the maxim more completely than
the favorite government of Montesquieu. The gentleman
from Anson has said that the Senate destroys the inde-
pendence of the President, because they must confirm the
nomination of officers. The necessity of their interfering in
the appointment of officers resulted from the same reason
which produced the equality of suffi-^ge. In other countries,
the executive or chief magistrate, alone, nominates and
appoints officers. The small states would not agree that
the House of Representatives should have a voice in the
appointment to offices ; and the extreme jealousy of all the
states would not give it to the President alone. In my
opinion, it is more proper as it is than it would be in either
of those cases. The interest of each state will be equally
attended to in appointments, and the choice will be more
judicious by the junction of the Senate to the President.
Except in the appointments of officers, and making of trea-
ties, he is not joined with them in any instance. He is per-
fectly independent of them in his election. It is impossible
for human ingenuity to devise any mode of election better
calculated to exclude undue influence. He is chosen by the
electors appointed by the people. He is elected on the
same day in every state, so that there can he no possible com-
bination between the electors. The affections of the peo-
ple can be the only influence to procure his election. If he
makes a judicious nomination, is it to be presumed that the
Senate will not concur in it ? Is it to be supposed' the legis-
latures will choose the most depraved men in the states to
represent them in Congress ? Should he nominate unworthy
characters, can it be reasonably concluded that they will
confirm it ? He then says that the senators will have influ-
ence to get themselves reelected; nay, that they will be
perpetually elected.
I have very little apprehension on this ground. I take it
for granted that the* man who is once a senator^ will very
probably be out for the next six years. Legislative influ-
ence changes. Other -persons rise, who have particular con-
nections to advance them to office. If the senators stay six
years out of the state governments, their influence wUl be
Datie.] north CAROLINA. 123
^[really diiuiniahed. It will be impossible for the most mflu-
ential character to get himself reelected after being out of
the country so long. There will be an entire change in si>
years. Such futile objections, I fear, proceed from an aver
sion to any general system. The same learned gentleman
says that it would be better, were a council, consisting of
one from every state, substituted to the Senate. Another
gentleman has objected to the small ness of this number.
This shows the impossibility of satisfying all men's minds.
I beg this committee to place these two objections together,
and see their glaring inconsistency. If there were thirteen
counsellors, in the manner he proposes, it would destroy the
responsibility of the President. He must have acted also
with a majority of them. A majority of them is seven,
which would be a quorum. A majority of these would be
four, and every act to which the concurrence of the Senate
and the President is necessary could be decided by these
four. Nay, less than a majority — even one — would suffice
to enable them to do the most important acts. This, sir,
would be the effect of this council. The dearest interests of
the community would be trusted to two men. Had this been
the case, the loudest clamors would have been raised, with
justice, against the Constitution, and these gentlemen would
have loaded their own proposition with the most virulent
abuse.
On a due consideration of this clause, it appears that this
power could not have been lodged as safely any where else
as where it is. The honorable gentleman (Mr. M'Dowall)
has spoken of a consolidation in this governmert. That is
a very strange inconsistency, when he points out, at the same
time, the necessity of lodging the power of making treaties
with the representatives, where the idea of a consolidation
can alone exist ; and when he objects to placing it in the
Senate, where the federal principle is completely preserved.
As the Senate represents the sovereignty of the states,
whatever might affect the states in their political capacity
ought to be left to them. This is the certain means of pre-
venting a consolidation. How extremely absurd is it to call
that disposition of power a consolidation of the states, which
must to all eternity prevent it ! I have only to add the
principle upon which the General Convention went — that
the power of making treaties could nowhere be so safely
i24 DEBATES. [Spencbr.
lodged as in the President and Senate ; and the extreme
jealousy subsisting between some of the states would not
admit of it elsewhere. If any man will examine the opera-
tion of that jealousy, in his own breast, as a citizen of North
Carolina, he will soon feel the inflexibility that results from
it, and perhaps be induced to acknowledge the propriety
of this arrangement.
Mr. M'DOWALL declared, that he was of the same opin-
ion as before, and that he believed the observations which
the gentleman had made, on the apparent inconsisle;icy of
his remarks, would have very little weight with the com-
mittee ; that giving such extensive |)owers to so few men in
the Senate was extremely dangerous ; and that he was not
the more reconciled to it from its being brought about by
the inflexibility of the small, pitiful states to the north. He
supposed that eight members in the Senate from those states,
with the President, might do the most important acts.
Mr. SPAIGHT. Mr. Chairman, the gentleman objects
to the smallncss of the number, and to their want of re-
$[Minsibility. He argues as if the senators were never to at-
tend, and as if the northern senators were to attend more
regularly than those from the south. Nothing can be more
unreasonable than to suppose that they will be absent on
the most im|)ortant occasions. What responsibility is there
in the present Congress that is not in the Senate? What
responsibility is there in our state legislature ? The senators
are as responsible as the members of our legislature. It is
to be observed, that though the senators are not impeachable,
yet the President is. He may be impeached and punished
for giving his consent to a treaty, whereby the interest of
the community is manifestly sacrificed.
Mr. SPENCER. Mr. Chairman, the worthy gentleman
from Halifax has endeavored to obviate my objections against
the want of responsibility in the President and senators,
and against the extent of their power. He has not removed
my objections. It is totally out of their j)ower to show any de-
gree of responsibility. The executive is tried by his advisers.
The reasons I urged are so cogent and strong with me, that
I cannot c^pprove of this clause. I can see nothing of any
weight against them. [Here Mr. Spencer spoke so low that
he could not distinctly be heard.] I would not give the
President and senators power tc make treaties, because it
Ihedell.1 north CAROLINA. 126
destrojrs their responsibility. If a bad treaty be made, and
he impeached for it, the Senate will not pronounce sentence
against him, because they advised him to make it. If they
had legislative power only, it would be unexceptionable ; but
^vhen they have the appointment of officers, and such ex-
tensive executive powers, it gives them such weight as is
inadmissible. Notwithstanding what gentlemen have said in
defence of the clause, the influence of the Senate still remains
equally formidable to me. The President can do nothing
KJinless they concur vvith him. In order to obtain their con-
^ziunrence, he will compromise with them. Had there been
uch a council as I mentioned, to advise him, the Senate would
othave had such dangerous influence, and the responsibility
f the President would have been secured. This seems ob-
iously clear to be the case.
Mr. PORTER. Mr. Chairman, I only rise to make one
observation on what the gentleman has said. He told us,
nhat if the Senate were not amenable, the President was.
I beg leave to ask the gentleman if it be not inconsistent
that they should punish the President, whom they advised
themselves to do what he is impe-iched for. My objection
still remains. I cannot find it in the least obviated.
Mr. BLOODWORTH desired to be informed whether
treaties were not to be submitted to the Parliament in Great
Britain before they iwere valid.
Mr. IREDELL. Mr. Chairman, the objections to this
clause deserve great consideration. I believe it will be easy
to obviate the objections against it, and that it will be found
to have been necessary, for the reasons stated by the gen-
tleman from Halifax, to vest this power in some body com-
posed of representatives of states, where their voices should
be equal ; for in this case the sovereignty of the states is
particularly concerned, and the great caution of giving the
states an equality of suffi*age in making treaties, was for
the express purpose of taking care of that sovereignty, and
attending to their interests, as political bodies, in foreign ne-
gotiations. It is objected to as improper, because, if the
President or Senate should abuse their trust, there is not
sufficient responsibility, since he can only be tried by the
Senate, by whose advice he acted ; and the Senate cannot
be tried at all. I beg leave to observe that, when any man
is impeached, it must be for an error of the heart, and not
12^ DEBATES. [IftEDBLU
of the head. God forbid that a man, in any country in the
world, should be liable to be punished for want of judgment.
This is not the case here. As to errors of the heart, there
is sufficient responsibility. Should these be committed, there
is a ready way to bring him to punishment. This is a re-
sponsibility which answers every purpose that could be de-
sired by a people jealous of their liberty. I presume that,
if the President, with the advice of the Senate, should make
a treaty with a foreign power, and that treaty should be
deemed unwise, or against the interest of the country, yet
if nothing could be objected against it but the difference of
opinion between them and their constituents, they could not
justly l)e obnoxious to punishment. If they were punishable
for exercising their own judgment, and not that of their
constituents, no man who regarded his reputation would
accept the office either of a senator or President. What-
ever mistake a man may make, he ought not to he juin-
ished for it, nor his posterity rendered infamous. But if a
man he a villain, and wilfully abuse his trust, he is to be held
up as a public offender, and ignominiously punished. A pub-
lic officer ought not to act from a principle of fear. Were
he punishable for want of judgment, he would be contin-
ually in dread; but when he knows that nothing but real
guilt can disgrace him, he maj' do his duty firmly, if he be
an hon(»st man ; and if he be not, a just fear of disgrace
may, perhaps, as to the public, have nearly the effect of an
intrinsic principle of virtue. According to these principles,
I suppose the only instances, in which the President would
be liable to impeachment, would be where he had received
a bribe, or had acted from some corrupt motive or other. If
the President had received a bribe, without the privity or
knowledge of the Senate, from a foreign power, and, under
the influence of that bribe, had address enough with the
Senate, by artifices and misrepresentations, to seduce their
consent to a pernicious treaty, — if it appeared afterwards
that this was the case, would not that Senate be as compe-
tent to try him as any other persons whatsoever? Would
they not exclaim against his villany ? Would they not feel
a particular resentment against him, for being made the
instrument of his treacherous pur[X)ses? In this situation, if
any ohjection could be made against the Senate as a proper
tribunal, it misiht more |)roperly be made by the President
himself, lest their resentment should operate too strongly,
IsBDELL.] NORTH CARX)LINA. 127
rather than by the public, on the ground of a supposed par-
tiality. Tlio President must certainly be punishable for
giving false information to the Senate. He is to regulate
all intercourse with foreign powers, and it is his duty to im-
part to the Senate every material intelligence he receives. If
it should appear that he has not given them full informati6n,
1)ut has conceajed important intelligence which he ought to
liave communicated, and by that means induced them to
«nter into measures injurious to their country, and which
^hey would not have consented to had the true state of things
Jyeen disclosed to them, — in this case, I ask whether, upon
^n impeachment for a misdemeanor upon such an account,
^he Senate would probably favor him. With respect to the
impeachiibility of the Senate, that is a matter of doubt.
There have b<»en no instances of impeachment for legis-
lative misdemeanors ; and we shall find, upon examination,
that the inconveniences resulting from such impeachments
would more than preponderate the advantages. There is
no greater, honor in the world than being the representative
of a free people. There is no trust on which the happiness
of the people has a greater dependence. Yet who ever
heard of impeaching a member of the legislature for any
legislative misconduct ? It would be a great check on the
public business, if a member of the Assembly was liable to
punishment for his conduct as such. Unfortunately, it is
the case, not only in other countries, but even in this, that
division and differences in opinion will continually arise. On
many questions there will be two or more parties. These
often judge with little charity of each other, and attribute
every opposition to their own system to an ill motive. We
know this very well from experience ; but> in my opinion,
this constant suspicion is frequently unjust. I believe, in
general, both parties really think themselves right, and that
the majority of each commonly act with equal innocence of
intention. But, with the usual want of charity in these cases,
how dangerous would it be to make a member of the legis-
lature liable to im[3eachment ! A mere difference of opinion
might be interpreted, bv the malignity of party, into a de-
liberate, wicked action.
It therefore appears to me at least very doubtful whether
it would be proper to render the Senate impeachable at all •
especially as, in the branches of executive government, where
128 DEBATES. [Iebdell.
their concurrence is required, the President is the primary
agent, and plainly responsible, and they, in fact, are but a
council to validate proper, or restrain impropc^r, conduct in
him ; but if a senator is impeachable, it could only be for
corruption, or some other wicked motive, in which case,
surely those senators who had acted from upright motives
would be competent to try him. Suppose there had b<*en
such a council as was pro|)osed, consisting of thirteen, one
from each state, to assist the President in making treaties,
&c. ; more general alarm would have l)een excited, and
stronger opposition made to this Constitution, than even at
present. The power of the President would have appeared
more formidable, and the states would have lost one half of
their security ; sinc^e, instead of two representatives, which
each has now for those purposes, they would have had but
one. A gentleman from New Hanover has asked whether
it is not the practice, in Great Britain, to submit treaties to
Parliament, before they are esteemed as valid. The king
has the sole authority, by the laws of that country, to make
treaties. After treaties are made, they are frequently dis-
cussed in the two houses, where, of late years, the most im-
prtant measures of government have been narrowly exam-
ined. Ii is usual to move for an address of approbation ;
and such has been the complaisance of Parliament for a long
time, that this seldom hath been withheld. Sometimes they
pass an act in conformity to the treaty made ; but this, I
believe, is not for the mere purpose of confirmation, but to
make alterations in a particular system, which the change of
circumstances requires. The constitutional power of making
treaties is vested in the crown ; and the power with whom a
treaty is made considers it as binding, without any act of
Parliament, unless an alteration by such is provided for in the
treaty itself, which I believe is sometimes the case. When
the treaty of peace was made in 1763, it contained stipula-
tions for the surrender of some islands to the French. The
islands were given up, I believe, without any act of Parlia-
ment. The j)ower of makin^^ treaties is very im|X)rtant, and
must l>e vest(*d somewhere, in order to counteract the dan
gerous designs of other countries, and to be able to terminate
a war when it is begun. Were it know^n that our govern-
ment w^as weak, two or more European powers might com-
bine against us. Would it not be politic to have some power
Iebdell.] north CAROLINA. 129
in this country, to obviate this danger by a treaty? If this
power was injudiciously limited, the nations where the power
-was possessed without restriction would have greatly the
advantage of us in negotiation ; and every one must know,
recording to modern policy, of what moment an advantage
in negotiation is. The honorable member from Anson said
xhat the accumulation of all the different branches of power
in the Senate would be dangerous. The experience of other
<:ountries shows that this fear is without foundation. What
is the Senate of Great Britain opposed to the House of Com-
mons, although it be composed of an hereditary nobility, of
vast fortunes, and entirely independent of the people r
Their weight is far inferior to that of the Commons. Here
is a strong instance of the accumulation of powers of the dif
ferent branches of government without producing any incon-
venience. That Senate, sir, is a separate branch of the
legislature, is the great constitutional council of the crown,
and decides on lives and fortunes in impeachments, besides
being the ultimate tribunal for trying controversies respecting
private rights. Would it not appear that all these things
should render them more formidable than the other house ?
Yet the Commons have generally been able to carry every
thing before them. The circumstance or tneir representing
the great body of the people, alone gives them great weight.
This weio;ht has great authority added to it, by their possess-
ing the right (a right given to the people's representatives in
Congress) of exclusively originating money bills. The au-
thority over money will do every thing. A government can-
not be supported without money. Our representatives may
at ^ny time compel the Senate to agree to a reasonable
measure, by withholding supplies till the measure is consented
to. There was a o;reat debate, in the Convention, whether
the Senate should have an equal power of originating money
bills. It was strongly insisted, by some, that they should ;
but at length a majority thought it unadvlsable, and the
clause was passed as it now stands. I have reason to be-
lieve that our representatives had a great*share in establish-
ing this excellent regulation, and in my opinion they deserve
the public thanks for it. It has been objected that this
power must necessarily injure the people, inasmuch as a bare
majority of the Senate might alone be assembled, and eight
would be sufficient for a decision. This is on a suppositioi
VOL. IV. 17
13U DEBATES. [Isedell
that many of the senators would neglect attending. It is to
be hoped that the gentlemen who will be honored with seats
in Congress will faithfully execute their trust, as well in at-
tending as in every other part of their duty. An objection
of this sort will go against all government whatever. Pos-
sible abuse, and neglect of attendance, are objections which
may be urged against any government which the wisdom of
man is able to construct. When it is known of how much
importance attendance is, no senator would dare to incur the
universal resentment of his fellow-citizens by grossly absent-
ing himself from his duty. Do gentlemen mean that it ought
to have been provided, by the Constitution, that the whole
l)ody should attend before particular business was done ?
Then it would be in the power of a few men, by neglecting
to attend, to obstruct the public business, and possibly bring
on the destruction of their country. If this power be im-
properly vested, it is incumbent on gentlemen to tell us in
what body it could be more safely and properly lodged.
I believe, on a serious consideration, it will be found that
it was necessary, for the reasons mentioned by the gentle-
man from Halifax, to vest the power in the Senate, or in
some other body representing equally the sovereignty of the
states, and that the power, as given in the Constitution, is
not likely to be attended with the evils which some gentle-
men apprehend. The only real security of liberty, in any
country, is the jealousy and circumspection of the people
themselves. Let them be watchful over their rulers. Should
they find a combination against their liberties, and all other
methods a[)pear insufficient to preserve them, they have,
thank God, an ultimate remedy. That power which crea-
ted the government can destroy it. Should the government,
on trial, be found to want amendments, those amendments
can be made in a regular method, in a mode prescribed by
the Constitution itself. Massachusetts, South Carolina, New
Hampshire, and Virginia, have all proposed amendments;
but they all concurred in the necessity of an immediate
adoption. A constitutional mode of altering the Constitu-
tion itself is, perhaps, what has never been known among
mankind before. We have this security, in addition to the
natural watchfulness of the people, which I hope will nevei
be found wanting The objections I have answered de-
served all possible attention ; and for my part, I shall always
Spencee.] north CAROLINA. 13 J
r<;spect that jealousy which arises from the love of public
liberty.
Mr. SPENCER. Mr. Chairman, I think that no argu-
ment can be used to show that this power is proper. If the
>vhoie legislative body — if the House of Representatives do
mot interi'ere in making treaties, I think they ought at least
xo have the sanction of the whole Senate. The worthy gen-
Tleman last up has mentioned two cases wherein he supposes
that impeachments will be fairly tried by the senators. He
supposes a case where the President had been guilty of cor-
ruption, and by that means had brought over and got the
sanction of two thirds of the senators; and that, if it should
be afterwards found that he brought them over by artifices,
they would be a proper body to try him. As they will be
ready to throw the odium off their own shoulders on him,
they may pronounce sentence against him. He mentions
another case, where, if a majority was obtained by bribing
some of the senators, those who were innocent might try
those who were guilty. I think that these cases will happen
but rarely in comparison to other cases, where the senators
may advise the President to deviate from his duty, and
where a majority of them may be guilty. And should they
be tried by their own body when thus guilty, does not ev-
er) body see the impropriety of it? Ii is universally dis-
graceful, odious, and contemptible, to have a trial where the
judges are accessory to the misdemeanor of the accused.
Whether the accusation against him be true or not, if afraid
for themselves, they will endeavor to throw the odium upon
him. There is an extreme difference between the case of
trying this officer and that of trying their own members*
They are so different, that I consider they will always acquit
their own members ; and if they condemn the President, it
will l>e to exonerate themselves. It appears to me that the
powers are too extensive, and not sufficiently guarded. I
do not wish that an aristocracy should be instituted. An
aristocracy may arise out of this government, though the
members l>e not hereditary. I would therefore wish that
every guard should be placed, in order to prevent it. I wish
gentlemen would reflect that the powers of the Senate are
so great in their legislative and judicial capacities, that, when
added to their executive powers, particularly th(Mr interfe-
rence in the appointment of all officers in the continent, they
132 DEBATES. (fRCDELL.
will render their power so enormous as to enable them to
destroy our rights and privileges. This, sir, ought to be
strictly guarded against.
Mr. IREDELL. Mr. Chairman, the honorable gentle-
man must be mistaken. He suggests that an aristocracy
will arise out of this government. Is there any thing like
an aristocracy in this government ? This insinuation is un-
candidly calculated to alarm and catch prejudices. In this
government there is not the least symptom of an aristocracy,
which is, where the government is in a select body of men
entirely independent of the people ; as, for instance, an he-
'reditary nobility, or a senate for life, filling up vacancies h\
their own authority. Will any memlier of this government
hold his station by any such tenure? Will not all authority
flow, in every instance, directly or indirectly from the peo-
ple ? It is contended, by that gentleman, that the addition
of the power of making treaties to their other powers, will
make the Senate dangerous ; that they would be even dan-
gerous to the representatives of the people. The gentleman
has not proved this in theory. Whence will he adduce an
example to prove it ? What passes in England directly dis-
proves his assertion. In that country, the representatives of
the people are chosen under undue influence ; frequently by
direct bribery and corruption. They are elected for seven
years, and many of the members hold offices under the
crown — some during pleasure, others for life. They are also
not a genuine representation of the people, but, from a
change of circumstances, a mere shadow of it. Yet, undei
these disadvantages, they having the sole power of origina
ting money bills, it has been found that the power of the
king and lords is much less considerable than theirs. The
high prerogatives of the king, and the great power and
wealth of the lords, have been more than once mentioned in
the course of the debates. If, under such circumstances,
such representatives, — mere shadows of representatives. — by
having the power of the purse, and the sacred name of the
people, to rely upon, are an overmatch for the king and lords,
who have such great hereditary qualifications, we may safely
conclude that our own representatives, who will be a genu-
ine representation of the people, and having equally the right
of originating money bills, will, at least, be a match for the
Senate, possessing qualifications so inferior to those of the
House of Lords in England.
OEDELL.] NORTH CAROLINA. 133i
It seems to be forgottea that the Senate is placed therts
for a very valuable purpose — as a guard against any attempt
of coasolidation. The members of the Convention were as
nmch averse to consolidation as any gentleman on this floor;
but without this institution, (I mean the Senate, where the
suffrages of the states are equal,) the danger would be greater.
There ought to be some power given to the Senate to coua-
teract the influence of the people by their bienniail represen-
tation in the other house, in order to preserve completely the
sovereignty of the states. If the people, through the me-
dium of their representatives, possessed a share in making
t:reaties and appointing ofiicers, would there not be a greater
l3alance of power in the House of Representatives than such
sk government ought to possess? It is true that it would be
'Very improper if the Senate had authority to prevent the
fiouse of Representatives from protecting the people. It
'xvould be equally so if the House of Representatives were
^able to prevent the Senate from protecting the sovereignty of
xhe states. It* is probable that either house would have suf-
ficient authority to prevent much mischief. As to the sug-
gestion of a tendency to aristocracy, it is totally groundless.
1 disdain every principle of aristocracy. There is not. a
shadow of an aristocratical principle in this government.
The President is only chosen for four years — liable to be
impeached — and dependent on the people at large for his
reelection. Can this mode of ap[X)intment be said to have
an aristocratical principle in it ? The Senate is chosen by
the legislatures. Let us consider the example of other
states, with respect to the construction of their Senate. In
this point, most of them difler; though they almost all
concur in this, that the term of election for senators is longer
than that for representatives. The reason of this is, to in-
troduce stability into the laws, and to prevent that muta-
bility which would result from annual elections of both
branches. In New York, they are chosen for three years ;
ia Virginia, they are chosen for four years ; and in Maryland,
they are chosen for five years. In this Constitution, although
they are chosen for six years, one third go out every second
vear, (a method pursued in some of the state constitutions,)
which at the same time secures stability to the laws, and a
due dependence on the state h^gislatures. Will any man
say that there are any aristocratical principles in a body wha
12
h%i DEBATES. [Blood woRTa
have no power independent of the people, and whereof one
third of the members are chosen, every second year, by a
wise and select body of electors ? I hope, therefore, that
it will not be considered that there are any aristocratical
principles in this government, and that it will be given up as
a point not to be contended for. The gentleman contends
that a council ought to bo instituted in this case. One ob-
jection ought to be compared with another. It has been ob-
jected against the Constitution that it will be productive of
great expense. Had there been a council, it would have
been oljjected that it was calculated for creating new offices,
and increasing the means of undue influence. Though he
approves of a council, others would not. As to offices, the
Senate has no other influence but a restraint on improper
appointments. The President proposes such a man for such
an office. The Senate has to consider upon it. If they
think him improper, the President must nominate another,
whose appointment ultimately again depends upon the Senate.
Suppose a man nominated by the President ; with what face
would any senator object to him without a good reason ?
There must be some decorum in every public body. He
would not say, " I do not choose this man, because a friend
of mine wants the office." Were he to object to the nomi-
nation of the President, without assigning any reason, his
conduct would be reprobated, and still might not answer his
purpose. Were an office to be vacant, for which a hundred
men on the continent were equally well qualified, there
would be a hundred chances to one whether his friend would
be nominated to it. This, in effect, is but a restriction on
the President. The power of the Senate would be more
likely to be abused were it vested in a council of thirteen, of
which there would be one from each state. One man could
be more easily influenced than two. We have therefore a
double security. I am firmly of opinion that, if you take
all the powers of the President and Senate together, the
vast influence of the representatives of the people will pre-
ponderate against them in every case where the public good
is really concerned.
Mr. BLOODWORTH. Mr. Chairman, I confess I am
sorry to take up any time. 1 beg leave to make a few ob-
servations; for it would be an Herculean task, and dis-
. agreeable to this committee, to mention every thing. It has
Maclainb] north CAROLINA. l3o
indeed been objected, aud urged, that the res|X)nsibility ot
the Sen:ite was not sufficient to secure the states. When
^we consider the length of the term for which they are elect-
ed, and the extent of their powers, we must be persuaded
that there is no real security. A gentleman has said that
the Assembly of North Carolina are rogues. It is, then,
probable that they may be corrupted. In this case, we have
not a sufficient check on those gentlemen who are gone six
years. A parallel is drawn between them and the members
of our Assembly ; but if you reflect a moment, you will find
that the comparison is not good. There is a responsibility
in the members of the Assembly: at the end of a year they
are liable to be turned out. This is not the case with
the senators. I beg gentlemen to consider the extreme dif-
ference between the two cases. Much is said about treaties.
I do not dread this so much as what will arise from the Jar-
riag interests of the Eastern, Southern, and the Middle
States. They are different in soil, climate, customs, prod
uce, and every thing. Regulations will lie made evidently
to the disadvantage of some part of the community, and most
probably to ours. I will not take up more of the time of the
committee.
3d clause of the 2d section of the 2d article read.
Mr. MACLAINE. It has been objected to this part,
that the power of appointing officers was something like a
monarchical power. Congress are not to be sitting at all
times ; they will only sit from time to time, as the public
business may render it necessary. Therefore the executive
ought to make temporary appointments, as well as receive
ambassadors and other public ministers. This power can
be vested nowhere but in the executive, because he is per-
petually acting for the public ; for, though the Senate is to
advist* him in the appointment of officers, &c., yet, during
the recess, the President must do this business, or else it will
be neglected; and such neglect may occasion public incon-
veniences. But there is an objection made to another part,
that has not yet been read. His power of adjourning both
houses, when they disagree, has been by some people con-
strued to extend to any length of time. If gentlemen look
at another part of the Constitution, they will find that there
IS a (iositive injunction, that the Congress must meet at least
onre in every year; so that he cannot, were he so inclinedt
136 DEBATES. LSpbncbk.
prevent their meeting within a year. One of the best pro-
visions contained in it is, that he shall commission all officers
of the United States, and shall take care that the laws be
faithfully executed. If he takes care to see the laws faith-
fully executed, it will be more than is done in any govern-
ment on the continent ; for I will venture to say that our
governcnent, and those of the other states, are, with re-
spect to the execution of the laws, in many respects mere
ciphers.
Rest of the article read without any observations.
Article 3d, 1st and 2d sections, read.
Mr. SPENCER. Mr. Chairman, I have objections to
this article. I object to the exclusive jurisdiction of the
federal court in all cases of law and equity arising under the
Constitution and the laws of the United States, and to the
appellate jurisdiction of controversies between the citizens
of diflferent states, and a few other instances. To these 1
object, because I believe they will be oppressive in their
operation. 1 would wish that the federal court should not
interfere, or have any thing to do with controversies to the
decision of which the state judiciaries might be fully compe-
tent, nor with such controversies as must carry the people a
great way from home. With respect to the jurisdiction of
cases arising under the Constitution, when we reflect on the
very extensive objects of the plan of government, the manner
in which they may arise, and the multiplicity of laws that
may be made with respect to them, the objection against it
will appear to be well founded. If we consider nothing but
i\\v articles of taxation, duties, and excises, and the laws
that might be made with respect to these, the cases will be
almost infinite. If we consider that it is in contemplation
ihat a stamp duty shall take place throughout the continent;
that all contracts shall be on stamp paper; that no contracts
Nhall be of validity but what would be thus stamped, — these
VWHVH will be so many that the consequences would be dread-
ful. It would be necessary to appoint judges to the federal
Supri'mi! ('ourt, and other inferior departments, and such a
munb(*r of inferior courts in every district and county, with
a correspondent number of officers, that it would cost an
inunense expense without any apparent necessity, which
must operate to the distress of the inhabitants. There will
Us without ^ny manner of doubt, clashings and animosities
SnifCBB.] NORTH CAROLINA. 137
^tween the jurisdiction of the federal courts afid of the state
c^ourts, so that they will keep the country in hot water* it
bas been said that the impropriety of this was mentioned by
s^me in the Convention. I cannot see the reasons of giving
C lie federal courts jurisdiction in these cases ; but I am sure
i ^ w^ill occasion great expense unnecessarily. The state ju-
iciaries will have very little to do. It will be almost useless
keep them up. As all officers are to take an oath to
pport the general government, it will carry every thing
fcefore it. This will produce that consolidation through the
United States which is apprehended. I am sure that I do
xiot see that it is possible to avoid it. I can see no power
mhat can keep up the little remains of the power of the states.
^ur rights are not guarded. There is no declaration of
vights, to secure to every member of the society those un-
oalienable rights which ought not to be given up to any gov-
ernment. Such a bill of rights would be a check upon men
in power. Instead of such a bill of rights, this Constitu-
tion has a clause which may warrant encroachments on the
power of the respective state legislatures. I know it is said
that what is not given up to the United States will be re-
tained by the individual states. I know it ought to be so,
and should be so understood ; but, sir, it is not declared to
be so. In the Confederation it is expressjy declared that all
rights and powers, of any kind whatever, of the several
states, which are not given up to the United States, are
expressly and absolutely retained, to be enjoyed by the
states. There ought to be a bill of rights, in order that
those in power may not step over the boundary between
the powers of government and the rights of the people,
which they may do when there is nothing to prevent them.
They may do so without a bill of rights; notice will not be
readily taken of the encroachments of rulers, and they may
go a great length before the people are alarmed. Oppression
may therefore take place by degrees; but if there were ex-
press terms and bounds laid down, when these were passed
by, the people would take notice of them, and oppressions
would not be carried on to such a length. I look upon it,
therefore, that there ought to be something to confine the
power of this government within its proper botindaries. I
know that seiieral writers have said that a bill of rights is
not necessary in this country ; that some states had them
VOL. IV. 18
138 DEBATES. [Spencbk.
ni»t, and that others had. To these I answer, that those
states that have them not as bills of rights, strictly so called,
have them in the frame of their constitution, which is nearly
the same.
There has been a comparison made of our situation with
Great Britain. We have no crown, or prerogative of a king,
like the British constitution. 1 take it, that the subject has
been misunderstood. In Great Britain, when the king at-
tempts to usurp the rights of the people, the declaration and
bill of rights are a guard against him. A bill of rights
would be necessary here to guard against our rulers. I wish
to have a bill of rights, to secure those unalienable rights,
which are called by some respectable writers the residuum
of human rights, which are never to be given up. At the
same time that it would give security to individuals, it would
add to the general strength. It might not be so necessary
to have a bill of rights in the government of the United
States, if such means had not been made use of as endan-
ger a consolidation of all the states ; but at any event, it
would be proper to have one, because, though it might not
be of any other service, it would at least satisfy the minds
of the people. It would keep the states from being swal-
lowed up by a consolidated government. For the reasons I
before gave, I think that the jurisdiction of the federal court,
with respect to all cases in law and equity, and the laws of
Congress, and the appeals in all cases between citizens
of different states, &c., is inadmissible. I do not see the
necessity that it should be vested with the cognizance of all
these matters. I am desirous, and have no objection to
their having one Supreme Federal Court for general matters ;
but if the federal courts have cognizance of those subjects
which I mentioned, very great oppressions may arise. Noth-
ing can be more oppressive than the cognizance with respect
to controversies between citizens of different states. In all
cases of appeal, those persons who are able to pay had bet-
ter pay down in the first instance, though it be unjust, than
be at such a dreadful expense by going such a distance to
the Supreme Federal Court. Some of the most respectable
states have proposed, by way of amendments, to strike out
a great part of these two clauses. If they be admitted as
they are, it will render the country entirely unhappy. On
the contrary, I see no inconvenience from reducing the
-rtACLAiNE.I NORTH CAROLINA. l39
power as has been proposed. I am of opinion that it is in-
c^onsistent with the happiness of the people to admit these
^wo clauses. The state courts are sufficient to decide the
<^mmon controversies of the people, without distressing
them hy carrying them to such far-distant tribunals. If I
did not consider these two clauses to be dangerous, I should
not object to them. I mean not to object to any thing that
is not absolutely necessary. I wish to be candid, and not
be prejudiced or warped.
Mr. SPAIGHT. Mr. Chairman, the gentleman insinu-
ates that differences existed in the Federal Convention re-
specting the clauses which he objects to. Whoever told
him so was wrong; for I declare that, in that Convention,
the unanimous desire of all was to keep separate and distinct
the objects of the jurisdiction of the federal from that of the
state judiciary. They wished to separate them as judi-
ciously as possible, and to consult the ease and convenience
of the people. The gentleman objects to the cognizance
of all cases in law and equity arising under the Constitution
and the laws of the United States. This objection is very
astonishing. When any government is established, it ought
to have power to enforce its laws, or else it might as well
have no power. What but that is the use of a judiciary ?
The gentleman, from his profession, must know that no
government can exist without a judiciary to enforce its laws,
by distinguishing the disobedient from the rest of the people,
and imposing sanctions for securing the execution of the
laws. As to the inconvenience of distant attendance. Con-
gress has power of establishing inferior tribunals in each
state, so as to accommodate every citizen. As Congress
have it in their power, will they not do it? Are we to elect
men who will wantonly and unnecessarily betray us ?
Mr. MACLAINE. Mr. Chairman, I hoped that some
gentleman more capable than myself would have obviated
the objections to this part. The objections offered by the
gentleman appear to me totally without foundation. He
told us that these clauses tended to a consolidation of the
states. I cannot see how the states are to be consolidated
by establishing these two clauses. He enumerated a num-
ber of cases which would be involved within the cognizance of
the federal courts ; customs, excises, duties, stamp duties —
a stamp on every article, on every contract — in order to bring
140 DEBATES [Maclaim.
all persons into the federal court , and said that there would
be necessarily courts in every district and county, which
would be attended with enormous and needless expense, for
that the state courts could do every thing. He went on fur-
ther, and said that there would be a necessity of having
sheriffs and other officers in these inferior departments, A
wonderful picture indeed, drawn up in a wonderful manner ?
I will venture to say that the gentleman's suggestions are
not warranted by any reasonable construction of the Con-
stitution. The laws can, in general, be executed by the offi-
cers of the states. State courts and state officers will, for
the most part, probably answer the purpose of Congress as
well as any other. But the gentleman says that the state
courts will be swallowed up by the federal courts. This is
only a general assertion, unsupported by any probable rea-
sons or arguments. The objects of each are separate and
distinct. I suppose that whatever courts there may be, they
will be established according to the convenience of the peo-
ple. This we must suppose from the mode of electing and
appointmg the members of the government. State officers
will as much as possible be employed, for one very consider-
able reason — I mean, to lessen the expense. But he
imagines that the oath to be taken by officers will tend to
the subversion of our state governments and of our liberty.
Can any government exist without fidelity in its officers ?
Ought not the officers of every government to give some
security for the faithful discharge of their trust ? The offi-
cers are only to be sworn to support the Constitution, and
therefore will only be bound by their oath so far as it shall
be strictly pursued. No officer will \ye bound by his oath to
. support any act that would violate the principles of the Con-
stitution.
The gentleman has wandered out of his way to tell us —
what has so often been said out of doors — that there is no
declaration of rights; that consequently all our rights are
taken away. It would be very extraordinary to have a bill
of rights, because the powers of Congress are expressly de-
fined ; and the very definition of them is as valid and effica-
cious a check as a bill of rights could be, without the danger-
ous implication of a bill of rights. The powers of Congress
are limited and enumerated. We say we have given them
those powers, but we do not say we have given them more
^HNSTON.] NORTH GAROUNA. 141
'Ve retain all those rights which we have not given away to
• he general government. The gentleman is a professional
Kman. If a gentleman had made his last will and testament,
^and devised or bequeathed to a particular person the sixth
;gpart of his property, or any particular specific legacy, could
it be said that that person should have the whole estate ? If
^hey can assume powers not enumerated, there was no oc-
<!asion for enumerating any powers. The gentleman is
learned. Without recurring to his learning, he may only
appeal to his common sense ; it will inform hinx that, if we
- had all power before, and give away but a part, we still re-
tain the rest. It is as plain a thing as possibly can be, that
Congress can have no power but what we expressly give
them. There is an express clause which, however disin-
genuously it has been perverted from its true meaning, clearly
demonstrates that they are confined to those powers which
are given them. This clause enables them to " make all laws
which shall be necessary and proper for carrying into execu-
tion the foregoin^: powers, and all other powers vested by
this Constitution in the government of the United States, or
any department or officers thereof." This clause specifies
that they shall make laws to carry into execution all the
poioers vested by this Constitution ; consequently, they can
make no laws to execute any other power. This clause
gives no new power, but declares that those already given
are to be executed by proper laws. I hope this will satisfy
gentlemen. ,
Gov. JOHNSTON. Mr. Chairman, the learned member
from Anson says that the federal courts have exclusive juris-
diction of all cases in law and equity arising under the Con-
stitution and laws of the United States. The opinion which
I have always entertained is, that they will, in these cases,
as well as in several others, have concurrent jurisdiction with
the state courts, and not exclusive jurisdiction. I see nothing
in this Constitution which hinders a man from bringing suit
wherever he thinks he can have justice done him. The juris-
diction ot these courts is established for some purposes with
which the state courts have nothing to do, and the Constitu-
tion takes no power from the state courts which they now
have. They will have the same business which they have
now, and if so, they will have enough to employ their time.
We know /hat the gentlemen who preside in our superior
142 DEBATES. [Bloouwobtb.
courts have more business than they can determine. Their
complicated jurisdiction, and the great extent of country,
occasions them a vast deal of business. The addition of the
business of the United States would be no manner of advan-
tage to them. It is obvious to every one that there ought to
be one Supreme Court for national purposes. But the gen-
tleman says that a bill of rights was necessary. It appears
to me, sir, that it would have been the highest absurdity to
undertake to define what rights the people of the United
States were entitled to ; for that would he as much as to say
they were entitled to nothing else. A bill of rights may be
necessary in a monarchical government, whose powers are
undefined. Were we in the situation of a monarchical coun-
try ? No, sir. Every right could not be enumerated, and
the omitted rights would be sacrificed, if security arose from
an enumeration. The Congress cannot assume any other
powers than those expressly given them, without a palpable
violation of the Constitution. Such objections as this, I hope,
will have no effect on the minds of any members in this
house. When gentlemen object, generally, that it tends to
consolidate the states and destroy their state judiciaries, they
ought to be explicit, and explain their meaning. They make
use of contradictory arguments. The Senate represents the
states, and can alone prevent this dreaded consolidation ; yet
the powers of the Senate are objected to. The rights of the
people, in my opinion, cannot be affected by the federal
courts. I«do not know how inferior courts will be regulated.
Some suppose the state courts will have this business.
Others have imagined that the continent would be divided
into a nimiber of districts, where courts would be held so as
to suit the convenience of the people. Whether this or some
other mode will be ap|)ointed by Congress, I know not ; but
this I am sure of, that the state judiciari(\s are not divested
of their present judicial cognizance, and that we have every
security that our ease and convenience will be consulted.
Unless Congress had this power, their laws could not be ear-
ned into execution.
Mr. BLOOD WORTH. Mr. Chairman, the worthy gen-
tleman u|)last has given me information on the subject which
I had never heard before. Henring so many opinions, I did
not know which was right. The honorable gentleman has
said that the state courts and the courts of the United States
JW'DowALu] NORTH CAROLINA. 143
^would have concurrent jurisdiction. 1 beg the committee to
Teflect what would be the consequence of such measures
It has ever been considered that the trial by jury was one
of the greatest rights of the people. I ask whether, if such
causes go into the federal court, the trial by jury is not cut
off, and whether there is any security that we shall have
justice done us. I ask if there be any security that we shall
have juries in civil causes. In criminal cases there are to
be juries, but there is no provision made for having civil
causes tried by jury. This concurrent jurisdiction is in-
consistent with the security of that great right. If it be
not, I would wish to hear how it is secured. I have listened
with attention to what the learned gentlemen have said,
and have endeavored to see whether their arguments had
any weight ; but I found none in them. Many words have
been spoken, and long time taken up; but with me they
have gone in at one ear, and out at the other. It would
give me much pleasure to hear that the trial by jury was
secured.
Mr. J. M'DOWALL. Mr. Chairman, the objections to
this part of the Constitution have not been answered to my
satisfaction yet. We know that the trial by a jury of the
vicinage is one of the greatest securities for property. If
causes are to be decided at such a great distance, the poor
will be oppressed ; in land affairs, particularly, the wealthy
suitor will prevail. A poor man, who has a just claim on a
piece of land, has not substance to stand it. Can it be
Supposed that any man, of common circumstances, can stand
the expense and trouble of going from Georgia to Philadel-
phia, there to have a suit tried ? And can it be justly de-
termined without the benefit of a trial by jury ? These arc
things which have justly alarmed the people. What mado
the people revolt from Great Britain ? The trial by jury,
that great safeguard of liberty, was taken away, and a stamp
duty was laid upon them. This alarmed them, and led them
to fear that greater oppressions would take place. We then
resisted. It involved us in a war, and caused us to relin-
quish a government which made us happy in every thing
else. The war was very bloody, but we got our independ-
ence. We are now giving away our dear-bought rights.
We ought to consider what we are about to do before we
determine.
144 DEBATES. [Ibkoeli..
Mr. SPAIGHT. Mr. Chairman, the trial by jury was
not forgotten in the Convention ; the subject took up a con-
siderable time to investigate it. It w3ls impossible to make
any one uniform regulation for all the states, or that would
include all cases where it would be necessary. It was im-
possible, by one expression, to embrace the whole. There
are a number of equity and maritime cases, in some of the
states, in which jury trials are not used. Had the Conven-
tion said that all causes should be tried by a jury, equity
and maritime oases would have been included. It was
therefore left to the legislature to say in what cases it should
be used ; and as the trial by jury is in full force in the state
courts, we have the fullest security.
Mr. IREDELL. Mr. Chairman, I have waited a con
siderable time, in hopes that some other gentleman would
fully discuss this point. I conceive it to be my duty to
speak on every subject whereon I think I can throw any
light ; and it appears to me that some things ought to be
said which no gentleman has yet mentioned. The gentle-
man from New Hanover said that our arguments went in at
one ear, and out at the other. This sort of language, on
so solemn and important an occasion, gives me pain. [Mr.
Bloodworth here declared that he did not mean to convey
any disrespectful idea by such an expression ; that he did
not mean an absolute neglect of their arguments, but that
they were not sufficient to convince him ; that he should be
sorry to give pain to any gentleman ; that he had listened,
and still would listen, with attention, to what would be said.
Mr. Iredell then continued.] I am by no means surprised
at the anxiety which is expressed by gentlemen on this sub-
ject. Of all the trials that ever were instituted in the world,
this, in my opinion, is the best, and that w^hich I hope will
continue the longest. If the genth^men who composed the
Convention had designedly omitted it, no man would be
more ready to condemn their conduct than myself. But I
have been told that the omission of it arose from the diffi-
culty of establishing one uniform, unexceptionable mode ;
this mode of trial being different, in many particulars, in the
several states. Gentlemen will be pleased to consider that
there is a material difference between an article fixed in the
Constitution, and a regulation by law. An article in the
Constitution, however inconvenient it may prove by experi-
[ftHDELL.] NORTH CAROLINA. 146
nee, can only be altered by altering the Constitution itself,
"which manifestly is a thing that ought not to be done often.
"When regulated by law, it can easily be occasionally altered
«o as best to suit the conveniences of the people. Had
there been an article in the Constitution taking away that
trial, it would justly have excited the public indignation. It
is not taken away by the Constitution. Though that does
not provide expressly for a trial by jury in civil cases, it does
not say that there shall not be such a trial. The reasons of
the omission have been mentioned by a member of the late
General Convention, (Mr. Spaight.) There are different
practices in regard to this trial in different states. In some
cases, they have no juries in admiralty and equity cases ; ir
others, they have juries in these cases, as well as in suits at
common law. I beg leave to say that, if any gentleman of
ability and knowledge of the subject will only endeavor to
fix upon any one rule that would be pleasing to all the states
under the impression of their present different habits, he will
be convinced that it is impracticable. If the practice of any
particular state had been adopted, others, probably, whose
practice had been different, would have been discontented.
This is a consequence that naturally would have ensued, had
the provision been made in the Constitution itself. But
when the regulation is to be by law, — as that law, when
found injudicious, can be easily repealed, a majority may
l)e expected to agree upon some method, since some method
or other must be first tried, and there is a greater chance of
the favorite method of one state l>eing in time preferred. It
is not to be presumed that the Congress would dare to de-
prive the people of this valuable privilege. Their own in-
terest will operate as an additional guard, as none of them
could tell how soon they might have occasion for such a
trial themselves. The greatest danger from ambition is in
criminal cases. But here they have no option. The trial
must be by jury, in the state wherein the offence is com-
mitted ; and the writ of habeas corpus will in the mean time
secure the citizen against arbitrary imprisonment, which has
been the principal source of tyranny in all ages.
As to the clause respecting cases arising under the Con-
stitution and the laws of the Union, which the honorable
member objected to, it must be observed, that laws are use-
leas unless they are executed. At present. Congress have
VOL. IV. ^ 19 13
116 DEBATES. [Ircoell
I>owers which they cannot execute. After making laws
wliich affect the dearest interest of the people, in the con-
stitutional mode, they have no way of enforcing them. The
situation of those gentlemen who have lately served in Con-
gress must have been very disagreeable. Congress have
power to enter into negotiations with foreign nations, but
cannot compel the observance of treaties that they make.
They have been much distressed by their inability to pay
the pressing demands of the public creditors. They have
been reduced so low as to borrow principal to pay interest.
Such are the unfortunate consequences of this unhappy sit-
uation ! These are the effects of the pernicious mode of
requisitions! Has any state fully paid its quota ? I believe
not, sir. Yet I am far from thinking that this has been
owing altogether to an unwillingness to pay the debts. It
may have been in some instances the case, but I believe
not in all. Our state le^gislature has no way of raising any
considerable sums but by laying direct taxes. Other states
have imports of consequence. These may afford them a
considerable relief; but our state, perhaps, could not have
raised its full quota by direct taxes, without imposing bur-
dens too heavy for the people to bear. Suppose, in this sit-
uation, Congress had proceeded to enforce their requisitions,
by sending an army to collect them ; what would have l)een
the consequence ? Civil war^ in which the innocent must
have suffered with the guilty. Those who were willing to
pay would have been equally distressed with those who were
unwilling. Requisitions thus having failed of their purpose,
it is proposed, by this Constitution, that, instead of collect-
ing taxes by the sword, application shall be made by the
government to the individual citizens. If any individual
disobeys, the courts of justice can give immediate relief.
This is the only natural and effectual method of enforcing
laws. As to the danger of concurrent jurisdictions, has any
inconvenience resulted from the concurrent jurisdictions, in
sundry cases, of the superior and county courts of this state ?
The inconvenience of attending at a great distance, which
has been so much objected to, is one which would be so
general, that there is no doubt but that a majority would
always feel themselves and their constituents personally in-
terested in preventing it. I have no doubt, therefore, that
proper care will be taken to lessen this evil as much as pes-
[redeix.] north CAROLINA. HI
sible ; and, in particular, that an appeal to the Supreme*
Court will not be allowed but in cases of great importance,
where the object may be adequate to the expense. The
Supreme Court may possibly be directed to sit alternately
in different parts of the Union.
The propriety of having a Supreme Court in every gov-
ernment must be obvious to every man of reflection. There
can be no other way of securing the administration of justice
uniformly in the several states. There might be, otherwise,
as many different adjudications on the same subject as there
are states. It is to be hoped that, if this government be
established, connections still more intimate than the present
will subsist between the different states. The same measure
of justice, therefore, as to the objects of their common con-
cern, ought to prevail in all. A man in North Carolina, for
instance, if he owed £100 here, and was compellable to
pay it in good money, ought to have the means of recovering
the same sum, if due to him in Rhode Island, and not merely
the nominal sum, at about an eighth or tenth part of its intrin-
sic value. To obviate such a grievance as this, the Constitu-
tion has provided a tribunal to administer equal justice to all.
A gentleman has said that the stamp act, and the taking
away of the trial by jury, were the principal causes of
resistance to Great Britain, and seemed to infer that opposi-
tion would therefore be justified on this part of the system.
The stamp act was much earlier than the immediate cause
of our independence. But what was the great ground of op-
position to the stamp act? Surely it was because the act
was not passed by our own representatives, but by those of
Great Britain. Under this Constitution, taxes are to be
imposed by our own representatives in the General Con-
gress. The fewness of their numbers will be compensated
by the weight and importance of their characters. Our rep-
resentatives will be in proportion to those of the other states.
This case is certainly not like that of taxation by a foreign
legislature. In respect to the trial by jury, its being taken
away, in certain cases, was, to be sure, one of the causes as-
signed in the Declaration of Independence. But that was
done by a foreign legislature, which might continue it so
forever; and therefore jealousy was justly excited. But
this Constitution has not taken it away, and it is left to the
discretion of our own legislature to act, in this respect, as
148 DEBATES. [luiiKLL.
their wisdom shall direct. In Great Britain, the people
speak of the trial by jury with admiration. No monarch, or
minister, however arbitrary in his principles, would dare to
attack that noble palladium of liberty. The enthusiasm of
the people in its favor would, in such a case, produce gen-
eral resistance. That trial remains unimpaired there, al-
though they have a considerable standing army, and their
Parliament has authority to abolish it, if they please. But
wo to thase who should attempt it ! If it be secure in that
country, under these circumstances, can we believe that Con-
gress either would or could take it away in this? Were
they to attempt it, their authority would be instantly resist
ed. They would draw down on thems^ves the resent
ment and detestation of the people. They and their fami-
lies, so long as any remained in being, would be held ir
eternal infamy, and the attempt prove as unsuccessful as it
was wicked.
With regard to a bill of rights, this is a notion originating
in England, where no written constitution is to be found, and
the authority of their government is derived from the most
remote antiquity. Magna Charta itself is no constitution,
but a solemn instrument ascertaining certain rights of indi-
viduals, by the legislature for the time being ; and every ar-
ticle of which the legislature may at any time alter. This,
and a bill of rights also, the invention of later times, were
occasioned by great usurpations of the crown, contrary, as
was conceived, to the principles of their government, about
■which there was a variety of opinions. But neither that in-
strument, nor any other instrument, ever attempted to abridge
the authority of Parliament, which is supposed to be without
any limitation whatever. Had their constitution been fixed
•and certain, a bill of rights would have been useless, for the
constitution would have shown plainly the extent of that
authority which they were disputing about. Of what use,
therefore, can a bill of rights be in this Constitution, where
the people expressly declare how much power they do give,
and consequently retain all they do not ? It is a declaration
of particular powers by the people to their representatives,
for particular purposes. It may be considered as a great
.power of attorney, under which no power can be exercised
but what is expressly given. Pid any man ever hear, be-
fore, that at the end of a power of attorney it was said that
'I>owALL.] NORTH CAROUNA. • 149
^lie attorney should not exercise more power than was thde*
^iven himP Suppose, for instance, a man had lands in the
c^ounties of Anson and Caswell, and he should give another a'
ipower of attorney to sell his lands in Anson, would the other
^ave any authority to seH the lands in Caswell? — or could'
lie, without absurdity, say, " 'Tis true you have not expressly
snithorized me to sell the lands in Caswell ; but as you had
lands there, and did not say f should not, I thought I might
as well sell those lands as the other.'' A bill of rights, as I
conceive, would not only be incongruous, but dangerous,
^o man, let his ingenuity be what it will, could enumerate all
the individual rights not relinquished by this Constitution.
Suppose, therefore, an enumeration of a great many, but an
omission of some, and that, long after all traces of our present-
disputes were at an end, any of the omitted rights should be*
invaded, and the invasion be complained of; what would
be the plausible answer of the government to such a com-
plaint ? Would they not naturally say, " We live at a great
distance from the time when this Constitution was estab-
lished. We can judge of it much better by the ideas of it
entertained at tlie time, than by any ideas of our own. The-
bill of rights, passed at that time, showed that the people'
did not think every power retained which was not given,
else this bill of rights was not only useless, but absurd. But
we are not at liberty to charge an absurdity upon our ances-
tors, who have given such strong^ proofs of their good sense,
as well as their attachment to liberty. So long as the rights*
enumerated in the bill of rights remain unviolated, you have
no reason to complain. This is not one of them." Thus a
bill of rights might operate as a snare rather than a pro-
tection. If we had formed- a general legislature, with un-
defined powers, a bill of rights would not only have been=
pmper, but necessary ; and it would have then operated as-
an exception to the legislative authority in such particulars.
It has this effect in respect to some of the American con-
stitutions, where the powers of legislation are general. But'
where they are powers of a particular nature, and expressly
defined; as in the case of the Constitution before us, T think,
W the reasons 1 have given, a bill of rights is not only un-
necessary, but would be absurd and dangerous.
Mr. J. M^DOWALL. Mr. Chairman, the learned- gen
tieman made use of several afgumenis to induce us to believe
f60 DEBATES [Johnston.
that the tiial by jury, in civil cases, was not in danger, and
observed that, in criminal cases, it is provided that the trial
is to be in the state where the crime was committed. Sup-
pose a crime is committed at the Mississippi ; the man may
be tried at Edenton. They ought to be tried by the people
of the vicinage ; for when the trial is at such an immense
distance, the principal privilege attending the trial by jury is
taken away ; therefore the trial ought to be limited to a dis-
trict or certain part of the state. It has been said, by the
gentleman from Edenton, that our representatives will have
virtue and wisdom to regulate all these things. But it would
give me much satisfaction, in a matter of this importance, to
see it absolutely secured. The depravity of mankind mili-
tates against such a degree of confidence. I wish to see
every thing fixed.
Gov. JOHNSTON. Mr. Chairman, the observations of
the gentleman last up confirm what the other gentleman
said. I mean that, as there are dissimilar modes with respect
to the trial by jury in different states, there could be no gen-
eral rule fixed to accommodate all. He says that this clause
is defective, because the trial is not to be by a jury of the
vicinage. Let us look at the state of Virginia, where, as
long as I have known it, the laws have been executed so as
to satisfy the inhabitants, and, I believe, as well as in any
part of the Union. In that country, juries are summoned
every day from the by-standers. We may expect less par-
tiality when the trial is by strangers ; and were I to be tried
for my property or life, I would rather be tried by disinter-
ested men, who were not biased, than by men who were
perhaps intimate friends of my opponent. Our mode is dif-
ferent from theirs ; but whether theirs be better than ours or
not, is not the question. It would be improper for our dele-
gates to impose our mode upon them, or for theirs to impose
their mode upon us. The trial will probably be, in each
state, as it has been hitherto used in such state, or otherwise
regulated as conveniently as possible for the people. The
delegates who are to meet in Congress will, I hope, be men
of virtue and wisdom. If not, it will be our own fault.
They will have it in their power to make necessary regula-
tions to accommodate the inhabitants of each state. In the
Constitution, the general principles only are laid down. It
will be the object of the future legislation to Congress to
^Caclaine.] north CAROLINA. 151
snake such laws as will be most convenient for the people,
"^Vith regard to a bill of rights, so much spoken of, what tne
gentleman from Edenton has said, I hope, will obviate the
objections against the want of it. In a monarchy, all power
may be sup{K)sed to be vested in the monarch, except what
may be reserved by a bill of rights. In England, in every
instance where the rights of the people are not declared,
the prerogative of the king is supposed to extend. But in
this country, we say that what rights we do not give away
remain with us.
Mr. BLOODWORTH. Mr. Chairman, the footing on
which the trial by jury is, in the Constitution, does not sat-
isfy me. Perhaps I am mistaken ; but if I understand the
thing right, the trial by jury is taken away. If the Supreme
Federal Court has jurisdiction both as to law and fact, it ap-
pears to me to be taken away. The honorable gentleman
who was in the Convention told us that the clause, as it now
stands, resulted from the difficulty of fixing the mode of trial.
1 think it was easy to have put it on a secure footing. But,
if the genius of the people of the United States is so dis-
similar that our liberties cannot be secured, we can never
hang long together. Interest is the band of social union ;
and when this is taken away, the Union itself must dissolve.
Mr. MACLAINE. Mr. Chairman, I do not take the in-
terest of the states to be so dissimilar ; I take them to be
all nearly alike, and inseparably connected. It is impossible
to lay down any constitutional rule for the government of all
the different states in each particular. But it will be easy
for the legislature to make laws to accommodate the people
iu every part of the Union, as circumstances may arise.
Jury trial is not taken away in such cases where it may be
found necessary. Although the Supreme Court has cogni-
zance of the appeal, it does not follow but that the trial by
jury m:iy be had in the court below, and the testimony trans-
mitted to the Supreme Court, who will then finally determine,
on a review of all the circumstances. This is well known
to be the practice in some of the states. In our own state,
indeed, when a cause is instituted in the county court, and
afterwards there is an appeal upon it, a new trial is had in
the superior court, as if no trial had been had before. In
other countries, however, when a trial is had in an inferior
court, and an appeal is taken, no testimony can be given in
153 DEBATES. [Spbnc».
the court above, but the court determines upon the circum-
stances appearing upon the record. If I am right, the plain
inference is, that there may be a trial in the inferior courts,
and that the record, including the testimony, may be sent to
the Supreme Court. But if there is a necessity for a jury
in the Supreme Court, it will l)e a very easy matter to em-
panel a jury at the bar of the Supreme Court, which may
save great expense, and be very convenient to the people
It is impossible to make every regulation at once. Congress,
who are our own representatives, will undoubtedly make
such regulations as will suit the c onvenience and secure the
liberty of the people.
Mr. IREDELL declared it as his opinion that there might
be juries in the Superior Court as well as in the inferior courts,
and that it was in the power of Congress to regulate it so.
Tuesday, July 29, 178a
Mr. KENNION in the chair.
Mr. SPENCER. Mr. Chairman, I hope to be excused
for making some observations on what was said yesterday,
by gentlemen, in favor of these two clauses. The motion
which was made that the committee should rise, precluded
me from speaking then. The gentlemen have showed much
moderation and candor in conducting this business ; but I
still think that my observations are well founded, and that
some amendments are necessary. The gentleman said, all
matters not given up by this form of government were re-
tained by the respective states. I know that it ought to be
so ; it is the general doctrine, but it is necessary that it
should be expressly declared in the Constitution, and not
left to mere construction and opinion. I am authorized to
say it was heretofore thought necessary. The Confedera-
tion says, expressly, that all that was not given up by the
United States was retained by the respective states. If such
a clause had been inserted in this Constitution, it would
have superseded the necessity of a bill of rights. But that not
being the case, it was necessary that a bill of rights, or some-
thing of that kind, should be a part of the Constitution. It was
observed that, as the Constitution is to be a delegation of
power from the several states to the United States, a bill of
rights was unnecessary. But it will be noticed that this is
a different case.
NORTH CAROUNA. 159
The states do not act in their political capacities, but ihe
^vernment is proposed for individuals. The very caption
of the Constitution shows that this is the case. The ex
pression, " We, the people of the United States," shows
that this government is intended for individuals ; there ought,
therefore, to be a bill of rights. I am ready to acknowledge
that the Congress ought to have the power of executing its
laws. Heretofore, because all the laws of the Confedera-
tion were binding on the states in their political capacities,
courts had nothing to do with them ; but now the thing is
entirely different. The laws of Congress will be binding
on individuals, and those things which concern individuals
will be brought properly before the courts. In 'he next
place, all the officers are to take an oath to carry into execu-
tion this general government, and are bound to support every
act of the government, of whatever nature it may be. This
is a fourth reason for securing the rights of individuals. It
was also observed that the federal judiciary and the courts
of the states, under the federal authority, would have con-
carrent jurisdiction with respect to any subject that might
arise under the Constitution. I an> ready to say that I most
heartily wish that, whenever this government takes place,
the two jurisdictions and the two governments — that is, the
general and the several state governments — may go hand
ia hand, and that there may be no interference, but that
every thing may be rightly conducted. But I will never
concede that it is proper to divide the business between the
iwo different courts. I have no doubt that there is wisdom
enough in this state to decide the business, without the ne-
cessity of federal assistance to do our business. The worthy
gentleman from Edenton dwelt a considerable time on the
observations on a bill of rights, contending that they were
proper only in monarchies, which were founded on different
principles from those of our government; and, therefore,
though they might be necessary for others, yet they were
not necessary for us. I still think that a bill of rights is
necessary. This necessity arises from the nature of humaiY
societies. When individuals enter into society, they give up
some rights to secure the rest. There are certain human
rights that ought not to be given up, and which ought iii
some manner to be secured. With respect to these great
essential rights, ao latitude ought to be left. They are the
VOL. v. 20
i 54 DEBA TES. [Spencer
most inestimable gifts of the great Creator, and therefore
ought not to be destroyed, but ought to be secured. The)'
ought to be secured to individuals in consideration of the
other rights which they give up to support society.
The trial by jury has been also spoken of. Every person
who is acquainted with the nature of liberty need nor be in-
formed of the importance of this trial. Juries are called the
bulwarks of our rights and liberty; and no country can ever be
enslaved as long as those cases which affect their lives and
property are to be decided, in a great measure, by the con-
sent of twelve honest, disinterested men, taken from the re-
spectable body of yeomanry. It is highly improper that any
clause which regards the security of the trial by jury should
be any way doubtful. In the clause that has been read, it
is ascertained that criminal cases are to be tried by jury in
the states where they are committed. It has been objected
to that clause, that it is not suiTici6Hitly explicit. I think
that it is not. It was observed that one may be taken to a
great distance. One reason of the resistance to the British
government was, because they required that we should be
carried to the country of Great Britain, to be tried by juries
of that country. But we insisted on being tried by juries of
the vicinage, in our own country. I think it therefore proper
that something explicit should be said with respect to the
vicinage.
With regard to that part, that the Supreme Court shall
have appellate jurisdiction both as to law and fact, it has
been observed that, though the federal court might decide
without a jury, yet the court below, which tried it, might
have a jury. I ask the gentleman what benefit would be
received in the suit by having a jury trial in the court below,
when the verdict is set aside in the Supreme Court. It was
intended by this clause that the trial by jury should be sup-
pressed in the superior and inferior courts. It has been said,
in defence of the omission concerning the trial by jury in
civil cases, that one general regulation could not be made ;
that in several cases the constitution of several states did not
require a trial by jury, — for instance, in cases of equity and
admiralty, — whereas in others it did, and that, therefore,
it was proper to leave this subject at large. I am sure that,
for the security of liberty, they ought to have been at the
pains of drawing some line. I think that the respectable
Davie.] NORTH CAROLINA. 165
body who formed the' Constitution should have gone sc iar
as to put matters on such a footing as that there should be
no danger. They might have provided that all those cases
which are now triable by a jury should be tried in each state
by a jury, according to the mode usually practised in such
state. This would have been easily done, if they had been
at the trouble of writing five or six lines. Had it been done,
we should have been entitled to say that our rights and liber-
ties were not endangered. If we adopt this clause as it is, I
think, notwithstanding what gentlemen have said, that there
will be danger. There ought to be some amendments to it,
to put this matter on a sure footing. There does not appear
to me to be any kind of necessity that the federal court
should have jurisdiction in the body of the country. I am
ready to give up that, in the cases expressly enumerated, an
appellate jurisdiction (except in one or two instances) might
be i^iven. I wish them also to have jurisdiction in maritime
affairs, and to try offences committed on the high seas. But
in the body of a state, the jurisdiction of the courts in that
state might extend to carrying into execution the laws of
Congress. It must be unnecessary for the federal courts to
do it, and would create trouble and expense which might be
avoided. In all cases where appeals are proper, I will agree
that it is necessary there should be one Supreme Court.
Were those things properly regulated, so that the Supreme
Court might not be oppressive, I should have no objection
to it.
Mr. DAVIE. Mr. Chairman, yesterday and to-day 1
have given particular attention to the observations of the gen-
tleman last up. I believe, however, that, before we take
into consideration these important clauses, it will be neces-
sary to consider in what manner laws can be executed. For
my own part, I know but two ways in which the laws can
be executed by any government. If there be any other, it
is unknown to me. The first mode is coercion by military
force, and the second is coercion through the judiciary.
With respect to coercion by force, I shall suppose that it is
so extremely repugnant to the principles of justice and the
feelings of a free people, that no man will support it. It
must, in the end, terminate in the destruction of the liberty
of the people. I take it, therefore, that there is no rational
way of enforcing the laws but by the instrumentality of thb
156 DEBATES. [DAvir
judiciary. From these premises we are left only to consider
how far the jurisdiction of the judiciary ought to extend. It
appears to me that the judiciary ought to be competent to
the decision of any question arising out of the Constitution
Itself. On a review of the principles of all free governments,
it seems to me also necessary that the judicial power should
be coextensive with the legislative.
It is necessary in all governments, but particularly in a
federal government, that its judiciary should be competent
to the decision of all questions arising out of the constitu-
tion. If I understand the gentleman right, his objection
was not to the defined jurisdiction, but to the general juris-
diction, which is expressed thus: "The judicial power shall
extend to all cases in law and equity arising under this Con-
stitution, the laws of the United States, and treaties made,
or which shall be made, under their authority ; " and also
the appellate jurisdiction in some instances. Every member
who has read the Constitution with attention must observe
that there are certain fundamental principles in it, both of a
positive and negative nature, which, being intended for the
general advantage of the community, ought not to be vio-
lated by any future legislation of the particular states. Every
member will agree that the positive regulations ought to be
carried into execution, and that the negative restrictions
ought not to disregarded or violated. Without a judiciary,
the injunctions of the Constitution may be disobeyed, and
the positive regulations neglected or contravened. There
are certain prohibitory provisions in this Constitution, the
wisdom and propriety of which must strike every reflectingj^
mind, and certainly meet with the warmest approbation of
every citizen of this state. It provides, " that no state shal!^
without the consent of Congress, lay any imposts or duties
on imports or exports, except what may be absolutely neces-
sary for executing its inspection laws ; that no preference
shall be given, by any regulation of commerce or revenue,
to the ports of one state over those of another; and that no
state shall emit bills of credit, make any thing but gold and
silver coin a tender in payment of debts, pass any bill of
attainder, ex post facto law, or law impairing the obligation
of contracts." These restrictions ought to supersede the
laws of particular states. With respect to the prohibitory
provisioir — that no duty or impost shall be laid by any par-
Datie.] north CAROLINA. 1 57
ticular state — which is so highly in favor of us and the othe^*
Don -importing states, the importing states might make laws
laying dutit's notwithstanding, and the Constitution might
be violated with impunity, if there were no power in the
general government to correct and counteract such laws.
This great object can only* be safely and completely ob-
tained by the instrumentality of the federal judiciary. Would
not Virginia, who has raised many thousand pounds out of
our citizens by her imposts, still avail herself of the same
advantage if there were no constitutional power to counter-
act her regulations? If cases arising under the Constitution
were left to her own courts, might she not still continue the
same practices ? But we are now to look for justice to the
controlling power of the judiciary of the United States. If
the Virginians were to continue to oppress us by laying
duties, we can be relieved by a recurrence to the general
judiciary. This restriction in the Constitution is a funda-
mental principle, which is not to be violated, but which
would have been a dead letter, were there no judiciary con*
stituted to enforce obedience to it. Paper money and private
contracts were in the same condition. Without a general
controlling judiciary, laws might be made in particular states
to enable its citizens to defraud the citizens of other states.
Is it probable, if a citizen of South Carglina owed a sum of
money to a citizen of this state, that the latter would be
certain of recovering the full value in their courts? That
state might in futiu-e, as they have already done, make pine-
barren acts to discharge their debts. They might say that
our citizens should be paid in sterile, inarable lands, at an
extrav2igant price. They might pass the most iniquitous
instalment laws, procrastinating the payment of debts due
from their citizens, for years — nay, for ages. Is it probable
that we should get justice from their ovyn judiciary, who
might consider themselves obliged to obey the laws of their
own state? Where, then, are we to look for justice ? To
the judiciary of the United States. Gentlemen must have
observed the contracted and narrow-minded regulations of
the individual states, and their predominant disposition to
advance the interests of their own citizens to the prejudice
of others. Will not these evils be continued if there be no
lestraint ? The people of the United States have one com-
mon interest; they are all members of the same community,
14
158 DEBATES. [Datir.
•
and ought to have justice administered to them equally in
every part of the continent, in the same manner, with the
same des|)atch, and on the same principles. It is therefore
absolutely necessary that the judiciary of the Union should
have jurisdiction in all cases arising in law and equity under
the Constitution. Surely there should be somewhere a
constitutional authority for carrying into execution constitu-
tional provisions ; otherwise, as I have already said, they
would be a dead letter.
With respect to their having jurisdiction of all cases arising
under the laws of the United States, although I have a very
high respect for the gentleman, I heard his objection to it
with surprise. I thought, if there were any political axiom
under the sun, it must be, that the judicial power ought to be
coextensive with the legislative. The federal government
ought to possess the means of carrying the laws into execu-
tion. This position will not be disputed. A government
would be difelo de se to put the execution of its laws under
the control of any other body. If laws are not to be carried
into execution by the interposition of the judiciary, how is it
to be done ?
I have already observed that the mind of every honest
man, who has any feeling for the happiness of his country,
must have the highest repugnance to the idea of military
coercion. The only means, then, of enforcing obedience to
the legislative authority must be through the medium of the
officers of peace. Did the gentleman carry his oljjeciion to
the extension of the judicial power to treaties ? It is another
principle, which I imagine will not be controverted, that
the general judiciary ought to be competent to the decision
of all questions which involve the general welfare or peace
of the Union. It was necessary that treaties should operate
as laws upon individuals. They ought to be binding upon
us the moment they are made. They involve in their na-
ture not only our own rights, but those of foreigners. If the
rights of foreigners were left to be decided ultimately by
thirteen distinct judiciaries, there would necessarily be un-
just and contradictory decisions. If our courts of justice
did not decide in favor of foreign citizens and subjects when
they ought, it might involve the whole Union in a war:
there ought, therefore, to be a paramount tribunal, which
should have ample power to carry them into effect. To thn
Datie.] north CAROUNA. 169
decision of all causes which might involve the peace of the
Union may be referred, also, that of controversies between
the citizens or subjects of foreign states and the citizens of
the United States. It has been laid down by all writers
that the denial of justice is one of the just causes of war.
If these controversies were left to the decision of particular
states, it would be in their power, at any time, to involve
the continent in a war, usually the greatest of all national
calamities. It is certainly clear that where the peace of the
Union is affected, the general judiciary ought to decide. It
has generally been given up, that all cases of admiralty and
maritime jurisdiction should also be determined by them.
It has been equally ceded, by the strongest opposers to this
government, that the federal courts should have cognizance
of controversies between two or more states, between a state
and the citizens of another state, and between the citizens
of the same state claiming Ipnds under the grant of different
states. Its jurisdiction in these cases is necessary to secure
impartiality in decisions, and preserve tranquillity among the
Slates. It is impossible that there should be impartiality
when a party affected is to be judge.
The security of impartiality is the principal reason for
giving up the ultimate decision of controversies between
citizens of different states. It is essential to the interest
of agriculture and commerce that the hands of the states
should be bound from making paper money, instalment laws,
or pine-barren acts. By such iniquitous laws the merchant
or farmer may be defrauded of a considerable part of his just
claims. But in the federal court, real money will be recov-
ered with that speed which is necessary to accommodate the
circumstances of individuals. The tedious delays of judicial
proceedino:s, at present, in some states, are ruinous to cred- ^
iters. In Virginia, many suits are twenty or thirty years
spun out by legal ingenuity, and the defective construction
of their judiciary. A citizen of Massachusetts or this coun-
trv might he ruined before he could recover a debt in that
stite. It is necessary, therefore, in order to obtain justice,
that we recur to the judiciary of the United States, where
justice must be equally administered, and where a debt may
be recovered from the citizen of one state as soon as from
the citizen of another.
As to a bill of rights, which has been brought forward in
IbO DEBATES. [Maclaimc
a manner I cannot account for, it is unnecessary to say any
thing. The learned gentleman has said that, by a concur-
rent jurisdiction, the laws of the United States must neces-
sarily clash with the laws of the individual states, in conse-
quence of which the laws of the states will be obstructed,
and the state governments absorbed. This cannot be the
case. There is not one instance of a power given to the
United States, whereby the internal policy or administration
of the states is affected. There is no instance that can be
pointed out wherein the internal policy of the state can be
affected by the judiciary of the United States. He men-
tioned impost laws. It has been given up, on all hands,
that, if there was a necessity of a federal court, it was oo
this account. Money is difficult to be got into the treasury.
The power of the judiciary to enforce the federal laws is
necessary to facilitate the collection of the public revenues*
It is well known, in this state, with what reluctance and
backwardness collectors pay up the public moneys. We
have been making laws after laws to remedy this evil, and
still find them ineffectual. Is it not, therefore, necessary tc
enable the general government to compel the delinquent re-
ceivers to be punctual ? The honorable gentleman admits
that the general government ought to legislate upon indi-
viduals, instead of states.
Its laws will otherwise be ineffectual, but particularly with
respect to treaties. We have seen with what little ceremo-
ny the states violated the peace with Great Britain. Con-
gress had no power to enforce its observance. The same
cause will produce the same effect. We need not flatter
ourselves that similar violations will always meet with (H|uai
impunity. I think he must be of opinion, upon reflection,
that the jurisdiction of the federal judiciary could not have
been constructed otherwise with safety or propriety. It is
necessary that the Constitution should be carried into effect,
that the laws should be executed, justice equally done to
all the community, and treaties observed. These ends can
only be accomplished by a general, paramount judiciary.
These are my sentiments, and if the honorable gentleman
will prove them erroneous, I shall readily adopt his opinions.
Mr. MACLAINE. Mr. Chairman, I beg leave to make
a few observations. One of the gentleman's objections to
the Constitution now under consideration is, that it is not
Maclainb.] north CAROLINA. Itil
the act of the states, but of the people ; but that it ought to
be the act of the states ; and he instances ^he delegation of
power by the states to the Confederation, at the commence-
ment of the war, as a proof of this position. I hope, sir,
that all power is in the people, and not in the state govern-
ments. If he will not deny the authority of the people to
delegate power to agents, and to devise such a government
as a majority of ihem thinks will promote their happiness,
he will withdraw his objection. The people, sir, are the
only proper authority to form a government. They, sir,
have formed their state governments, and can alter them at
pleasure. Their transcendent power is competent to form
this or any other government which they think promotive of
their happiness. But the gentleman contends that there
ought to be a bill of rights, or something of that kind — *
something declaring expressly, that all power not expressly
given to the Constitution ought to be retained by the states ^
and he produces the Confederation as an authority for its
necessity. When the Confederation was made, we were
by no means so well acquainted with the principles of gov-
ernment as we are now. We were then jealous of the
power of our rulers, and had an idea of the British govern-
ment when we entertained that jealousy. There is no peo-
ple on earth so well acquainted with the nature of govern-
ment as the people of America generally are. We know
ngw that it is agreed upon by most writers, and men of
judgment and reflection, that all power is in the people,
and immediately derived from them. The gentleman surely
must know that, if there be certain rights which never can,
nor ought to, be piven up, these rights cannot be said to be
given away, merely because we have omitted to say that we
have not given them up. Can any security arise from de-
claring that we have a right to what belongs to us ? Where
is the necessity of such a declaration ? If we have this in-
herent, this unalienable, this indefeasible title to those rights,
if they are not given up, are they not retained? If Con-
gress should make a law beyond the powers and the spirit
of the Constitution, should we not say to Congress, " You
have no authority to make this law. There are limits be-
yond which you cannot go. You cannot exceed the power
prescribed by the Constitution. You are amenable to us. for
VOL. IV. 21
162 DEBATES. [Maciminb.
your conduct. This act is unconstitutional. We will dis-
regard it, and punish you for the attempt."
But the gentleman seems to be most tenacious of the
judicial power of the states. The honorable gentleman
must know, that the doctrine of reservation of power not
relinquished, ckarly demonstrates that the judicial power of
the states is not impaired. He asks, with respect to the
trial by jury, " When the cause has gone up to the superior
court, and the verdict is set aside, what benefit arises from
having had a jury trial in the inferior court ? " I would ask
the gentleman, " What is the reason, that, on a special ver-
dict or case agreed, the decision is left to the court ? "
There are a number of cases where juries cannot decide.
When a jury finds the fact specially, or when it is agreed
upon by the parties, the decision is referred to the court.
If the law be against the party, the court decides against
him ; if the law be for him, the court judges accordingly.
He, as well as every gentleman here, must know that, un-
der the Confederation, Congress set aside juries. There
was an appeal given to Congress : did Congress determine
by a jury ? Every party carried his testimony in writing
to the judges of appeal, and Congress determined upon it.
The distinction between matters of law and of fact has
not been sufficiently understood, or has been intentionally
misrepresented. On a demurrer in law, in which the facts
are agreed upon by the parties, the law arising thereupon
is referred to the court. An inferior court may give an er-
roneous judgment ; an appeal may be had from this court
to the Supreme Federal Court, and a right decision had.
This is an instance wherein it can have cognizance of mat-
ter of law solely. In cases where the existence of facts has
been first disputed by one of the parties, and afterwards es-
tablished as in a special verdict, the consideration of these
facts, blended with the law, is left .to the court. In such
cases, inferior courts may decide contrary to justice and law,
and appeals may be had to the Supreme Court. This is an
instance wherein it may be said they have jurisdiction l)oih
as to law and fact. But where facts only are disputed, and
where they are once established by a verdict, the opinion of
the judges of the Supreme Court cannot, 1 conceive, set
aside these far>ts ; for I do not think they have the powei
so to do bv this Constitution.
Spencer.] NORTH CAROLINA. 16b
Xhe federal court has jurisdiction only in some instances.
There are many instances in which no court but the state
courts can have any jurisdiction whatsoever, except when>
parties claim land under the grant of different states, or the
subject of dispute arises under the Constitution itself. The
state courts have exclusive jurisdiction over every other pos-
sible controversy that can arise l:)etwpen the inhabitants of
their own states ; nor can the federal courts intermeddle
with such disputes, either originally or by appeal. There is
a number of other instances, where, though jurisdiction is
given to the federal court, it is not taken away from the
state courts. If a man in South Carolina owes me money,
I can bring suit in the courts of that state, as well as in any
inferior federal court. 1 think gentlemen cannot but see
the propriety of leaving to the general government the reg-
ulation of the inferior federal tribunals. This is a power
which our own state legislature has. We may trust Congress
as well as them.
Mr. SPENCER answered, that the gentleman last up
Kad misunderstood him. He did not object to the caption
of the Constitution, but he instanced it to show that the
United States were not, merely as states, the objects of the
Constitution ; but that the laws of Congress were to operate
upon individuals, and not upon states. He then continued :
1 do not mean to contend that the laws of the general gov-
ernment should not operate upon individuals. I before ob-
served that this was necessary, as laws could not be put in
execution against states without the agency of the sword,
which, instead of answering the ends of government, would .
destroy it. I endeavored to show that, as the government
was not to operate against states, but against individuals, the
rights of individuals ought to be properly secured. In order
to constitute this security, it appears to me there ought to
l>e such a clause in the Constitution as there was in the Con-
federation, expressly declaring, that every power, jurisdiction,
and right, which are not given up by it, remain in the states.
Such a clause would render a bill of rights unnecessary.
But as there is no such clause, I contend that there should
be a bill of rights, ascertaining and securing the great rights
rf the staters and people. Besides my objection to the revis-
ion of facts by the federal court, and the insecurity of jury
triaJ, 1 consider the concurrent jurisdiction of those courts
tt>4 DEBATES. [Iredell
with the* state courts as extremely dangerous. It must be
obvious to every one that, if they have such a concurrent
jurisdiction, they must in time take away the business from
the state courts entirely. I do not deny the propriety of
having federal courts ; but they should be confined to federal
business, and ought not to interfere in those cases where the
state courts are fully competent to decide. The state courts
can do their business without federal assistance. I do not
know how far any gentleman may suppose that I may, from
my office, be biased in favor of the state jurisdiction. I am
no more interested than any other individual. I do not think
it will affect the respectable office which I hold. Those
courts will not take place immediately, and even when they
do, it will be a long time before their concurrent jurisdiction
will materially affect the state judiciaries. I therefore con-
sider myself as disinterested. I only wish to have the gov*
ernment so constructed as to promote the happiness, harmony,
and liberty, of every individual at home, and render us re-
spectable as a nation abroad. I wish the question to be
decided coolly and calmly — with moderation, candor, and
deliberation.
Mr. MACLAINE replied, that the gentleman's objections
to the want of a bill of rights had been sufficiently answered;
that the federal jurisdiction was well guarded, and that the
federal courts had not, in his opinion, cognizance, in any one
case, where it could be alone vested in the state judiciaries
with propriety or safety. The gentleman, he said, had ac-
knowledged that the laws of the Union could not be ex-
ecuted under the existing government ; and yet he objected
to the federal judiciary's having cognizance of such laws,
though it was the only probable means whereby they could
be enforced. The treaty of peace with Great Britain was
the supreme law of the land ; yet it was disregarded, for
want of a federal judiciary. The state judiciaries did not
enforce an observance of it. The state courts were highly
improper to be intrusted with the execution of the federal
laws, as they were bound to judge according to the state
laws, which might be repugnant to those of the Union.
Mr. IREDELL. Mr. Chairman, I beg leave to make a
few observations on some remarks that have been made on
this pan of the Constitution. The honorable gentleman
said that it was very extraordinary that the Convention should
laiDBLL.! NORTH CAROUNA. 165
not have taken the trouble to make an addition of five or
six lines, to secure the trial by jury in civil cases. Sir, if
by the addition, not only of five or six lines, but of five or
six hundred lines, this invaluable object could have been
secured, I should have thought the Convention criminal in
omitting it; and instead of meriting the thanks of their
country, as I think they do now, they might justly have
met with its resentment and indignation. I am persuaded
the omission arose from the real difficulty of the case. The
gentleman says that a mode might h^ve been provided,
whereby the trial by jury might have been secured satis-
factorily to all the states. I call on him to show that mode.
I know of none ; nor do I think it possible for any man to
devise one to which some states would not have objected. It
is said, indeed, that it might have been provided that it should
be as it had been heretofore. Had this been the case, surely
it would have been highly incongruous.
The trial by jury is diflrerent,in different states. It is reg-
ulated in one way in the state of North Carolina, and in
another way in the state of Virginia. It is established in a
different way from either in several other states. Had it,
then, been inserted in the Constitution, that the trial by jury
should be as it had been heretofore, there would have been
an example, for the first time in the world, of a judiciary
belonging to the same government being different in differ-
ent parts of the same country. What would you think of
an act of Assembly which should require the trial by jury to
be had in one mode in the county of Orange, and in another
mode in Granville, and in a manner different from both in
Chatham ? Such an act of Assembly, so manifestly inju-
dicious, impolitic, and unjust, would be repealed next year.
But what would you say of our Constitution, if it au-
thorized such an absurditv ? The mischief, then, could not
be removed without altering the Constitution itself. It
must be evident, therefore, that the addition contended for
would not have answered the purpose. If the method of
any particular state had been established, it would have been
objected to by others, because, whatever inconveniences it
might have been attended with, nothing but a change in the
Constitution itself could have removed them: whereas, as it
U now, if any mode established by Congress is found in-
tonvenient, it can easil} b ) altered by a single act of legi.«-
166 DEBATES. [Irkdkli.
lation Let any gentleman consider the diffitjilties in which
the Convention was placed. A union was absolutely neces-
sary. Every thing could be agreed upon except the regu-
lation of the trial by jury in civil cases. They were all
anxious to establish it on the best footing, but found they
could fix upon no permanent rule that was not liable to great
objections and difficulties. If they could not agree among
themselves, they had still less reason to believe that all the
states would have unanimously agreed to any one plan that
could l)e proposed. They, therefore, thought it better to
leave all such regulations to the legislature itself, conceiving
there could be no real danger, in this case, from a body com-
posed of our own representatives, who could have no temp-
tation to undermine this excellent mode of trial in civil cases,
and who would have, indeed, a personal interest, in common
with others, in making the administration of justice between
man and man secure and easy.
In criminal cases, however, no latitude ought to be al-
lowed. In these the greatest danger from any government
subsists, and accordingly it is provided that there shall be
a trial by jury, in all such cases, in the state wherein the
offence is committed. I thought the objection against the
want of a bill of rights had been obviated unanswerably.
It appears to me most extraordinary. Shall we give up any
thing but what is positively granted by that instrument?
It would be the greatest absurdity for any man to pretend
that, when a legislature is formed for a particular purpose, it
can have any authority but what is so expressly given to it,
any more than a man acting under a power of attorney could
depart from the authority it conveyed to him, according to
an instance which I stated when speaking on the subject
before. As for example : — if I had three tracts of land, one
in Orange, another in Caswell, and another in Chatham,
and I gave a power of attorney to a man to sell the two
tracts in Orange and Caswell, and he should attempt to sell
my land in Chatham, would any man of common sense sup-
pose he had authority to do so ? In like manner, I say, the
future Congress can have no right to exercise any power
but what is contained in that paper. Negative words, in
my opinion, could make the matter no plainer than it was
before. The gentleman says that unalienable rights ought
not 10 be given up. Those rights which are unalienable^
Bloodworth.] north CAROLINA 16"*
are not alienated. They still remain with the great bodj
of the people. If any right be given up that ought not to
be, let it be shown. Say it is a thing which affects your
country, and that it ought not to be surrendered : this
would le reasonable. But when it is evident that the ex-
ercise o!' any power not given up would be a usurpation, it
would be not only useless, but dangerous, to enumerate a
number of rights which are not intended to be given up ;
because it would l)e implying, in the strongest manner, that
every right not included in the exception might be impaired
by the government without usurpation ; and it would be
impossible to enumerate every one. Let any one make
what collection or enumeration of rights he pleases, I will
immediately mention twenty or thirty more rights not con-
tained in ii.
Mr. BLOODWORTH. Mr. Chairman, I have listened
with attention to the gentleman's arguments; but whether
it be for want of sufficient attention, or from the grossness
of my ideas, I cannot be satisfied with his defence of the
omission, with respect to the trial by jury. He says that
it would be impossible to fall on any satisfactory mode of
regulating the trial by jury, because there are various cus-
toms relative to it in the different states. Is this a satisfac-
tory cause for the omission ? Why did it not provide that
the trial by jury should be preserved in civil cases? It has
said that the trial should be by jury in criminal cases ; and
vet this trial is different in its manner in criminal cases in
the different states. If it has been possible to secure it in
criminal cases, notwithstanding the diversity concerning it,
why has it not been possible to secure it in civil cases?
I wish this to be cleared up. By its not being provided for,
it is expressly provided against. I still see the necessity of
a bill of rights. Gentlemen use contradictory arguments on
this subject, if I recollect right. Without the most express
restrictions, Cong^ress may trample on your rights. Every
possible precaution should be taken when we grant powers.
Rulers are always disposed to abuse them. I beg leave to
call gentlemen's recollection to what happened under our
Confederation. By it, nine states are required to make a
treaty; yet seven states said that they could, with propriety,
repeal part of the instructions given our secretary for foreign
affairs, which prohibited him from making a treaty to givf
168 DEBATES. [Locks
up the Mississippi to Spain, by which repeal the rest of his
instructions enabled him to make such treaty. Seven states
actually did repeal the prohibitory part of these instructions,
and they insisted it was legal and proper. This was in fart
a violation of the Confederation. If gentlemen thus put
what construction they please upon words, how shall we
be redressed, if Congress shall say that all that is not ex-
pressed is given up, and they assume a power which is
expressly inconsistent with the rights of mankind ? Where
is the power to pretend to deny its legality ? This has oc-
curred to me, and I wish it to be explained.
Mr. SPENCER. Mr. Chairman, the gentleman express-
es admiration as to what we object with respect to a bill of
tights, and insists that what is not given up in the Constitu-
lion is retained. He must recollect I said, yesterday, that
we could not guard with too much care those essential rights
and liberties which ought never to be given up. There is
no express negative — no fence against their being trampled
upon. They might exceed the proper boundary without
htjing taken notice of. When there is no rule but a vague
dcctrine, they might make great strides, and get possession
of so much power that a general insurrection of the people
wuuld be necessary to bring an alteration about. But if a
bc/undary were set up, when the Iwundary is passed, the
))copIe would take notice of it immediately. These are the
observations which I made ; and I have no doubt that, when
he reflects, he will acknowledge the necessity of it. 1 ac-
knowledge, however, that the doctrine is right ; but if that
Constitution is not satisfactory to the people, I would have a
bill of rights, or something of that kind, to satisfy them.
Mr. LOCKE. Mr. Chairman, I wish to throw some par-
ticular light upon the subject, according to my conceptions
I think the Constitution neither safe nor beneficial, as it
grants powers unbounded with restrictions. One gentleman
has said that it was necessary to give cognizance of causes
to the federal court, because there was partiality in the
judges of the states ; that the state judges could not be
depended upon in causes arising under the Constitution and
law? of the Union. I agree that impartiality in judges is in-
dispensable ; but I think this alteration will not produce more
impartiality than there is now in our courts, whatever evils
it may bring forth. Must there not be judges in tlxg federal
Locke.] NORTH CAROLINA. J 69
courts, and those judges taken from some of the states ^
The same partiality, therefore, may be in them. For mj
part, 1 think it derogatory to the honor of this state to give
this jurisdiction to the federal courts. It must be supposed
that the same passions, dispositions, and failings of humanity
which attend the state judges, will be equally the lot of the
federal judges. To justify giving this cognizance to those
courts, it must be supposed that all justice and equity are
given up at once in the states. Such reasoning is very
strange to me. I fear greatly for this state, and for other
states. I find there has a considerable stress been Inid upon
the injustice of laws made heretofore. Great reflections are
thrown on South Carolina for passing pine-batren and instal-
ment laws, and on this state for making paper money. I
wish those gentlemen who made those observations would
consider the necessity which compelled us in a great measure
to make such money. I never thought the law which au-
thorized it a good law. If the evil could have been avoided,
it would have been a very bad law ; but necessity, sir, justi-
fied it in some degree. I believe I have gained as little by
it as any in this house. If we are to judge of the future by
what we have seen, we shall find as much or more injustice
in Congress than in our legislature. Necessity compelled
them to pass the law, in order to save vast numbers of peo-
ple from ruin. 1 hope to be excused in observing that it
would have been hard for our late Continental army to lay
down their arms, \%ith which they had valiantly and success-
fully fought for their country, without receiving or being
promised and assured of some compensation for their past
services. What a situation would this country have been in,
if they had had the power over the purse and sword! If
they had the powers given up by this Constitution, what a
wretched situation would this country have been in ! Con-
gress was unable to pay them, but passed many resolutions
and laws in their favor, particularly one that each slate should
make up the depreciation of the pay of the Continental line,
who were distressed for the want of an adequate compensa-
tion for their services. This state could not pay her pro(X)r-
tion in ^specie. To have laid a tax for that purpose would
have been oppressive. What was to l)e done ? The only
expedient was to pass a law to make paper money, and make
^t a tender. l*he Continental line was satisfied, and ap-
VOL. IV. 22 15
170 DEBATES. [Iredell
proved of the measure, it being done at their instance in
some degree. Notwithstanding it was supposed to be highlj
beneficial to the state, it is found to be injurious to it.
Saving expense is a very great object, but this incurred
much expense. This subject has for many years embroiled
the state ; but the situation of the country, and the distress
of the people are so great, that the public measures must be
accommodated to their circumstances with peculiar delicacy
and caution, or another insurrection may be the consequence.
As to what the gentleman said of the trial by jury, it sur-
prises me much to hear gentlemen of such great abilities
speak such language. It is clearly insecure, nor can ingenu-
ity and subtle arguments prove the contrary. I trust this
country is too sensible of the value of liberty, and her citi-
zens have lK)ught it too dearly, to give it up hastily.
Mr. IREDELL. Mr. Chairman, I hope some other
gentleman will answer what has been said by the gentlemen
who have spoken last. I only rise to answer the question of
the member from New Hanover — which was, if there was
such a difficulty, in establishing the trial by jury in civil cases,
that the Convention could not concur in any mode, why the
difficulty did not extend to criminal cases ? I beg leave to
say, that the difficulty, in this case, does not depend so much
on the mode of proceeding, as on the difference of the sub-
jects of controversy, and the laws relative to them. In
some states, there are no juries in admiralty and equity cases.
In other states, there are juries in such cases. In some
states, there are no distinct courts of equity, though in most
states there are. I believe that, if a uniform rule had been
fixed by the Constitution, it would have displeased some
states so far that they would have rejected the Constitution
altogether. Had it been declared generally, as the gentle-
man, mentioned, it would have included equity and maritime
cases, and created a necessity of deciding them in a manner
different from that in which they have been decided hereto-
fore in many of the states ; which would very probably have
met with the disapprobation of those stales.
We have been told, and I believe this was the real reason,
why tiTey could not concur in any general rule. I havp great
respect for the characters of those gentlemen who formed the
Convention, and I believe they were not capable of over-
looking the importance of the trial by jury, much less of
«• •
Iredell.] NORTH CAROLLNA. /l
designedly plotting against it. But I fully believe that tho
real diQiculty of the thing was the cause of the omission. I
trust sufticient reasons have been offered, to show that it '15
ill no danger. As to criminal cases, I must observe that the
^reai instrument of arbitrary power is criminal prosecutions.
By the privileges of the habeas corpus, no man can be con-
fined without inquiry ; and if it should appear that he has
luen committed contrary to law, he must be discharged-
That diversity which is to be found in civil controversies,
does not exist in criminal cases. That diversity which con-
tributes to the security of property in civil cases, would have
pernicious effects in criminal ones. There is no other safe
mode to try these but by a Jury. If any man had the means
of trying another his own way, or were it left to the con-
trol of arbitrary judges, no man would have that security for
life and liberty which every freeman ought to have. I pre-
sume that in no state on the continent is a man tried on a
criminal accusation but by a jury. It was necessary, there-
Tore, that it should be fixed, in the Constitution, that the trial
should be by jury in criminal cases; and such difficulties did
not occur in this as in the other case. The worthy geiitle-
tnan says, that by not being provided for in civil cases, it is.
t^xpressly provided against, and that what is not expressed
is given up. Were it so, no man would be more against
this Constitution than myself. I should detest and oppose
It as much as any man. But, sir, this cannot be the case.
I bt^g leave to say that that construction appears to me ab-
surd and unnatural. As it could not be fixed either on the
principles of uniformity or diversity, it mus.t be left to Con-
gress to modify it. If they establish it in any manner by
law, and find it inconvenient, they can alter it. But I am
convinced that a majority of the representatives of the peo-
ple will never attempt to establish a mode oppressive to
their constituents, as it will be their own interest to take
care of this right But it is observed that there ought to be
a fence provided against future encroachments of power. If
there be not such a fence, it is a cause of objection. I read-
ily agree that there ought to be such a fence. The instru-
ment ought to contain such a definition of authority as would
leave no doubt; and if there be any ambiguity, it ought not
to be admitted. He says this construction is not agreeable
to the people, though he acknowledges it is a right one.
172 DEBATES. [Maclaini
In my opinion, there is no man, of any reason at all, but
must be satisfied with so clear and plain a definition. If
the Congress should claim any power not given them, it
would be as bare a usurpation as making a king in America.
If this Constitution be adopted, it must be presumed the in-
strument will be in the hands of every man in America, to
see whether authority be usurped ; and any person by in-
specting it may see if the power claimed be enumerated. If
it be not, he will know it to be a usurpation.
Mr. MACLAINE. Mr. Chau-man, a gentleman lately
up (Mr. Locke) has informed us of his doubts and fears
respecting the federal courts. He is afraid for this state
and other states. He supposes that the idea of cognizance
of the laws of the Union to federal courts, must have arisen
from suspicions of partiality and want of common integrity
in our state judges. The worthy gentleman is mistaken in
his construction of what I said. I did not personally reflect
on the members of our state judiciary ; nor did I impute
the impropriety of vesting the state judiciaries with exclu-
sive jurisdiction over the laws of the Union, and cases arising
under the Constitution, to any want of probity in the judges.
But *if they be the judges of the local or state laws, and
receive emoluments for acting in that capacity, they will be
improper persons to judge of the laws of the Union. A
federal judge ought to be solely governed by the laws of the
United States, and receive his salary from the treasury of
the United States. It is impossible for any judges, receiving
Eay from a single state, to be impartial in cases where the
)cal laws or interests of that state clash with the laws of the
Union, or the general interests of America. We have in-
stances here which prove this partiality in such cases. It is
also so in other states. The gentleman has thrown out
something very uncommon. He likens the power given by
this Constitution to giving the late army the purse and the
sword. I am much astonished that such an idea should be
thrown out by that gentleman, because his respectability is
well known. If he considers for a moment, he must see that
his observation is bad, and that the comparison is extremely
absurd and improper. The purse and the sword must be
given to every government. The sword is given to the ex-
ecutive magistrate ; but the purse remains by this Constitu-
tion, in the representatives of the people We know ver\
AfACLAiNE.] NORTH CAROL IN A. 173
^ell that they cannot raise one shilling but by the consent ol'
the representatives of the people. Money bills do not even
originate in the Senate ; they originate solely in the other
house. Every appropriation must be by law. We know,
therefore, that no executive magistrate or officer can appro-
priate a shilling, but as he is authorized by law. With
respect to paper money, the gentleman has acted and spoken
with great candor. He was against paper money from the
first emission. There was no other way to satisfy the late
army but by paper money, there being not a shilling of specie
in the state. There were other modes adopted by other
states, which did not produce such inconveniences. There
was, however, a considerable majority of that assembly who
adopted the idea, that not one shilling more paper money
should be made, because of the evil consequences that must
necessarily follow. The experience of this country, for
many years, has proved that such emissions involve us in
debts and distresses, destroy our credit, and produce no
good consequences; and yet, contrary to all good policy,
the evil was repeated.
With respect to our public security and paper money,
the apprehensions of gentlemen are groundless. I believe
this Constitution cannot aSect them at all. In the 10th
section of the 1st article, it is provided, among other re-
strictions, ^< that no state shall emit bills of credit, make
any thing but gold and silver coin a tender in payment oi
debts, or pass any law impairing the obligation of con-
tracts." Now, sir, this has no retrospective view. It looks
to futurity. It is conceived by many people, that the mo-
ment this new Constitution is adopted, our present paper
money will sink to nothing. For my part, I believe that,
instead of sinking, it will appreciate. If we adopt, it will
rise in value, so that twenty shillings of it will be equal to
two Spanish milled dollars and a half. Paper money is as
good as gold and silver where there are proper funds to
redeem it, and no danger of its being increased. Before
the late war, our paper money fluctuated in value. Thirty-
six years ago, when I came into this country, our paper
money was at seven shillings to the dollar. A few years
before the late war, the merchants of Great Britain re-
monstrated to the ministry of that country, that they lost
much of theu" debts by paper money losing its value. This
174 DEBATES. [Bass.-
caused an order to be made through all the states not to-
pass any money bills whatever. The effect of this was, that,
our paper money appreciated. At the commencement of
the war, our paper money in circulation was equal to gold,
or silver. But it is said that, on adoption, all debts con-
tracted heretofore must then be paid in gold or silver coin^
I believe that, if any gentleman will attend to the clauses
above recited, he will find that it has no retrospective, but.
a prospective view. It does not look back, but forward. Ir
does not destroy the paper money which is now actually
made, but prevents ns from making any more. This is
much in our favor, because we may pay in the money we
contracted for, (or such as is equal in value to it;) and the
very restriction against an increase of it will add to its
value. It is in the power of the legislature to establish a
scale of depreciation, to fix the value of it. There is nothing
against this in the Constitution. On the contrary, it favors
it. I should be much injured if it was really to be the case
that the paper money should sink. After the Constitution
was adopted, I should think myself, as a holder of our paper
money, possessed of Continental security. I am convinced
our money will be good money ; and if I was to speculate
in any thing, I would in paper money, though I never did
speculate. I should be satisfied that I should make a profit.
Why say that the state security will be paid in gold and
silver after all these things are considered ? Every real,
actual debt of the state ought to be discharged in real, and
not nominal value, at any rate.
Mr. Bass took a general view of the original and appel-
late jurisdiction of the federal court. He considered the
Constitution neither necessary nor proper. He declared
that the last part of the 1st paragraph of the 2d section
appeared to him totally inexplicable. He feared that dread-
ful oppression would be committed by carrying people too
great a distance to decide trivial causes. He observed that
gentlemen of the law and men of learning did not concur in
the explanation or meaning of this Constitution. For his
part, he said, he could not understand it. alihouj^h he took
great pains to find out its meaning, and although he flattered
himself with the possessioti of common sense and reason
He always thought that there ought to be a compact be
tween the governors and governed. Some called this a
Maclainb] north CAROLINA. 176
compact ; others said it was not. From the contrariety of
opinions, he thought the thing was either uncommonly difii-
cult, or absolutely unintelligible. He wished to reflect on
no gentleman, and apologized for his ignorance, by ob-
serving that he never went to school, and had been' born
blind ; but he wished for information, and supposed that
every gentleman would consider his desire as laudable.
Mr. MACLAINE first, and then Mr. IREDELL, en-
deavored to satisfy the gentleman, by a particular explanation
of the whole paragraph. It was observed that, if there
should be a controversy between this state and the king of
France or Spain, it must be decided in the federal court.
Or if there should arise a controversy between the French
king, or any other foreign power, or one of their subjects or
citizens, and one of our citizens, it must be decided there
also. The distinction betwt^en the words citizen and subject
was explained — that the former related to individuals of
popular governments, the latter to those of monarchies ; as,
for instance, a dispute between this state, or a citizen of it,
and a person in Holland. The words foreign citizen would
properly refer to such jiersons. If the dispute was between
this state and a person in Franco or Spain, the words^e?t^n
subject would apply to this ; and all such controversies might
be decided in the federal court — that the words citizens or
subjects^ in that part of the clause, could only apply to
foreign citizens or foreign subjects; and another part of the
constitution made this plain, by confining disputes, in gen-
eral, between citizens of the same state, to the single case
of their claiming lands under grants of different states.
The last clause of the 2d section under consideration.
Mr. MACLAINE. Mr. Chairman, an objection was
made yesterday by a gentleman against this clause, because
it confined the trial to the stale; and he observed that a
person on the Mississippi might be tried in Edenton.
Gentlemen ought to consider that it was im})ossible for
the Convention, when devising a general rule for all the
states, to descend to particular districts. The trial by Jury
is secured generally, by providing that the trial shall be in
the state where the crime was committed. It is left to
Congress to make such regulations, by law, as will suit the
circumstances of each state. It would have been impolitic
to fix the mode of proceeding, because it would alter the
176 DEBATES. [Iredeu.
present mode of proceeding, in such cases, in this state, or
in several others; for there is such a dissimilarity in the pro-
ceedings of different states, that it would be impossible to
make a general law which would be satisfactory to the
whole. But as the trial is to be in the state, there is no
doubt but it will be the usual and common mode practised
in the state.
3d section read without any observation.
Article 4th. The Isi section, and two first clauses of the
2d section, read without observation.
The; last clause read.
Mr. IREDELL begged leave to explain the reason of
this clause. In some of the Northern States they have
emancipated all their slaves. If any of our slaves, siiid he,
go there, and remain there a certain time, they would, by
the present laws, be entided to their freedom, so that their
masters could not get them again. This would be extremely
prejudicial to the inhabitants of the Southern States; and
to prevent it, this clause is inserted in the Constitution.
Though the word slave is not mentioned, this is the meaning
of it. The northern delegates, owing to their particular
scruples on the subject of slavery, did not choose the word
slave to be mentioned.
The rest of the 4th article read without any observation.
Article 5th.
Mr. IREDELL. Mr. Chairman, this is a very important
clause. In every other constitution of government that 1
have ever heard or read of, no provision is made for neces-
sarv amendments. The misfortune attending most constitu*
tions which have been deliberately formed, has been, that
those who formed them thought their wisdom equal to all
possible contingencies, and that there could be no error in
what they did. The gentlemen who framed this Constitu-
tion thought with much more diffidence of their capacities ;
and, undoubtedly, without a provision for amendment it would
have been more justly liable to objection, and the characters
of its framers would have appeared much less meritorious.
This, indeed, is one of the greatest beauties of the system,
and should strongly recommend it to every candid mind.
The Constitution of any government which cannot be regu-
larly amended when its defects are experienced, reduces the
peoole to this dilemma — they must either submit to its
UiDKish.] NORTH CAROLINA. 177
oppressions, or bring about amendments, more or less, by a
civil war. Happy this, the country we live in ! The Con-
stitution before us, if it be adopted, can be altered with as
much regularity, and as little confusion, as any act of As-
seuibly; not, indeed, quite so easily, which would be ex-
tremely impolitic ; but it is a most happy circumstance, that
there is a remedy in the system itself for its own fallibility,
so that alterations can without difficulty be made, agreeable
to the general sense of the people. Let us attend to the
manner in which amendments may be made. The propo-
sition for amendments may arise from Congress itself, when
two thirds of both houses shall deem it necessary. If they
should not, and yet amendments be generally wished for by
the people, two thirds of the legislatures of the different
states may require a general convention for the purjwse, in
^vhich case Congress are under the necessity of convening
C3ne. Any amendments which either Congress shall propose,
which shall be proposed by such general convention, are
fterwards to be submitted to the legislatures of the different
s^tates, or conventions called for that purpose, as Congress
^hall think proper, and, upon the ratification of three fourths
^Df the states, will become a part of the Constitution. By
referring this business to the legislatures, expense would be
saved ; and in general, it may be presumed, they would
speak the genuine sense of the people. It may, however,
^n some occasions, be better to consult an immediate dele-
gation for that special purpose. This is therefore left dis-
cretionary. It is highly probable that amendments agreed
to in either of these methods would be conducive to the
public welfare, when so large a majority of the states con-
sented to them. And in one of these modes, amendments
that are now wished for may, in a short time, be made to
this Constitution by the states adopting it.
It is, however, to be observed, that the 1st and 4th clauses
m the 9ih section of the 1st article are protected from any
alteration till the year 1808 ; and in order that no consolida-
tion should take place, it is provided that no state shall, by
any amendment or alteration, be ever deprived of an equal
suffrage in the Senate without its own consent. The first
two prohibitions are with respect to the census, (according to
which direct taxes are impsed,) and with respect to the in>-
portation of slaves. As to the first, it must be obsi»rved, tlvaf
VOL. IV. 23
1 78 DEBATES. [Ijibdclu
tlicre is a material difference between the Northern and
Southern States. The Northern States have been much
longer settled, and are much fuller of people, than the
Southern, but have not land in equal proportion, nor scarcely
<uiy slaves. The subject of this article was regulated with
great difficulty, and by a spirit of concession which it would
not l)e prudent to disturb for a good many years. In twenty
years, there will probably be a great alteration, and then the
subject may be reconsidered with less difficulty and greater
coolness. In the mean time, the compromise was upon the
l>est footing that could be obtained. A compromise like-
wise took place in regard to the importation of slaves. It is
probable that all the members reprobated this inhuman
traffic ; but those of South Carolina and Georgia would not
consent to an immediate prohibition of it — one reason of
which was, that, during the last war, they lost a vast num-
ber of negroes, which loss they wish to supply. In the
mean time, it is left to the states to admit or prohibit the
importation, and Congress may impose a limited duty
upon it.
Mr. BASS observed, that it was plain that the introduction
of amendments depended altogether on Congress.
Mr. IREDELL replied, that it was very evident that it
did not depend on the will of Congress ; for that the legisla-
tures of two thirds of the states were authorized to make
application for calling a convention to propose amendments,
and, on such application, it is provided that Congress shali
call such convention, so that they will have no option.
Article 6th. 1st clause read without any observation.
2d clause read.
Mr. IREDELL. This clause is supposed to give too
much power, when, in fact, it only provides for the execu-
tion of those powers which are already given in the forego-
ing articles. What does it say? That "this Constitution,
and the laws of the United States which shall be made in
pursuance thereof, and all treaties made, or which shall be
made, under the authority of the United States, shall l)e the
supreme law of the land ; and the judges in every state shall
be bound thereby, any thing in the constitution or laws of
any state to the contrary notwithstanding." What is the
meaning of this, but that, as we have given power, we will
support the execution of it ? We should act like children, re
riiDBLL.] NORTH CAROLINA. l79
give power and deny the legality of executing it. It is say-*
•Jig no more than that, when we adopt the government, we
will maintain and obey it ; in the skme manner as if the
Constitution of this state had said that, when a law is passed*
in conformity to it, we must obey that law. Would this be
objected to? Then, when the Congress passes a law con
sistent with the Constitution, it is to be binding on the
people. If Congress, under pretence of executing one
power, should, in fact, usurp another, they will violate the
Constitution. I presume, therefore, that this explanation,
which appears to me the plainest in the world, will be eu-
lirely satisfactory to the committee.
Mr. BLOODWORTH. Mr. Chairman, I confess hw
explanation is not satisfactory to me. I wish the gentleman
had gone fartheir. I readily agree that it is giving them no
more power than to execute their laws. But how far does
this go? It appears to me to sweep off all the constitutions
of the states. It is a total repeal of every act and constitu-
tion of the states. The judges are sworn to uphold it. If
will produce an abolition of the state governments. Its
sovereignty absolutely annihilates them.
Mr. Iredell. Mr. chairman, every power delegated
to Congress is to be executed by hivvs made for that purpose.
It is necessary to particularize the powers intended to be
given, in the Constitution, as having no existence before ;
but, after having enumerated what we give up, it follows, of
course, that whatever is done, by virtue of that authority, is
legiil without any new authority or power. The question,
then, under this clause, will always be, whether Congress
has exceeded its authority. If it has not exceeded it, we
must oliey, otherwise not. This Constitution, when adopted,
will become a part of our state Constitution; and the latter
must yield to the former only in those cases where power is
given by it. It is not to yield to it in any other case what-
ever. For instance, there is nothing in the Constitution of
this state establishing the authority of a federal court. Yet
the federal court, when established, will be as constitutional
as the superior court is now under our Constitution. It ap-
pears to me merely a general clause, the amount of which is
that, when they pass an act, if it be in the execution of ar
power given by the Constitution, it shall be binding on th^
people, otherwise not. As td the sufficiency or extent o^ thi*
l8C DEBATES. [Maclaink
power, tha": is another consideration, and has been discussed
before.
Mr. BLOODWORTH. This clause will be the destruc-
tion of every law which will come in competition with the
laws of the United States. Those laws and regulations
which have been, or shall be, made in this state, must be
destroyed by it, if they come in competition with the powers
of Congress. Is it not necessary to define the extent of its
operation ? Is not the force of our tender-laws destroyed by
it ? The worthy gentleman from Wilmington has endeavored
to obviate the objection as to the Constitution's destroying
the credit of our paper money, and paying debts in coin, but
unsatisfactorily to me. A man assigns, by legal action, a
bond to a man in another state ; could that bond be paid by
money ? I know it is very easy to be wrong. I am con-
scious of being frequently so. I endeavor to be open to con-
nction. This clause seems to me too general, and I think
its extent ought to be limited and defined. I should suppose
every reasonable man would think some amendments to it
were necessary.
Mr. MACLAINE. Mr. Chairman, that it will destroy
the state sovereignty is a very j)opular argument. I beg
leave to have the attention of the committee. Government
is formed for the happiness and prosperity of the people at
large. The powers given it are for their own good. We
have found, by several years' experience, that government,
taken by itself nominally, without adequate power, is not
sufficient to promote their prosperity. Sufficient powers
must be given to it. The powers to be given the general
government are proposed to be withdrawn from the authority
of the state governments, in order to protect and secure the
Union at large. This proposal is made to the people. No
man will deny their authority to delegate powers and recall
them, in all free countries. But, says the gentleman last up,
the construction of the Constitution is in the power of Con-
gress, and it will destroy the sovereignty of the state govern-
ments. It may be justly said that rt diminishes the power
of the state legislatures, and the diminution is necessary to
the safety and prosperity of the people ; but it may be fairly
said that the members of the general government, — the Presi-
dent, senators, and representatives, — : whom we send thither,
by our free suffi'ages, to consult our common interest, will
Maclainx.] north CAROLINA. 181
not wish to destroy the state governments, because the^ex-
istence of the general government will depend on that of the
state governments.
But what is the sovereignty, and who is Congress ? One
branch, the people at large ; and the other branch, the states
by their representatives. Do people fear the delegation of
power to themselves — to their own representatives? But
be objects that the laws of the Union are to be the supreme
laws of the land. Is it not proper that their laws should t)e
the laws of the land, and paramount to those of any particu-
lar state? — or is it proper that the laws of any particular
state should control the laws of the United States ? Shall a
part control the whole ? To permit the local laws of any
state to control the laws of the Union, would be to give the
general government no powers at all. If the Judges are not
to be bound by it, the powers of Congress will be nugatory.
This is self-evident and plain. Bring it home to every un-
derstanding ; it is so clear it will force itself upon it. The
"^vorthy gentleman says, in contradiction to what 1 have
observed, that the clause which restrains the states from emit-
ting paper money, &c., will operate upon the present cir-
culating paper money, and that gold and silver must pay
paper contracts. The clause cannot possibly have a retro-
spective view. It» cannot affect the existing currency in any
manner, except to enhance its value by the prohibition of
future emissions. It is contrary to the universal principles
of jurisprudence, that a law or constitution should have a ret-
rospective operation, unless it be expressly provided that it
shall. Does he deny the power of the legislature to fix a
scale of depreciation as a criterion to regulate contracts made
for depreciated money ? As to the question he has put, of an
assigned bond, I answer that it can be paid with paper
money. For this reason, the assignee can be in no better
situation than the assignor. If it be regularly transferred, it
will appear what person had the bond originally, and the
present possessor can recover nothing but what the original
holder of it could. Another reason which may be urged is,
that the federal courts could have no cognizance of such a
suit. Those courts have no jurisdiction in cases of debt be-
tween the citizens of the same state. The assignor being a
citizen of the same state with the debtor, and assigning it to
a citizen of another state, to avoid the intent of the Constitu-
16
!82 DEBATES. [J>A¥ii(
iioir, the assignee can derive no advantage from the assign* -
ment, except what the assignor had a right to ; and conse* -
quenlly the gentleman's objection falls to the ground.
Every gentleman must see the necessity for the laws of
the Union to be paramount to those of the separate states,
and that the powers given by this Constitution must be ex-
ecuted. What, shall we ratify a government and then say it-
shall not operate ? This would be the same as not to ratify.
As to the amendments, the best characters in the country^
and those whom I most highly esteem, wish for amendments.
Some parts of it arc not organized to my wish. But I ap-
prehend no danger from the structure of the government
One gentleman (Mr. Bass) said he thought it neither neces-
sary nor proper. For my part, I think it essential to our
very existence as a nation, and our happiness and prosperity
as a free people. The men who composed it were men of
great abilities and various minds. They carried their knowl-
edge with them. It is the result, not only of great wisdom
and mutual reflection, but of ^' mutual deference and con-
cession." It has trifling faults, but they are not dangerous.
Yet at the same time I declare that, if gentlemen pro|)ose
amendments, if they be not such as would destroy the gov-
ernment entirely, there is not a single member here more
willing to agree to them than myself.
Mr. DAVIE. Mr. Chairman: permit me, sir, to make a
few observations on the operation of the clause so often
mentioned. This Constitution, as to the powers therein
[ranted, is constantly to be the supreme law of the land
.very power ceded by it must be executed, without being
counteracted by the laws or constitutions of the individual
states. Gentlemen should distinguish that it is not the su-
preme law in the exercise of a power not granted. It can
be supreme only in cases consistent with the powers specially
granted, and not in usurpations. If you grant any power to
the federal government, the laws made in pursuance of that
power must be supreme, and uncontrolled in their operation.
This consequence is involved in the very nature and necessity
of the thing. The only rational inquiry is, whether those
powers are necessary, and whether they are properly granted.
To say that you have vested the federal government with
power to legislate for the Union, and then deny the supreme
acy of the laws, is a solecism in terms. With respect to iu
Oatix.] north CAROLINA. 133
operation on our own paper money, I believe tnat a little
consideration will satisfy everj man: that it cannot have the
effect asserted by the gentleman from New Hanovei. The
Federal Convention knew that several states had large sums
of paper money in circulation, and that it was an interesting
property, and they were sensible that those stares would
never consent to its immediate destruction, or ratify any
system that would have that operation. The mischief
already done could not be repaired : all that could be done
was, to form some limitation to this great political evil. As
the paper money had become private property, and the
object of numberless contracts, it could not be destroyed or
intermeddled with in that situation, although its baneful tend-
ency was obvious and undeniable. It was, however, effect-
ing an important object to put bounds to this growing mis-
chief, if the states had been compelled to sink the paper
money instantly, the remedy might be worse than the disease.
-As we could not put an immediate end to it, we were con-
sent with prohibiting its future increase, looking forward to
its entire extinguishment when the states that had an emis-
s^ion circulating should be able to call it hi by a gradual
redemption.
In Pennsylvania, their paper money was not a tender in
discharge of private contracts. In South Carolina, their
bills became eventually a tender ; and in Rhode Island,
New York, New Jersey, and North Carolina, the paper
money was. made a legal tender in all cases whatsoever.
The other states were sensible that the destruction of the
circulating paper would be a violation of the rights of private
property, and that such a measure would render the acces-
sion of those states to the system absolutely impracticable.
The injustice and pernicious tendency of this disgraceful
policy were viewed with great indignation by the states which
adhered to the principles of justice. In Rhode Island, the
paper money had depreciated to eight for one, and a hundred
per cent, with us. The people of Massachusetts and Con-
necticut had been great sufferers by the dishonesty of Rhode
Island, and similar complaints existed against this state.
This clause became in some measure a preliminary with the
gentlemen who represented the other states. " You have,*'
said they, ^^ by your iniquitous laws and paper emissions
shamefuify defrauded our citizens. The Confederation pre-
1B4 DEBATES. [Bloodworth
vented our compelling you to do them justice ; but before
we confederate with you again, you must not only agree to
be honest, but put it out of your power to be otherwise. ''
Sir, a member from Rhode Island itself could not have set
his face against such language. The clause was, I believe,
unanimously assented to : it has only a future aspect, and
can by no means have a retrospective operation ; and I
trust the principles upon which the Convention proceeded
will meet the approbation of every honest man.
Mr. Cx\BARRUS. Mr. Chairman, 1 contend that the
clause which prohibits the states from emitting bills of credit
will not affect our present paper money. The clause has no
retrospective view. This Constitution declares, in the most
positive terms, that no ex post facto law shall he passed by
the general government. Were this clause to operate ret-
rospectively, it would clearly be ex post facto, and repugnant
to the express provision of the Constitution. How, then,
in the name of God, can the Constitution take our paper
money away ? If we have contracted for a sum of money,
we ought to pay according to the nature of our contract.
Every honest man will pay in specie who engaged to pay it.
But if we have contracted for a sum of paper money,
it must be clear to every man in this committee, that we
shall pay in paper money. This is a Constitution for the
future government of the United States. It does not look
back. Every gentleman must be satisfied, on the least
reflection, that our paper money will not be destroyed. To
^ay that it will be destroyed, is a popular argument, but not
founded in fact, in my opinion. I had my doubts, but on
consideration, I am satisfied.
Mr. BLOODWORTH. Mr. Chairman, I beg leave to
ask if the payment of sums now due be ex post facto. Will
it be an ex post facto law to compel the payment of money
now due in silver coin ? If suit be bruught in the federal
court against one of our citizens, for a sum of money, will
paper money be received to satisfy the judgment ? I inquire
for information ; my mind is not yet satisfied. It has been
said that we are to send our own gentlemen to represent us,
and that there is not the least doubt they will put that con-
struction on it which will be most agreeable to the people
they represent. But it behoves us to consider whether they
can do so if they would, when they mix with the body of
Ukdell.] north CAROUNA. 1 86
Congress. The Northern States are much more populous
than the Southern ones. To the north of the Susquehannah
there are thirty-six representatives, and to the south of it
only twenty-nine. They will always outvote us. Sir, we
ought to be particular in adopting a Constitution which may
destroy our currency, when it is to be the supreme law of
the land, and prohibits the emission of paper money. I am
not, for my own part, for giving an indefinite power. Gen-
tlemen of the best abilities differ in the construction of the
Constitution. The members of Congress will differ too.
Human nature is fallible. I am not for throwing ourselves
out of the Union ; but we ought to be cautious by proposing
amendments. The majority in several great adopting states
was very trifling. Several of them have proposed amend-
ments, but not in the mode most satisfactory to my mind.
1 hope this Convention never will adopt it till the amend-
ments are actually obtained.
Mr. IREDELL. Mr. Chairman, with respect to this
clause, it cannot have the operation contended for. There
is nothing in the Constitution which affects our present paper
money. It prohibits, for the future, the emitting of any,
Init it does not interfere with the paper money now actually
in circulation in several states. There is an express clause
which protects it. It provides that there shall be no ex post
facto law. This would be ex post facto^ if the construction
contended for were right, as has been observed by another
gentleman. If a suit were brought against a man in the
Inderal court, and execution should go against his property,
I apprehend he would, under this Constitution, have a right
10 pay our paper money, there being nothing in the Consti-
tution taking away the validity of it. Every individual in
the United otates will keep his eye watchfully over those
who administer the general government, and no usurpation
of power will be acquiesced in. The possibility of usurping
powers ought not to be objected against it. Abuse may
happen in any government. The only resource against
usurpation is the inherent right of the people to prevent its
exercise. This is the case in all free governments in the
world. The people will resist if the government usurp
powers not delegated to it. We must run the risk of abuse
\Vf must take care to give no more power than is necessary
VOL. IV. 24
186 DEBATES. [Blood wcnm
but, having given that, we must submit to the possible dan-
gers arising from it.
With respect to the great weight of the Northern States,
it will not, on a candid examination, appear so great as the
gentlenian supposes. At present, the regulation of our rep-
resentation is merely temporary. Whether greater or less,
it will hereafter depend on actual population. The extent
of this state is very great, almost equal to that of any state
in the Union ; and our population will probably be in pro-
portion. To the north of Pennsylvania, there are twenty-
seven votes. To the south of Pennsylvania, there are thirty
votes, leaving Pennsylvania out. Pennsylvania has eight
votes. In the division of what is called the northern and
southern interests, Pennsylvania does not appear to be de-
cidedly in either scale. Though there may be a combination
of the Northern States, it is not certain that the interests of
Pennsylvania will coincide with theirs. If, at any time, she
join us, we shall have thirty-eight against twenty-seven.
Should she be against us, they will have only thirty-five to
thirty. There are two states to the northward, who have,
in some respect, a similarity of interests with ourselves.
What is the situation of New Jersey ? It is, in one respect,
similar to ours. Most of the goods they use come through
New York, and they pay for the benefit of New York, as we
pay for that of Virginia. It is so with Connecticut ; so that,
in every question between importing and non-importing
states, we may expect that two of the Northern States
would probably join with Norjth Carolina. It is impossible
to destroy altogether this idea of separate interests. But
the difference between the states does not appear to me so
great as the gentleman imagines ; and I beg leave to say,
that, in proportion to the increase of population, the South-
ern States will have greater weight than the Northern, as
they have such large quantities of land still uncultivated,
which is not so much the case to the north. If we should
suffer a small temporary inconvenience, we shall be com-
pensated for it by having the weight of population in our
favor in future.
Mr. BLOODWORTH. Mr. Chairman, when I was in
Congress, the southern and northern interests divided at
Susquehannah. I believe it is so now. The advantage tc
be gained by future population is no argument at all. Do
JpHZfSTQV.] NORTH CAROLINA. 1K7
we gain any thing when the other states havs an equauty of
members in the Senate, notwithstanding the increase of
members in the House of Representatives '^ This is no con-
sequence at all. ' I am sorry to mention it, but I can produce
an instance which will prove the facility of misconstruction.
[Ilere Mr. Bloodworth cited an instance which took place in
Congress with respect to the Indian trade, which, not having
been distinctly heard, is omitted.]
They may trample on the rights of the people of North
Carolina if there be not sufficient guards and checks. I only
mentioned this to show that there may be misconstructions,
and that, in so important a case as a constitution, every thing
ought to be clear and intelligible, and no ground left for dis-
putes.
Mr. CALDWELL. Mr. Chairman, it is very evident
that there is a great necessity for perspicuity. In the sweep-
ing clause, there are words which are not plain and evident.
It says that ** this Constitution, and the laws of the United
States which shall be made in pursuance thereof, &c., shall
be the supreme law of the land." The word pursiuince is
equivocal and ambiguous ; a plainer word would be better.
They may pursue bad as well as good measures, and there-
fore the word is improper ; it authorizes bad measures. An-
other thing is remarkable, — that gentlemen, as an answer
to every improper part of it, tell us that every thing is to be
done by our own representatives, who are to be good men.
There is no security that they will be so, or continue to be
so. Should they be virtuous when elected, the laws of Con-
gress will be unalterable. These laws must be annihilated
by the same body which made them. It appears to me that
the laws which they make cannot be altered without calling
a convention. [Mr. Caldwell added some reasons for this
opinion, but spoke too low to be heard.]
Gov. JOHNSTON. Mr. Chairman, I knew that many
gentlemen in this Convention were not perfectly satisfied
with every article of this Constitution ; but I did not expect
that so many would object to this clause. The Constitution
must be the supreme law of the land; otherwise, it would be
Mi the power of any one state to counteract the other states,
and withdraw itself from the Union. The laws made in
pursuance thereof by Congress ought to be the supreme law
of the land ; otherwise, any one state might repeal the law9.
188 DEBATES. [ILkCLAiiOk
of the Union at large. Without this clause, the whole Con-
stitution would be a piece of blank paper. Every treaty
should be the supreme law of the land ; without this, any
one state might involve the whole Union in war. The
worthy member who was last up has started an objection
which I cannot answer. I do not know a word in the Eng-
lish language so good as the word pursuance, to express the
idea meant and intended by the Constitution. Can any one
understand the sentence any other way than this? When
Congress makes a law in virtue of their constitutional
authority, it will be an actual law. I do not know a more
expressive or a belter way of representing the idea by words.
Every law consistent with the Constitution will have been
made in pursuance of the powers granted by it. Every
usurpation or law repugnant to it cannot have been made in
pursuance of its powers. The latter will be nugatory and
void. I am at a loss to know what he means by saying the
laws of the Union will be unalterable. Are laws as immuta-
ble as constitutions? Can any thing be more absurd than
assimilating the one to the other? The idea is not war
ranted by the Constitution, nor consistent with reason.
Mr. J. M'DOWALL wished to know how the taxes are
to be paid which Congress were to lay in this state. He
asked if paper money would discharge them. He calciilated
that the taxes would be higher, and did not know how they
could be discharged ; for, says he, every man is to pay so
much more, and the poor man has not the money locked up
in his chest. He was of opinion that our laws could be re-
pealed entirely by those of Congress.
Mr. MACLAINE. Mr. Chairman, taxes must be paid in
gold or silver coin, and not in imaginary money. As to the
subject of taxation, it has been the opinion of many intelli-
gent men that there will be no taxes laid immediately, or, if
any, that they will be very inconsiderable. There will be no
occasion for it, as proper regulations will raise very large
sums of money. We know that Congress will have sufficient
power to make such regulations. The moment that the
Constitution is established. Congress will have credit with
foreign nations. Our situation being known, they can bor-
row any sum. It will be better for them to raise any money
the} want at p esent by borrowing than by taxation. It is
well known tha in this country gold and silver vanish when
Maclainb.] north CAROLINA. 189
paper money is made. When we adopt, if ever, gold and
silver will again appear in circulation. People will not let
their hard money go, because they know that paper mon "v
cannot repay it. After the war, we had more money in gold
and silver, in circulation, than we have nominal money now.
Suppose Congress wished to raise a million of money more
than the imposts. Suppose they borrow it. -They can
easily borrow it in Europe at four per cent. The interest
of that sum will be but £40,000. So that the people, in-
stead of having the whole £1,000,000 to pay, will have but
£40,000 to pay, which will hardly be felt. The proportion
of £40,000 for this state would be a trifle. In seven years'
time, the people would be able, by only being obliged to pay
the interest annually, to save money, and pay the whole
principal, perhaps, afterwards, without much difficulty.
Congress will not lay a single tax when it is not to the advan-
tage of the people at large. The western lands will also be
a considerable fund. The sale of them will aid the revenue
greatly, and we have reason to believe the impost will be
productive.
Mr. J. M'DOWALL. Mr. Chairman, instead of reasons
and authorities to convince me, assertions are made. Many
respectable gentlemen are satisfied that the taxes will be
higher. By what authority does the gentleman say that the
impost will be productive, when our trade is come to noth-
ing? Sir, borrowing money is detrimental and ruinous to
nations. The interest is lost money. We have been obliged
to borrow money to pay interest ! We have no way of pay-
ing additional and extraordinary sums. The people cannot
stand them. I should be extremely sorry to live under a
government which the people could not understand, and
which it would require the greatest abilities to understand.
It ought to be plain and easy to the meanest capacity. What
would be the consequence of ambiguity ? It may raiwse an-
imosity and revolutions, and involve us in bloodshed. It
becomes us to be extremely cautious.
Mr. MACLAINE. Mr. Chairman, 1 would ask the gen-
tleman what is the state of our trade. I do not pretend to
a very great knowledge in trade, but 1 know something of it.
If our trade be in a low situation, it must be the effect of
our present weak government. I really believe that Con-
gress will be able to raise almost what sums they please by
190 DEBATES. [QALLoWAt.
the impost. I know it will, though the gentleman may call
it assertion. I am not unacquainted with the territory or
resources of this country. The resources, under proper reg-
ulations, are very great. In the course of a few years, we
can raise money without borrowing a single shilling. It is
not disgraceful to borrow money. The richest nations have
recurred to loans on some emergencies. 1 believe, as much
as 1 do in my existence, that Congress will have it in their
power to borrow money if our government be such as people
can depend upon. Ihey have been able to borrow now
under the present feeble system. If so, can there be any
doubt of their being able to do it under a respectable gov-
ernment ?
Mr. M'DOWALL replied, that our trade was on a con-
temptible footing; that it was come almost to nothing, and
lower in North Carolina than any where ; that therefore lit-
tle could be expected from the impost.
Mr. J. GALLOWAY. Mr. Chairman, I should make no
objection to this clause were the powers granted by the Con-
stitution sufficiently defined ; for I am clearly of opinion that
it is absolutely necessary for every government, and especial-
ly for a general government, that its laws should be the
supreme law of the land. But I hope the gentlemen of the
committee will advert to the 10th section of the 1st article.
This is a negative which the Constitution of our own state
does not impose upon us. I wish the committee to attend
to that part of it which provides that no state shall pass
any law which will impair the obligation of contracts. Our
public securities are at a low ebb, and have been so for many
years. We well know that this country has taken those se-
curities as specie. This hangs over our heads as a con-
tract. There is a million and a half in circulation at least.
That clause of the Constitution may compel us to make
good the nominal value of these securities. I trust this
country never will leave it to the hands of the general gov-
ernment to redeem the securities which they have already
given. Should this be the case, the consequence will be,
that they will be purchased by speculators, when the citizens
will part with them, perhaps for a very trifling consideration.
Thos? speculators will look at the Constitution, and see that
they will be paid in gold and silver. They will buy them
at a half-crown in the pound, and get the full nominal \^alue
Abbot.J north CAROUNA. 191
for them in gold and silver. I therefore wish the conamittee
to consider whether North Carolina can redeem those secu-
rities in the manner most agreeable to her citizens, and jus-
tifiable to the world, if this Constitution be adopted.
Mr. DAVIE. Mr. Chairman, I believe neither the 10th
section, cited by the gentleman, nor any other part of the
Constitution, has vested the general government with power
to interfere with the public securities of any state. I will
venture to say that the last thing which the general govern-
ment will attempt to do will be this. They have nothing
to do with it. The clause refers merely to contracts between
individuals. That section is the best in the Constitution.
It is founded on the strongest principles of justice. It is a
section, in short, which I thought would have endeared the
Constitution to this country. When the worthy gentleman
comes to consider, he will find that the general government
cannot possibly interfere with such securities. How can it?
It has no negative clause to that effect. Where is there a
negative clause, operating negatively on the states them-
selves ? It cannot operate retrospectively, for this would be
repuofnant to its own express provisions. It will be left to
ourselves to redeem them as we please. We wished we
could put it on the shoulders of Congress, but could not.
Securities may be higher, but never less. I conceive, sir,
that this is a very plain case, and that it must appear per-
fectly clear to the committee that the gentleman's alarms
ax groundless.
Wednesday, July 30, 178b.
The last clause of the 6th article read.
Mr. HENRY ABBOT, after a short exordium, which
tvas not distinctly henrd, proceeded thus : Some are afraid.
Air. Chairman, that, should the Constitution be received,
they would be deprived of the privilege of worshipping God
according; to their consciences, which would be taking from
them a l)enefit they enjoy under the present constitution.
They wish to know if their religious and civil lilierties be
secured under this system, or whether the general govern-
ment may not make laws infringing their religious liberties.
The worthy member from Edenton mentioned sundry politi-
cal reasons why treaties should be the supreme law of the
land L is feared, by some people, that, by the power of
|y2 DEBATES. L^REDFLL.
making treaties, they might make a treaty engaging with
foreign powers to adopt the Roman Catholic religion in the
United Stales, which would prevent the people from wor-
shipping God according to their own consciences. The
worthy member from Halifax has in some measure satisfied
my mind on this subject. But others may be dissatisfied.
Many wish to know what religion shall be established. I
believe a majority of the community are Presbyterians. 1
am, for my part, against any exclusive establishment; but if
there were any, I would prefer the Episcopal. The exclu-
sion of religious tests is^ by many thought dangerous and
impolitic. They suppose that if there be no religious test
required, pagans, deists, and Mahometans might obtain offices
among us, and that the senators and representatives might
all be pagans. Every person employed by the general and
state governments is to take an oath to support the former.
Some are desirous to know how and by whom they are to
swear, since no religious tests are required — whether they
are to swear by Jupiter, Juno, Minerva, Proserpine, or
Pluto. We ought to be suspicious of our liberties. We
have felt the effects of oppressive measures, and know the
happy consequences of being jealous of our rights. I would
be glad some gentleman would endeavor to obviate these ob-
jections, in order to satisfy the religious part of the society.
Could 1 be convinced that the objections were well founded,
I would then declare my opinion against the Constitution.
[Mr. Abl)ot added several other observations, but spoke too
low to be heard.]
Mr. IREDELL. Mr. Chairman, nothing is more desira-
ble than to remove the scruples of any gentleman on this
interesting subject. Those concerning religion are entitled
to particular respect. I did not expect any objection to this
particular regulation, which, in my opinion, is calculated to
prevent evils of the most pernicious consequences to society.
Every person in the least conversant in the history of man-
kind, knows what dreadful mischiefs have been committed
by religious persecutions. Under the color of religious tests,
the utmost cruelties have been exercised. Those in power
have generally considered all wisdom centred in themselves ;
that they alone had a right to dictate to the.rest of mankind ;
and that all opposition to their tenets was profane and im-
pious. The consequence of this intolerant spirit had been,
InEDELL.] NORTH CAROLINA. 193
that each church has in turn set itself up against every other ;
and persecutions and wars of the most imphicable and bloody
nature have taken place in every part of the world. America
has set an example to mankind to think more modestly and
reasonably — that a man may be of different religious senti-
ments from our own, \vithout being a bad member of society.
The principles of toleration, to the honor of this age, are
doing away those errors and prejudices which have so long
prevailed, even in the most intolerant countries. In the Ro-
man Catholic countries, principles of moderation are adopted
which would have been spurned at a century or two ago. I
should be sorry to find, when examples of toleration are set
even by arbitrary governments, that this country, so im-
pressed with the highest sense of lil)erty, should adopt prin-
ciples on this subject thnt were narrow and illiberal.
I consider the clause under consideration as one of the
strongest proofs that could be adduced, that it was the inten-
tion of those who formed this system to establish a general
religious liberty in America. Were we to judge from the
examples of religious tests in other countries, we should be
persuaded that they do not answer the purpose for which
they are intended. What is the consequence of such in
England ? In that country no man can be a member in the
House of Commons, or hold any office under the crown,
without taking the sacrament according to the rites of the
Church. This, in the first instance, must degrade and pro-
fane a rite which never ought to be taken but from a sincere
principle of devotion. To a man of base principles, it is
made a mere instrument of civil policy. The intention was,
to exclude all persons from offices but the meml>ers of the
Church of England. Yet it is notorious that dissenters
qualify themselves for offices in this manner, though they
never conform to the Church on any other occasion ; and men
of no religion at all have no scruple to make use of this quali-
fication. It never was known thnt a man who had no prin-
ciples of religion hesitated to perform apy rite when it was
convenient for his private interest. No test can bind such
a one. I am therefore clearly of opinion that such a dis-
crimination would neither be effectual for its own purposes,
nor, if it could, ought it by any means to be made. Upon
the principles I have stated, I confess the restriction on the
power of Congress, in this particular, has my hearty appro-
VOL. IV. 26 17
194 DEBATES. [Irbdbll
bation. They certainly have no authority to interfere in the
establishment of any religion whatsoever; and I am aston-
ished that any gentleman should conceive they have. Is
there any j)ovver given to Congress in matters of religion ?
Can they pass a single act to impair our religious liberties ?
If they could, it would be a just cause of alarm. If they
could, sir, no man would have more horror against it than
myself. Happily, no sect here is superior to another. As
long as this is the case, we shall be free from those persecu-
tions and distractions with which other countries have been
torn. If any future Congress should pass an act concerning
the religion of the country, it would be an act which they
are not authorized to pass, by the Constitution, and which
the people would not obey. Every one would ask, " Who
authorized the government to pass such an act ? It is not
warranted by the Constitution, and is barefaced usurpation."
The power to make treaties can never be supposed to in-
clude a right to establish a foreign religion among ourselves,
though it might authorize a toleration of others.
But it is objected that the people of America may, per-
haps, choose representatives who have no religion at all, and
that pagans and Mahometans may be admitted into offices.
But how is it possible to exclude any set of men, without
takinji: away that principle of religious freedom which w-e
ourselves so warmly contend for ? This is the foundation
on which persecution has been raised in every part of the
world. The people in power were always right, and every
body else wrong. If you admit the least difference, the
door to persecution is opened. Nor would it answer the
purpose, for the worst part of the excluded sects would com-
ply with the test, and the best men only be kept out of our
counsels. But it is never to be supposed that the people of
America will trust their dearest rights to persons w^ho have
no religion at all, or a religion materially different from their
own. It would be happy for mankind if religion was per-
mitted to take its own course, and maintain itself by the
excellence of its own doctrines. The divine Author of our
religion never wished for its support by worldly authority.
Has he not said that the gates of hell shall not prevail
against it ? It made much greater progress for itself, than
when supported by the greatest authority upon earth.
It has been asked by that respectable gentleman (Mi
DELL.] NORTH CAROLINA. 196
Abbot) what is the meaning of that part, where it is said
that the United States shall guaranty to every state in the
Union a republican form of government, and why a guar-
anty of religious freedom was not included. The meaning
of the guaranty provided w^as this : There being thirteen
governments confederated upon a republican principle, it
was essential to the existence and harmony of the confeder-
acy that each should be a republican government, and that
no state should have a right to establish an aristocracy or
monarchy. That clause was therefore inserted to prevent
any state from establishing any government but a republican
one. Every one must be convinced of the mischief that
would ensue, if any state had a right to change its govern-
ment to a monarchy. If a monarchy was established in any
one state, it would endeavor to subvert the freedom of the
others, and would, probably, by degrees succeed in it. This
must strike the mind of every person- here, who recollects
the history of Greece, when she had confederated govern-
ments. The king of Macedon, by his arts and intrigues,
got himself admitted a member of the Amphictyonic council,
which was the superintending government of the Grecian
republics ; and in a short time he became master of them all.
It is, then, necessary that the members of a confederacy
should have similar governments. But consistently with
this restriction, the states may make what change in their
own governments they think proper. Had Congress under-
taken to guaranty religious freedom, or any particular species
of it, they would then have had a pretence to interfere in a
subject they have nothing to do with. * Each state, so far as
the clause in question does not interfere, must be left to the
operation of its own principles.
There is a degree of jealousy which it is impossible to
satisfy. Jealousy in a free government ought to be res|)ect-
ed ; but it may be carried to too great an extent. It is im-
practicable to guard against all possible danger of people's
choosing their officers indiscreetly. If they have a right to
choose, they may make a bad choice.
I met, by accident, with a pamphlet, this morning, in
which the author states, as a very serious danger, that the
pope of Rome might be elected President. I confess this
never struck me before ; and if the author had read all the
qualification*^ of a President, perhaps his fears might have
196 DEBATES. [Irboeu.
fbeen quteted. No man but a native, or who has resided four-
teen years in America, can be chosen President. I know
not all the qualifications for pope, but I believe he must be
taken from the college of cardinals; and probably there are
many previous steps necessary before he arrives at this dig-
nity. A native of America must have very singular good
fortune, who, after residing fourteen years in his own country,
should go to Europe, enter into Romish orders, obtain the
promotion of cardinal, afterwards that of pope, and at length
be so much in the confidence of his own country as to be
elected President. It would be still more extraordinary if
he should give up his popedom for our presidency. Sir, it is
impossible to treat such idle fears with any degree of gravity.
Why is it not objected, that there is no provision in the Con-
stitution against electing one of the kings of Europe Presi-
dent? It would be a clause equally rational and judicious.
I hope that I have, in some degree satisfied the doubts of
the gentleman. This article is calculated to secure univer-
sal religious liberty, by putting all sects on a level — the only
way to prevent persecution. I thought nobody would have
objected to this clause, which deserves, in my opinion, the
highest approbation. This country/ has already had the
honor of setting an example of civil freedom, and I trust it
will likewise have the honor of teaching the rest of the world
the way to religious freedom also. God grant both may be
perpetuated to the end of time !
Mr. ABBOT, after expressing his obligations for the ex-
planation which had been given, observed that no answer
had been given to the question he put concerning the form
of an oath.
Mr. IREDELL. Mr. Chairman, I beg pardon for having
omitted to take notice of that part which the worthy gentle-
man has mentioned. It was by no means from design, but
from its having escaped my memory, as I have not the con-
veniency of taking notes. I shall now satisfy him in that
particular in the best manner in my power.
According to the modern definition of an oath, it is con-
sidered a "solemn appeal to the Supreme Being, for the truth
of what is said, by a person who believes in the existence of
a Supreme Being and in a future state of rewards and pun-
ishments, according to that form which will bind his con-
science most." It was long held that no oath could be
iBBDELt.) NORTH CAROLINA. 197
administered but upon the New Testament, except to a J-ew,
who was allowed to swear upon the Old. According to this>
notion, none but Jews and Christians could take an oath ;
and heathens were altogether excluded. At length, by the
operation of principles of toleration, these narrow notions
were done away. Men at length considered that there were
many virtuous men in the world who had not had an oppor-
tunity of being instructed either in the Old or New Testa-
ment, who yet very sincerely believed in a Supreme Being,
and in a future state of rewards and punishments. It is well
known that many nations entertain this belief who do not
believe either in the Jewish or Christian religion. Indeed,
there are few people so grossly ignorant or barlmrous as to
have no religion at all. And if none but Christians or Jews
could be examined upon oath, many innocent persons might
suffer for want of the testimony of others. In regard to the
form of an oath, that ought to be governed by the religion
of the person taking it. 1 remember to have read an instance
which happened in England, I believe in the time of Charles
11. A man who was a material witness in a cause, refused
to swear upon the book, and was admitted to swear with his
uplifted hand. The jury had a difficulty in crediting him;
but the chief justice told them, he had, in his opinion, taken
as strong an oath as any of the other witnesses, though, had
he been to swear himself, he should have kissed the book.
A very remarkable instance also happened in England, about
forty years ago, of a person who was admitted to take an
oath according to the rites of his own country, though he was
a heathen. He was an East Indian, who had a great suit in
chancery, and his answer upon oath to a bill filed against
him was absolutely necessary. Not believing either in the
Old or New Testament, he could not be sworn in the accus-
tomed manner, but was sworn according to the form of the
Gentoo religion, which he professed, by touching the foot of
a priest. It appeared that, according to the tenets of this
religion, its members believed in a Supreme Being, and in a
future stite of rewards and punishments. It was accord-
ingly held by the judges, upon great consideration, that the
oath ought to be received ; they considering that it was
probable those of that religion were equally bound in con-
science by an oath according to their form of swearing, as
they themselves were by one of theirs ; and that it would be
I J8 DEBATES. IJohmatok
a repioach to the justice of the country, if a man, merely be-
cause he was of a different religion from their own, should
be denied redress of an injury he had sustained. Ever since
this great case, it has been universally considered that, in
administering an oath, it is only necessary to inquire if the
person who is to take it, believes in a Supreme Being,
and in a future state of rewards and punishments. If he
does, the oath is to be administered according to that form
which it is supposed will bind his conscience most. It is,
however, necessary that such a belief should be entertained,
because otherwise there would be nothing to bind his con-
science that could be relied on ; since there are many cases
where the terror of punishment in this world for perjury could
not be dreaded. I have endeavored to satisfy the committee.
We may, I think, very safely leave religion to itself; and as
to the form of the oath, 1 think this may well be trusted to
the general government, to be applied on the principles 1
have mentioned.
Gov. JOHNSTON expressed great astonishment that the
people were alarmed on the subject of religion. This, he
said, must have arisen from the great pains which had been
taken to prejudice men's minds against the Constitution.
He begged leave to add the following few observations to
what had l)een so ably said by the gentleman last up.
I read the Constitution over and over, but could not see
one cause of apprehension or jealousy on this subject.
When I heard there were apprehensions that the pope of
Rome could be the President of the United States, I was
greatly astonished. It might as well be said that the king
of England or France, or the Grand Turk, could be chosen
to that office. It would have been as good an argument.
It appears to me that it would have been dangerous, if Con-
gress could intermeddle with the subject of religion. True
religion is derived from a much higher source than human
laws. When any attempt is made, by any government, to
restrain men's consciences, no good consequence can pos-
sibly follow. It is apprehended that Jews, Mahometans,
pagans, &c., may be elected to high offices under the gov-
ernment of the United States. Those who are Mahom-
etans, or any others who are not professors of the Christian
religion, can never be elected to the office of President, or
other high office, but in one of two cases. First, if thp
Caldweix.] north CAROLINA. liJ&
people of America lay aside the Christian religion allogetliei,
it may happen. Should this unfortunately take place, the
people will choose such men as think as they do themselves.
Another case is, if any persons of such descriptions should,
notwithstanding their religion, acquire the confidence and
esteem of the people of America by their good conduct and
practice of virtue, they may be chosen. I leave it to gen-
tlemen's candor to judge what probability there is of the
people's choosing men of different sentiments from them-
selves.
But great apprehensions have been raised as to the influ-
ence of the East(irn States. When you attend to circum-
stances, this will have no weight. I know but two or three^
states where there is the least chance of establishing any
particular religion. The people of Massachusetts and Con-
necticut are mostly Presbyterians. In every other state, the
people are divided into a great number of sects. In Rhode
Island, the tenets bf the Baptists, I believe, prevail. In
New York, they are divided very much : the most numerous
are the Episcopalians and the Baptists. In New Jersey,
they are as much divided as we are. In Pennsylvania, if
any sect prevails more than others, it is that of the Quakers.
In Maryland, the Episcopalians are most numerous, though
there are other sects. In Virginia, there are many sects;
you all know what their religious sentiments are. So in all
the Southern States they differ ; as also in New Hampshire.
I hope, therefore, that jrenilemen will see there is no cause
of fear that any one religion shall be exclusively established.
Mr. CALDWELL thought that some danger might arise.
He imagined it might be objected to in a political as well as
in a religious view. In the first place, he said, there was an
invitation for Jews and pagans of every kind to come among
Us. At some future period, said he, this might endanger
the character of the United States. Moreover, even those
who do not regard religion, acknowledge that the Christian
religion is best calculated, of all religions, to make good
members of society, on account of its morality. I think,
then, added he, that, in a political view, those jjentlemen who
formed this Constitution should not have given this invi-
tation to Jews and heathens. All those who have any reli-
gion are against the emigration of those people from the
eastern hemisphere.
\
tod DEBATES. [JoRKSTOK
Mr SPENCER was an advocate for securing every nn-
alienable right, and that of worshipping God according to
the dictates of conscience in particular. He therefore thought
that no one particular religion should be established. Reli-
gious tests, said he, have been the foundation of persecutions
in all countries. Persons who are conscientious will not take
the oath required by religious tests, and will therefore be ex-
cluded from offices, though equally capable of discharging
them as any member of the society. It is feared, continued
he, that persons of bad principles, deists, atheists, &c., may
come into this country; and there is nothing to restrain them
from being eligible to offices. He asked if it was reasonable
to suppose that the people would choose men without re-
garding their characters. Mr. Spencer then continued thus:
Gentlemen urge that the want of a test admits the most
vicious characters to offices. V desire to know what test
could bind them. If they were of such principles, it would
not keep them from enjoying those offices. On the oth^r
hand, it would exclude from offices conscientious and truly
religious people, thoui^h equally capable as others. Consci-
entious persons would not take such an oath, and would be
therefore excluded. This would be a great cause of objec-
tion to a religious test. But in this case, as there is not a
rfijigious test required, it leaves religion on the solid foun-
dation of its own inherent validity, without an}' connection
with temporal authority ; and no kind of oppression can take
place. I confess it strikes me so. I am sorry to differ from
the worthy gentleman. I cannot object to this part of the
Constitution. I wish every other part was as good and
proper.
Gov. JOHNSTON approved of the worthy member's
candor. He admitted a possibility of Jews, pagans, &c.,
emigrating to the United States ; yet, he said, they could
not be in proportion to the emigration of Christians who
should come from other countries ; that, in all probability,
tne children even of such people would be Christians ; and
that this, with the rapid population of the United States,
their zeal for religion, and love of liberty, would, he trtisted^
add to the progress of the Christian religion among us.
The 7th article read without any objection against it.
Gov. JOHNSTON, after a short speech, which was not
distinctly heard, made a motion to the following effect • —
Lewoir.] north CAROLINA. 201
That this committee, having fully deliberated on the Constitution pro-
posed for the future government of the United States of America, by the
Federal Convention lately held at Philadelphia, on the 17th day of Sep-
tember lasit, and having taken into their serious consideration the present
critical situation of America, which induces them to be of opinion, thai
though certain amendments to the said Constitution may be wished for,
yet that those amendments should be proposed subsequent to the ratiBca
tion on the part of this state, and not previous to it, — they therefore rec-
ommend that the Convention do ratify the Constitution, and at the same
time propose amendments, to take place in one of the modes prescribed
by the Constitution.
Mr. LENOIR. Mr. Chairman, I conceive that I shall
not be out of order to make some observations on this last
part of the system, and take some retrospective view of some
other parts of it. I think it not proper for our adoption, as I
consider that it endatigers our liberties. When we consider
this system collectively, we must be surprised to think that
any set of men, who were delegated to amend the Confed-
eration, should proj)ose to annihilate it; for that and this sys-
tem are utterly different, and cannot exist together. It has
been said that the fullest confidence should be put in those
characters who formed this Constitution. We will admit
them, in private and public transactions, to be good charac-
ters. But, sir, it appears to me, and every other member of
this committee, that they exceeded their powers. Those
gentlemen had no sort of power to form a new constitution
altogether ; neither had the citizens of this country such an
idea in their view. I cannot undertake to say what princi-
ples actuated them. I must conceive they were mistaken in
their (}olitics, and that this system does not secure the un-
alienable rights of freemen. It has some aristocratical and
some monarchical features, and perhaps some of them in-
tended the establishment of one of these governments.
Whatever might be their intent, according to my views, it
will lead to the most dangerous aristocracy that ever was
thought of — an aristocracy established on a constitutional
l)ottom ! I conceive (and I believe most of this committee
will like>%ise) that this is so dangerous, that I should like as
well to have no constitution at all. Their powers are almost
unlimited.
A constitution ought to be understood by every one. The
most humble and trifling characters in the country have
a right to know what foundation they stand upon. I con-
fess I do not see the end of the powers here proposed, noi
VOL. IV. 26
DEBATES [Lenoir
Dns for granting them. The principal end of a con-
^.a*uiion is to set forth what must be givfen up for the com-
muniiy at large, and to secure those rio^hts which ought never
to be infringed. The proposed plan secures no right ; or, if
it does, it is in so vague and undeterminate a manner, that
we do not understand it. My constituents instructed me to
oppose the adoption of this Constitution. The principal
reasons are as follow: The right of representation is not
fairly and explicitly preserved to the people, it being easy
to evade that j)rivilege as provided in this system, and
the terms of election being too long. If our General Assem-
bly be corrupt, at the end of the year we can make new men
of them by sending others in their stead. It is not so here.
If there be any reason to think that human nature is corrupt,
and that there is a disposition in men to aspire to power,
they may embrace an opportunity, during their long continu-
ance in office, by means of their powers, to take away the
rights of the people. The senators are chosen for six years,
and two thirds of them, with the President, have most ex-
tensive powers. They may enter into a dangerous combina
tion. And they may be continually reelected. The Presi-
dent may be as good a man as any in existence, but he is
but a nian. He may be corrupt. He has an opportunity of
forming plans dangerous to the community at large. I shall
not enter into the minutiee of this system, but I conceive,
whatever may have been the intention of its framers, that it
leads to a most dans^erous aristocracy. It appears to me
that, instead of securing the sovereignty of the states, it is cal-
culated to melt them down into one solid empire. If the citi-
zens of this state like a consolidated government, 1 hope they
will have virtue enough to secure their rights. I am sorry
to make use of the expression, but it appears to me to be a
scheme to reduce this government to an aristocracy. It
guaranties a republican form of government to the states ;
when all these powers are in Congress, it will only be a form.
It will be past recovery, when Congress has the power of
the purse and the sword. The power of the sword is in ex-
plicit terms given to it. The power of direct taxation gives
the purse. They may prohibit the trial by jury, which is a
most sacred and valuable right. There is nothing contained
in this Constitution to bar them from it. The federal courts
have also appellate cognizance of law and fact; the sole
BNoiR.] NORTH CAROLINA 20 J
^^ause of which is to deprive the people of that trial, which it
^.s optional in them to grant or not. We find no provision
Against infringement on the rights of conscience. Ecclesias-
tical courts may be established, which will be destructive to
our citizens. They may make any establishment they think
proper. They have also an exclusive legislation in their
ten miles square, to which may be added their power over
the militia, who may be carried thither and kept there for
life. Should any one grumble at their acts, he would be
deemed a traitor, and perhaps taken up and carried to the
exclusive legislation, and there tried without a jury. We
are told there is no cause to fear. When we consider the
great powers of Congress, there is great cause of alarm.
They can disarm the militia. If they were armed, they
would be a resource against great oppressions. The laws
of a great empire are difficult to be executed. If the laws
of the Union were oppressive, they could not carry them into
effect, if the people were possessed of proper means of de-
fence.
It was cried out that we were in a most desperate situa-
tion, and that Congress could not discharge any of their
most sacred contracts. I believe it to be the case. But
why give more power than is necessary ? The men who
went to the Federal Convention went for the express pur-
pose of amending the government, by giving it such addi-
tional powers as were necessary. If we should accede to
this system, it may be thought proper, by a few designing
persons, to destroy it, in a future age, in the same manner
that the old system is laid aside. The Confederation was
binding on all the states. It could not be destroyed but
with the consent of all the states. There was an express
article to that purpose. The men w^ho were deputed to the
Convention, instead of amending the old, as they were solely
empowered and directed to do, proposed a new system. If
the best characters departed so far from their authority, what
may not be apprehended from others, who may be agents in
the new government ?
It is natural for men to aspire to power — it is the nature
of mankind to be tyrannical ; therefore it is necessary for
us to secure our rights and liberties as far as we can. But
it is asked why we should suspect men who are to be chosen
by ourselves, while it is their interest to act justly, and while
V
204 DEBATES. [LBNom
men have self-interest at heart. 1 think the reasons which
I havt given are sufficient to answer that question. We
ought to consider the depravity of human nature, the pre-
dominant thirst of power which is in the breast of every
one, tlie temptations our rulers may have, and the unlimited
confidence phiced in them by this system. These are the
foundation of my fears. They would be so long in the gen-
eral government that they would forget the grievances of
the people of the states.
But it is said we shall be ruined if separated from the
other states, which will be the case if we do not adopt. If
so, I would put less confidence in those states. The states
are all bound together by the Confederation, and the rest
cannot break from us without violating the most solemn
compact. If they break that, they will this.
But it is urged that we ought to adopt, because so many
other states have. In those states which have patronized
and ratified it, many great men have opposed it. The mo-
tives of those states I know not. It is the goodness of the
Constitution we are to examine. We are to exercise our
own judgments, and act independently. And as I conceive
we are not out of the Union, I hope this Constitution will
not be adopted till amendments are made. Amendments
are wished for by the other states. It was urged here that the
President should have power to grant reprieves and pardons.
This power is necessary with proper restrictions. But the
President may be at the head of a combination against the
rights of the people, and may reprieve or pardon the whole.
It is answered to this, that he cannot pardon in cases of
impeachment. What is the punishment in such cases ?
Only removal from office and future disqualification. It
does not touch life or property. He has power to do away
punishment in every other case. It is too unlimited, in my
opinion. It may be exercised to the public good, but may
also be perverted to a different purpose. Should we get
those who will attend to our interest, we should be safe
under any Constitution, or without any. If we send men
of a different dis|>ositioh, we shc^ll be in danger. Let us
give them only such powers as are necessary for the good of
the community.
The President has other great powers. He has the nom«
ination of all officers, and a qualified negative on the laws
/-.ifMoia.] • NORTH CAROUNA. 20/T
e may delay the wheels of government. He may drive
he Senate to concur with his proposal. He has other ex-
ensive powers. There is no assurance of the liberty of the
ess. They may make it treason to write against the most
rbitrary proceedings. They have power to control our elec-
tions as much as they please. It may be very oppressive on
^his state, and all the Southern States.
Much has been said of taxation, and the inequality of it
on the states. But nothing has been said of the mode of
furnishing men. In what proportion are the states to furnish
men ? Is it in proportion to the whites and blacks ? I pre-
sume it is. This stdte has one hundred thousand blacks.
By this Constitution, fifty negroes are equal to thirty whites.
This state, therefore, besides the proportion she must raise
for her white people, must furnish an additional number for
her blacks, in proportion as thirty is to fifty. Suppose there
be a state to the northward that has sixty thousand persons ;
this state must furnish as many men for the blacks as that
whole state, exclusive of those she must furnish for hei
whites. Sl:ives, instead of strengthening, weaken the state ,
the regulation, therefore, will greatly injure it, and the other
Southern States. There is another clause which I do not,
perhaps, understand. The power of taxation seems to me
not to extend to the lands of the people of the United
States ; for the rule of taxation is the number of the whites
and three fifths of the blacks. Should it be the case that
they have no power of taxing this object, must not direct
taxation be hard upon the greater part of this state ? I am
not confident that it is so, but it appears to me that they
Cannot lay taxes on this object. This will oppress the poor
people who have large families of whites, and no slaves to
Assist them in cultivating the soil, although the taxes are to
be laid in proportion to three fifths of the negroes, and all
the whites. Another disadvantage to this state will arise
from it. This state has made a contract with its citizens.
The public securities and certificates I allude to. These
may be negotiated to men who live in other states. Should
that be the case, these gentlemen will have demands against
this state on that account. The Constitution points out the
mode of recovery ; it must be in the federal court only, be-
cause controversies between a state and the citizens of
another state are cognizable only in the federal couns.
• 18
2106 DEBATES. [Spaight.
They cannot be paid but in gold and silver. Actual spe-
cie will be recovered in that court. This would be an in-
tolerable grievance without remedy.
I wish not to be so understood as to be so averse to this
system, as that I should object to all parts of it, or attempt
to reflect on the reputation of those gentlemen who formed
it ; though it appears to me that I would not have agreed to
any proposal but the amendment of the Confederation. If
there were any security for the liberty of the people, I would,
for my own part, agree to it. But in this case, as millions
yet unborn are concerned, and deeply interested in our de-
cision, I would have the most positive and pointed security.
I shall therefore hope that, before this house will proceed to
adopt this Constitution, they will propose such amendments
to it as will make it complete ; and when amendments are
adopted, perhaps I will be as ready to accede to it as any
man. One thing will make it aristocratical. Its powers are
very indefinite. There was a very necessary clause in the
Confederation, which is omitted in this system. That was
a clause declaring that every power, &c., not given to Con-
gress, was reserved to the states. The omission of this
clause makes the power so much greater. Men will natu-
rally put the fullest construction on the power given them.
Therefore lay all restraint on them, and form a plan to be
understood by every gentleman of this committee, and every
individual of the communitv.
Mr. SPAIGHT. Mr. Chairman, I am one of those who
formed this Constitution. The gentleman says, we exceeded
our powers. I deny the charge. We were sent with a full
power to amend the existing system. This involved every
power to make every alteration necessary to meliorate and
render it perfect. It cannot be said that we arrogated
powers altogether inconsistent with the object of our dele-
gation. There is a clause which expressly provides for
future amendments, and it is still in your power. What the
Convention has done is a mere proposal. It was found im-
possible to improve the old system without changing its very
form ; for by that system the three great branches of govern-
ment are blended together. All will agree that the conces-
sion of a power to a government so constructed is danger-
ous. The proposing a new system, to be established by the
assent and ratification of nine states, arose from the neces-
SfiiGHT.J NORTH CAROUNA. 207
^iiy of the case. It was thought extremely hard that one
state, or even three or four states, should be able to prevent
necessary alterations. The very refractory conduct of Rhode
Island, in uniformly opposing every wise and judicious
measure, taught us how impolitic it would be to put thi^
general welfare in the power of a few members of the Union.
It was, therefore, thought by the Convention, that, if so
great a majority as nine states should adopt it, it would be
right to establish it. It was recommended by Congress to
the state legislatures to refer it to the people of their differ-
ent states. Our Assembly has confirmed what they have
done, by proposing it to the consideration of the people. It
was there, and not here, that the objection should have been
made. This Convention is therefore to consider the Consti-
tution, and whether it be proper for the government of the
people of America ; and had it been proposed by any one
individual, under these circumstances, it would be right to
consider whether it be good or bad. The gentleman has in-
sinuated that this Constitution, instead of securing our liber-
ties, is a scheme to enslave us. He has produced no proof,
but rests it on his bare assertion — an assertion which I am
astonished to hear, after the ability with which every objec-
tion has been fully and clearly refuted in the course of our
debates. I am, for my part, conscious of having had noth-
ing in view but the liberty and happiness of my country ; and
1 believe every member of that Convention was actuated by
motives equally sincere and patriotic.
He says that it will tend to aristocracy. Where is the
aristocratical part of it ? It is ideal. I always thought that
an aristocracy was that government where the few governed
the many, or where the rulers were hereditary.. This is a
very different government from that. I never read of such
an aristocracy. The first branch are representatives chosen
freely by the people at large. This must be allowed upon
all hands to be democratical. The next is the Senate, chosen
by the people, in a secondary manner, through the medium
of their delegates in the legislature. This cannot be aristo-
cratical. They are chosen for six years, but one third of
them go out every second year, and are responsible to the
state legislatures. The President is elected for four years.
Bv whom ? By those who are elected in such manntT as
the state legislatures think proper. I hope the gentleman
?08 REBATES. [Spaight.
Will not pretend to call this an aristocratical feature. The
privilege of representation is secured in the most |X)sitive and
unequivocal terms, and cannot be evaded. The gentleman
has again brought on the trial by jury. The Federal Con-
vention, sir, had no wish to destroy the trial by jury. It
was three or four days before them. There were a variety
of objections to any one mode. It was thought impossible
to fall upon any one mode but what would produce some in-
conveniences. I cannot now recollect all the reasons given.
Most of them have been amply detailed by other gentlemen
here. I should suppose that, if the representatives of twelve
states, with many able lawyers among them, could not form
any unexceptionable mode, this Convention could hardly be
able to do it. As to the subject of religion, I thought what
had been said would fully satisfy that gentleman and every
other. No power is given to the general government to in-
terfere with it at all. Any act of Congress on this subject
would be a usurpation.
No sect is preferred to another. Every man has a right
to worship the Supreme Being in the manner he thinks
proper. No test is required. AH men of equal capacity and
integrity, are equally eligible to offices. Temporal violence
might make mankind wicked, but never religious. A test
would enable the prevailing sect to persecute the rest. I do
not suppose an infidel, or any such person, will ever be
chosen to any office, unless the people themselves be of the
same opinion. He says that Congress may establish eccle-
siastical courts. I do not know what part of the Constitu-
tion warrants that assertion. It is impossible. No such
power is given them. The gentleman advises such amend-
ments as would satisfy him, and proposes a mode of amend-
ing before ratifying. If we do not adopt first, we are no
more a part of the Union than any foreign power. It will
be also throwing away the influence of our state to propose
amendments as the condition of our ratification. If we
adopt first, our representatives will have a proportionable
weight in bringing al)out amendments, which will not be the
case if we do not adopt. It is adopted by ten states already.
The question, then, is, not whether the Constitution be good,
but whether we will or will not confederate with the other
states. The gentleman supposes that the liberty of the press
is not secured. The Constitution does not take it away.
SPAieiiT.] NORTH CAROLINA. 209
It says noth'mg of it, and can do nothing to injure it. Bux
ii is secured by the constitution of every state in the Union
in the most ample manner.
He objects to giving the government exclusive legislation
in a district not exceeding ten miles square, although the
previous consent and cession of the state within which it
may be, is required. Is it to be supposed that the represent-
atives of the people will make regulations therein dangerous
to liberty ? Is there the least color or pretext for saying: that
the militia will be carried and kept there for life ? Where
is there any power to do this? The power of calling forth
the militia is given for the common defence ; and can we
suppose that our own representatives, chosen for so short a
period, will dare to pervert a power, given for the general
protection, to an absolute oppression ? But the gentleman
has gone farther, and says, that any man who will complain
of their oppressions, or write against their usurpation, may
he deemed a traitor, and tried as such in the ten miles square,
without a jury. What an astonishing misrepresentation !
Why did not the gentleman look at the Constitution, and
see their powers ? Treason is there defined. It says, ex-
pressly, that treason against the United States shall consist
only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. Complaining, there-
fore, or writing, cannot be treason. [Here Mr.Lenoir rose,
and said he meant misprision of treason.] The same rea-
sons hold against that too. The liberty of the press being
secured, creates an additional security. Persons accused
cannot be tried without a jury ; for the same article provides
that **the trial of all crimes shall be by jury." They cannot
be carried to the ten miles square ; for the same clause adds,
*' and such trial shall be held in the state where the said
crimes shall have been committed." He has made another
objection, that land might not be taxed, and the other taxes
might fall heavily on the j>oor people. Congress has a
power to lay taxes, and no article is exempted or excluded.
The proportion of each state may be raised in the most con-
venient manner. The census or enumeration provided is
meant for the salvation and benefit of the Southern States..
It was mentioned that land ought to be the only object of
taxation. As an acre of land in the Northern States is worth
many acres in the Southern States, this would have greatly
VOL. IV. 27
210 DEBATES. [M'DowALi.
oppressed the latter. It was then judged that the number
of people, as therein provided, was the best criterion for fix-
ing the proportion of each state, and that proportion in each
state to be raised in the most easy manner for the people.
But he has started another objection, which I never heard
before — that Congress may call for men in proportion to the
number of negroes. The article with respect to requisitions
of men is entirely done away. Men are to be raised by
bounty. Suppose it had not been done away. The Eastern
States could not impose oh us a man for every black. It
was not the case during the war, nor ever could be. But the
quotas of men are entirely done away.
Another objection which he makes is, that the federal
courts will have cognizance of contracts between this state
and citizens of another state; and that public securities,
negotiated by our citizens to those of other states, will be
recoverable in specie in those courts against this state.
They cannot be negotiated. What do these certificates say ?
Merely that the person therein named shall, for a particular
service, receive so much money. They are not negotiable.
The money must be demanded for them in the name of those
therein mentioned. No other person has a right. There
can be no danger, therefore, in this respect. The gentle-
man has made several other objections ; but they have been
so fully answered and clearly refuted by several gentlemen in
the course of the debates, that I shall pass them by unnoticed.
I cannot, however, conclude without observing that I am
amazed he should call the powers of the general government
indefinite. It is the first time I heard the objection. I will
venture to say they are better defined than the powers of
any government he ever heard of.
Mr. J. M'DOWALL. Mr. Chairman, I was in hopes
that amendments would have been brought forward to the
Constitution before the idea of adopting it had been thought
of or proposed. From the best information, there is a great
pro}X)rtion of the people in the adopting states averse to it as
it stands. I collect my information from respectable author-
ity. I know the necessity of a federal government. I there-
fore wish this was one in which our liberties and privileges
were secured ; for I consider the Union as the rock of our
political salvation. I am for the strongest federal govern-
ment. A bill of rights ought to have been inserted, to ascer-
tain our most valuable and unalienable rights.
^H'DowALL.] NORTH CAROLINA. 211
The 1st clause of the 4th section gives the Congress an
Unlimited power over elections. This matter was not cleared
Xip to my satisfaction. They have full power to alter it from
one time of the year to another, so as that it shall be impos-
sible for the people to attend. They may fix the time in
winter, and the place at Edenton, when the weather will be*
so bad that the people cannot attend. The state govern-
ments will be mere boards of election. The clause of elec-
tions gives the Congress power over the time and manner
of choosing the Senate. I wish to know why reservation
was made of the place of choosing senators, and not also
of electing representatives. It points to the time when the
states shall be all consolidated into one empire. IVial by
jury is not secured. The objections against this want of
security have not been cleared up in a satisfactory manner.
It is neither secured in civil nor criminal cases. The federal
appellate cognizance of law and fact puts it in the power of
the wealthy to recover unjustly of the poor man, who is not
able to attend at such extreme distance, and bear such enor-
mous expense as it must produce. It ought ^o be limited so
as to prevent such oppressions.
I say the trial by jury is not sufficiently secured in crim-
inal cases. The very intention of the trial by jury is, that
the accused may be tried by persons who come from the
vicinage or neighborhood, who may be acquainted with his
character. The substance, therefore, of this privilege is
taken away.
By the power of taxation, every article capable of being
taxed may be so heavily taxed that the people cannot bear
the taxes necessary to be raised for the support of their state
governments. Whatever law we may make, may be re-
pealed by their laws. All these things, with others, tend to
make us one general empire. Such a government cannot
be well regulated. When we are connected with the North-
ern States, who have a majority in their favor, laws may l)e
made which will answer their convenience, but will be
oppressive to the last degree upon the Southern States. They
differ in climate, soil, customs, manners, &c. A large ma-
jority of the people of this country are against this Constitu-
tion, l)ecause they think it replete with dangerous defects.
They ought to be satisfied with it before it is adopted ; oth-
erwise it cannot operate happily. Without the affections of
212 DEBATES. [L4vcA8Tim.
the pcfiple, it will not have sufficient energy. To enforce
its execution, recourse must be bad to arms and bloodshed.
How much better would it be if the peo[de were satisfied
with it ! From all these considerations, I now rise to oppose
its adoption ; for I never will agree to a government that
tends to the destruction of the liberty of the people.
Mr. WILSON wished that the Constitution had excluded
Popish priests from offices. As there was no test required,
and nothing to govern them but honor, he said that when
their interest clashed with their honor, the latter would fly
before the former.
Mr. LANCASTER. Mr. Chairman, it is of the utmost
importance to decide this great question with candor and
deliberation. Every part of this Constitution has been elu-
cidated. It hath been asserted, by several worthy gentlemen,
that it is the most excellent Constitution that ever was formed.
I could wish to be of that opinion if it were so. The powers
vested therein were very extensive. I am apprehensive that
the power of taxation is unlimited. It expressly says that
Congress shall have the power to lay taxes, &c. It is obvi-
ous to me that the power is unlx>unded, and I am apprehen*
sive that they may lay taxes too heavily on our lands, in
order to render them more productive. The amount of the
taxes may be more than our lands will sell for. It is obvious
that the lands in the Northern States, which gentlemen sup-
pose to be more populous than this country, are more valu-
able and better cultivated than ours ; yet their lands will be
taxed no higher than our lands. A rich man there, from
report, does not possess so large a body of land as a poor
man to the southward. If so, a common poor man here
will have much more to pay for poor land, than the rich man
there for land of the best quality. This power, being neces-
sarily unequal and oppressive, ought not to be given up. I
shall endeavor to be as concise as possible. We find that
the ratification of nine states shall be sufficient for its estab-
lishment between the states so ratifying the same. This, as
has been already taken notice of, is a violation of the Con-
federation. We find that, by that system, no alteration was
to take place, except it was ratified by every state in the
Union. Now, by comparing this last article of the Consti-
tution to that part of the Confederation, we find a most fla-
grant violation. The Articles of Confederation were sent
Xawca§tb«,] north CAROLINA. 2 IS
out ivith all solemnity on so solemn an occasion, and werb
to be always binding on the states ; but, to our astonish-
ment, we see that nine states may do away the force of the
whole. I think, without exaggeration, that it will be looked
upon, by foreign nations, as. a serious and alarming change.
How do we know that, if we propose amendments, they
shall be obtained after actual ratification P May not these
amendments be proposed with equal propriety, and more
safety, as the condition of our adoption ? If they violate
the 13th article of the Confederation in this manner, may
they not, with equal propriety, refuse to adopt amendments,
although agreed to and wished for by two thirds of the
states r This violation of the old system is a precedent for
such proceedings as these. That would be a violation
destructive to our felicity. We are now determining a
question deeply affecting the happiness of millions yet un-
born. It is the policy of freemen to guard their privileges.
Let us, then, as far as we can, exclude the possibility of
tyranny. The President is chosen for four years ; the sen-
ators for six years. Where is our remedy for the most
flagrant abuses? It is thought that North Carolina is to
have an opportunity of choosing one third of their senatorial
members, and all their representatives, once in two years.
This would be the case as to senators, if they should be of
the first class ; but, at any rate, it is to be after six years.
But if they deviate from their duty, they cannot be excluded
and changed the first year, as the members of Congress can
now by the Confederation. How can it be said to be safe
to trust so much power in the hands of such men, who are
not responsible or amenable for misconduct ?
As it has been the policy of every state in the Union to
guard elections, we ought to be more punctual in this case.
The members of Congress now may be recalled. But in this
Constitution they cannot be recalled. The continuance of
the President and Senate is too long. It will be objected,
by some gentlenfen, that, if they are good, why not continue
them ? But I would ask, How are we to find out whether
they be good or bad ? The individuals who assented to any
bad law are not easily discriminated from others. They
will, if individually inquired of, deny that they gave it their
approbation ; and it is in their power to conceal their trans-
actions as long as they please.
2}'% DEBATES. [Lancastkb.
Th/*.re is also the President's conditional negative on the
taws. After a bill is presented to him, and he disapproves
of it, it is to be sent back to that house where it originated,
for their consideration. Let us consider the effects of this
for a few moments. Suppose \J originates in the Senate,
and passes there by a large majority ; suppose it passes in
the House of Representatives unanimously; it must be trans-
mitted to the President. If he objects, it is sent back to
the Senate ; if two thirds do not agree to it in the Senate,
what is the conseijuence ? Does the House of Representa
tives ever hear of it afterwards ? No, it drops, because it
must be passed by two thirds of both houses ; and as only
a majority of the Senate agreed to it, it cannot become a
law. This is giving a power to the President to over-
rule fifteen members of the Senate and every member of the
House of Representatives. These are my objections. I
look upon it to be unsafe to drag each other from the most
remote parts in the state to the Supreme Federal Court,
which has appellate jurisdiction of causes arising under the
Constitution, and of controversies between citizensof different
stales. I grant, if it be a contract between a citizen of
Virginia and a citizen of North Carolina, the suit must be
brought here ; but may they not appeal to the Supreme
Court, which has cognizance of law and fact? They may
be carried to Philadelphia. They ought to have limited the
sum on which appeals should lie. They may appeal on a
suit for only ten pounds. Such a trifling sum as this would
be paid by a man who thought he did not owe it, rather
than go such a distance. It would be prudence in him so
to do. This would be very oppressive.
I doubt my own judgment; experience has taught me to
be diffident ; but I hope to be excused and put right if I be
mistaken.
The power of raising armies is also very exceptionable. I
am not well acquainted with the government of other coun-
tries, but a man of any information knows that the king of
Great Britain cannot raise and support armies. He may
call for and raise men, but he has no money to support them.
But Congress is to have power to raise and support armies.
Forty thousand men from North Carolina could not be re-
fused without violating the Constitution. I wish amend-
ments to these parts. I agree it is not our business to
Lancaster.! NORTH CAROLINA. 215
inquire whether the continent be invaded or not. The
general legislature ought to superintend the care of this
Treaties are to be the supreme law of the land. This has
been sufficiently discussed : it must be amended some way
or other. If the Constitution be adopted, it ought to be
the supreme law of the land, and a perpetual rule for
the governors and governed. But if treaties are to be the
supreme law of the land, it may repeal the laws of different
states, and render nugatory our bill of rights.
As to a religious test, had the article which excludes it
provided none but what had been in the states heretofore,
I would not have objected to it. It would secure rehgion.
Religious liberty ought to be provided for. I acquiesce with
the gentleman, who spoke, on this point, my sentiments
better than I could have done myself. For my part, in re-
viewing the qualifications necessary for a President, I did
not suppose that the pope could occupy the President's chair.
But let us remember that we form a government for millions
not yet in existence. I have not the art of divination. In
the course of four or five hundred years, I do not know how
it will work. This is most certain, that Papists may occu-
py that chair, and Mahometans may take it. I see nothing
against it. There is a disqualification, I believe, in every
state in the Union — it ought to be so in this system. It is
said that all power not given is retained. I find they
thought proper to insert negative clauses in the Constitu-
tion, restraining the general government from the exercise
of certain powers. These were unnecessary if the doctrine
be true, that every thing not given is retained. From the
insertion of these we may conclude the doctrine to be falla-
cious. Mr. Lancaster then observed, that he would disap-
prove of the Constitution as it then stood. His own feel-
ings, and his duty to his constituents, induced him to do so
Some j)eople, he said, thought a delegate might act inde-
pendently of the people. He thought otherwise, and that
every delegate was bound by their instructions, and if he
did any thing repugnant to their wishes, he betrayed his
trust. He thought himself bound by the voice of the peo-
ple, whatever other gentlemen might think. He would
cheerfully agree to adopt, if he thought it would be of gen-
eral utility ; but as he thought it would have a contrary
effect, and as he believed a great majority of the peopltj
were against it, he would oppose its adoption.
216 DEDfATES. [Johnston.
Mr. WILLIE JONES was against ratifying in the man
ner proposed. He had attended, he said, with patience to
the debates of the speakers on both sides of the question.
One party said the Constitution was all perfection. The
other party said it wanted a great deal of perfection. For
bis part, he thought so. He treated the dangers which were
held forth in case of non-adoption, as merely ideal and fan-
ciful. After adding other remarks, he moved that the pre-
vious question might be put, with an intention, as he said,
if that was carried, to introduce a resolution which he had
in his hand, and which he was then willing to read if gen-
tlemen thought proper, stipulating for certain amendments
to be made previous to the adoption by this state.
Gov. JOHNSTON begged gentlemen to recollect that'
the proposed amendments could not be laid before the other
states unless we adopted and became part of the Union.
Mr. TAYLOR wished that the previous question might
be put, as it would save much time. He feared the motion
first made was a manoeuvre or contrivance to impose a con-
stitution on the people which a majority disapproved of.
Mr. IREDELL wished the previous shoula be withdrawn,
and that they might debate the first question. The great
importance of the subject, and the respectability of the gen-
tleman who made the motion, claimed more deference and
attention than to decide it in the very moment it was in-
troduced, by getting rid of it by the previous question. A
decision was now presented in a new form by a gentleman
of great influence in the house, and gentlemen ought to
have time to consider before they voted precipitately upon it
A desultory conversation now arose. Mr. J. GALLO-
WAY wished the question to be postponed till to-morrow
morning.
Mr. J. M'DOWALL was for immediately putting the
question. Several gentlemen expatiated on the evident ne-
cessity of amendments.
Gov. JOHNSTON declared that he disdained all ma-
noeuvres and contrivance ; that an intention of imposing an
improper system on the people, contrary to their wishes, was
unworthy of any man. He wished the motion to be fairly
and fully argued and investigated. He observed that the
very motion before them proposed amendments to be made :
that they were proposed as they had been in other states
AHBj NORTH CAROUNA. 217
^e wished, therefore, that the motion for the previous ques-
tion should be withdrawn.
Mr. WILLIE JONES could not withdraw his motion.
Gentlemen's arguments, he said, had been listened to at-
tentively, but he believed no person had changed his opin-
ion. It was unnecessary, then, to argue it again. His
motion was not conclusive. He only wished to know what
ground they stood on — whether they should ratify it un-
conditionally or not.
Mr. SPENCER wished to hear the arguments and rea-
sons for and against the motion. Although he was con-
vinced the house wanted amendments, and that all had
nearly determined the question in their own minds, he was
for hearing the question argued, and had no objection to the
postponement of it till to-morrow.
Mr. IREDELL urged the great importance of considera-
tion ; that the consequence of the previous question, if car-
ried, would be an exclusion of this state out of the Union.
He contended that the house had no right to make a condi-
tional ratification ; and, if excluded from the Union, they
could not be assured of an easy admission at a future day,
though the impossibility of existin^!: out of the Union must be
obvious to every thinking man. The gentleman from Hali-
fax had said that his motion would not be conclusive. For
his part, he was certain it would be tantamount to immediate
decision. He tmsted gentlemen would consider the pro-
priety of debating the first motion at large.
Mr. PERSON observed, that the previous question would
produce no inconvenience. The other party, he said, had
all the debating to themselves, and would probably have it
again, if they insisted on further argument. He saw no pro-
priety in putting it off till to-morrow, as it was not customary
ibr a committee to adjourn with two questions before them.
Mr. SHEPHERD declared that, though he had made up
his mind, and believed other gentlemen had done so, yet he
had no objection to giving gentlemen an opportunity of dis-
playing their abilities, and convincing the rest of their error
if they could. He was for putting it off till to-morrow.
Mr. DAVIE took notice that the gentleman from Gran
ville had frequently u^ed ungenerous insinuations, and had
taken much pains out of doors to irritate the minds of his
countrymen against the Constitution. He called upon gen-
VOL IV. 28 19
'2 1 8 DEBATES. [Iredeli.
ileraen to act openly and above.board, adding that a contrary
corduct, on this occasion, was extremely despicable. He
came thither, he said, for the common cause of his country,
and he knew no party, but wished the business to be con-
ducted with candor and moderation. The previous question
he thought irregular, and that it ought not to be put till the
other question was called for ; that it was evidently in-
tended to preclude all further debate, and to precipitate the
committee upon the resolution which it had been suggested
was immediately to follow, which they were not then ready
to enter upon ; that he had not fully considered the conse-
quences of a conditional ratification, but at present they ap-
peared to him alarmingly dangerous, and perhaps equal to
those of an absolute rejection.
Mr. WILLIE JONES observed, that he had not intended
to take the house by surprise ; that, though he had his mo-
tion ready, and had heard of the motion which was intended
for ratification, he waited till that motion should be made,
and had afterwards waited for some time, in expectation that
:he gentleman from Halifax, and the gentleman from Eden-
ton, would both speak to it. He had no objection to ad-
journing, but his motion would be still before the house.
Here there was a great cry for the question.
Mr. IREDELL. [The cry for the question still con
tinuiug.J Mr. Chairman, I desire to be heard, notwith
standing the cry of "The question! the question!" Gen
tiemen have no right to prevent any member from speaking
to it, if he thinks fit. [The house subsided into order.] Un-
important as 1 may be myself, my constituents are as respect-
able as those of any member in the house. It has, indeed,
sir, been my misfortune to be under the necessity of trou-
bling the house much oftener than I wished, owing to a cir-
cumstance which 1 have greatly regretted — that so few gen-
tlemen take a share in our debates, though many are capable
of doing so with propriety. I should have spoken to the
question at large before, if I had not ftilly depended on some
other gentleman doing it; and therefore 1 did not prepare
myself by taking notes of what was said. However, I beg
leave now to make a few observations. I think this Consti-
tution safe. I have not heard a single objection which, in
my opinion, showed that it was dangerous. Some particu-
lar parts have been objected to, and amendments pointed out.
1REDELL.J NORTH CAROLINA. 219
Though I think it perfectly safe, yet, with re.spect to aiiv
ameudments which do not destroy the substance of the Con-
stitution, but will tend to give greater satisfaction, I should
approve of them, because I should prefer that system whicli
would most tend to conciliate all parties. On these princi
pies, I am of opinion that some amendments should i)e
proposed.
The general ground of the objections seems to be, that the
power proposed to the general government may be abused
If we give no power but such as may not be abused, we
shall give none ; for all delegated powers may be abused.
There are two extremes equally dangerous to liberty. These
are tyranny and anarchy. The medium between these two
is the true government to protect the people. In my opinion,
this Constitution is well calculated to guard against both
these extremes. The possibility of general abuses ought not
to be urged, but particular ones pointed out. A gentleman
who spoke some time ago (Mr. Lenoir) observed, that the
government might make it treason to write against the most
arbitrary proceedings. He corrected himself afterwards, by
saying he meant misprision of treason. But in the correction
he committed as great a mistake as he did at first. Where
is the power given to them to do this ? They have power
to define and punish piracies and felonies committed on the
high seas, and offences against the law of nations. They
have no power to define any other crime whatever. This
will show how apt gentlemen are to commit mistakes. I am
convinced, on the part of the worthy member, it was not de-
signed, but arose merely from inattention.
Mr. LENOIR arose, and declared, that he meant that
those punishments might be inflicted by them within the
ten miles square, where they would have exclusive powers
of legislation.
Mr. IREDELL continued : They are to have exclusive
power of legislation, — but how ? Wherever they may
have this district, they must possess it from the authority of
the state within which it lies ; and that state may stipulate
the conditions of the cession. Will not such state take care
of the liberties of its own people ? What would be the
consequence if the seat of the government of the United
States, with all the archives of America, was in the power
of any one particular state ? Would not this be most un-
220 DEBATES [Iredbll
safe and humiliating ? Do we not all remember that, in the
year 1783, a band of soldiers went and insulted Congress ?
The sovereignty of the United States was treated with in-
dignity. They applied for protection to the state they re-
sided in, but could obtain none. It is to be hoped such a
disgraceful scene will never happen again ; but that, for the
future, the national government will be able to protect
itself. The powers of the government are particularly
enumerated and defined : they can claim no others but such
as are so enumerated. In my opinion, they are excluded as
much from the exercise of any other authority as they could
be by the strongest negative clause that could be framed.
A gentleman has asked. What would be the consequence if
they had the power of the purse and sword? I ask. In
what government under heaven are these not given up to
some authority or other ? There is a necessity of giving
both the purse and the sword to every government, or else it
cannot protect the people.
But have we not sufficient security that those powers
shall not he abused ? The immediate power of the purse is
in the immediate representatives of the people, chosen every
two years, who can lay no tax on their constituents but what
they are subject to at the same time themselves. The
power of taxation must be vested somewhere. Do the com-
mittee wish it to be as it has been ? Then they must suffer
the evils which they have done. Requisitions will be of no
avail. No money will be collected but by means of military
force. Under the new government, taxes will probably be
much lighter than they can be under our present one. The
impost will afford vast advantages, and greatly relieve the
people from direct taxation. In time of peace, it is sup-
posed by many, the imposts may be alone sufficient; but in
the time of war, it cannot be ex[)ected they will. Our ex-
penses would be much greater, and our ports might be
blocked up by the enemy's fleet. Think, then, of the ad-
vantiig;e of a national government possessed of energy and
credit. Could government borrow money to any advantage
without the power of taxation ? If they could secure funds,
and wanted immediately, for instance, £100,000, they
might borrow this sum, and immediately raise only money to
pay the mterest of it. If they could not, the £100,000
must be instantly raised, however d stressing to the people,
TiEOBLu] NORTH CAROLINA. ??!
or our country perhaps overrun by the enemy. Do not gei^-
tlemen see an immense difference between the two case? ^
It is said that there ought to be jealousy in mankind. }
admit it as far as is consistent with prudence ; but unlimitt J
jealousy is very pernicious.
We must be contented if powers be as well guarded « i
the nature of them will permit. In regard to amendin ^
before or after the adoption, the difference is very great. \
beg leave to state my idea of that difference. I mentione ^
one day before, the adoption by ten states. When I did s •,
it was not to influence any person with respect to the meri $
o{ the Constitution, but as a reason for coohiess and deli» •
eration. In my opinion, when so great a majority of tl e
American people have adopted it, it is a strong evidence v^
its favor; for it is not probable that ten states would ha*^e
agreed to a bad constitution. If we do not adopt, we 9 e
no longer in the Union with the other states. We ought o
oonsider seriously before we determine our connection w h
t-hem. The safety and happiness of this state depend up ax
it. Without that union, what would have been our condit> m
»iow ? A striking instance will point out this very clear y.
-At the beginning of the late war with Great Britain, the F ur-
liament thought proper to stop all commercial intercou se
^%vith the American provinces. They passed a general prohib-
itory act, from which New York and North Carolina were at
Crst excepted. Why were they excepted ? They had b<«n
^LS active in opposition as the other states ; but this was an
expedient to divide the Northern from the Middle States, and
to break the heart of the Southern. Had New York and
^orth Carolina been weak enough to fall into this snare we
)robably should not now have been an independent people.
Mr. Person called to order, and intimated that the gen-
tleman meant to reflect on the opposers of the Constitution,
as if they were friendly to the British interest. Mr. Ire-
dell warmly resented the interruption, declaring he was
perfectly in order, that it was disorderly to interrupt him ;
and, in respect to Mr. Person's insinuation as to his in-
tention, he declared, in the most solemn manner, he had
no such, being well assured the opposers of the Constitution
were equally friendly to the independence of America as its
supporters. He then proceeded :]
I say, they endeavored to divide us. North Carolina and
222 DEBATES. [Iredeix.
•
New York had too much sense to be taken in by their arti-
fices. Union enabled us then to defeat their endeavors:
union will enable us to defeat all the machinations of our
enemies hereafter. The friends of their country must lament
our present unhappy divisions. Most free countries have lost
their liberties by means of dissensions among themselves.
They united in war and danger. When peace and apparent
security came, they split into factions and parties, and thereby
became a prey to foreign invaders. This shows the neces-
sity of union. In urging the danger of disunion so strongly,
I beg leave again to say, that I mean not to reflect on any
gentleman whatsoever, as if his wishes were directed to so
wicked a purpose. I am sure such an insinuation as the gen-
tleman from Granville supposed I intended, would be unjust,
as I know some of the warmest opposers of Great Britain
are now among the warmest opponents of the proposed Con-
stitution. Such a suggestion never entered my head ; and 1
can say with truth that, warmly as I am attached to this
Constitution, and though I am convinced that the salvation
of our country depends upon the adoption of it, I would not
procure its succ(*ss by one unworthy action or one ungen-
erous word. A gentleman has said that we ought to deter
mine in the same manner as if no state had adopted the
Constitution. The general principle is right ; but we ought
to consider our peculiar situation. We cannot exist by our-
selves. If we imitate the examples of some respectable
states that have proposed amendments subsequent to their
ratification, we shall add our weight to have these amend-
ments carried, as our representatives will be in Congress to
enforce them. Gentlemen entertain a jealousy of the East-
ern States. To withdraw ourselves from the Southern
States will be increasing the northern influence. The loss
of one state may be attended with particular prejudice. It
will be a good while before amendments of any kind can
take place; and in the mean time, if we do not adopt, we
shall have no share or agency in their transactions, though
we may be ultimately bound by them. The first session of
Congress will probably be the most important of any for
many years. A general code of laws will then be estab-
lished in execution of every power contained in the Consti-
tution. If we ratify, and propose amendments, our repre-
sentatives will be there to act in this important business. If
Johnston.] NORTH CAROLINA. 223
we do not, our interest may suffer ; nor will the system be
afterwards altered merely to accommodate our wishes. Be-
sides that, one house may prevent a measure from taking
place, but boih must concur in repealing it. I therefore
think an adoption proposing subsequent amendments far
safer and more desirable than the other mode ; nor do I
doubt that every amendment, not of a local nature, nor
injuring essentially the material power of the Constitution,
but principally calculated to guard against misconstruction
the real liberties of the people, will be readily obtained.
The previous question, after some desultory conversation,
was now put: for it, 183; agiiinst it, 84; majority in favor
of the motion, 99.
Thursday, Juli/ 31, 1788.
Gov. JOHNSTON. Mr. Chairman, it appears to me that,
if the motion made yesterday, by the gentleman from Hali-
fax, be adopted, it will not answer the intention of the
people. It determines nothing with respect to the Consti-
tution. We were sent here to determine upon it. [Here
his excellency read the resolution of the Assembly under
which the Convention met.] If we do not decide upon the
Constitution, we shall have nothing to report to Congress.
We shall be entirely out of the Union, and stand by our-
selves. I wish gentlemen would pause a moment before
they decide so awful a question. To whom are we to refer
these amendments which are to be proposed as the condition
of our adoption ? The present Congress have nothing to do
with them. Their authority extends only to introduce the
new government, not to receive any proposition of amend-
ments. Shall we present them to the new Congress ? In
what manner can that be done ? We shall have no repre-
sentatives to introduce them. We may indeed appoint
ambassadors to the United States of America, to represent
what scruples North Carolina has in regard to their Consti-
tution. I know no other way. A number of states have
proposed amendments to the Constitution, and ratified in
the mean time. These will have great weight and influence
in Congress, and may prevail in getting material amend-
ments proposed. We shall have no share in voting upon
any of these amendments ; for, in my humble opinion, we
shall be entirely out of the Union, and can be considered
224 DEBATES. [Johnston
only as a foreign power. It is true, the United States may
admit us hereafter. But they may admit us on terms un-
equal and disadvantageous to us. In the mean time, many
of their laws, by which we shall be hereafter bound, may be
particularly injurious to the interests of this state, as we
shall have no share in their formation. Gentlemen say they
will not be influenced by what others have done. I must
confess that the. example of great and good men, and wise
states, has great weight with me.
It is said there is a probability New York will not adopt
this Constitution. Perhaps she may not. But it is gen-
erally supposed that the principal reason of her opposing it
arises from a selfish motive. She has it now in her power
to tax indirectly two contiguous states. Connecticut and
New Jersey contribute to pay a great part of the taxes of
that state, by consuming large quantities of goods, the duties
of which are now levied for the benefit of New York only.
A similar policy may induce the United States to lay restric-
tions on us, if we are out of the Union. These considera-
tions ought to have great weight with us. We can derive
very little assistance from any thing New York will do on
our behalf. Her views are diametrically opposite to ours.
That state wants all her imposts for her own exclusive
support. It is our interest that all imposts should go into
the general treasury. Should Congress receive our com-
missioners, it will be a considerable time before this business
will be decided on. It will be some time after Congress
meets before a convention is appointed, and some time will
elapse before the convention meets. What they will do,
will be transmitted to each of the states, and then a conven-
tion, or the legislature, in each state, will have to ratify it
ultimately. This will probal)ly take up ei^ihteen months or
two years. In the mean time, the national government is
going on. Congress will ap[)oint all the great officers, and
will proceed to make laws and form regulations for the
future government of the United States. This state, during
that time, will have no share in their proceedings, or any
negative on any business before them. Another incon-
venience which will arise is this: we shall be deprived of
the benefit of the impost, which, under the new government,
is an additional fund ; all the states having a common right
to it. By being in the Union we should have a right to our
Jones.] NORTH CAROLINA. 22t}
proportionate share of all the duties and imposts collected in
all the stales, l^ut by adopting this resolution, we shall
lose the benefit of this, which is an object worthy of atten-
tion. Upon the whole, I can see no possible good that will
result to this state from following the resolution before us.
1 have not the vanity to think that any reasons I offer will
have any weight. But I came from a respectable county
to give my reasons for or against the Constitution. They
expect them from me, and to suppress them would be a
violation of my duty.
Mr. WILLIE JONES. Mr. Chairman, the gentleman
last up has mentioned the resolution of Congress now lyin{»
before us, and the act of Assembly under which we mei
here, which says that we should deliberate and determine oii
the Constitution. What is to be inferred from that ? Aro
we to ratify it at all events ? Have we not an equal right
to reject ? We do not determine by neither rejecting noi
adopting. It is objected we shall be out of the Union. Si>
I wish to be. We are left at liberty to come in at any time
It is said we shall suffer a g^reat loss for want of a share of
the impost. I have no doubt we shall have it when we come
in, as much as if we adopted now. I have a resolution in
my pocket, which I intend to introduce if this resolution is
carried, recommending it to the legislature to lay an im-
post, for the use of Congress, on goods imported into this
state, similar to that which may be laid by Congress
on goods imported into the adopting states. This shows
the committee what is my intention, and on what foot-
ing we are to be. This being the case, I will forfeit my
life that we shall come in for a share. It is said that all the
offices of Congress will be filled, and we shall have no share
in appointing the officers. This is an objection of very little
importance. Gentlemen need not be in such haste. If left
eighteen months or two years without offices, it is no great
cause of alarm. The gentleman further said that we could
send no representatives, but must send ambassadors to Con-
gross, as a foreign power. I assert the contrary ; and that,
whenever a convention of the states is called, North Caro-
lina will be called upon like the rest. I do not know what
these gentlemen would desire.
I am very sensible that there is a great majority against
the Constitution. If we take the question as they propose
VOL. IV. 29
226 IXBBATES. [JouNBTOK
they kuow it would l)e rejected, and bring on us all the
dreadful conse<|uence$ which they feelingly foretell, bat
wliich can never in the least alarm me. I have endeavored
to fall in with their opinions, but could not. We have a
right, in plain terms, to refuse it if we think proper. I have,
in my proposition, adopted, word for word, the Virginia
amendments, with one or two additional ones. We run no
risk of being excluded from the Union when we think proper
to come in. Virginia, our next neighbor, will not oppose
our admission. We have a common cause with her. She
wishes the same alterations. We are of the greatest imj)or-
tance to her. She will have great weight in Congress ; and
there is no doubt but she will do every thing she can to bring
us into the Union. South Carolina and Georgia are deeply
interested in our being admitted. The Creek nation would
overturn these two states without our aid. They cannot
exist without North Carolina. There is no doubt we shall
obtain our amendments, and come into the Union when we
please. Massachusetts, New Hampshire, and other states,
have proposed amendments. New York will do also, if she
ratifies. There will be a majority of the states, and the
most respectal)le, im[)ortant, and extensive states also, desi-
rous of amendments, and favorable to our admission.
As great names have been mentioned, I beg leave to men-
tion the authority of Mr. Jefferson, whose great abilities and
respectability are well known. When the Convention sat
in Richmond, in Virginia, Mr. Madison received a letter from
him. In that letter he said he wished nine states would
adopt it, not because it deserved ratification, but to preserve
the Union. But he wished that the other four states would
reject it, that there might be a certainty of obtaining amend-
ments. Congress may go on, and take no notice of our
amendments; but I am confident they will do nothing of
importance till a convention be called. If I recollect rightly,
amendments may be ratified either by conventions or the
legislatures of the states. In either case, it may take up
about eighteen months. For my part, I would rather be
eighteen years out of the Union than adopt it in its present
defective form.
Gov. JOHNSTON. Mr. Chairman, I wish to clear my-
self from the imputation of the gentleman last up. If any
part of my conduct warrants his aspersion, — if ever I hunted
SlPBiccm.] NORTH CARXH^INA. 227
after offices, or sought public favors to promote private inter-'
est, — let the instances be pointed out. If I know mjse}i
I never did. It is easy for any man to throw out ilHbera#
and ungenerous insinuations. I have no view to offices unde
this Constitution. My views are much humbler. When f
spoke of Congress establishing offices, 1 meant great offices,
the establishment of which might affect the interests of the
states ; and I added that they would proceed to make lawsr,
deeply affecting us, without any influence of our own. A%
to the appointment of the officers, it is of no importance W
me who is an officer, if he be a good man.
Mr. JONES replied, that in every publication one might
see ill motives assigned to the opposers of the Constitutiott*^
One reason assigned for their opposition was, that they feareA
the loss of their influence, and diminution of their importance.*
He Sdid, that it was fair its opposers should be permitted to
retort, and assign a reason equally selfish for the conduct of
its friends* Expectation to offices might influence them, asr
well as the loss of office and influence miglu bias the others.
He intended no allusion to that gentleman, for whom he de-
clared he had the highest respect.
Mr. SPENCER rose in support of the motion of the gen-
tleman from Halifax. He premised, that he wished no res>-
olution to be carried without the utmost deliberation and
candor. He thought the proposition was couched in such
modest terms as could not possiblj' give offence to the other
states ; that the amendments it proposed were to be laid be-
fore Congress, and would probably be admitted, as they
were similar to those which were wished for and proposecl
by sever^tl of the adopting states. He always thought it
more proper, and agreeable to prudence, to propose amend*-
ments previous, rather than subsequent, to ratification. He
said thnt, if two or more persons entered into a copartnership,
and employed a scrivener to draw up the articles of copart-
nership in a particular form, and, on reading them, they found
them to be erroneous, — it would be thought very strange
if any of them should say, "Sign it first, and we shall have
it altered hereafter." If it should be signed befiore altera^
tion, it would be considered as an act of indiscretion. Asv
therefore, it was a principle of prudence, in matters of prU
rate property, not to assent to any obligation till its errors:
were removed, he thought the principle infinitely more neces*
2id DEBATES. [Ibedell
sarj to be at) ended to in a matter which concerned such a
number of people, and so many millions yet unborn. Gen-
tlemen said they should be out of the Union. He observed,
that they were before confederated with the other states by
^ solemn compact, which was not to be dissolved without
the consent of every state in the Union. North Carolina
had not assented to its dissolution. * If it was dissolved, it
was not their fault, but that of the adopting states. It was
a maxim of law that the same solemnities were neces-
sary to destroy, which were necessary to create, a deed
or contract. He was of opinion that, if they should
be out of the Union by proposing previous amendments,
they were as much so now. If the adoption by nine
states enabled them to exclude the other four states, he
thought North Carolina might then be considered as excluded
But he did not think that doctrine well founded. On the
contrary, he thought each state might come into the Union
when she thought proper. He confessed it gave him some
concern, but he looked on the short exclusion of eighteen
months — if it might be called exclusion — as infinitely less
dangerous than an unconditional adoption. He expected
the amendments would be adopted, and when they were,
this state was ready to embrace it. No great inconvenience
could result from this. . [Mr. Spencer made some other re-
marks, but spoke too low to be heard.]
Mr. IREDELL. Mr. Chairman, in my opinion, this is a
very awful moment. On a right decision of this question
may possibly depend the peace and happiness of our country
for ages. Whatever be the decision of the house on this sub-
ject, it ought to be well weighed before it is given. We
ought to view our situation in all its consequences, and deter-
mine with the utmost caution and deliberation. It has l)een
suggested, not only out of doors, but during the course of the
debates, that, if we are out of the Union, it will be the fault
of other states, and not ours. It is true that, by the Articles
of Confederation, the consent of each state was necessary
for any alteration. It is also true that the consent of nine
states renders the Constitution binding on them. The un-
happy consequences of that unfortimate article in this Con-
federation produced the necessity of this article in the Con-
stitution. Every body knows that, through the peculiar
obstinacy of Rhode Island, many great advantages were lost
IREDELL.) NORTH CAROLINA. 22&
Notwithsiandiiig her weakness, she uniformly opposed everv
regulation for the benefit and honor of the Union at large.
The other states were driven to the necessity of providing
for their own security and welfare, without waiting for the
consent of that little state. The deputies from twelve states
unanimously concurred in opinion that the happiness of all
America ought not to be sacrificed to the caprice and obsti-
nacy of so inconsiderable a part.
It will often happen, in the course of human affairs, that
the policy which is proper on common occasions fails, and
that laws which do very well in the regular administration
of a government cannot stand when every thing is going
into confusion. In such a case, the safety of the community
must supersede every other consideration, and every subsist-
ing regulation which interferes with that must be departed
from, rather than that the people should be ruined. The
Convention, therefore, with a degree of manliness which 1
admire, dispensed with a unanimous consent for the pres-
ent change, and at the same time provided a permanent
remedy for this evil, not barely by dispensing with the con-
sent of one member in future alterations, but by making the
consent of nine sufficient for the whole, if the rest did not
agree, considering that the consent of so large a number
ought in reason to govern the whole ; and the proportion
was taken from the old Confederation, which in the most
important cases required the consent of nine, and in every
thing, except the alteration of the Constitution, made that
number sufficient. It has been objected, that the adoption
of this government would be improper, because it would in-
terfere with the oath of allegiance to the state. No oath
of allegiance requires us to sacrifice the safety of our coun-
try. When the British government attempted to establish
a tyranny in America, the people did not think their oath
of allegiance bound them to submit to it. I had taken
that oath several times myself, but had no scruple to oppose
their tyrannical measures. The great principle is. The safe-
ty of the people is the supreme law. Government was ori-
ginally instituted for their welfare, and whatever may be its
form, this ought to be its object. This is the fundamental
principle on which our government is founded. In othei
countries, the}' suppose the existence of original compact,
and infer that, if the sovereign violates his part of it, the
20
S9D DEBATES. flwDBU.
people have a right to resist. If he does not, the goven*
Hient must remain unchaiiginl, unless the sovereign conseaU
to ao alteration. In America, our governments have been
clearlj created by the people tliemselves. The same ao-
Chority that created can destroy ; and the people may un-
doubtedly change the government, not because it is ill ex*
ercised, but because they conceive another form will be more
conducive to their welfare. I have stated the reasons (at
departing from the rigid article in the Confederation requir-
ing a unanimous consent. We were compelled to do this,
or see our country ruined. In the manner of the dispensa-
tbn, the Convention, however, appear to have acted with
great prudence, in copying the example of the Confedera-
tion in all other particulars of the greatest moment, hw
authorizing nine states to bind' the whole. It is suggested,
indeed, that, though ten states have adopted this new Con-
stitution, yet, as they had no right to dissolve the old Ar-
ticles of Confederation, these still subsist, and the old Union
remains, of which we are a part. The truth of that sug-
gestion may well be doubted, on this ground : when the
principles of a constitution are violated, the constitution it<-
self is dissolved, or may be dissolved at the pleasure of the
parties to it Now, according to the Articles of Confeder-
ation, Congress had authority to demand money, in a certain
proportion, from the respective states, to answer the exigen-
cies of the Union. Whatever requisitions they made for that
purpose were constitutionally binding on the states. The
states had no discretion except as to the mode of raising
the money. Perhaps every state has committed repeated
violations of the demands of Congress. I do not believe it
was from any dishonorable intention in many of the states ;
but whatever was the cause, the fact is, such violations were
committed. The consequence is that, upon the principle I
have mentioned, (and in which I believe all writers agree,)
the Articles of Confederation are no longer binding. It is
alleged that, by making the consent of nine sufficient to form
a government for themselves, the first nine may exclude the
other four. This is a very extraordinary allegation. When
the new Constitution was proposed, it was proposed to the
thirteeen states in the Union. It was desired that all should
%gree, if possible ; but if that could not be obtained, they
took care that nine states might at least save themselves
IRBMU.] NORTH CAROUNA. 231
from destmctiou. £ach| undoubtedly, had a light on the
first proposition, because it was proposed to them all. The
only doubt can be, whether they had a right afterwards. In
my opinion, when any state has once rejected the Constitu-
tion, it cannot claim to come in afterwards as a matter of
right.
If it does not, in plain terms, reject, but refuses to accede
for the present, 1 think the other states may regard this as
an absolute rejection,, and refuse to admit us afterwards but
at their pleasure, and on what terms they please. Gentle-
men wish for amendments. On this subject, though we may
differ as to the necessity of amendments, I believe none will
deny the propriety of proposing some, if only for the pur-
pose of giving more general satisfaction. The question,
then, is, whether it is most prudent for us to come into the
Union immediately, and propose amendments, (as has been
done in the other states,) or to propose amendments, and be
out of the Union till all these be agreed to by the other
states. The consequences of either resolution I beg leave
to state. By adopting, we shall be in the Union with our
• sister states, which is the only foundation of our prosperity
and safety. We shall avoid the danger of a separation, a
danger of which the latent effects are unknown. So far
am I convinced of the necessity of the Union, that I would
[ive up many things against my own opinion to obtain it.
[f we sacrificed it by a rejection of the Constitution, or a
refusal to adopt, (which amounts, I think, nearly to the same
thing,) the very circumstance of disunion may occasion ani-
mosity l^etween us and the inhabitants of the other states,
which may be the means of severing us forever.
We shall lose the benefit which must accrue to the other
states from the new government. Their trade will flourish;
goods will sell cheap; their commodities will rise in value;
and their distresses, occasioned by the war, will gradually be
removed. Ours, for want of these advantages, will continue.
Another very material consequence will result from it : we
shall lose our share of the imposts in all the states, which,
under this Constitution, is to go into the federal treasury.
It is the particular local interest of this state to adopt, on this
account, more, perhaps, than that of any other member of the
Union. At present, all these imposts go into the respective
treasury of each state, and we well know our own are of little
t
232 DEBATES. [Ibedell.
conscq lence, compared to those of the other states in general
The gtaitltiman from Halifax (Mr. Jones) has offered an ex-
|)edient to prevent the loss oi our share of the impost. In
my opinion, that expedient will not answer, the purpose.
The amount of duties on goods imported into this state is
very little ; and if these resolutions are agreed to, it will be
less. I ask any gentleman whether the United States would
receive, from the duties of this state, so much as would be our
proportion, under the Constitution, of the duties on goods im-
ported in all the states. Our duties would be no manner of
compensation for such proportion. What would be the lan-
guage of Congress on our holding forth such an offer ? " If
you are willing to enjoy the benefits of the Union, you must
be subject to all the laws of it. We will make no partial
agreement with you." This would probably be their lan-
guage. I have no doubt all America would wish North
Carolina to be a member of the Union. It is of importance
to them. But we ought to consider whether ten states can
do longer without one, or one without ten. On a compe-
tition, which will give way ? The adopting states will say,
*' Other states had objections as well as you ; but rather than
separate, they agreed to come into the Union, trusting to the
Justice of the other states for the adoption of proper amend-
ments afterwards. One most respectable state, Virginia, has
pursued this measure, though apparently averse to the system
as it now stands. But you have laid down the condition on
which alone you will come into the Union. We must accede
to your particular propositions, or be disunited from you
altogether. Is it fit that North Carolina shall dictate to the
whole Union ? We may be convinced by your reason, but
our conduct will certainly not be altered by your resistance."
I beg leave to say, if Virginia thought it right to adopt and
propose aniendments, under the circumstances of the Con-
stitution at that time, surely it is much more so for us in our
present situation. That state, as was justly observed, is a
most powerful and respectable one. Had she held out, it
would have been a subject of most serious alarm. But she
thought the risk of losing the union altogether too dangerous
to be incurred. She did not then know of the ratification of
New Hampshire. If she thought it necessary to adopt, when
only eight states had ratified, is it not much more necessary
for us after the ratification by ten ? I do not say that we
Iredbll.] north CAROLINA. 233
ought servilely to imitate any example. But I may say, that
the examples of wise men and intelligent nations are worthy
of respect ; and that, in general, we may be much safer in
following than in departing from them. In my opinion, as
many of the amendments proposed are similar to amend-
ments recommended not only by Virginia, but by other states,
there is great probability of their being obtained. All the
amendments proposed, undoubtedly, will not be, nor I think
ought to be ; but such as tend to secure more effectually the
liberties of the people against an abuse of the powers granted
in all human probability, will ; for in such amendments all
the states are equally interested. The probability of such
amendments being obtained is extremely great ; for though
three states ratified the Constitution unanimously, there has
been a considerable opposition in the other states. In New
Hampshire, the majority was small. In Massachusetts, there
was a strong opposition. In Connecticut, the opposition was
about one third : so it was in Pennsylvania. In Maryland,
the minority was small, but very respectable. In Virginia,
they had little more than a bare majority. There was a
^powerful minority in South Carolina. Can any man pre-
tend to say that, thus circumstanced, the states would dis-
approve of amendments calculated to give satisfaction to the
people at large ? There is a very great probability, if not an
absolute certainty, that amendments will be obtained. The
interest of North Carolina would add greatly to the scale in
their favor. If we do not accede, we may injure the states
who wish for amendments, by withdrawing ourselves from
their assistance. We are not, at any event, in a condition
to stand alone. God forbid we should be a moment sepa-
rated from our sister states! If we are, we shall be in great
danger of a separation forever. I trust every gentleman will
pause before he contributes to so awful an event.
We have been happy in our connection with the other
states. Our freedom, independence, every thing dear to us,
has been derived from that union we are now going rashly
to dissolve. If we are to be separated, let every gentleman
well weigh the ground he stands on before he votes for the
separation. Let him not have to reproach himself, hereafter,
that he voted without due consideration for a measure that
proved the destruction of his country.
Mr. Iiedell then observed that there were insinuations
VOL IV 30
til DEBATES. [JoHW
thrown out, against those who favored the Coustitation,
that ihej had a view of getting offices and emoluments. He
said, he hoped no man thought him so wicked as to sacrifice
the interest of his country to private views. He declared, in
the most solemn manner, the insinuation was unjust and iH-
founded as to himself. He believed it was so with respect
to the rest. The interest and happiness of his country solely
governed him on that occasion. He could appeal to some
members in the house, and particularly to those who knew
him in the lower part of the country, that his disposition had
never been pecuniary, and that he had never aspired to
offices. At the beginning of the revolution, he said, he held
one of the best offices in the state under the crown — -an
office on which he depended for his support. His reflations
were in Great Britain ; yet, though thus circumstanced, 80
far was he from being influenced by pecuniary motives, or
emoluments of office, that, as soon as his situation would ad**
mit of it, he did not hesitate a moment to join the opposition
to Great Britain ; nor wotild the richest office of America
have tempted him to adhere to that unjust cause of the Brit
ish government. He apologized for taking up the time of
the committee ; but he observed, that reflections of that kind
were considered as having applied, unless they were taken
notice of. He attributed no unworthy motives to any gen
tieman in the house. He believed most of them wished to
pursue the interest of their country according to their own
ideas of it. He hoped other gentlemen would be equally
liberal.
Mr. WILLIE JONES observed, that he assigned un-
worthy motives to no one. He thought a gentleman had insin-
uated that the opposition all acted from base motives. He
was well assured that their motives were as good as those of
the other party, and he thought he had a right to retort by
showing that selfish views might influence as well on one
side as the other. He intended, however, no particular re^
flection on those two gentlemen who had applied the obser-
vation to themselves — for whom, he said, he had the highest
respect, and was sorry he had made the observation, as it
had given them pain. But if they were conscious that the
observation did not apply to them, they ought not to be of-
fended at it. He then explained the nature of the resolutions
he proposed ; and the plain question was, whether they
BLontywoRTH.] NORTH CAROLINA. 2S6
should adopt them or not. He was not afraid ihac North
Carolina would Bot be admitted at any time htroafter
Maryland, ke said, had not confederated for many years with
the other states ; yet she was considered in the mean time
as a member of the Union, was allowed as such to send her
proportion of men and money, and was at length admitted
into the confederacy, in 1781. This, he said, showed how
the adopting states would act on the present occasion.
North Carolina might come into the Union when she
pleased.
Gov. JOHNSTON made some observations as to the par-
ticular case of Maryland, but in too low a voice to be dis-
tinctly heard.
Mr. BLOOD WORTH observed, that the first convention
which met to consult on the necessary alterations of the Con-
federation, so as to make it efficient, and put the commerce
of the United States on a better footing, not consisting of a
<^fficient number from the diflferent states, so as to authorize
them to proceed, returned without effecting any thing ; but
proposed that another convention should be called, to have
more extensive powers to alter and amend the Confedera-
tion. This proposition of that convention was warmly op-
posed in Congress. Mr. King, from Massachusetts, insisted
OQ the impropriety of the measure, and that the existing
system ought to stand as it was. His arguments, he sakl,
were, that it might destroy the Confederation to propose al-
terations ; that the unanimous consent of all the states was
necessary to introduce those alterations, which could not pos-
sibly be obtained ; and that it would, therefore, be in vain to
attempt it. He wondered how gentlemen came to enter^
tain different opinions now. He declared he had listened
with attention to the arguments of the gentlemen on the
other side, and had endeavored to remove every kind of bias
from his mind ; yet he had heard nothing of sufficient weight
to induce him to alter his opinion. He was sorry that there
was any division on that important occasion, and wished they
could all go hand in hand.
As to the disadvantages of a temporary exclusion from the
Union, he thought them trifling. He asked if a few politi-
cal advantages could be put in competition with our lib-
erties. Gentlemen said that amendments would piobably
be obtained. He thought their arguments and reasons were
23o DEBATES [Davie
not so sure a method to obtain them as withholding tlieir
consent would be. He could not conceive that the adopting
states would take any measures to keep this state out of the
Union. If a right view were taken of the subject, he said
they could not be blamed in staying out of the Union till
amendments were obtained. The compact between the
states was violate 1 by the other states, and not by North
Carolina. Would the violating party blame the upright
party ? This determination would correspond with the opin-
ion of the gentleman who had written from France on the
subject. He would lay stress on no man's opinion, but the
opinion of that gentleman was very respectable.
Mr. DAVIE. Mr. Chairman, it is said that there is a
great majority against the Constitution, and in favor of the
gentleman's proposition. The object of the majority, I sup-
pose, is to pursue the most probable method of obtaining
amendments. The honorable gentleman from Halifax has
said this is the most eligible method of obtaining them. My
opinion is the very reverse. Let us weigh the probability
of both modes proposed, and determine with candor which
IS the safest and surest method of obtaining the wished-for
alterations. The honorable gentleman from Anson has said
that our conduct in adhering to these resolutions would be
modest. What is his idea or definition of modesty ? The
term must be very equivocal. So far from being modest, it
appears to me to be no less than an arrogant, dictatorial
proposal of a constitution to the United States of America.
We shall be no part of that confederacy, and yet attempt to
dictate to one of the most powerful confederacies in the
world. It is also said to be most agreeable to prudence. If
our real object be amendments, every man must agree that
the most likely means of obtaining them are the most prudent.
Four of the most respectable states have adopted the Consti-
tution, and recommended amendments. New York, (if she re-
fuses to adopt,) Rhode Island, and North Carolina, will be the
only states out of the Union. But if these three were added,
they would compose a majority in favor of amendments, and
might, by various means, compel the other states into the
measure. It must be granted that there is no way of ob-
taining amendments but the mode prescribed in the Consti-
tution ; two thirds of the legislatures of the states in the
co7ifederacy may require Congress to call a convention to
Oatie.] north carouna. 237
I
propose amendments, or the same proportion of both houses
may propose them. It will then be of no consequence that
we stand out and propose amendments. Without adoption
we are not a member of the confederacy, and, possessing no
federal rights, can neither make any proposition nor require
Congress to call a convention.
Is it not clear, however strange it may be, that we arc
^withholding our weight from those states who are of our own
opinion, and by a perverse obstinacy obstructing the ver^
measure we wish to promote ? If two thirds of l)oth houses
^re necessary to send forward amendments to the states,
%vould it not be prudent that we should be there, and add
c)ur vote to the number of those states who are of the same
sentiment ? The honorable member from Anson has likened
this business to a copartnership, comparing small things to
great. The comparison is only just in one respect : the
dictatorial proposal of North Carolina to the American con-
federacy is like a beggarly bankrupt addressing an opulent
company of merchants, and arrogantly telling them, " 1 wish
to be in copartnership with you, but the terms must be such
• as I please. ^^ What has North Carolina to put into the stock
with the other states ? Have we not felt our poverty ?
What was the language of Congress on their last requisition
on this state ? Surely gentlemen must rememl)er the pain-
ful terms in which our delinquency was treated. The gen-
deman has also said that we shall still be a part of the
Union, and if we be separated, it is not our fault. This is
an obvious solecism. It is our own faulty sir, apd the direct
consequence of the means we are now pursuing. North
Carolina stands foremost in the pint of delinquency,, and
has repeatedly violated the Confederation. The conduct of
this state has been among the principal causes which pro-
duced this revolution in our federal government. The honor-
able gentleman has also added, "that it was a rule in law that
the same solemnities were necessary to annul, which were
necessary to create or establish, a compact ; and that, as thir-
teen states created, so thirteen states must concur in the
dissohition of the Confederation." — This may be talking
like a lawyer or a judge, but it is very unlike a politician.
A majority is the rule of republican decisions. It was the
voice of a majority of the people of America that gave that
system validity, and the same authority can and will annul
'J3a DEBATES. [Jhtvtm.
it at anj time. Every man of common sense knows that
political power is political right. Lawyers may cavil and
quibble about the necessity of unanimity, but the true prin-
ciple is otherwise. In every republican community, the
majority binds the minority ; and whether confederated or sep-
arated, the principle will equally apply. We have no right
to come into the Union until we exercise the right of decid-
ing on the question referred to us. Adoption places us in
the Union — rejection extinguishes the right forever. The
scheme proposed by these gentlemen will certainly be con-
sidered as an absolute rejection ; it may amuse the people,
and answer a purpose here, but will not answer any purpose
there.
The honorable gentleman from Halifax asserts, " We may
come in when we please." The gentleman from New
Hanover, on the same side of the question, endeavored to
alarm and frighten us about the dangerous influence of the
Eastern States. If he deserves any credit, can we expect
they will let us into the Union, until they have accomplished
their particular views, and then but on the most disadvan-
tageous terms ? Commercial regulations will be one of the '
great objects of the first session of Congress, in which our
interests will be totally neglected. Every man must be con-
vinced of the importance of the first acts and regulations,
as they will probably give a tone to the policy of ages yet to
come; and this scheme will add greatly to the influence of
the Eastern States, and proportionably diminish the power
and interests. of the Southern States.
The gentleman says he has a project in his pocket, which,
he risks his life, will induce the other states to give us a share
of the general impost. I am fully satisfied, sir, this project
will not answer the purpose, and the forfeiture of his life will
be no compensation for irretrievable public loss. Every
man who knows the resources of our commerce, and our
situation, will be clearly convinced that the project cannot
succeed. The whole produce of our duties, both by land and
water, is very trifling. For several years past, it has not ex-
ceeded £10,000 of our own paper money. It will not lie
more — probably less — if we were out of the Union. The
whole proportion of this state of the public debts, except this
mere pittance, must be raised from the people by direct and
immediate taxation.
Spescer.] north CAROLINA. 239
But the fact is, sir, it cannot be raised, because it cannoc
be paid ; and without sharing in the general impost, we shall
never discharge our quota of the federal debt What does
he offer the other states ? The poor pitUmce I have men-
tioned. Can we suppose Congress so lost to every sense of
duty, interest, and justice ? Would their constituents permit
them to put their hands into their pockets to pay our debts ?
We have no equivalent to give them for it. As several
powerful states have proposed amendments, they will, no
doubt, be supported with zeal and perseverance, so that it is
not probable that the object of amendments will be lost.
We may struggle on for a few years, and render ourselves
wretched and contemptible ; but we must at last come into
the Union on their terms, however humiliating they may be.
The projeet on the table is little better tiian an absolute re-
jection, and is neither rational nor politic, as it cannot pro-
mote the end proposed.
Mr. LOCKE, in reply to Mr. Davie, expressed some ap-
prehensions that the Constitution, if adopted as it then stood,
would render the people poor and miserable. He thought it
would be very productive of expenses. The advantages of
the impost he considered as of little consequence, as he
thought all the money raised that way, and more, would be
swept away by courtly parade — the emoluments of the Pres-
ident, and other members of the government, the Supreme
Court, &c. These expenses would* double the impost, in
his opinion. They would render the states bankrupt.
The imposts, he imagined, would be inconsiderable. The
people of America began to import less foreign frippery.
Every wise planter was fond of home manufacture; The
Northern States minufacturod considerably, and he thought
manufactures would increase diiily. He thought a previous
ratification dangerous. The worst that could happen would
be, that we should be thrown out of the Union. He would
rather that shoild be the case, than embrace a tyrannical
government, and give away our rights and privileges. He
was therefore determined to vote for the resolutions of the
gentleman from Halifax.
Mr. SPENCER observed that, if the conduct of North
Carolina would be immodest and dictatorial in proposing
amendments, and if it was proposing a constitution to the
other states, he was sure the other states, who had proposed
the same s^meodments^ were equally guilty of immodesty and
240 DEBATES. [Davib.
dictating a constitution to the other states; the only differ-
ence being, that this state does not adopt previously. The
gentleman had objections to his legal maxims, and said they
were not politic. He would be extremely sorry, he said, if
the maxims of justice should not take place in politics.
Were this to be the case, there could be no faith put in any
compact. He thought the comparison of the state to a beg*
gar was a degradation of it, and insisted on the propriety of
his own comparison, which he thought obvious to any one.
He acknowledged that an exclusion from the Union would
be a most unhappy circumstance ; but he had no idea that
it would be the case. As this mode of proceeding would
hasten the amendments, he could not but vote for it.
Mr. JONES defined the word modesty by contrasting it
with its antagonist, impudence. The gentleman found fault
with the observation, that this was the most decent and best
way of obtaining amendments. If gentlemen would propose
a more eligible method, he would consent to that. He said
the gentleman had reviled the state by his comparison, and
must have hurt the feelings of every gentleman in the house.
He had no apprehension that the other states would refuse
to admit them into the Union, when they thought proper to
come in. It was their interest to admit them. He asked
if a beggar would refuse a boon, though it were but a shilling ;
or if twelve m(»n, struggling under a heavy load, would refuse
the assistance of a thirteenth man.
A desultory conversation now took place.
Mr. DAVIE hoped they would not take up the whole
collectively, but that the proposed amendments would be
considered one by one. Some other gentlemen expressed
the same desire.
Many other gentlemen thought the resolution very proper as it stood.
The question being put, the resolution was agreed to by a great ma-
jority of the committee.
It was then resolved that the committee should rise. Mr. President
resumed the chair, and Mr. Kenan reported, from the committee of the
whole Convention, that the committee had again had the Constitution
proposed for the future government of I he United States under consider-
ation, and had come to a resolution thereupon ; which he read in his
place, and afterwards delivered in at the clerk's table.
Ordered, That the said report lie on the table until to-morrow moni-
mg, 9 o'clock ; to which time the house adjourned.
Friday, August 1, 1788
The Convention met according to adjournment.
kB»ELL.] NORTH CAKOLINA. ^1
Mr. IREDELL. Mr. President : 1 believe, sir, all de-
bate is now at an end. It is useless to contend any longer
against a majority that is irresistible. We submit, with *lie
deference that becomes us, to the decision of a majority ; but
my friends and myself are anxious that something may ap-
rsar on the Journal to show our sentiments on the subject,
have therefore a resolution in my hand to offer, not with a
view of creating any debate, (for I know it will be instantly
rejected,) but merely that it may be entered on the Journal^
with the yeas and nays taken upon it, in order that our con-
stituents and the world may know what our opinions really
were on this important occasion. We prefer this to the
exceptionable mode of a protest, which might increase the*
spirit of party animosity among the people of this country,
which is an event we wish to prevent, if possible. 1 there
fore, sir, have the honor of moving —
*^* That the consideration of the report of the committee be postponed
in order to take up the consideration of the following resolution."
Mr. IREDELL then read the resolution in his place, and
afterwards delivered it in at the clerk's table, and his motion
was seconded by Mr. JOHN SKINNER.
Mr. JOSEPH M'DOWALL, and several other gentle
men, most strongly objected against the propriety of thia
motion. They thought it improper, unprecedented, and a
great contempt of the voice of the majority.
Mr. IREDELL replied, that he thought it perfectly regu
lar, and by no means a contempt of the majority. The sole
intention of it was to show the opinion of the minority,
which could not, in any other manner, he so properly done
They wished to justify themselves to their constituents, and
the people at large would judge between the merits of the
two propositions. They wished also to avoid, if possible, the
disagreeable alternative of a protest. This being the first
time he ever had the honor of being a member of a repre-
sentative body, he did not solely confide in his own judg-
ment, as to the proper manner of bringing his resolution
forward, but had consulted a very respectable and experi-
enced member of that house, who recommended this method
to him ; and he well knew it was conformable to a frequent
practice in Congress, as he had observed by their Journals.
Each member had an equal right to make a motion, and if
seconded, a vote ought to be taken upon it ; and he trusted
VOL. IV- 31 21
Z42 DEBATES. [Datir.
the majority would not be so arbitrary as to prevent them from
taking this method to deliver their sentiments to the world.
He was supported by Mr. MACLA'INE and Mr.
SPAIGHT.
Mr. WILLIE JONES and Mr. SPENCER insisted on
lis being irregular, and said they might protest. Mr. Jones
said, there never was an example of the kind before ; that
such a practice did not prevail in Congress when he was a
member of it, and he well knew no such practice had ever
prevailed in the Assembly.
Mr. DAVIE said, he was sorry that gentlemen should not
deal fairly and liberally with one another. He declared it
was perfectly parliamentary, and the usual practice in Con-
gress. They were in possession of the motion, and could
not get rid of it without taking a vote upon it. It was in
the nature of a previous question. He declared that nothing
hurt his feelings so much as the blind tyranny of a dead
majority.
After a warm discussion on this point by several gentle-
men on both sides of the house, it was at length intimated to
Mr. Iredell, by Mr. Spaight, across the house, that Mr. Le-
noir, and some other gentlemen of the majority, wished he
would withdraw his motion for the present, on purpose that
the resolution of the committee might be first entered on
the Journal, which had not been done ; and afterwards his
motion might be renewed. Mr. Iredell declared he would
readily agree to this, if the gentleman who had seconded him
would, desiring the house to remember that he only withdrew
his motion for that reason, and hoped he should have leave
to introduce it afterwards ; which seemed to be understood.
He accordingly, with the consent of Mr. Skinner, withdrew
his niotion ; and the resolution of the committee of the whole
house was then read, and ordered to be entered on the Jour-
nal. The resolution was accordingly read and entered, as
follows, viz. : —
•* Resolved, That a declaration of rights, asserting and securing trcnn
encroachment the great principles of civil and religious liberty, and the
unalienable rights of the people, together with amendments to the most
ambiguous and exceptionable parts of the said Constitution of govern-
ment, ought to be laid before Congress, and the convention of the states
that sh;ill or may be called for the purpose of amending the said Constitu*
lion, for their consideration, previous to the ratification of the Constitu-
liou afnresaid en the part of the state of North Carolina."
NORTH CAROUNA. 243
"DECLARATION OF RIGHTS.
" 1. That there are certain natural rights, of which men, when they
form a social compact, cannot deprive or divest their posterity, among
which are the enjoyment of life and liberty, with the means of acquiring,
possessing, and protecting property, and pursuing and obtaining liappi-
ness and safety.
'* 2. That all power is naturally vested in, and consequently derived
from, the people ; that magistrates, therefore, are their trustees and agents,
and at all times amenable to them.
•* 3. That government ought to be instituted for the common benefit,
protection, and security, of the people ; and that the doctrine of non-
resistance against arbitrary power and oppression is absurd, slavish, and
destructive to the good and happiness of mankind.
'* 4. That no man or set of men are entitled to exclusive or separate
public emoluments or privileges from the community, but in consideration
of public services, which not being descendible, neither ought the offices
of magistrate, legislator, or judge, or any other public office, to be hered-
itary.
** 5. That the legislative, executive, and judiciary powers of govern-
ment should be separate and distinct, and that the members of the two
first may be restrained from oppression by feeling and participating the
public burdens : they should, at fixed periods, be reduced to a private
station, return into the mass of the people, and the vacancies be supplied
by certain and regular elections, in which all or any part of the former
members to be eligible or ineligible, as the rules of the constitution of
government and the laws shall direct.
" 6. That elections of representatives in the legislature ought to be
free and frequent, and all men having sufficient evidence of permanent
common interest with, and attachment to, the community, ought to have
the right of suffrage ; and no aid, charge, tax, or fee, can be set, raled,
or levied, upon the people without their own consent, or that of their rep-
resentatives so elected ; nor can they be bound by any law to which they
have not in like manner assented for the public good.
" 7. That all power of suspending laws, or the execution of laws, by
?my authority, without the consent of the representatives of the people
iu the legislature, is injurious to their rights, and ought not to be ex-
ercised.
*' 8. Thnt, in all capital and criminal prosecutions, a man hath a right
to demand the cause and nature of his accusation, to be confronted with
the accusers and witnesses, to call for evidence, and be allowed counsel
in his favor, and a fair and speedy trial by an impartial jury of his vici-
nage, without whose unanimous consent he cannot be found guilty, (except
in the government of the land and naval forces ;) nor can he be compelled
to give evidence against himself.
*'9. That no freeman ouorht to be taken, imprisoned, or disseized ol
his freehold, liberties, privileges, or franchises, or outlawed or exiled, or
in any manner destroyed, or deprived of his life, liberty, or property, but
by the law of the land.
" 10. That every freeman, restrained of his liberty, is entitled to a
remedy to inquire into the lawfulness thereof, and to remove the aamfl
if ani awful ; and that such remedy ought not to be denied nor delayed.
11 That, in controversies respecting property, and in suits between
•«
244
DEBAT£;S.
man and rjan, the aricient trial by jury is one of the greatest secutities
to the lights of the people, and ought to remain sacred and inviolable.
** 12. That every freeman ought to find a certain remedy, by recourse
\p the lawSy for all injuries and wrongs he may receive in his pertioa, prop*
erty, or character ; he ought to obtain right and justice freely without
8fde, completely and without denial, promptly and without delay ; and that
all establishments or regulations contravening these rights are oppressive
^d unjust.
** 13. That excessive bail ought not to be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
** 14. That every freeman has a right to be secure from all unreasona-
ble searches and seizures of his person, his papers and property ; all war-
rantSy therefore, to search suspected places, or to apprehend any suspected
person, without specially naming or describing the place or person, are
dangerous, and ought not to be granted.
'' 15. That the people have a right peaceably to assemble together, to
Qoqsult for the common good, or to instruct their representatives ; and
Otat every freeman has a right to petition or apply to the legislature for
redress of grievances.
*' 16. That the people have a right to freedom of speech, and of. wri
ting and publishing their sentiments ; that freedom of the press is one of
t)ie greatest bulwarks of liberty, and ought not to be violated.
** 17. That the people have a right to keep and bear arms ; that a well-
regulated militia, composed of the body of the people, trained to arms, it
tne proper, natural, and safe defence of a free state ; that standing armies^
in time of peace, are dangerous to liberty, and therefore ought to be avoid*
ed, as far as the circumstances and protection of the community will ad>
mit ; and that, in all cases, the military should be under strict sqbordina*
lion to, and governed by, the civil power.
** 18. That no soldier, in time of peace, ought to be quartered in any
iiouse without the consent of the owner, and in time of war, in such man-
ner only as the laws direct
** 19. That any person religiously scrupulous of bearing arms ought to
be exempted, upon payment of an equivalent to employ another to bear
arms in his stead.
" 20. That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and conviction,
not by force or violence ; and therefore all men have an equal, natural,
and unalienable right to the free exercise of religion, according to the
clictates of conscience ; and that no particular religious sect or society
Qught to be favored or established by law in preference to others."
"AMENDMENTS TO THE CONSTITUTION.
•* i. That each state in the Union shall respectively retain every power,
jurisdiction, and right, which is not by this Constitution delegated to the
Congress of the United States, or to the departments of the federal gov-
ernment.
" 2. That there shall be one representative for every thirty thousand,
according to the enumeration or census mentioned in the Constitution,
unti\ the who!e number of representatives amounts to two hundred; afler
which that nuiptx^r shall be continued or increased as Congress shall di-
NOarH CAROLINA. 245
rect, apon the principles fixed in the Constitntion, by apportioning the
representatives of each state to some greater number of the people, from
time to time, as the population increases.
** 3. When .Congress shall lay direct taxes or excises, they shall imfn6-
diately inform the executive power of each state of the quota of such state,
according to the census herein directed, which is proposed to be thereby
raised ; and if the legislature of any state shall pass any law which shall
be effectual for raising such quota at the time required by Congress, the
taxes and excises laid by Congress shall not be collected in such state.
" 4. That the members of the Senate and House of Representatives
shall be ineligible to, and incapable of holding, any civil office under the
authority of the United States, during the time for which they shall re-
spectively be elected.
" 5. That the Journals of the proceedings of the Senate and House of
Representatives shall be published at least once in every year, except such
parts thereof relating to treaties, alliances, or military operations, ks m
their judi^ment require secrecy.
" 6. That a regular statement and account of receipts and expenditure^
of alf public moneys shall be published at least once in every year.
** 7. That no commercial treaty shall be ratified without the concur-
rence of two thirds of the whole number of the members of the Senate.
And no treaty, ceding, contracting, restraining, or suspending, the terri-
torial rights or claims of the United States, or any of them, or their, ot*
any of their, rights or claims of fishing in the American seas, or navigating
the American rivers, shall he made, but in cases of the most urgent and
extreme necessity ; nor shall any such treaty be ratified without the con-
currence of three fourths of the whole number of the members of both
houses respectively.
**S. That no navigation law, or law regulating commerce, shall be
passed without the consent of two thirds of the members present itl both
nouses.
" 9. That no standing army or regular troops shall be raised or kept u^
in time of peace, without the consent of two thirds of the members present
in both houses.
" lO. Thnt no soldier shall be enlisted for any longer term than four
fears, except in time of war, and then for no longer term than the continu-
ance of the war.
" 11. That each state respectively shall have the power to provide for
organizing, arming, and disciplining its own militia, whensoever Congress
■hall omit or neglect to provide for the same ; that the militia shall not be
labject to martial law, except when in actual service in time of war, in-
vasion, or rebellion ; and when not in the actual service of the United
States, shall be subject only to such fines, penalties, and punishments, ai
shall be directed or inflicted by the laws of its own state.
** 12. That Congress shall not declare any state to be in rebellion, with-
out the consent of at least two thirds of all the members present in botA
hbu.»e^.
•* IS. That the exclusive power of legislation given to Congress over th^
federal town atid its adjacent district, and other places purchased or to
be purchased by Congress of any of the states, shall extend only to such
reg'ilations as respect the police and good erovernment thereof.
*• 14. That no person shall be capable df being President of the United
States Ibr more tnah eight yidars in any term of f^fleen years.
246 DEBATES.
** 15. That the judicial power of the United States shall be ested in
one Supreme Court, and in such courts of admiralty as Congress may from
time to time ordain and establish in any of the different states. The judi-
cial power shall extend to all cases in law and equity arising under trea-
ties made, or which shall be made, under the authority of the United States ;
to all cases affecting ambassadors, other foreign ministers, and consuls ;
to all cases of admiralty and maritime jurisdiction ; to controversies to
which the United States shall be a party ; to controversies between two or
more states, and between parties claiming lands under the grants of differ-
ent states. In all cases affecting ambassadors, other foreign ministers, and
consuls, and those in which a state shall be a party, the Supreme Court
shall have original jurisdiction. In all other cases before mentioned, the
Supreme Court shall have appellate jurisdiction as to matters of law only,
except in cases of equity, and of admiralty and maritime jurisdiction, in
which the Supreme Court shall have appellate jurisdiction both as to law
and fact, with such exceptions, and under such regulations, as the Con-
gress shall make: but the judicial power of the United States shall extend
to no case where the cause of action shall have originated before the rati-
fication of this Constitution, except in disputes between states about dtheir
territory, disputes between persons claiming lands under the grants of dif-
ferent states, and suits for debts due to the United States.
** 16. That, in criminal prosecutions, no man shall be restrained in the
exercise of the usual and accustomed right of challenging or excepting to
the jury.
" 17. That Congress shall not alter, modify, or interfere in, the times,
places, or manner, of holding elections for senators and representatives, or
either of them, except when the legislature of any state shall neglect,
refuse, or be disabled, by invasion or rebellion, to prescribe the same.
** 18. That those clauses which declare that Congress shall not exercise
certain powers be not interpreted in any manner whatsoever to extend
the power of Congress; but that they be construed either as making ex-
ceptions to the specified powers, where this shall be the case, or otherwise
as inserted merely for greater caution.
" 19. That the laws ascertaining the compensation of senators and rep-
resentatives for their services, be postponed in their operation until after
the election of representatives immediately succeedinir the passing thereof,
that excepted which shall first be passed on the subject.
"20. That some tribunal other than the Senate be provided for trying
impeachments of senators.
** 21. That the salary of a judge shall not be increased or diminished dur-
ing his continuance in office, otherwise than by general regulations of salary,
which may take place on a revision of the subject at stated periods of not
less than seven years, to commence from the time such salaries shall be
first ascertained l)y Congress.
" 22. That Congress erect no company of merchants with exclusive ad-
vantages of'coinmerce.
"23. That no treaties which shall be directly opposed to the existing
laws of the United States in Congress assembled shall be valid until such
aws shall be repealed, or made conformable to such treaty; nor shall any
treaty be valid which is contradictory to the Constitution of the United
States.
"24. That the latter part of the 5th paragraph of the 9th section of the
1st article be altered to read thus : ' Nor shall vessels bound to a particu
Iredelu] north CAROLINA. 247
lar state be obliged to enter or pay duties in any other ; nor, when bounu
from any one of the states, be obliged to clear in another/
" 25. Th it Congress shall not, directly or indirectly, either by them-
selves or through the judiciary, interfere with any one of the states in the
redemption of paper money already emitted and now in circulation, or in
liquidating and discharging the public securities of any one of the states,
hut each and every state shall have the exclusive right of making such lawn
and regulations, for the above purposes, as they shall think proper.
'* 26. That Congress shall nut introduce foreign troops into the United
States without the consent of two thirds of the members present of both
houses."
Mr. SPENCER then moved that the report of the com-
mittee be concurred with, and was seconded by. Mr. J.
M'DOWALL.
Mr. IREDELL moved that the consideration of that mo-
tion he postponed, in order to take into consideration the fol-
lowing resolution :
[Which resolution was the same he introduced before, and
which he afterwards, in substance, moved by way of amend-
ment.]
This gave rise to a very warm altercation on both sides,
during which the house was in great confusion. Many gen-
tlemen in the majority (particularly Mr. WILLIE JONES)
strongly contended against the propriety of the motion.
Several gentlemen in the minority resented, in strong terms,
the arbitrary attempt of the majority (as they termed it) to
suppress their sentiments ; and Mr. Sr AIGHT, in particu-
lar, took notice, with great indignation, of the motion made
to concur with the committee, when the gentleman from
Edenton appeared in some measure to have had the faith of
the house that he should have an opportunity to renew his
motion, which he had withdrawn at the request of some of
the majority themselves. Mr. WHITMILL HILL spoke
with great warmth, and declared that, in his opinion, if the
majority persevered in their tyrannical attempt, the minority
should secede.
Mr. WILLIE JONES still contended that the motion
was altogether irregular and improper, and made a motion
calculated to show that such a motion, made and seconded
under the circumstances in which it had been introduced,
was not entitled to be entered on the Journal. His motion,
being seconded, wis carried by a great majority. The yeas
and nayb were moved for, and were taking, when Mr. IRE-
DELL arose, and said he was sensible of the irregularity ht>
2i8 DEBATES. [Irsdelu
was guilty of, and hoped he should be excuseo for it, but it
arose from his desire of saving the house trouble ; that Mr.
Jones (he begged pardon for naming him) had proposed an
expedient to him, with which he should be perfectly satis-
fied, if the house approved of it, as it was indifferent to him
what was the mode, if his object in substance was obtained.
The method proposed was, that the motion for concurrence
should be withdrawn, and his resolution should be moved by
way of an amendment. If the house, therefore, approved of
this method, and the gentlemen who had moved and sec-
( nded the motion would agree to withdraw it, he hoped it
would be deemed unnecessary to proceed with the yeas and
nays.
Mr. NATHAN BRYAN said, the gentleman treated the
majority with contempt. Mr. IREDELL declared he had
no such intention ; hut as the yeas and nays were taken on a
difference between both sides of the house, which he hoped
might be accommodated, he thought he might be excused
for the liberty he had taken.
Mr. SPENCER and Mr. M'DOWALL, after some ob-
servations not distinctly heard, accordingly withdrew their
motion ; and it was agreed that the yeas and nays should not
be taken, nor the motion which occasioned them entered on
the Journal. Mr. IREDELL then moved as follows, viz. : —
That the report of the committee be amended, by striking
out all the words of the said report except the two first, viz. :
" Resolved, That," and that the following words be inserted
in their room, viz. : — " this Convention, having fully delib-
erated on the Constitution proposed for the future govern-
ment of the United States of America by the Federal Con-
vention lately held, at Philadelphia, on the 17th day of Sep-
tember last, and having taken into their serious and solemn
consideration the present critical situation of America, which
induces them to be of opinion that, though certain amend-
ments to the said Constitution may be wished for, yet that
those amendments should be proposed subsequent to the rati-
fication on the part of this state, and not previous to it : —
they do, therefore, on liehalf of the state of North Carolina,
and the good people thereof, and by virtue of the authority
to them delegated, ratify the said Constitution on the part of
this state ; and they do at the same time recommend that,
as early as possible, the following amendments to the 8a*d
NORTH CAROUNA. 249
Constitution may be proposed for the consideration and
adoption of the several states in the Union, in one of the
»uodes prescribed by the 6th article thereof: " —
-AMENDMENTS.
"1. Each state in the Union shall respectively retain every power,
jurisdiction, and right, which is not by this Constitation delegated to the
Congress of the United States, or to the departments of the general gov-
ernment; nor shall the said Congress, nor any department of the said
government, exercise any act of authority over any individual in any of
the said states, but such as can be justified under some power particularly
given in this Constitution ; but the said Constitution shall be considered
at h11 times a solemn instrument, defining the extent of their authority,
and the limits of which they cannot rightfully in any instance exceed.
** 2. There shall be one representative for every thirty thousand, ac-
cording to the enumeration or census mentioned in the Constitution, until
the whole number of representatives amounts Co two hundred ; after which,
that number shall be continued or increased, as Congress shall direct, up-
on the principles fixed in the Constitution, by apportioning the represent-
atives of each state to some greater number of people, from time to time,
as the population increases.
" S. Each state respectively shall have the power to provide for or-
ganizing, arming, and disciplining, its own militia, whensoever Congress
shall omit or neglect to provide for the same. The militia shall not be
subject to martial law, except when in actual service in time of war, in-
vasion, or rebellion ; and when they are not in the actual service of the
United States, they shall be subject only to such fines, penalties, and
punishments, as shall be directed or inflicted by the laws of its own
state.
" 4. The Congress shall not alter, modify, or interfere in the times,
places, or manner, of holding elections for senators and representatives,
or either of them, except when the legislature of any state shall neglect,
refuse, or be disabled by invasion or rebellion, to prescribe the same.
'* 5. The laws ascertaining the compensation of senators and representa-
tives, (or their services, shall be postponed in their operation until afler
the election of representatives immediately succeeding the passing there-
of; that excepted which shall first be passed on the subject.
" 6. Instead of the following words in the 9th section of the 1st ar-
licle, viz., ' Nor shall vessels bound to or from one state be obliged to
enter, clear, or pay duties, in another,' [the meaning of which is by many
deemed not sufficiently explicit,] it is proposed that the following shall
be substituted : ' No vessel bound to one state shall be obliged to enter
or pay duties, to which such vessel may be liable at any port of entry, in
any other state than that to which such vessel is bound ; nor shall any
vessel bound from one state be obliged to clear, or pay duties to which
such vessel shall be liable at any port of clearance, in any other state than
that from which such vessel is bound.' "
He was seconded by Mr. JOHN SKINNER.
Th<» question was then put, " Will the Convention adopi
VOL. IV. 32
2)0
DEBATES.
that amendment or not ? " and it was negatived ; wliere-
upon Mr. IREDELL moved that the yeas and nays should
be taken, and he was seconded by Mr. STEELE. Thev
were accordingly taken, and were as follows : —
YEAS.
His excellency, Samuel
Messrs. Ja*s Iredell, Edmund Blount,
Archibald Maclaine, Chowan.
Henry Abbot,
Isaac Gregory,
Peter Dauge,
Charles Grandy,
Enoch Sawyer,
George Lucas,
John Willis,
Nathan Keas,
John G. Blount,
Thomas Alderson,
John Johnson,
Andrew Oliver,
Goodwin EUiston,
Charles M'Dowall,
Richard D. Spaight, John Cade,
William J. Dawson, Elias Barnes,
James Porterfield, Neil Brown,
Wm. Barry GroTe,
George Elliott,
Wallis Styron,
William ohepperd,
Carteret.
James Philips,
John Humphreys,
Michael Payne,
Charles Johnston,
Stephen Cabarrus,
James Winchester,
William Stokes,
Thomas Stewart,
Josiah Collins,
Thomas Hines,
Nathaniel Jones,
John Steele,
William R. Davie,
Joseph Reddick,
James Gregory,
Johnston, President.
Thomas Hunter,
Gates.
Thomas Wyns,
Abraham Jones,
John Eborne,
James Jasper,
Caleb Forinan,
Seth Hovey,
John Sloan,
John Moore,
William Maclaine,
Nathan Mayo,
William Slade,
William M'Kenzie,
Robert Erwin,
John Lane,
Thomas Reading,
Edward Everagain,
Enoch Rolfe,
Devotion Davis,
William Skinner,
Joshua Skinner,
Thomas Heryey,
John Skinner,
Samuel Harrel,
Joseph Leech,
Wm. Bridges,
Wm. Burden,
Edmund Blount,
Tyrel.
Simeon Spruil,
David Tanner,
Whitmill Hill,
Benjamin Smith,
John Sitffreaves,
Nathaniel Allen,
Thomas Owen,
George Wyns,
David Perkins,
Joseph Fe rebec,
Wm. Ferebee,
Wm. Baker,
Abner Neale.
84
NAYS.
Messrs. Willie Jones,
Samuel Spencer,
Lewis Lanier,
Thomas Wade,
Daniel Gould,
James Bonner,
Alexius M. Foster,
Lewis Dupree,
Thorans Brown,
James Greenlee,
Joseph M'Dowall,
Robert Miller,
Benjamin Williams,
Richard Nixon,
Thomas Armstrong,
Alex. M'Allister,
Robert Dickens,
George Roberts,
John Womack,
Ambrose Ramsey,
James Anderson,
Jos. Stewart,
Wm. Vestal,
Thomas Evans,
Thomas Hardiman,
Robert Weakly,
Wm. Donnelson,
Wm. Dobins,
Robert Diggs,
Bythel Bell,
Elisha Battle,
Wm. Fort,
Etheld. Gray,
Wm. Lancaster,
Thomas Sherrod,
John Norward,
Sterling Dupree,
Robert Williams,
Richard Moye,
Arthur Forbes,
David Caldwell,
Wm. Groudy,
Daniel Gillespie,
John Anderson,
John Hamilton,
Thomas Person,
Joseph Taylor,
Thornton Yancey,
Howell Lewis, Jun.,
E. Mitchell,
George Moore,
George Ledbetter,
Wm. Porter,
Zebedee Wood,
Edmund Waddell,
James Galloway,
J. Regan,
Joseph Winston,
James Gains,
Charles M'Annelly,
Absalom Bostick,
John Scott,
John Dunkin,
David Dodd,
Curtis Ivey,
Lewis Holmes,
Richard Clinton,
H. Holmes,
Robert Alison,
James Stewart,
John Tipton,
John Macon,
Thomas Christmass,
H. Monfort,
Wm. Taylor,
James rfanley,
Britain Saunders,
Wm. Lenoir,
R. Allen,
John Brown,
Joseph Herndon,
James Fletcher,
Lemuel Burkit,
Wm. Little,
Thomas King,
Nathan Bryan,
John H. Bryan,
Edward Whitty,
Robert Alexander,
James Johnson,
John Cox,
John Carrel,
Cornelius Doud,
Thomas Tysop,
W. Martin,
Thomas Hunter
Martin.
John Graham,
Wm. Loflin,
Wm. Kindal,
Thomas Ussery,
Thomas Butler,
John Bentford,
James Vaughan,
Robert Peebles,
James Vinson,
Wm. S. Marnes,
Howell Ellin,
Redman Bunn,
John Bonds,
David Pridgen,
Daniel Yates,
Thomas Johnston,
John Spicer,
A Tatom,
Alex. Mebane,
Wm. Mebane,
Wm. M'Cauley,
Wm. Sheppera,
Orange,
Jonathan Lmley,
W>att Hawkins,
James Payne,
John Graves,
NORTH CAROLINA.
251
John Blair,
Jotcph Tipton,
Wm. Bethell,
Abraiiarn Phillipt,
John May,
Charles Crallowajr,
Jaxnefl Bo«well,
John M'AlIister,
David Lnoney,
John Sharpe,
Jooeph Gaitier.
John A. Campoell,
John P. Williams,
Wm. Marshall,
Charles Robertson,
James Gillespie,
Charles Ward,
Wm. Randal,
r lewi luk flargcft,
Richard M*Kinnie,
John Cains,
Jacob Leonard,
Thomas Carson,
Richard Singleton,
James Whitside,
Caleb Phifer,
Zachias Wilson,
Joseph Douglass,
Thomas Dougan,
James Kenan,
John Jones,
Egbert Haywood,
Wm. Wootten,
John Branch,
"Henry Hill,
Andrew Bass,
Joseph Boon,
Wm. Farmer,
John Bryan,
Edward Williams,
Francis OliTer,
Matthew Brooks,
Griffith Rutherford,
Geo H Barringer,
Timo. Blood worth,
Everet Pcarce,
Asahel Rawlins,
James Wilson,
James Roddy,
iiaiBMel Cain,
B. Covington,
J. M'Dowall, Jniu
Durham Hall,
Jas Bloodworthf
Joel Ijane,
James H in ton,
Thomas Devane,
James Brandon,
Wm. Dickson,
Bur well Mooring,
Matthew Locke,
Stokely Donelsoo.
184.
Saturday, August 2, 1786.
The Convention met according to adjournment.
The report of the committee of the whole Convention,
according to order, was taken up and read in the same
words as on yesterday ; when it was moved by Mr. PER-
SON, and seconded by Mr. MACON, that the Convention
do concur therewith, which was objected to by Mr. A.
MACLAIPJE.
The question being put, "Will the Convention concur
with the report of the committee of the whole convention,
or not?" it was carried in the aflSrmative ; whereupon Mr.
DAVIE moved for the yeas and nays, and was seconded by
Mr. CABARRUS. They were accordingly taken ; and
those who voted yesterday against the amendment, voted
for concurring with the report of the committee : those who
voted in favor of the amendment, now voted against a con-
currence with the report.
On motion of Mr. WILLIE JONES, and seconded by
Mr. JAMES GALLOWAY, the following resolution was
adopted by a large majority, viz.: —
''Whereas this Convention has thought proper neither to ratify nor
reject the Constitution proposed for the government of the United States,
and as Congress will proceed to act under the said Constitution, ten
states having ratified the same, and probably lay an impost on goods im-
ported into the said ratifying states, —
" Resolved, That it be recommended to the legislature of this state,
that whenever Congress shall pass a law for collecting an impost in the
states aforesaid, this state enact a law for collecting a similar impost on
goods imported into this state, and appropriate the money arising there-
from to the use of Congress/'
On the motion made by Mr. WILLIE JONES, and
seconded by Mr. JAMES GALLOWAY,—
862 DEBATES
* Resolvdf unanimously, That it be recommended to the General A»>
sembly to take effectual measures for the redemption of the paper currency,
as speedily as may be, consistent with the situation and circumstances of
the people of this state."
On a motion made by Mr. WILLIE JONES, and sec-
onded by Mr. JAMES GALLOWAY,—
*' Resolved, unanimously. That the honorable the president be requested
to transmit to Congress, and to the executives of New Hampshire, Massa-
chusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsyl-
vania, Delaware, Maryland, Virginia, South Carolina, and Georgia, a copy
of the resolution of the committee of the whole Convention on the subject
of the Constitution proposed for the government of the United States, con-
curred with by this Convention, together with a copy of the resolutions on
the subject of impost and paper money/'
The Convention afterwards proceeded to the business of
/ixing the seat of government, and on Monday, the 4th of
August, adjourned sine die.
BEBATES
m. TBS
LEGISLATURE AND IN CONVENTION
OF TRK
STATE OF SOUTH CAROLINA,
OV TBS
ADOPTION OP THE FEDERAL CONSTITUTION.
Housn OF Reprb8^ntativbs* In the Legislature^
WeoNEBDAT, January 16, 1788.
Read the proposed Federal Constitution, afler which the house resolved
itseJf into a committee of the whole, Hon. THOMAS BEE in the
chair.
Hon. CHARLES PINCKNEY (one of the delegates of
the Federal Convention) rose in bis place, and said that,
although the principles and expediency of the measures pro-
posed by the late Convention will come more properly into
discussion before another body, yet, as their appointment
originated with them, and the legislatures must be the instru«
ment of submitting the plan to the opinion of the people, it
became a duty in their delegates to state with conciseness
the motives which induced it.
It must be recollected that, upon the conclusion ot tne
definitive treaty, great inconveniences were experienced, as
resulting from the inefficacy of the Confederation. The
one first and most sensibly felt was the destruction of our
commerce, occasioned! by the restrictions of other nations,
whose policy it was not in the power of the general govern-
ment to counteract. The loss of credit, the inability in our
crtizens to pay taxes, and languor of government, were, as
they ever must be, the certain consequences of the decay of
commerce. Frequent and unsuccessful attempts were made
by Congress to obtain the necessary powers. The statos«
too, individually attempted, by navigation acts and othei
22
^264 DEBATES. [Pincknef.
commercial provisions, to remedy the evil. These, instead
of correcting, served but to increase it ; their regulations in-
terfered not only with each other, but, in almost every
instance, with treaties existing under the authority of the
Union. Hence arose the necessity of some general and
permanent system, which should at once embrace all inter-
ests, and, by placing the states upon firm and united ground,
enable them effectually to assert their commercial rights. Sen-
sible that nothing but a concert of measures could effect this,
Virginia proposed a meeting of commissioners at Annapolis,
from the legislature of each state, who should be empowered
to take into consideration the commerce of the Union ; to
consider how far a uniform system in their commercial regu-
lations might be necessary to their common interest ; and to
report to the states such an act as, when unanimously ratified
by them, would enable Congress effectually to provide for
the same. In consequence of this, ten states appointed
delegates. By accident, or otherwise, they did not attend,
only five states being represented. The gentlemen present,
not being a majority of the Union, did not conceive it advi-
sable to proceed ; but in an address to their constituents,
which was also transmitted to the other legislatures, ac-
quainted them with the circumstances of their meeting ; that
there appeared to them to be other and more material defects
in the federal system than merely those of commercial pow-
ers. That these, upon examination, might be found greater
than even the acts of their appointments implied, was at
least so far probable, from the embarrassments which mark
the present state of national affairs, foreign and domestic, as
to merit, in their opinions, a deliberate and candid discussion
in some mode which would unite the sentiments and councils
of all the states. They therefore sugjrested the appointment
of another convention, under more extensive powers, for the
purpose of devising such further provisions as should appear
to them necessary to render the federal government adequate
to the exi":encies of the Union.
Under this recommendation the late Convention assem-
bled ; for most of the appointments had been made before
the recommendation of Congress was formed or known-
He thought proper concisely to mention the manner of the
Convention's assembling, merely to obviate an objection
which all the opposers of the federal system had used, viz.,
PiNCKNET.] SOUTH CAROUNA. 25ft
that, at the time the Convention met, no opinion was enter-
tained of their departing from the Confederation — that
merely the grant of commercial powers, and the establish-
ment of a federal revenue, were in agitation ; whereas nothing
ran be more true, than that its promoters had for their object
a firm national government. Those who had seriously con-
templated the subject were fully convinced that a total
r.hange of system was necessary — that, however the repair
of the Confederation might for a time avert the inconveni-
<^nces of a dissolutbn, it was impossible a government of
that sort could long unite this growing and extensive country.
They also thought that the public mind was fully prepared
for the change, and that no time could be more proper for
introducing it than the present — that the total want of gov-
ernment, the destruction of commerce, of public credit,
private confidence, and national character, were surely
sufficiently alarming to awaken their constituents to a true
sense of their situation.
Under these momentous impressions the Convention met,
when the first question that naturally presented itself to the
view of almost every member, although it was never formally
brought forward, was the formation of a new, or the amend-
ment of the existing system. Whatever might have been the
opinions of a few speculative men, who either did, or pre-
tended to, confide more in the virtue of the people than pru-
dence warranted, Mr. Pinckney said he would venture to as-
sert that the states were unanimous in preferring a change.
They wisely considered that, though the Confederation
might possess the great outlines of a general government, yet
that it was, in fact, nothing more than a federal union ; or,
strictly speaking, a league founded in paternal and persuasive
principles, with nothing permanent and coercive in its con-
struction, where the members might, or might not, comply
with their federal engagements, as they thought proper —
that no power existed of raising supplies but by the requisi-
tions or quotas on the states — that this defect had been al-
most fatally evinced by the experience of the states for the
list six or eight years, in which not one of them had com-
pletely complied ; but a few had even paid up their specie
proportions ; others very partially ; and some, he had every
reason to Ijelieve, had not to this day contributed a shilling
to the common treasury since the Union was formed* He
2b6 DEBATES. [PiNcaNEY
should not go into a detail of the conduct of the states, or the
unfortunate and emlmrrassing situation to which their inat-
tention has reduced the Union; these have been so often
and so strongly represented by Congress, that he was sure
there could not be a member on the floor unacquainted with
tliem. It was sufficient to remark that the Convention saw
and felt the necessity of establishing a government upon dif-
ferent principles, which, instead of requiring the intervention
of thirteen different legislatures l)etween the demand and the
compliance, should operate upon the people in the first in-
Sitance.
He repeated, that the necessity of having a government
which should at once operate u\you the people, and not upon
the states, was conceived to be indispensable by every dele-
gation present ; that, however they may have differed with
respect to the quantum of power, no objection was made to,
the system itself. They considered it, however, highly neces-
sary that, in the establishment of a constitution possessing
extensive national authorities, a proper distribution of its
powers should be attended to. Sensible of the danger of a
single body, and that to such a council the states ought not
to intrust important rights, they considered, it their duty to
divide the legislature into two branches, and, by a limited
revisionary power, to mingle, in some degree, the executive
in their proceedings — a provision that he was pleased to find
meets with universal approbation. The degree of weight
which each state was to have in the federal council became
a question of much agitation. The larger states contended
that no government could long exist whose principles were
founded in injustice ; that one of the most serious and un-
answerable objections to the present system was the injustice
of its tendency in allowing each state an equal vote, not-
withstanding their striking disparity. The small ones re-
plied, and perhaps with reason, that, as the states were the
pillars upon which the general government must ever rest,
their state ^[overnments must remain ; that, however they
may vary m pomt of territory or population, as political as-
sociations they were equal ; that upon these terms they for-
mally confederated, and that no inducement whatsoever
should tempt them to unite upon others; that, if they did, it
would amount to nothing less than throwing the whole gov-
ernment of the Union into the hands of three or four of the
largest states.
PiNCENEY.] SOUTH CAROUNA. 257
After much anxious discussion, — for, had the Convention
separated without determining upon a plan, it would have been
on this point, — a compromise was effected, by which it was
determined that the first branch be so chosen as to represent
in due proportion the people of the Union ; that the Senate
should be the representatives of the static, where each should
have an equal weight. Though he was at first opposed to
this compromise, yet he was far from thinking it an injudi-
cious one. The different branches of the legislature being
intended as checks upon each other, it appeared to him they
would more effectually restrain their mutual intemperances
under this mode of representation than they would have done
if both houses had been so formed upon proportionable prin-
ciples ; for, let us theorize as much as we will, it will be im-
possible so far to divest the majority of the federal represent-
atives of their state views and policy, as to induce them al-
ways to act upon truly national principles. Men do no
easily wean themselves of those preferences and attachments
which country and connections invariably create ; and it must
frequently have happened, had the larger states acquired that
decided majority which a proportionable representation would
have given them in both houses, that state views and policy
would have influenced their deliberations. The ease with
which they would, upon all occasions, have secured a ma-
jority in the legislature, might, in times less virtuous than
the present, have operated as temptations to designing and
ambitious men to sacrifice the public good to private views.
This cannot be the case at present; the different mode of
representation for the Senate will, as has already been ob-
served, most effectually prevent it. The purpose of estab-
lishing different houses of legislation was to introduce the in-
fluence of different interests and principles ; and he thought
that we should derive, from this mode of separating the
legislature into two branches, those benefits which a proper
complication of principles is capable of producing:, and which
must, in his judgment, be greater than any evils that may
arise from their temporary dissensions.
The judicial he conceived to be at once the most impor-
tant and intricate part of the system. That a supreme fed-
eral jurisdiction was indispensable, cannot be denied. It is
equally true that, in order to insure the administration of
justice, it was necessary to give it all the powers, original as
VOL. IV. 33
2o8 DEBATES. [Pincknet.
well as appellate, the Constitution has enumerated ; without
it we could not expect a due observance of treaties — that
the state judiciary would confine themselves within iheir
r roper sphere, or that general sense of justice i^ervade the
Jnion which this part of the Constitution is intended to
introduce and protect — that much, however, would depend
upon the wisdom of the legislatures who are to organize it
— that, from the extensiveness of its powers, it may be
easily seen that, under a wise management, this department
might be made the keystone of the arch, the means of con-
necting and binding the whole together, of preserving uni-
formity in all the judicial proceedings of the Union — that,
in republics, much more (in time of peace) would always
depend upon the energy and integrity of the judicial than
on any other part of the government — that, to insure these,
extensive authorities were necessary ; particularly so were
they in a tribunal constituted as this is, whose duty it would
be not only to decide all national questions which should
arise within the Union, but to control and keep the state
judicials within their proper limits whenever they shall at-
tempt to interfere with its power.
And the executive, he said, though not constructed upon
those firm and permanent principles which he confessed
would have been pleasing to him, is still as much so as the
present temper and genius of the people will admit. Though
many objections had been made to this part of the system,
he was always at a loss to account for them. That there
can be nothing dangerous in its powers, even if he was
disjx^sed to take undue advantages, must be easily discerned
from reviewing them. He is commander-in-chief of the
land and naval forces of the Union, but he can neither raise
nor support forces by his own autiiority. He has a re vision-
ary power in the making of laws; but if two thirds of both
houses afterwards agree notwithstanding his negative, the
law passes. He cannot appoint to an office without the Sen-
ate concurs ; nor can he enter into treaties, or, in short, take a
single step in his government, without their advice. He is,
also, to remain in office but four years. He might ask, then,
From whence are the dangtTs of the executive to proceed ?
It may be said. From a combination of the executive and
the Senate, they might form a baneful aristocracy.
He had been opposed to connecting the executive and
PiNCENEir.] SOUTH CAROLINA. 259
the Senate in the discharge of those duties, because their
union, in his opinion, destroyed that responsibility which the
Constitution should, in this respect, have been careful to
establish ; but he had no apprehensions of an aristocracy.
For his part, he confessed that he ever treated all fears of
aristocracies or despotisms, in the federal head, as the mos»
childish chimeras that could be conceived. In a Union ex-
tensive as this is, composed of so many state governments,
and inhabited by a people characterized, as our citizens are, by
an impatience under any act which even looks like an in-
fringement of their rights, an invasion of them by the federal
head appeared to him the most remote of all our public
dangers. So far from supposing a change of this sort at all
probable, he confessed his apprehensions were of a different'
kind : he rather feared that it was impossible, while the
state systems continue — and continue they must — to con-
struct any government upon republican principles sufficiently
energetic to extend its influence through all its parts. Near
the federal seat, its influence may have complete effect;
hut he much doubted its efficacy in the more remote districts.
The state governments will too naturally slide into an o|)-
position against the general one, and be easily induced to
consider themselves as rivals. They will, after a time,
resist the collection of a revenue ; and if the general gov-
ernment is obliged to concede, in the smallest degree, on
this point, they will of course neglect their duties, and
despise its authority: a great degree of weight and energy
is necessary td enforce it ; nor is any thing to be apprehended'
from them. All power being immediately derived from the
people, and the state governments being the basis of the
general one, it will easily be in their power to interfere, and
to prevent its injuring or invading their rights. Though at
first he considered some declaration on the subject of trial by
jury in civil causes, and the freedom of the press, necessary,
and still thinks it would have been as well to have had it
inserted, yet he fully acquiesced in the reasoning which was
used to show that the insertion of them was not essential.
The distinction which has been taken between the nature of
a federal and state government appeared to be conclusive —
ihit in the former, no powers could be executed, or assumed,
ixit such as were expressly delegated ; that in the latter, the
indefinite power was given to the government, except on
26( DEBATES. [PiNCKNET
points that were by express compact reserved to the
people.
On the subject of juries, in civil cases, the Convention
were anxious to make some declaration ; but when they re-
flected that all courts of admiralty and appeals, being gov-
erned in their propriety by the civil law and the laws of
nations, never had, or ought to have, juries, they found it
impossible to make any precise declaration upon the subject;
they therefore left it as it was, trusting that the good sense
of their constituents would never induce them to suppose
that it could be the interest or intention of the general gov-
ernment to abuse one of the most invaluable privileges a
free country can boast; in the loss of which, themselves,
their fortunes and connections, must be so materially in-
volved, and to the deprivation of which, except in the cases
alluded to, the people of this country would never submit.
When we reflect that the exigencies of the government
require that a general government upon other principles
than the present should be established, — when we contem-
plate the difference between a federal union and a govern-
ment operating upon the people, and not upon the states, —
we must at once see the necessity of giving to it the power
of direct taxation. Without this, it must be impossible for
them to raise such supplies as are necessary to discharge the
debts, or sup|)ort the expenses, of the Union — to provide
against the common dangers, or afford that protection to its
meml>ers which they have a right to expect from the federal
head. But here he begged leave to observe that, so far from
apprehending danger from the exercise of this power, few or
no inconveniences are to be expected. He had not a doubt
that, except in time of war, or pressing necessity, a sufficient
sum would always be raised, by impost, to defray the gen-
eral expenses. As to the power of raising troops, it was
unnecessary to remark upon it further than merely to say,
that this is a power the government at present possesses and
exercises; a power so essential, that he should very much
doubt the good sense or information of the man that should
conceive it improper. It is guarded by a declaration that no
grants for this pur|)ose shall be longer than two years at a
time. For his own part, notwithstanding all that had been
said upon this popular topic, he could not conceive that either
the dignity of a government could be maintained, its safety
PiNCKNEY] SOUTH CAROLINA. 261
insured, or its laws administered, without a body of regulai
forces to aid the magistrate in the execution of his duty.
All government is a kind of restraint. We may be told, a
free government imposes no restraint upon the private wilb
of individuals which does not conduce in a greater degree to
the public happiness; but all government is restraint, and
founded in force. We are the first nation who have ever
held a contrary opinion, or even attempted to maintain one
without it. The experiment has been made, and he trusted
there would hereafter be few men weak enough to suppose
that some regular force ought not to be kept up, or that the
militia ever can be depended upon as the support or pro-
tection of the Union.
Upon the whole, he could not but join those in opinion
who have asserted that this is the best government that
has ever yet been offered to the world, and that, instead of
being alarmed at its consequences, we should be astonish-
ingly pleased that one so perfect could have been formed
from such discordant and unpromising materials. In a sys-
tem founded upon republican principles, where the j)owers
of government are properly distributed, and each confined
to a separate body of magistracy, a greater degree of force
and energy will always be found necessary than even in a
monarchy. This arises from the national spirit of union be-
ing stronger in monarchies than in republics : it is said to be
naturally strong in monarchies, because, in the absence both
of manners and principles, the compeUing power of the sov-
ereign collects and draws every thing to a point ; and thereby,
in all common situations, effectually supplies their place.
But in free countries it is naturally weak, unless supported
by public spirit; for as, in most cases, a full spirit of national
union will require that the separate and partial views ot
private interest be on every occasion sacrificed to the general
welfare, so, when this principle prevails not, (and it will
Dnly prevail in moments of enthusiasm,) the national union
must ever be destroyed by selfish views and private interest.
He said that, with respect to the Union, this can only be
remedied by a strong government, which, while it collects
its powers to a point, will prevent that spirit of disunion from
which the most serious consequences are to be apprehended.
He begged leave, for a moment, to examine what effect this
spin* of disunion must have upon us, as we may be affected
9Jb^ DEBATES. LPinchnbi
by a foreign enemy. It weakens the consistency of all
public measures, so that no extensive scheme of thought can
be carried into action, if its accomplishment demand any
long continuance of time. It weakens not only the consist-
ency, but the vigor and expedition, of all public measures ;
so that, while a divided people are contending about the
means of security or defence, a united enemy may surprise
and invade them. These are the apparent consequences of
disunion. Mr. Pinckney confessed, however, that, after all
that had been said upon the subject, our Constitution was in
some measure but an experiment; nor was it possible yet to
form a just conclusion as to its practicability.
It had been an opinion long established, that a republican
form of government suited only the affairs of a small state ;
which opinion is founded in the consideration, that unless the
people in every district of the empire be admitted to a share
in the national representation, the government is not to them
as a republic ; that in a democratic constitution, the mech-
anism is too complicated, the motions too slow, for the oper-
ations of a great empire, whose defence and government
require execution and despatch in proportion to the magni-
tude, extent, and variety of its concerns. There was, no
doubt, weight in these reasons; but much of the objection,
he thought, would be done away by the continuance of a
federal republic, which, distributing the country into districts,
or states, of a commodious extent, and leaving to each state
its internal legislation, reserves unto a superintending gov-
ernment the adjustment of their general claims, the complete
direction of the <:ommon force and treasure of the empire.
To what limits such a republic might extend, or how far it
is capable of UAiiting the liberty of a small commonwealth
with the safety of a peaceful empire; or whether, amon^
coordinate powers, dissensions and jealousies would not arise,
which, for want of a common superior, might proceed to
fatal extremities, — are questions upon which he did not
recollect the example of any nation to authorize us to decide,
because the experiment has never been yet fairly made. We
are now a tout to make it upon an extensive scale, and under
circumstances so promising, that he considered it the fairest
experiment that hctd been ever made in favor of human
nature. He concluded with expressmg a thorough convic-
aon that the firm establishment of the present system ih
PiNCENEY.] SOUTH CAROUNA. 263
better calculated lo answer the great ends of public hapuines^
than any that has yet been devised.
A long debate arose on reading the Constitution in para-
graphs ; but, on a division, there appeared to be a majority
against it.
Hon. ROBERT BARNWELL hoped gentlemen would
confine themselves to the principles of this Constitution
An honorable member had already given much valuable in-
formation as reasons that operated in the Convention, so that
they were now able to lay before their constituents the ne
cessity of bringing forward this Constitution.
Judge PENDLETON read a paragraph in the Constitu
tion, which says " the Senate shall have the sole power of
impeachment." In the British government, and all govern-
ments where power is given to make treaties of peace, pr
declare war, there had been found necessity to annex respon-
sibility. In England, particularly, ministers that advised
illegal measures were liable to impeachment, for advising the
king. Now, if justice called for punishment of treachery
in the Senate, on account of giving bad advice, before what
tribunal could they be arraigned ? Not surely before their
house; that was absurd to suppose. Nor could the Presi-
dent be impeached for making treaties, he acting only under
advice of the Senate, without a power of negativing.
Maj. PIERCE BUTLER (one of the delegates of the
Federal Convention) was one of a committee that drew up
this clause, and would endeavor to recollect those reasons by
which they were g:uided. It was at first proposed to vest the
sole |)ower of making peace or war in the Senate ; but this
was objected to as inimical to the genius of a republic, by
destroying the necessary balance they were anxious to pre-
serve. Some gentlemen were inclined to give this power to
the President; but it was objected to, as throwing into his
hands the influence of a monarch, having an opportunity of
involving his country in a war whenever he wished to pro-
mote her destruction. The House of Representatives was
then named ; but an insurmountable objection was made to this
proposition — which was, that negotiations always required
the greatest secrecy, which could not be expected in a large
iiod)'. The honorable gentleman then gave a clear, concise
opinion on the propriety of the proposed Constitution.
Gen. CHARLES COTESVVORTH PINCKNEY (one
264 DEBATES. (PiNCKNEY
of the delegates of the Federal Convention) observed, that
the honorable judge, from his great penetration, had hit upon
one of those difficult points which for a long time occasioned
much debate in the Convention. Indeed, this subject ap-
peared to be of so much magnitude, that a committee con-
sisting of one member from each state was appointed to
consider and report upon it. His honorable friend (Major
Butler) was on the committee for this state. Some members
were for vesting the power for making treaties in the legis-
lature ; but the secrecy and despatch which are so frequently
necessary in negotiations evinced the impropriety of vesting
it there. The same reason showed the impropriety of pla-
cing it solely in the House of Representatives. A few mem-
bers were desirous that the President alone might possess
this power, and contended that it might safely be lodged
with him, as he was to be responsible for his conduct, and
therefore would not dare to make a treaty repugnant to the
interest of his country ; and from his situation he was more
interested in making a good treaty than any other man in
the United States. This doctrine General Pinckney said he
could not acquiesce in. Kings, he admitted, were in general
more interested in the welfare of their country than any
other individual in it, because the prosperity of the country
tended to increase the lustre of the crown, and a king never
could receive a sufficient compensation for the sale of his
kingdoms ; for he could not enjoy in any other country so
advantageous a situation as he permanently possessed in his
own. Hence kings are less liable to foreign bribery and
corruption than any other set of men, because no bribe that
could be given them could compensate the loss they must
necessarily sustain for injuring their dominions ; indeed, he
did not at present recollect any instance of a king who had
received a bribe from a foreign power, except Charles H.,
who sold Dunkirk to Louis aIV. But the situation of a
President would be very different from that of a king : he
might withdraw himself from the United States, so that the
states could receive no advantage from his responsibility ;
his office is not to be permanent, but temporary ; and he
might receive a bribe which would enable him to live, in
gniater splendor in another country than his own ; and when
out of office, he was no more interested in the prosperity of
his country than any ither patriotic citizen : and in franiins
LowNDM.] SOUTH CAROUNA. 266
a treaty, he might j^erhaps show an improper partiality for
the state to which he particularly belonged. The different
propositions made on this subject, the general observed, oc-
casioned much debate. At last it was agreed to give the
President a power of proposing treaties, as he was the osten-
sible head of the Union, and to vest the Senate (where each
Slate had an equal voice) with the power of agreeing or dis-
agreeing to the terms proposed. This, in some measure,
took away their responsibility, but not totally ; for, though
the Senate were to be judges on impeachments, and the
members of it would not probably condemn a measure they
had agreed to confirm, yet, as they were not a permanent
body, they might be tried hereafter by other senators, and
condemned, if they deserved it. On the whole, a large ma-
jority of the Convention thought this power would be more
safely lodged where they had finally vested it, than any
where else. It was a power that must necessarily be lodged
somewhere : political caution and republican jealousy ren-
dered it improper for us to vest it in the President alone ;
the nature of negotiation, and the frequent recess of the
House of Representatives, rendered that body an improper
depository of this prerogative. The President and Senate
joined were, therefore, after much deliberation, deemed the
most eligible corps in whom we could with safety vest the
diplomatic authority of the Union.
Hon. RAWLINS LOWNDES could not consider the
representation of two thirds in the Senate as equal to the old
Confederation, which required nine states. By this new
Constitution, a quorum in the Senate might consist only of
fourteen ; two thirds of which were ten. Now, was this
any thing like a check equal to the present ? Was it con-
sistent with prudence to vest so much power in the hands of
so small a body of men, who might supersede every existing
law in the Union ? Here he read the 2d clause in the 6th
article of the Constitution, viz. : " This Constitution, and the
laiVs of the United States which shall be made in pursuance
thereof, and all treaties made, or which shall be made,
under the authority of the United States, shall be the su-
preme law of the land ; and the judges in every state shall
be bound thereby — any thing in the Constitution or laws of
any state to the contrary notwithstanding." Now, in the
history of the known world, was there an instance of the
VOL. IV. 34 23
2G6 DEBATES [PiKCKNEv.
rulers of a republic being allowed to go so far ? Even the
most arbitrary kings possessed nothing like it. The tyran-
nical Henry VIII. had power given him by Parliament to
issue proclamations that should have the same force as laws
of the land ; but this unconstitutional privilege had been
justly reprobated and exploded. The king of France, though
a despotic prince, (he meant no reflection on that prince ;
his opinion was very well known,) yet could not enforce his
edicts until they had been registered in Parliament. In
England, the ministers proceed with cijution in niaking trea-
ties : far from being considered as legal without parliament-
ary sanction, the preamble always stated that his majesty
would endeavor to get it ratified by his Parliament. He ob-
served, tliat the clause entirely did away the instalment law ;
for, when this Constitution came to he established, the treaty
of peace might be pleaded against the relief which that law
afforded. The honorable gentleman cpmmented on the ex-
tensive powers given to the President, who was not, he be-
lieved, likely ever to be chosen from South Carolina or
Georgia.
Gen. CHARLES COTESWORTH PINCKNEY rose
to obviate some of the objections made by the honorable
gentleman who sat down, and whose arguments, he thought,
were calculated ad captandum, and did not coincide with
that ingenuous, fair mode of reasoning he in general made
use of. The treaty could not be construed to militate against
our laws now in existence ; and while we did not make, by
law, any distinction between our citizens and foreigners
foreigners would be content. The treaty had been enrolled
in the prothonotary's office by the express order of the judges.
It had been adjudged, in a variety of cases, to be part of the
law of the land, and had been admitted to be so whenever it
was pleaded. If this had not been the case, and any indi-
vidual state i)ossessed a right to disregard a treaty made by
Congress, no nation would have entered into a treaty with us.
The comparison made between kings and our President
was not a proper one. Kings are, in general, hereditary, in
whose appointment the people have no voice ; whereas, in the
(lection of our President, the people have a voice, and the
state of South Carolina hath a thirteenth share in his appomt-
ment. In the election of senators. South Carolina has an
rqual vote with any other state ; so has Georgia ; and if we
RyxLBDOB.] SOUTH CAROLINA. 267
have a man as fit for the office of President in this state as in
others, he did not think the being a southern man could be an
objection. More than one president of Congress had been
taken from this state. If we should not be represented in
the Senate, it would be our own Aiult ; the mode of voting
in that body per capita^ and not by states, as formerly, would
be a strong inducement to us to keep up a full rej)resenta-
tion : the alteration was approved by every one of the Con-
vention who had been a member of Congress. He then
mentioned several instances of difficulties which he had been
informed had occurred in Congress in determining questions
of vast importance to the Union, on account of the members
voting as states, and not individually. He did not think the
Southern States would be remiss in keeping a full representa-
tion. Experience proved that the Eastern and the Southern
States were most punctual in attendance. He understood
that it was the Middle ones that principally neglected this
duty.
Hon. JOHN RUTLEDGE (one of the delegates of the
Federal Convention) thought the gentleman mistaken both
as to law and fact ; for every treaty was law paramount, and
must operate. [Read part of the 9th article of Confedera-
tion.] In England, treaties are not necessarily ratified, as
was proved when the British Parliament took up the last
treaty of peace. A vote of disapprobation dispossessed Lord
Shelburne, the minister, of his place ; the Commons only
addressed the king for having concluded a peace ; yet this
treaty is binding in our courts and in England. In that
country, American citizens can recover debts due to them
under the treaty ; and in this, but for the treaty, what vio-
lences would have taken place ! What security had violent
tories, stealers of horses, and a number of lawless men, but a
law that we passed for recognizing the treaty ? There might
have been some offenders punished ; but if they had obtained
a writ o( habeas corpus^ no doubt they would have been re-
lieved. There was an obvious difference between treaties
of peace and those of commerce, because commercial treaties
frequently clashed with the laws upon that subject; so that
It was necessary to be ratified in Parliament. As a proof
that our present Articles of Confederation were paramount,
it was there expressed that France should enjoy certain privi-
leges. Now, supposing any law had passed taking those
268 DEBATES. [Pringlb
privileges awaj, would not the treaty be a sufficient bar tc
any local or municipal laws? What sort of power is that
which leaves individuals in full power to reject or approver
Suppose a treaty was unexpectedly concluded between two
nations at war ; could individual subjects ravage and plunder
under letters of marque and reprisal ? Certainly not. The
treaty concluded, even secretly, would be a sufficient bar to
the establishment. Pray, what solid reasons could be urged
to support gentlemen's fears that our new governors would
wish to promote measures injurious to their native land ?
Was it not more reasonable that, if every state in the Union
had a negative voice, a single state might be tampered with,
and defeat every good intention ? Adverting to the objection
relative to the instalment law being done away, he asked,
supposing a person gave security conformable to that law,
whether, judging from precedent, the judges would permit
any further proceedings contrary to it. He scouted the idea
that only ten members would ever be left to manage the
business of the Senate ; yet, even if so, our delegates might
be part of that ten, and consequently our interest secured.
He described difficulties experienced in Congress in 1781
and 1782. In those times business of vast importance stood
still because nine states could not be kept together. Having
said that the laws would stand exactly as they did before,
the chancellor asked whether gentlemen seriously could sup-
pose that a President, who has a character at stake, would
be such a fool and knave as to join with ten others to tear
up liberty by the roots, when a full Senate were competent
ro impeach him.
Hon. RALPH IZARD gave a clear account of the man-
ner in which edicts are registered in France, which, how-
ever, were legal without that ceremony. Even the kings of
£ngland had power to make treaties of peace or war. In
the congress held at Utrecht, two treaties were agreed upon,
one relative to peace, the other of commerce ; the latter was
not ratified, being found to clash with some laws in exist-
ence ; yet the king's right to make it was never disputed.
Mr. SPEAKER (Hon. John Julius Pringle) said, that in
general he paid great deference to the opinions of the gentle-
man, (Mr. Lowndes,) because they flowed from good natural
sense, matured by much reflection and experience. On this
occasion, he entirely disagreed with him. The gentleman
PaiNrLE.] SOUTH CAROUNi. 269
appeared extremely alarmed by a phantom of his own crea-
tion— a phantom, like every other, without body or sub-
stance, and which will vanish as soon as touched. If the
objections which we may have to other parts of the Constitu-
tion be no better founded than to this article, the Constitu-
tion will pass through the medium of this house, like gold
through the crucible, the purer, and with much' greater lustre.
His objections will only serve to confirm the sentiments of those
who favor it. All the gentleman's objections may be com-
prised in the following compass: By the article, the Presi-
dent, with ten senators, if only ten attend, may make
treaties to bind all the states — that the treaties have the
force of, and indeed are paramount to, the laws of the land
— therefore, the President and Senate have a legislative
power; and then he gives scope to a great deal of declama-
tion on the vast danger of their having such legislative power,
and particularly that they might have a treaty which might
thus repeal the instalment law. This is a greater power, he
says, than the king of France has ; the king of Great Britain
has his ratified by Parliament — the treaties of the French
king must be registered. But he conceived the gentleman
was mistaken as to those treaties made by these monarchs.
The king of France registers his edicts on some occasions, to
facilitate the execution, but not his treaties. The king of
Great Britain's treaties are discussed bv Parliament, not for
ratification, but to discover whether the ministers deserve
censure or approbation. The making of treaties is justly a
part of their prerogative : it properly belongs to the execu-
tive part of government, because they must be conducted
with despatch and secrecy not to be expected in larger as-
semblies. No such dangers as the g:entleman apprehends
can ensue from vestin"r it with the President and Senate.
Although the treaties they make may have the force of laws
when made, they have not, therefore, legislative power. It
would be dangerous, indeed, to trust them with the power
of making laws to affect the rights of individuals ; for this
might tend to the oppression of individuals, who could not
obtain redress. All the evils would, in that case, flow from
blending the legislative, executive, and judicial powers.
This would violate the soundest principles of policy and gov-
ernment. It is not with regard to the power of making
treaties as of legislation in general. The treaties will aflerf
270 DEBATES. [Pincknef;
all the individuals equally of all the states. If the President
and Senate make such as violate the fundamental laws, and
subvert the Constitution, or tend to the destruction of the
happiness and liberty of the states, the evils, equally oppress-
ing all, will be removed as soon as felt, as those who are
oppressed have the power and means of redress. Such
Treaties, not being made with good faith, and on the broad
basis of reciprocal interest and convenience, hut by treachery
and a betraying of trust, and by exceeding the powers with
which the makers were intrusted, ought to he annulled. No
nations would keep treaties thus made. Indeed, it is too
much the practice for them to make mutual interest and con-
venience the rule of observation, or period of duration. As
for the danger of repealing the instalment law, the gentle-
man has forgot that one article ordains that there shall be no
retrospective law. The President and Senate will, therefore,
hardly ever make a treaty that would be of this kind. After
other arguments to obviate the objections of the honorable
gentleman, Mr. Speaker concluded with saying, that it was
not necessary for him to urge what further occurred to him,
as he saw several of the honorable members of the Conven-
tion preparing, whose duty it more particularly was, and
who were more able to confute the honorable gentleman in
opposition.
Dr. DAVID RAMSAY asked if the gentleman meant us
ever to have any treaties at all. If not superior to local laws,
who will trust them ? Would not the question naturally be,
"Did you mean, when you made treaties, to fulfil them?"
Establish once such a doctrine, and where will vou find am-
bassadors ? If gentlemen had been in the situation of
receiving similar information with himself, they would have
heard letters read from our ambassadors abroad, in which
loud complaints were made that America had l)ecome faith-
less and dishonest. Was it not full time that such conduct
as this should he amended ?
Gen. CHARLES COTESWORTH PINCKNEY rose
to mention some instances he had omitted of the treaty with
Great Britain bein": considered in our courts as part of the
law of the land, 'the judge who held the court at Ninety-
six discharged upwards of one hundred recognizances of per-
sons committed for different crimes, which fell within the
meaning ol this treaty. A man named Love, accused of
LowwDM.] SOUTH CAROLINA. 271
murder^ was liberated. It is true, the people, enraged at the
enormity of his conduct, hanged him soon after ; l>ut of this
the judicial power knew nothing until after its perpetration.
Another murderer was allowed to plead the treaty of peace
in bar, that had conducted General Pickens's brother into
the hands of the Indians, who soon after put him to death.
Hon. RAWLINS LOWNDES desired gentlemen to con-
sider that his antagonists were mostly gentlemen of the law,
who were capable of giving ingenious explanations to such
points as they wished to have adopted. He explained his
opinion relative to treaties to be, that no treaty concluded
contrary to the express laws of the land could be valid.
The king of England, when he concluded one, did not think
himself warranted to go further than to promise that he
would endeavor to induce his Parliament to sanction it.
The security of a republic is jealousy; for its ruin may be
expected from unsuspecting security. Let us not, therefore,
receive this proffered system with implicit confidence, as
carrying with it the stamp of superior perfection ; rather let
us compare what we already possess with what we are of-
fered for it. We are now under the government of a most
excellent constitution, one that had stood the test of time,
and carried us through difficulties generally supposed to be
insurmountable ; one that had raised us high in the eyes of
all nations, and given to us the enviable blessings of liberty
and independence ; a constitution sent like a blessing from
Heaven ; yet we are impatient to change it for another, that
vested power in a few men to pull down that fabric, which
we had raised at the expense of our blood. Charters ought
to be considered as sacred things. In England, an attempt
was made to alter the charter of the East India Company ;
but they invoked heav(?n and earth ' in their cause ; moved
lords, nay, even the king, in their behalf, and thus averted
the ruin with which they were threatened.
It has been said that this new government was to be con-
sidered as an experiment. He really was afraid it would
prove a fatal one to our peace and happiness. An experi-
ment! What, risk the loss of political existence on experi-
ment! No, sir; if we are to make experiments, rather let
them be such as may do good, but which cannot oossibly do
any injury to us or our posterity. So far from leaving any
expectation of success from such experiments, he sincerelv
272 DEBATES. [Lowndes.
belie\ed that, when this new Constitution should be adopted,
che sun of the Southern States would set, never to rise
agiin.
To prove this, he observed, that six of the Eastern States
formed a majority in the House of Representatives. In the
enumeration he passed Rhode Ishtnd, and inchided PennsjU
vania. Now, was it consonant with reason, with wisdom,
with policy, to suppose, in a legishiture where a majority
of persons sat whose interests were greatly different from
ours, that we had the smallest chance of receiving adequate
advantages ? Certainly not. He believed the gentlemen
that went from this state, to represent us in Convention,
possessed as much integrity, and stood as high in point of
character, as any gentlemen that could have been selected ;
and he also believed that they had done every thing in their
power to procure for us a proportionate share in this new
government; but the very little they had gained proved
what we may expect in future — that the interest of the
Northern States would so predominate as to divest us of any
pretensions to the title of a republic. In the first place, what
cause was there for jealousy of our importing negroes? Why
confine us to twenty years, or rather why limit us at all ?
For his part, he thought this trade could be justified on the
principles of religion, humanity, and justice ; for certainly to
tmnslate a set of human beings from a bad country to a
better, was fulfilling every part of these principles. But
they don't like our slaves, because they have none them-
selves, and therefore want to exclude us from this great ad-
vantage. Why should the Southern States allow of this,
without the consent of nine states?
Judge PENDLETON observed, that only three states,
Georgia, South Carolina, and North Carolina, allowed the
importation of negroes. Virginia had a clause in her Con-
stitution for this purpose, and Maryland, he believed, even
before the war, prohibited them.
Mr. LOWNDES continued — that we had a law pro-
hibiting the importation of negroes for three vears. a law he
greatly approved of; but there was no reason offered why
the Southern States might not find it necessary to alter their
conduct, and open their ports. Without negroes, this state
would degenerate into one of the most contemptible in the
Hnion ; and he cited an expression that fell from General
LoifNUES.] SOUTH CAROLINA. 273
Pinckney on a former debate, that whilst there remained one
acre of swamp-land in South Carolina, he should raise hi»
voice against restricting the importation of negroes. Even
in granting the importation for twenty years, care had been
taken to make us pay for this indulgence, each negro being
liable, on importation, to pay a duty not exceeding ten dol
lars ; and, in addition to this, they were liable to a capitation
tax. Negroes were our wealth, our only natural resource ;
yet behold how our kind friends in the north were deter
mined soon to tie up our hands, and drain us of what we
had ! The Eastern States drew their means of subsistence,
in a great measure, from their shipping; and, on that head,
they had been particularly careful not to allow of any bur-
dens : they were not to pay tonnage or duties ; no, not even
the form of clearing out : all ports were free and open to
them! Why, then, call this a reciprocal bargain, which took
all from one party, to bestow it on the other !
Major BUTLER observed, that they were to pay five [XJi
cent, impost.
This, Mr. LOWNDES proved, must fall upon the con-
sumer. They are to be the carriers; and, we being the
consumers, therefore all expenses would fall upon us. A
great number of gentlemen were captivated with this nenv
Constitution, because those who were in debt would be conk
pelled to pay ; others pleased themselves with the reflectloii /
that no more confiscation laws would l)e passed ; but those
were small advantages, in proportion to the evils that might
be apprehended from the laws that might be passed by Con-
gress, whenever there was a majority of representatives from
the Eastern States, who w:ere governed by prejudices and
ideas extre.nely different from ours. He was afraid, in the
present instance, that so much partiality prevailed for this
new Constitution, that opposition from him would be fruit-
loss : however, he felt so much the importance of the subject,,
that he hoped the house would indulge him in a few words,,
to take a view, comparatively, of the old constitution and-
the new one, in point of modesty. Congress, lalwring under-
many dif!iculties, asked to regulate commerce for twenty-one-
years, when the power reverted into the hamls of those who>
originally gave it ; but this infallible new Constitution eased
«is of any more trouble, for it was to regulate commerce ad
infinitum ; and thus called upon us to pledge ourselves and
VOL. IV. 33
274 DEBATES. [Rutlbdgb.
posterity, forever, iu support of their measures ; so when our
lociil legislature had dwindled down to the confined powers
of a corporation, we should he liable to taxes and exrise ;
not, perhaps, payable in paper, but in specie. However,
they need not be uneasy, since every thing would be managed
in future by great men ; and great men, every body knew,
were incapable of acting under mistake or prejudice: they
were infallible; so that if, at any future period, we should
smart under laws which bore hard upon us, and think proper
to remonstrate, the answer would probably be, "Go: you
are totally incapable of managing for yourselves. Go : mind
your private affairs; trouble not yourselves with public con-
cerns— 'Mind your business.'" The latter expression was
already the motto of some coppers in circulation, and he
thought it would soon be the style of language held out to-
wards the Southern States. The honorable member apolo-
gized for going into the merits of this new Constitution,
when it was ultimately to be decided on by another tribu-
nal; but understanding that he differed in opinion with his
constituents, who were opposed to electing any person as a
member of the Convention that did not approve of the pro-
posed plan of government, he should not therefore have an
opportunity of expressing those sentiments which occurred
to him on considerinjj the plan for a new federal government.
But if it was sanctioned by the people, it would have his
hearty concurrence and sup|)ort. He was very much, origi-
nally, against a declaration of independency ; he also opposed
the instalment law; but when they received the approbation
of the people, it became his duty, as a good citizen, to pro-
mote their due observance.
Hon. E. RUTLEDGE was astonished to hear the honor-
able gentleman pass such eulogium on the old Confederation,
and prefer it, as he had done, to the one before the house.
For his part, he thought that Confederation so very weak, so
very inadequate to the purposes of the Union, that, unless it
was materially altered, the sun of American inde|)endence
would indeed soon set — never to rise again. What could
be effected for America under that highly-extolled constitu-
tion ? Could it obtain security for our commerce in any
parr of the world ? Could it force obedience to any one
law of the Union? Could it obtain one shilling of money
for rhe discharge of the most honorable obligations? The
RiTTLEDGB.] SOUTH CAROLINA. 275
honorable gentleman knew it could not. Was there a single
power in Europe that would lend us a guinea on the faith
of that Confederation? or could we borrow one on the pub-
lic faith of our own citizens ? The people of America had
seen these things ; they had felt the consequences of this
feeble government, if that deserved the name of government
which had no power to enforce laws founded on solemn com-
pact ; and it was under the influence of those feelings that
with almost one voice, they had called for a different govern-
ment. But the honorable gentleman had said that this gov-
ernment hud carried us gloriously through the last war. Mr.
Rutledge denied the assertion. It was true we had passed
gloriously through the war while the Confederation was in
existence ; but that success was not to be attributed to the
Confederation ; it was to be attributed to the firm and uncon-
querable spirit of the people, who were determined, at the
hazard of every consequence, to oppose a submission to Brit-
ish government; it was to be attributed to the armaments
of an ally, and the pecuniary assistance of our friends: these
were the wings on which' we were carried so triumphantly
through the war; and not this wretched Confederation, which
is unable, by universal acknowledgment, to obtain a dis-
charge of any part of our debts in the hour of the most
perfect domestic tranquillity. What benefits, then, are to be
expected from such a constitution in the day of danger?
Without a ship, without a soldier, without a shilling in the
federal treasury, and without a nervous government to obtain
one, we hold the property that we now enjoy at the courtesy
of other powers. VVas this such a tenure as was suitable to
the inclinations of our constituents ? It certainly was not.
They had called upon us to change their situation, and we
should betray their interest, and our own honor, if we neg-
lected it. But the gentleman has said that there were
points in this new confederation which would endanger the
rights of the people — that the President and ten senators
may make treaties, and that the balance between the states
was not sufficiently preserved — that he is for limiting the
powers of Congress, so that they shall not be able to do
any harm ; for, if they have the power to do any harm,
they miy. To this Mr. Rutledge observed, that the greatest
part of the honorable gentleman's objection was founded on
an opinion that the choice of the people would fall on the
most worthless and the most negligent part of the com
276 DEBATERS. [RuTLEDOK
inunity ; but if it was to be admitted, it would go to the
withholding of all power from all public l)odies. The gen-
tleman would have done well to have defined the kind of
power that could do no harm. The very idea of power inclu-
ded a possibility of doing harm ; and if the gentleman would
show the power that could do no harm, he would at once
discover it to be a power which could do no good. To
argue against the use of a thing from the abuse of it, had
long since been exploded by all sensible people. It was
true that the President, with the concurrence of two thirds
of the Senate, might make treaties; and it was possible that
ten senators might constitute the two thirds, but it was just
within the reach of possibility, and a possibility from whence
no danger could be apprehended. If the President or the
senators abused their trust, they were liable to impeachment
and punishment ; and the fewer that were concerned in the
abuse of the trust, the more certain would be the punishment.
In the formation of this article, the delegates had done their
duty fully ; they had provided that two thirds of the Senate
should concur in the making of treaties. If the states should
be negligent in sending their senators, it would be their own
fault, and the injury would be theirs, not the framers of the
Constitution ; but if they were not negligent, they would
have more than their share. Is it not astonishing that the
gentleman who is so strenuous an advocate for the powers
of the people, should distrust the people the moment that
power is given to them, and should found his objections to
this article in the corruption of the representatives of the
people, and in the negligence of the people themselves? If
such objections as these have any weight, they tend to the
destruction of all confidence — the withholding of all power
— the annihilation of all government. Mr. Rutledge insist
ed that we had our full share in the House of Represent-
atives, and that the gentleman's fears of the northern interest
prevailing at all times were ill-founded. The Constitution
had provided for a census of the people, and the number of
representatives was to be directed by the numl)er of the
people in the several states ; this clause was highly favorable
to the southern interest. Several of the Northern States
were already full of people: it was otherwise with us; the
migrations to the south were immense, and we should, in the
course of a few years, rise high in our representation, whiUt
PiNCKiHEY.] SOUTH CAROLINA. 277
other states would keep their present position. Gentlemeu
should carry their views into futurity, and not confine them-
selves to the narrow limits of a day, when contemplating a
subject of such vast importance. The gentleman had com-
plained of the inequality of the taxes between the Northern
and Southern States ; that ten dollars a head was imposed
on the importation of negroes ; and that those negroes were
afterwards taxed. To this it was answered, that the ten
dollars per head was an equivalent to the five per cent, on
imported articles ; and as to their l)eing afterwards taxed,
the advantage is on our side, or, at least, not against us.
In the Northern States the labor is performed by white
people, in the Southern by black. All the free people (and
there are few others) in the Northern States are to be taxed
by the new Constitution ; whereas only the free people, and
two fifths of the slaves, in the Southern States, are to be
rated, in the apportioning of taxes. But the principal objec-
tion is, that no duties are laid on shipping ; that, in fact, the
carrying trade was to be vested, in a great measure, in the
Americans; that the ship-building business was principally
carried on in the Northern States. When this subject is
duly considered, the Southern States should be the last to
object to it. Mr. Rutledge then went into a consideration
of the subject ; after which the house adjourned.
Thursday, January 17, 1788.
Gen. CHARLES COTESWORTH PINCKNEY oh-
served, that the honorable gentleman (Mr. Lowndes) who
opposed the new Constitution had asserted that treaties made
under the old Confederation were not deemed p-irainoniit to
the laws of the land, and that treaties made by the king of
Great Britain required the ratification of ParliamtMit to ren-
der them valid. The honorable gentleman is surely mistaken
in his assertion. His honorable friend (Chancellor Rut-
ledge) hnd clearly shown that, by the 6th, 9th, and 13th
Articles of the old Confederation, Congress have a power to
make treaties, and each state is pledged to observe them ;
and it appears, from the debates of the English Parliament,
that the House of Commons did not ratify, but actually cen-
sure, the peace made by the king of Great Britain with
America ; yet the very members who censured it acknowl-
edged it was binding on the nation. [Here the general
24
*276 . DEBATES. [Piwcknet
read extracts from the parliamentary debates of the 17th and
21st of February, 1784.] Indeed, the doctrine that the king
of Great Britain may make a treaty with a foreign state,
which shall irrevocably bind his subjects, is asserted by the
best writers on the laws and constitution of England — par-
ticularly by Judge Blackstone, who, in the first book of his
Commentaries, (ch. 7, p. 257,) declares " that it is the king's
prerogative to make treaties, leagues, and alliances, with
foreign states and prhices, and that no other power in the
kingdom can legally delay, resist, or annul them." If trea-
ties entered into by Congress are not to be held in the same
sacred light in America, what foreign nation will have any
confidence in us ? Shall we not be stigmatized as a faith-
less, unworthy people, if each member of the Union may,
with impunity, violate the engagements entered into by the
federal government? Who will confide in us? Who will
treat with us if our practice should be conformable to this
doctrine ? Have we not been deceiving all nations, by hold-
ing forth to the world, in the 9th Article of the old Confeder-
ation, that Congress may make treaties, if we, at the same
time, entertain this improper tenet, that each state may vio-
late them ? I contend that the article in the new Constitu-
tion, which says that treaties shall be paramount to the laws
of the land, is only declaratory of what treaties were, in fact,
under the old compact. They were as much the law of the
land under that Confederation, as they are under this Con-
stitution ; and we shall be unworthy to be ranked among
civilized nations if we do not consider treaties in this view.
Vattel, one of the best writers on the law of nations, says,
" There would be no more security, no longer any commerce
between mankind, did they not believe themselves obliged
to preserve their faith, and to keep their word. Nations,
and their conductors, ought, then, to keep their promises and
their treaties inviolable. This great truth is acknowledged
by all nations. Nothing adds so great a glory to a prince
and the nation he governs, as the reputation of an inviolable
fidelity to his engagements. By this, and their bravery, the
Swiss have rendered themselves respectable throughout
Europe. This national greatness of soul is the source of
immortal glory ; upon it is founded the confidence of nations,
and it thus becomes a certain instrument of power and splen-
dor." Surely this doctrine is right ; it speaks to the heart ,
PiNCKNEY.] SOUTH CAROLINA. 279
It impresses itself on the feelings of mankind, and convmces
us that the tranquillity, happiness, and prosperity, of the
human race, depend on inviolably preserving the faith of
treaties.
Burlamaqui, another writer of great reputation on politi-
cal law, says "that treaties are obligatory on the subjects
of the powers who enter into treaties ; they arc obligatory
as conventions between the contracting powers ; but they
have the force of law with respect to their subjects." These
are his wry words : " lis out force de hi a Pegard des sujetSy
considerts comme tels; and it is very manifest," continues
he, " that two sovereigns, who enter into a treaty, impose,
by such treaty, an obligation on their subjects to conform to
it, and in no manner to contravene it." It is remarkable
that the words made use of by Burlamaqui establish the doc-
trine, recognized by the Constitution, that treaties shall be
considered as the law of the land ; and happy will it be for
America if they shall be always so considered : we shall then
avoid the disputes, the tumults, the frequent wars, we must
inevitably be engaged in, if we violate treaties. By our
treaty with France, we declare she shall have all the privi-
leges, in matters of commerce, with the most favored nation.
Sup[X)se a particular state should think proper to g:rant a
particular privilege to Holland, which she refuses to France ;
would not this be a violation of the treaty with France ? It
certainly would ; and we in this state would be answerable
for the consequences attending such violation by another
state ; for we do not enter into treaties as separate states,
but as united states; and all the members of the Union are
answerable for the breach of a treaty by any one of them.
South Carolina, therefore, considering its situation, and the
valuable produce it has to export, is particularly interested in
maintaining the sacredness of treaties, and the good faith with
which they should be observed by every member of the
Union. But the honorable gentleman complains that the
power of making treaties is vested in the President and
.Senate, and thinks it is not placed so safely with them as
with the Congress under the old Confederation. Let us
examine this objection. By the old Confederation, each
state had an equal vote in Congress, and no treaty could be
made without the assent of the delegates from nine states.
By the present Constitution, each state sends two member?
286 DEBATES. [PiNCKNEv.
to u\e Senate, who vote per capita ; and the President has
power, with advice and consent of the Senate, to make
treaties, provided two thirds of the Senate present concur.
This inconvenience attended the old method : it was fre-
quently difficult to obtain a representation from nine states ;
and if only nine states were present, they must all concur
in making a treaty. A single member would frequently pre-
vent the business from being concluded ; and if he absented
himself, Congress had no power to compel his attendance.
This actually happened when a treaty of importance was
about to be concluded w^ith the Indians ; and several states,
being satisfied, at particular junctures, that the nine states
present would not concur in sentiments on the subject of a
treaty, were indifferent whether their members attended or
not. But now that the senators vote individually, and not
by states, each state will be anxious to keep a full represen-
tation in the Senate ; and the Senate has now power to com-
pel the attendance of its own members. We shall thus
have no delay, and business will be conducted in a fuller
representation of the states than it hitherto has been. All
ihe members of the Convention, who had served in Con-
gress, were so sensible of the advantage attending this mode
of voting, that the measure was adopted unanimously. For
my own part, I think it infinitely preferable to the old method.
So much for the manner of voting.
Now let us consider whether the power of making treaties
is not as securely placed as it was before. It was formerly
vested in Congress, who were a body constituted by the
legislatures of the different states in equal proportions. At
present, it is vested in a President, who is chosen by the
people of America, and in a Senate, whose members are
chosen by the state legislatures, each legislature choosing two
members. Surely there is greater security in vesting this
power as the present Constitution has vested it, than in any
other l)ody. Would the gentleman vest it in the President
alone ? If he would, his assertion that the power we have
granted was as dangerous as the power vested by Parliament
in the proclamations of Henry VIII., might have been, per-
haps, warranted. Would he vest it in the House of Repre-
sentatives ? Can secrecy be expected in sixty-five members ?
The idea is absurd. Besides, their sessions will probablv
last only two or three months in the year ; therefore, on thai
PiifCKNBY.l SOUTH CAROUNA. 231
account, they would be a very unfit body for negotiation
whereas the Senate, from the smallness of its numbers, from
the equality of power which each state has in it, from the
length of time for which its membt)rs are elected, from the
long sessions they may have without any great inconveniency
to themselves or constituents, joined with the president, who
is the federal head of the United States, form together a
body in whom can be best and most safely vested the diplo-
matic power of the Union.
General Pinckney then observed, that the honorable
gentleman had not conducted his arguments with his usual
candor. He had made use of many which were not well
founded, and were only thrown out ad captandum. Why
say, upon this occasion, that every thing would, in future, be
managed by great men, and that great men could do no
wrong ? Under the new Constitution, the abuse of power
was more effectually checked than under the old one. A
proper body, immediately taken from the people, and return-
able to the people every second year, are to impeach those
who behave amiss, or betray their public trust ; another body,
taken from the state legislatures, are to try them. No man,
however great, is exempt from impeachment and trial. If
the representatives of the people think he ought to be im-
[)eache^ and tried, the President carniot pardon him ; and
ihis great man himself, whom the honorable g:entleman pre-
tends to he so much afraid of, as well as the Vice-President,
and all civil officers of the United States, are to be removed
from office on impeachment and conviction of treason, bri-
bery, or other high crimes and misdemeanors. Then why
make use of arguments to occasion improper jealousies and
ill-founded fears ? Why is the invidious distinction of " great
men " to be reiterated in the ears of the members ? Is there
any thing in the Constitution which prevents the President
and senators from being taken from the poor as well as the
rich ? Is there any pecuniary qualification necessary to the
holding of any office under the new Constitution ? There
is not. Merit and virtue, and federal principles, are the
qualifications which will prefer a poor man to office, before
a rich man who is destitute of them. The gentleman has
made a warm panegyric on the old Confederation. Can he
possibly be serious, and does he really think it can secure us
tranquillity at home, or respect abroad ? Ask the citizcn»
VOL. IV. 3fi
282 DEBATES. [PiNCkNET
ol Massachusetts if the Confederation protected them dur-
ing the insurrection of Shays. Ask the crews of our vessels
captured by the Algerines if respect for our government hath
softened the rigors of their captivity. Inquire of our dele
gates to Congress if all the despatches from your public
ministers are not filled with lamentations of the imbecility
of Congress ; and whether foreign nations do not declare
they can have no confidence in our government, because it
has not power to enforce obedience to treaties. Go through
each state in the Union, and be convinced that a disregard
for law hath taken the place of order, and that Congress is
so slighted by all of them that not one hath complied with
her requisitions. Every state in the Union, except Rhode
Island, was so thoroughly convinced that our government
was inadequate to our situation, that all, except her, sent
members to the Convention at Philadelphia. General
Pinckney said, it had been alleged that, when there, they
exceeded their powers. He thought not. They had a
right, he apprehended, to propose any thing which they
imagined would strengthen the Unign, and be for the ad-
vantage of our country ; but they did not pretend to a right
to determine finally upon any thing. The present Constitu-
tion is but a proposition which the people may reject ; but
he conjured them to reflect seriously before they did reject
it, as he did not think our state would obtain better terms
by another convention, and the anarchy which would, in all
probability, be the consequence of rejecting this Constitu-
tion, would encourage some daring des|x>t to seize upon the
government, and etTectually deprive us of our liberties.
Every member who attended the Convention was, from
the beginning, sensible of the necessity of giving greater
powers to the federal government. This was the very pur-
pose for which they were convened. The delegations of
Jersey and Delaware were, at first, averse to this organiza-
tion ; but they afterwards acquiesced in it ; and the con-
duct of their delegates has been so \ovy agreeable to the
people of these states, that their respective conventions have
unanimously adopted the Constitution. As we have found
It necessary lu give very extensive powers to the federal
government both over the persons and estates of the citi-
zens, we thought it right to draw one branch of the legisla-
ture immediately from the people, and that both wealth anil
PiNCKNEY.] SOUTH CAROLINA. 283
numbers should be considered in the representation. vVe
were at a loss, for some time, for a rule to ascertain the
proportionate wealth of the states. At last we thought that
the productive labor of the inhabitants was the best rule for
ascertaining their wealth. In conformity to this rule, joined
to a spirit of concession, we determined that representatives
should be apportioned among the several states, by adding
to the whole number of free persons three fifths of the slaves.
We thus obtained a representation for our property ; and I
confess I did not expect that we had conceded too much to
the Eastern States, when they allowed us a representation
^or a species of property which they have not among them.
The numbers in the different states, according to the
most accurate accounts we could obtain, were —
In New Hampshire 102,000
Massachusetts, 360,000
Rhode Island, 58,000
Connecticut 202,000
New York 23:3,000
New Jersey, 138,000
Pennsylvania, 360,000
Delaware, 37,000
Maryland, (including three fifths of 80,000 negroes,) . . 218,000
Virginia, (including three fifths of 280,000 negroes,) . . 420,000
N. Carolina, (including three fifths of 60,000 negroes,) . . 200,000
S. Carolina, (including three fifths of 80,000 negroes,) . . 150,000
Georgia, (including three fifths of 20,000 negroes,) . . . 90,000
The first House of Representatives will consist of sixty-
five members. South Carolina will send five of them. Each
state has the same representation in the Senate that she has
at present; so that South Carolina will have, under the new
Constitution, a thirteenth share in the government, which is
the proportion she has under the old Confederation : and
when it is considered that the Eastern States are full of
men, and that we must necessarily increase rapidly to the
southward and south-westward, he did not think that the
Southern States will have an inadequate share in the repre-
sentation. The honorable gentleman alleges that the
Southern States are weak. I sincerely agree with him.
VVe are so weak that by ourselves we could not form a union
strong enough for the purpose of effectually protecting each
other. Without union with the other states, South Carolina
must soon fall. Is there any one among us so much a
284 DEBATES. [PiNCKKBT.
Quixote as to suppose that this state could long maintain her
independence if she stood alone, or was only connected with
the Southern States ? I scarcely' believe there is. Let an
invading power send a naval force into the Chesapeake to
keep Virginia in alarm, and attack South Carolina with such
a naval and military force as Sir Henry Clinton brought hefe
in 1780; and though they might not soon conquer us, they
would certainly do us an infinite deal of mischief; and if
they considerably increased their numbers, we should proba-
bly fall. As, from the nature of our climate and the fewness
of our inhabitants, we are undoubtedly weak, should we not
endeavor to form a close union with the Eastern States, who
are strong ? And ought we not to endeavor to increase that
species of strength which will render them of most service to
us both in peace and war ? — I mean their navy. We cer-
tainly ought ; and by doing this we render it their particular
interest to afford us every assistance in their power, as every
wound that we receive will eventually affect them. Reflect,
for a moment, on the situation of the Eastern States ; their
country full of inhabitants, and so impracticable to an invad-
ing enemy by their numberless stone walls, and a variety of
other circumstances, that they can be under no apprehension
of danger from an attack. They can enjoy their independ-
ence without our assistance. If our government is to be
founded on equal compact, what inducement can they possi-
bly have to be united with us, if we do not grant them some
privileges with regard to their shipping? Or, supposing
they were to unite with us without having these privileges,
can we flatter ourselves that such union would be lasting, or
that they would afford us effectual assistance when invaded ?
Interest and policy both concurred in prevailing upon us to
submit the regulation of commerce to the general govern-
ment. But I will also add, justice and humanity require it
likewise. For who have been the greatest sufferers in the
Union, by our obtaining our independence? I answer, the
Eastern States. They have lost every thing but their coun-
try and their freedom. It is notorious that some ports to the
eastward, which used to fit out one hundred and fifty sail of
vessels, do not now fit out thirty ; that their trade of ship-
building, which used to be very considerable, is now annihi-
lated ; that their fisheries are trifling, and their mariners in
want of bread. Surely we are called upon by every tie o
PuicaNET.] SOUTH CAROLINA. 285
justice, friendship, and humanity, to relieve their distresses ;
and as, by their exertions, they have assisted us in establish-
ing our freedom, we should let them, in some measure,
partake of our prosperity. The general then said he would
make a few observations on the objections which the gentle-
man had thrown out on the restrictions that might be laid
on the African trade after the year 1808. On this point
your delegates had to contend with the religious and political
prejudices of the Eastern and Middle States, and with the
interested and inconsistent opinion of Virginia, who was
warmly opposed to our importing more slaves. I am of the
same opinion now as 1 was two years ago, when I used the
expressions the gentleman has quoted — that, while there re-
mained one acre of swamp-land uncleared of South Carolina,
I would raise my voice against restricting the importation of
negroes. I am as thoroughly convinced as that gentleman
is, that the nature of our climate, and the flat, swampy situa-
tion of our country, obliges us to cultivate our lands with ne-
groes, and that without them South Carolina would soon bo
a desert waste.
You have so frequently heard my sentiments on this sub-
ject, that I need not now repeat them. It was alleged, by
some of the members who opposed an unlimited importation,
that slaves increased the weakness of any«tate who admitted
them ; that they were a dangerous species of property, which
an invading enemy could easily turn agciinst ourselves and
the neighboring states ; and that, as we were allowed a rep-
resentation for them in the House of Representatives, our
influence in government would be increased in proportion as
we were less able to defend ourselves. " Show some
period," said ihe members from the Eastern States, " when
it may be in our power to put a stop, if we please, to the im
portation of this Weakness, and we will endeavor, for y.oui
convenience, to restrain, the religious and political prejudices
of our people on this subject." The Middle States and Vir-
ginia made us no such proposition ; they were for an im-
mediate and total prohibition. We endeavored to obviate
the objections that were made in the best manner we could,
.ind assigned reasons for our Insisting on the importation,
which there is no occasion to repeat, as they must occur to
every gentleman in the house : a committee of the states
WHS appointed in order to accommodate this matter, and
"idS DEBATES. IPiNcaifBY
after a great deal of difficulty, it was settled on the footing
recited in the Constitution.
By this settlement we have secured an unlimited importa-
tion of negroes for twenty years. Nor is it declared that the
importation shall be then stopped ; it may be continued.
We have a security that the general government can never
emancipate them, for no such authority is granted ; and it is
admitted, on all hands, that the general government has no
powers but what are expressly granted by the Constitution,
and that all rights not expressed were reserved by the several
states. We have obtained a right to recover our slaves in
whatever part of America they may take refuge, which is a
right we had not before. In short, considering all circum-
stances, we have made the best terms for the security of this
species of property it was in our power to make. We would
have made better if we could ; but, on the whole, I do not
think thehi bad.
Dr. DAVID RAMSAY thought our delegates had made
a most excellent bargain for us, by transferring an immense
sum of Continental debt, which we were pledged to pay,
upon the Eastern States, some of whom (Connecticut, for
instance) could not expect to receive any material advantage
from us. He considered the old Confederation as dissolved.
Hon. JACOB READ looked on the boasted efficiency of
Congress to be farcical, and instanced two cases in proof of
his opinion. One was, that, when the treaty should have
been ratified, a sufficient number of members could not be
collected in Congress for that purpose ; so that it was neces-
sary to despatch a frigate, at the expense of four thousand
dollars, with particular directions for Mr, Adams to use his
endeavors to gain time. His application proved successful ;
oth«»rwise, very disagreeable consequences must have ensued.
The other case was, a party of Indians came to Princeton
for the purpose of entering into an amicable treaty with Con-
gress ; before it could be concluded, a member went to
Philadelphia to be married, and his secession had nearly
involved the western country in all the miseries of war. Mr.
Read urged a concurrence with those states that were in
favor of the new Constitution.
Hon. CHARLES PINCKNEY observed, that the honor-
able gentleman was singular in his op|X)sition to the new
Constitution, and equally singular in his profuse praise of the
UwNDEs.] SOUTH CAROLINA. 287
old one. He described, with much good sense, the imprac-
ticability of annexing responsibility to the office of President
in a republican form of government ; the only remedy against
despotism being to form a party against those who were
obnoxious, and turn them out. He observed that the Presi-
dent's |X)wers did not permit him to declare war.
Hon. RAWLINS LOWNDES declared himself almost
willing to give up his post, finding he was opposed by such
a phalanx of able antagonists, any one of them possessing
sufficient abilities to contend with him ; but as a number of
respectable members, men of good sense, though not in the
habit of speaking in public, had requested that he would state
his sentiments, for the purpose of gaining information on
such points as seemed to require it, — rather in compliance,
therefore, with their wishes, than any inclination on his part,
he should make a few further observations on the subject.
Much had been said, from different p irts of the house, against
the old Confederation — that it was such a futile, inefficient,
impolitic government as to render us the objects of ridicule
and contempt in the eyes of other nations. He could not
agree to this, because there did not appear any evidence of
the fact, and because the names of those gentlernen who had
signed the old Confederation were eminent for patriotism,
virtue, and wisdom, — as much so as any set of men that
could be found in America, — and their prudence and wisdom
particularly appeared in the care which they had taken
sicredly to guaranty the sovereignty of each state. The
treaty of peace expressly agreed to acknowledge us as free,
sovereign, and independent states, which privileges we lived
at present in the exercise of. But this new Constitution at
once swept those privileges away, being sovereign over all ;
so that this state would dwindle into a mere skeleton of what
it was ; its legislative powers would be pared down to little
more than those now vested in the corporation ; and he
should value the honor of a sent in the legislature in no
higher estimation than a seat in the city council. Adverting
to the powers given to the President, he considerul them as
enormous, particularly in being allowed to interfere in the
election of members in the House of Representatives ; aston-
ishing that we had not this reserved to us, when the senators
were to \ye chosen from that body : — thinks it might be so
managed that the different legislatures should be limited to
the passing a few laws for regulating ferries and roads.
288 DEBATES. [LowNDu
The honorable gentleman went into an investigation of
the weight of our representation in the proposed government,
which he thought would be merely virtual, similar to what
we were allowed in England, whilst under the British govern-
ment. We were then told that we were represented in
Parliament; and this would, in the event, prove just such
another. The mode of choosing senators was exceedingly
exceptionable. It had been the practice formerly to choose
the Senate or council for this state from that house, which
practice proved so inconvenient and oppressive, that, when
we framed our present Constitution, great care was taken to
vest the [X)wer of electing the Senate originally with the
people, as the best plan for securing their rights and privi-
leges. He wished to know in what manner it was proposed
to elect the five representatives. Was it to be done in this
city? or would some districts return one member, and others
none at all ?
Still greater difficulties would be found in the choice of a
President, because he must have a majority of ninety-one
votes in his favor. For the first President there was one
man to whom all America looked up, (General Washington,)
and for whom he most heartily would vote ; but after that
gentleman's administration ceased, where could they point
out another so highly respected as to concentre a majority
of ninety-one persons in his favor ? and if no gentleman
should be fully returned, then the government must stand
still. He went over much of the groimd which he had trod
the preceding day, relative to the Eastern States having l)een
so guarded in what they had conceded to gain the regulation
of our commerce, which threw into their hands the carryin^:
trade, and put it in their power to lay us under payment of
whatever freightag;e they thought proper to impose. It was
their interest to do so, and no person could doubt but they
would promote it hy every means in their power. He
wished our delegates had sufficiently attended to this point
in the Convention — had been more attentive to this object,
and taken care to have it expressed, in this Constitution,
that all our ports were open to all nations ; instead of put-
ting us in the power of a set of men who may fritter away
the value of our produce to a little or nothing, by compelling
payment of exorbitant freightage. Neither did he believe
it was in the power of the Eastern States to furnish a suf-
UwNDBa.] SOUTH CAROLINA. 289
ficient number of ships to carry our produce. It was, in-
deed, a general way of talking, that the Eistern States had
a great number of seamen, a vast number of ships ; but
where were they? Why did they not come here now,
when ships are greatly wanted ? He should always wish to
give them a preference, and so, no doubt, would many other
fentlemen ; and yet very few ships come here from the
lastern States. Another exceptionable point was, that we
were to give up the power of taxing ourselves. During our
connection with Great Britain, she left us the power of rais-
ing money in any way most convenient : a certain sum was
only required to defra}; the public wants, but no mode of
collecting it ever prescribed. In this new Constitution,
every thing is transferred, not so much power being left
us as Lord North offered to guaranty to us in his concili-
atory plan. Look at the articles of union ratified between
England and Scotland. How cautiously had the latter ta-
ken care of her interest in reserving all the forms of law
— her representation in Parliament — the right of taxation
— the management of her revenue — and all her local and
municipal interests! Why take from us the right of paying
our delegates, and pay them from the federal treasury ? He
remembered formerly what a flame was raised in Massachu-
setts, on account of Great Britain assuming the payment of
salaries to judges and other state officers ; and that this con-
duct was considered as originating in a design to destroy
the independence of their government. Our local expenses
had been nearly defrayed by our impost duty ; but now
that this was given away, and thrown into a general fund,
for the use of all the states indiscriminately, we should be
obliged to augment our taxes to carry on our local govern-
ment, notwithstanding we were to pay a poll tax for our ne-
groes. Paper money, too, was another article of restraint,
and a popular point with many ; but what evils had we ever
experienced by issuing a little paper money to relieve our-
selves from any exigency that pressed us ? We had now a
circulating: medium which every body took. We used for-
merly to issue paper bills every year, and recall them every
five, with great convenience and advantage. Had not pa
per money carried us triumphantly through the war, extri-
cated us from difficulties generally supjx)sed to be insur-
ounm table, and fully established us in our independence i^
VOL. IV. 37 25
290 DEBATES. IL0WNDE&
and now every thing is so changed that an entire stop must
be put to any tnore paper emissions, however great our dis-
tress may be. It was true, no article of die Constitution
declared there should not be jury trials in civil cases; yet
this must be implied, because it stated that all crimes, ex-
cept in cases of impeachment, shall be tried by a jury. JJut
even if trials by jury were allowed, could any person rest
satisfied with a mode of trial which prevents the parlies from
being obliged to bring a cause for discussion before a jury
of men chosen from the vicinage, in a manner conformable
to the present administration of justice, which had stood the
test of time and experience, and evQjr been highly approved
of? Mr. Lowndes expatiated some time on the nature of
compacts, the sacred light in which they were held by all
nations, and solemnly called on the house to consider wheth-
er it would not be better to add strength to the old Confed-
eration, instead of hastily adopting another ; asking whether
a man could be looked on as wise, who, possessing a mag-
nificent building, upon discovering a flaw, instead of re-
^ pairing the injury, should pull it down, and build another,
indeed, he could not understand with what propriety the
Convention proceeded to change the Confederation ; for
every person with whom he had conversed on this subject
concurred in opinion that the sole object of appointing a
convention was to inquire what alterations were necessary
in the Confederation, in order that it might answer those
salutary purposes for which it was originally intended.
He recommended that another convention should be called ;
and as the general sense of America appeared now to be
known, every objection could be met on fair grounds, and
adequate remedies applied where necessary. This mode of
proceeding would conciliate all parties, because it was
candid, and had a more obvious tendency to do away all
inconveniences than the adoption of a government which
perhaps might require the liayonet to enforce it ; for it
could not he, expected that the people, who had disregarded
the requisitions of Congress, though expressed in language
the most elegant and forcible that he ever rememl)ered to
have read, would be more obedient to the government
until an irresistible force compelled th<»m to be so. Mr,
Lowndes concluded a lonjr speech with a glowing eulogy on
the old Confederation, and challenged his opponents, whilst
Barmwell,) south CAROLINA. 29l
one state objected, to get over that section which said, " The
Articles of this Confederation shall be inviolably observed
in every state, and the Union shall be per[)etual; nor shall
any alteration at any time hereafter be made in them, unless
such alteration be agreed to m a Congress of the United
States, and be afterwards confirmed by the legislature of
every state."
Hon. ROBERT BARNWELL said, although he had been
opposed to the investigation of the Federal Constitution at
that period, and in that house, and foretold the unneces-
sary expenditure of lK)th time and treasure that would be
occasioned by it, yet he acknowledged that, if individual
information upon its principles could by any means be a
compensation for these wastes, he should be extremely
indebted to the honorable gentleman for the opposition
which he had given. Mr. Barnwell was most decidedly in
favor of the Constitution as recommended by the Convention,
and viewed with pleasure the small sacrifices of interest,
which, in his opinion, have been made to effect it. The
arguments which had been adduced by the honorable gen-
tleman in opposition had riveted his affections still more
firmly to it, and had established in his mind, as conviction,
what was only approbation before. If he did not view
some part of the Constitution through a medium different
from any of the gentlemen who had spoken before him, he
should not have troubled this house. VVith this idea he rose,
and left it to the house to determine whether he had done
his duty as a meml)er, or whether he had unnecessarily
contributed to the interruption of the business before them.
When he foifnd that a gentleman of such acknowledged
abilities, and of so great experience, was opposed to the
Constitution, he expected a train of reasoning, and a power
of argument, that would have m ide the federal fabric totter
to its foundation. But to him they rather appeared like
those storms which shake the edifice to fix it more strongly
on its basis. To give his reasons for this opinion, he hegged
the indulgence of the house while he made the following
ol)servatioii8 upon the principles of the gentleman's opposi-
tion. In the first instance, it appeared to him that the gen-
tleman had established, as the basis of his ohj(»ctions, thai
the Eastern States entertained the greatest aversion to those
which lay to the south, and would endeavor in every
292 DEBATES. Barnwelu
mstani e to oppress them. This idea he considered as found-
ed in prejudice, and unsupported by facts. To prove
this assertion, Mr. B. requested gentlemen for a moment to
turn their attention to the transactions which the late war
has engraved upon the memory of every man. When the
arm of oppression lay heavy on us, were they not the first to
arouse themselves ? When the sword of civil discord was
drawn, were they not the first in the field ? When war del-
uged their plains with blood, what was their language ?
Did they demand the southern troops to the defence of the
north ? No ! Or, when war floated to the south, did they
withhold their assistance ? The answer was the same.
When we stood with the spirit, but weakness, of youth,
they supported us with the vigor and prudence of age
When our country was subdued, when our citizens submit
ted to superior power, it was then these states evinced their
attachment. He saw not a man who did not know that the
shackles of the south were broken asunder by the arms of
the north. With the above-mentioned supposition of op-
pression, the gentleman had objected to the formation of the
Senate ; that the Confederation required nine states to
ratify matters of importance, but by the Constitution a
majority of fourteen can do almost any thing. That this
was the case he did not deny ; but the conclusions that he
had drawn were by no means consequential. The seven
Eastern States, the gentleman had said, whose interests
were similar, will unite together, and, by having a majority
in the Senate, will do what they please. If this was the
case, it went against uniting at all ; for, if he was not mis-
taken, the interests of nine of the United States are almost
the same. New Hampshire, Massachusetts, Rhode Island,
Connecticut, New York, New Jersey, Pennsylvania, and
Delaware, are very similar in their interests. They are
most of them entirely carriers for others ; and those states
which are exporting ones are very nearly equal to the
carrying of their products themselves. Supposing, then, the
desire of oppression to exist, he asked if they could not do
it equally as well under the Confederation as the Constitu-
tion. He thought so ; and, as the gentleman's arguments
equally lay against every kind of coercive government, he
was of opinion that the Senate, as established by this
Constitution, was the most proper. Upon this head he
Barmwrll.) south CAROLINA. 293
begged permission to ask these questions : If the oiajority
was in the Southern States, (which, as ten is a majority,
might be the case,) would not objections, equally forcible as
the gentleman's, lie on the side of the Eastern States? and
yet that, in all governments, a majority must be somewhere,
is most evident : nothing would be more completely farcical
than a government completely checked. Having commented
thus far on the gentleman's opposition to the Federal Consti-
tution, he proceeded, according to the order of his objections,
to consider the presiding. power. On this he would be ex-
tremely concise ; for, as the only objection which had fallen
upon this head from the honorable gentleman was, that we
had only a thirteenth part of him ; and as this might equally,
and, in his opinion, with more justice, be the objection of
many and almost every state, he considered it only as a
weight thrown into the scale of other objections, and not a
subject for discussion.
With respect to the President's responsibility, it could not
be established more firmly than it is by the Constitution.
When treaties are made, if in the time of prosperity, men
seldom think they gain enough ; if in the day of adversity,
they would be apt to make the President the pillow upon
whom they would rest all their resentment. The Constitu-
tion had then wisely made him, as a man, responsible by the
iofluence of fame, his character, and his feelings ; as a citi-
zen, they have postponed the period at which he could be
tried with propriety until the fervor of party and cool reflec-
tion can determine his fate. The gentleman had also ob-
jected to the power given to those two branches of making
treaties, and that these treaties should become the law of the
land. A number of gentlemen have proved this power to l>e
in the possession of the head of every free nation, and that it
is within the power of the present Congress. He should
only, therefore, observe, that the most free and enlightened
nations of the world had a federal head, in which this power
was established — he meant the Amphictyonic council of the
Greeks, which was the palladium of their united liberties,
and, until destroyed by the ambition of a few of the states
of Greece, was revered by that jealous people as the corner-
stone of their federal union. Against the representation he
generally objects, that they are too few, and not elected im-
mediately by the people. The whole body consists of sixtv
294 DEBATES. [Babnwbll
five persons, in vhe proportion of one to thirty thousand.
The British Parliament have one to fifteen thousand in the
island of Great Britain, without considering her possessions
elsewhere. The numbers of her Parliament are fixed ; our
congressional powers may be increased almost ad infinitum.
Supposing, then, that a smaller apportionment had been
made, in time we should have been oppressed with the
number of legislators, and our government would be as lan-
guid and inoperative as it is at prese nt ; and he differed so
much from the honorable gentleman, that he was apprehen-
sive lest he should find that, by the Constitution, their num
bers will be too great. As for their not being immediately
elected by the people at large, the gentleman would please
to observe, that, contradictory to their present method of
electing delegates to Congress, — a method laid down by
that Confederation which he admires, — all the representa-
tives are elected by the people ; so that, in this instance, the
gentleman was very unfortunate in his objection. The gen-
tleman also asked why we were deprived of the liberty of
paying our own delegates ? This is another of the gentle-
man's unfounded suspicions; for the reason is so evident,
and the regulation so favorable, that he was astonished how
it escaped the honorable gentleman's notice. Congress are
to have the sole power of laying on imposts ; and therefore,
when that fund is given up by which we were enabled to
pay our delegates, we are also eased of the burden of doing
it. This is so evident, that the establishment of the objec-
tion takes not a little from the weight of the gentleman's
other observations. Mr. Barnwell proceeded to say that the
gentleman, upon the deprivation of the right to issue paper
medium, has altogether made use of an argument ad homi-
nem, calculated to seduce ; and his eulogium upon it was. in
his opinion, misapplied. However, supposing that to be the
clew that led us to our liberty, yet the gentleman must ac-
knowledge it was not the state, but the Continental money,
that brought about the favorable termination of the war. If
to strike off a paper medium becomes necessary, Congress,
by the Constitution, still have that right, and may exercise
't when they think proper.
The honorable gentleman asks why the trial by jury was
not established in every instance. Mr. Barnwell considered
this right of trial as the birthright of every American, and th?
Rabnwbll.] south GAROUNA. 29h
•
basis of our civil liberty; but still most certainly particulai
circumstances may arise, which .would induce even the great-
est advocates for this right to yield it for a time. In his
opinion, the circumstances that would lead to this point
were those which are specified by the Constitution. Mr
Barnwell said, Suffer me to state a case, and let every gen-
'tleman determine whether, in particular instances, he would
not rather resign than retain this right of trial. A suit is
depending between a citizen of Carolina and Georgia, and it
becomes necessary to try it in Georgia. What is the conse-
quonce? Why, the citizen of this state must rest his cause
upon the jury of his opponent's vicinage, where, unknown
and unrelated, he stands a very poor chance for justice
against one whose neighbors, whose friends and relations,
compose the greater part of his judges. It is in this case,
and only in cases of a similar nature with this, that the right
of trial by jury is not established ; and judging from myself,
it is in this instance only that every man would wish to re-
sign it, not to a jury with whom he is unacquainted, but to
an impartial and responsible individual.
Mr. Barnwell then adverted to the parts of the Constitu-
tion which more immediately affected our state ; namely,
the right of establishing imposts and granting preferences,
and the clause which respects the importation of negroes.
Upon the first he premised, that, in the compacts which
unite men into society, it always is necessary to give up a
part of our natural rights to secure the remainder; and that,
iu every instance, if the latter could be maintained without
giving up the lormer, every individual would be willing to
keep back his share of those aggregate ties which then would
bind the rest of the community ; each individual would wish
to retain his right to act as he plenses, whilst all but himself
were restricted in their conduct. Let us, then, apply this
to the United States ; and yet the honorable gentleman sup-
poses that South Carolina should be free herself. Surely
this is no* just, and cannot be admissible.
Mn C'lairman, suffer me to make this one other remark —
that, wlvjn the distinctions occasioned by wealth take place,
the desiie of equality and the appetite for property soon ren-
der it necessary that the wealthy weak man should make
greater sacrifices than the man who has nothing to lose, and
consequently nothing to fear. This is the case wi*h us. To
DEBATES. [Barnwell.
secuie our wealth, and establish our security, perhaps some
little sacrifice was necessary ; and what is this sacrifice ?
Why, that, generally, American vessels should have a prefer-
ence in the carrying trade. The gentleman asserts that, by-
granting this preference, we, as a large importinjj state, will
sufier greatly. Let us examine the truth of this position.
By so doing, says the honorable gentleman, we shall destroy
all competition, and the carrying states will establish what
freight they please. I deny the declaration ; and upon this
principle: bc^unties act as encouragements; and this prefer-
ence may, in a trifling degree, injure us for one or two years,
but will throw so many capitals into this trade, that, even if
the Eastern States should desire to oppress us, this would
prevent them ; for when this bounty takes place, our harbors
will most indisputably reduce the freight. The gentleman
will perhaps say that this is conjectural only. 1 appeal to
every author, who has written upon the subject, for the cer-
tainty of this commercial maxim, and will ask the gentleman
himself, whether an overstock of the market, in every in-
stance, docs not reduce the price of the commodity. Thus
he had proved, he thought, that, should the Eastern States
be desirous to take unfriendly advantages, their own interest
would defeat their intention.
Mr. Barnwell continued to say, I now come to the last
point for consideration, — 1 mean the clause relative to the
negroes ; and here I am particularly pleased with the Con-
stitution. It has not left this matter, of so much importance
to us, open to immediate investigation. No ; it has declared
that the United States shall not, at any rate, consider this
matter for twenty-one years ; and yet gentlemen are dis-
pleased with it. Congress has guarantied this right for that
space of time, and at its expiration may continue it as long
as they please. This question then arises — What will their
inlerest lead them to do ? The Eastern States, as the hon-
orable gentleman says, will become the carriers of America.
It will, therefore, certainly be their interest to encourage
exportation to as great an extent as possible ; and if the
quantum of our products will be diminished by the prohibi-
tion of negroes, I appeal to the belief of every man,
whether he thinks those very carriers will themselves dam
up the sources from whence their profit is derived. To think
so IS so contradictory to the general conduct of maiikind,
LowwoEs.] SOUTH CAROLINA. 297
that I am of opinion, that, without we ourselves put a stop
to them, the traffic for negroes will continue forever.
Mr. Barnwell concluded hy declaring that this Constitu-
tion was, in his opinion, like the laws of Solon, not the best
possible to be formed, but the best that our situation will
admit of. He considered it as the panacea of America,
whose healing power will pervade the continent, and sin-
cerely believed hat its ratification is a consummation devoutly
to be wished.
Commodore GILLON wished to know what reason the
house had to suppose that, if another convention met, our
interest would be better taken care of by men of equal abili-
ties with those who went to the other; or if, when there,
they could procure for us superior advantages to those already
agreed on. Indeed, he could not but consider our negativ-
ing the •proffered government as an oblique mode of reflect-
ing on the conduct of our delegates, instead of giving them
that praise they were so Justly entitled to. He called the
attention of the house to the late commotions that had hap-
pened in Holland, where one part of the citizens had called
in the assistance of foreigners, for the sanguinary purpose of
cutting the throats of the other. Are we more virtuous?
If not, may it not happen that, if dissension unhappily prevail
among us, foreign aid will be joined to those enemies already
amongst us, and introduce the horrors of a civil war ? He
was warmly in favor of our sister states becoming the carriers
of America ; not that he wished to exclude our employing
foreigners; at present two thirds of our produce was <!arried
in American bottoms. The commodore hoped the gentle-
man who had approved of our state Constitution of 1778,
would be, in time, equally pleased with the Federal Consti-
tution proposed in 1787. He had represented our present
situation to be calm and peaceable, but it was such a calm
as mariners often experience at sea, after a storm, when one
ship rolls against another, and they sink.
Hon. RAWLINS LOWNDES said, the honorable gen-
tleman frequently thought proper to level his shot at him ;
hut on the present occasion they were not well pointed.
The reason why he assented unto the Constitution in 1778
was, because it had been approved of by the people. There
had been something said about a ship: the Confederation
was our old ship ; it had cost us a great deal of money ; and
VOL. IV. 38
?98 DEBATES. [RuTLBDOB.
he hoped we should keep her at sea without having any new
commanders.
Hon. JOHN MATHEWS, chancellor, confessed himself
astonished at hearing such encomiums on the Articles of
Confederation, as if they had carried us victoriously through
the war, when, in fact, they were not ratified until the year
1781 ; and if the Confederation had been in force in 1776,
this country would have inevitably been lost, because, under
it, Congress had not authority to give General Washington
the powers of a dictator at Valley Forge. Surely the honor-
able gentleman must be sensible that the success of Congress
depended on the explicit confidence of the people ; the voice
of Congress had the force of law, and was cheerfully and
readily obeyed. With regard to the carrying trade, when
the Convention was first ap[)ointed, he was afraid that, if a
navigation act passed, the Northern States could not for some
time furnish shipping sufficient for carrying the produce of
America ; but on going, last year, to the northward, he was
fully convinced to the contrary. At Rhode Island, he
received information that they could immediately furnish
50,000 tons of shipping, and that in 1787 Massachusetts
could furnish 150,000 tons. He then went into a calculation
of the produce of the Southern States. Virginia raised
between 60,000 and 70,000 hogsheads annually; South
Carolina, he sup|X)sed, would raise nearly 150,000 barrels of
rice ; Georgia about 40,000 ; which, making large allow-
ances for other kind of produce, still left an excess of ship-
ping. As to any fears that the Northern States would so
far engross the navio:ation of America as to lav the Southern
States under a kind of contribution, by charging excessive
freightage, we must sup|)ose that they and the Middle States
would confederate for this piir|)ose ; for, if they did not, a
competition would naturiilly arise between them, and also
between America and the European nations, which would
always secure us against the payment of great and exorbitant
freights. As to the idea that a Senate could overturn our
liberties and establish tyranny, this evil never could take
place whilst the President was an honest man, because he
|X)ssessed the power of negativing any improper proceedings
of the two other branches of government.
Hon. EDWARD RUTLEDGE proved, from the act
passed last session, appointing delegates from the state t(
RuTLBDOB.] SOUTH CAROLINA. 299 .
meet those from other states, in Convention at Philadelphia,
that they had not exceeded their powers. H^ then com-
pared the powers given under the old and new constitutions,
and proved that they differed very little, except in thai
essential point which gave the power to government of en-
forcing its engagements ; and surely no person could object
to this. Mr. Rutledge thought very lightly of those fears
entertained about bayonets being necessary to enforce an
obedience in the people to the laws, when it became certain
that they could not be broken with impunity ; but if a spirit
of resistance should appear, surely it ought to be in the power
of government to compel a coercion in the people. He then
took some notice of the union between Great Britain and
Scotland, showed the difference between the articles of
union and our Federal Constitution. Great Britain reserved
to herself the power of passing navigation laws, regulating
the excise; the rate of taxation was also proportionate; for
every two millions of money raised in England, Scotland
engaged to raise £45,000 ; but in this country, we were to
be equally taxed ; no distinction had been made, and we *
went on all-fours. So far from not preferring Northern
States by a navigation act, it would be politic to increase
their strength by every means in our power ; for we had no
other resource, in the day of danger, than in the naval force
of our northern friends ; nor could we ever expect to become
a great nation until we were powerful on the waters. Look
only at the partiality of an act passed in England last year,
in which we were excluded from trading in some parts of
the West Indies, whilst liberty was given to all European
powers. In fact, we must hold our country by courtesy,
unless we have a navy ; for, if we are invaded, supposing in the
month of July, Congress could not send troops nine hundred
miles, in time to rescue us from danger, were we to run such
risk, l)ecause it was possible we should be charged a little
more freightage for our produce. But if we are a great
maritime people, what have we to fear ? Nothing ; because
European powers were so far removed from us that it would
be very dangerous to send a considerable force against us ;
l)esides, as the West India trade must pass near our coast, it
naturally lay at our mercy. The honorable gentleman had
jaid a great deal about establishing an aristocracy, and yet
he wanted more power to the old constitution : now, did not
30C> DEBATES. [PiNCRNEy
ills own proposition, which tended to establish a precedent
for .slipping in, by degrees, additional power, appear as likely
to promote what he dreaded, as to agree with a constitution
that came sanctioned by the voice of the people ?
Hon. ARTHUR SIMKINS, of Ninety-six, asked, for
information, whether Congress had a right to interfere in
religion.
Gen. CHARLES COTESWORTH PINCKNEY an-
swered, they had no power at all, and explained this point to
Mr. Simkins's satisfaction.
Hon. RAWLINS LOWNDES saying that he was much
in arrear, the committee rose, reported some progress, and
asked leave to sit again. Leave was given.
Friday, January 18, 178W.
Maj. PIERCE BUTLER opened the debate (as we un-
derstand ; the reporter of those debates unfortunately not
being in the housej with several satisfactory answers to some
points of objection the preceding day.
Gen. CHARLES COTESWORTH PINCKNEY, in
answer to Mr. Lowndes, observed, that, though ready to pay
every tribute of applause to the great characters whose
names were subscril)ed to the old Confederation, yet his
respect for them could not prevent him from being thoroughly
sensible of the defects of the system they had established ;
sad experience had convinced him that it was weak, ineffi-
cient, and inadequate to the pur}X)ses of good government ;
and he understood that most of the framers of it were so
thoroughly convinced of this truth, that they were eager to
adopt the present Constitution. The friends of the new
system do not mean to shelter it under the respectability of
mere names ; they wish every part of it may be examined
with critical minuteness, convinced that the more thoroughly
it is investigated, the better it will appear. The honorable
gentleman, in the warmth of his encomiums on the old plan,
had said that it had carried us with success through the war.
In this it has been shown that he is mistaken, as it -was not
finally ratified till March, 1781, and, anterior to that latifica-
iion. Congress never acted under it, or considered it as bind-
ing. Our success, therefore, ought not to be imputed to tne
old Confederation ; but to the vast abilities of a Washington,
PwcKNET.] SOUTH CAROLINA. 301
to the valor and enthusiasm of our people, to the cruelty of
our enemies, and to the assistance of our friends. The gen-
tleman had mentioned the treaty of peace in a manner as if
our independence had been granted us by the king of Great
Britain. But that was not the case ; we were independent
before the treaty, which does not in fact grant, but acknowl-
edges, our independence. We ought to date that invaluable
blessing from a much older charter than the treaty of peace
— from a charter which our babes should be taught to lisp
in their cradles ; which our youth should learn as a carmen
necessarium, or indispensable lesson ; which our young men
should regard as their compact of freedom ; and which our old
should repeat with ejaculations of gratitude for the bounties
it is about to bestow on their posterity : I mean the Decla-
ration of Independence, made in Congress the 4th of July,
1776. This admirable manifesto, which, for importance of
matter and elegance of composition, stands unrivalled, suffi-
ciently confutes the honorable gentleman's doctrine of the
individual sovereignty and independence of the several
states.
In that Declaration the several states are not even enu-
merated ; but after reciting, in nervous language, and with
convincing arguments, our right to independence, and the
tyranny which compelled us to assert it, the declaration is
made in the following words : " We, therefore, the represent-
atives of the United States of America in General Congress
assembled, appealing to the Supreme Judge of the world for
the rectitude of our intentions, do, in the name and by the
authority of the good people of these colonies, solemnly pub-
lish and declare, that these United Colonies are, and of right
ought to be, FREE AND INDEPENDENT STATES."
The separate independence and individual sovereignty of
the several states were never thought of by the enlightened
band of patriots who framed this Declaration ; ,the several
states are not even mentioned by name in any^part of it, —
as if it was intended to impress this maxim on America,
that our freedom and independence arose from our union,
and that without it we could neither be free nor independ-
ent. Let us, then, consider all attempts to weaken this
Union, by maintaining that each state is separately and indi-
Tidually independent, as a species of political heresy, which
26
3t/2 DEBATES. [Pincknet
can never benefit us, but may bring on us the most serious
distresses.
The general, then, in answer to Mr. Lowndes's objections,
thnt the powers vested in the general government were too
extensive, enumerated all the powers granted, and remarked
particularly on each, showing that the general good of the
Union required that all the powers sj>ecified ought necessarily
to be vested where the Constitution had placed them ; and
that, as all the powers granted sprang from the people, and
were to be exercised by persons frequently chosen, mediately
or immediately, by the people ; and that, as we had as great
a shcire in the government, in proportion to our importance,
as any other state had, — the assertion that our representa-
tion would be merely virtual, similar to what we possessed
under the British government, was altogether unfounded ;
that there was no danger of the powers granted being abused
while the people remained uncorrupt ; and that corruption
was more effectually guarded against, in the manner this
government was constituted, than in any other that had ever
been formed. From the number of electors who have a right
to vote for a member of the House of Representatives, little
danger can be apprehended of corruption or undue influence,
ff a small district sent a member, there would be frequent
opportunities for cabal and intrigue ; but if the sphere of
election is enlarged, then opportunities must necessarily
diminish. The little demagogue of a petty parish or county
will find his importance annihilated, and his intrigues useless,
when several counties join in an election ; he probably would
not be known, certainly not regarded, out of his own circle ;
while the man whose abilities and virtues had extended a
fair reputation beyond the limits of his county, would, nine
times out of ten, be the person who would be the choice of
the people.
There will be no necessity, as the honorable gentleman
has strangely, supposed, for all the freeholders in the state to
meet at Charleston to choose five members for the House of
Representatives ; for the state may be divided into five elec-
tion districts, and the freeholders in each election district
may ciioose one representative. These freeholders need not
all meet at the same place in the district ; they may ballot
in their particular parishes and couiuies on the same day,
and the ballots may be thence carried into a central part of
PiNCKNEY,] SOUTH CAROLINA. 303
the district, and opened at the same time ; and whoever shall
appear to have a majority of the votes of the freeholders of
the whole district will be one of the five representatives for
this state. But if any state should attempt to fix a very in-
convenient time for the election, and name (agreeably to the
ideas of the honorable gentleman) only one place in the
state, or even one place in one of the five election districts,
for the freeholders to assemble to vote, and the people should
dislike this arrangement, they can petition the general gov-
ernment to redress this inconvenience, and to fix times and
places of election of representatives in the state in a more
convenient manner; for, as this house has a right to fix the
times and places of election, in each parish and county, for
the members of the House of Representatives of this state,
so the general government has a similar right to fix the times
aod places of election, in each state, for the members. of the
general House of Representatives. Nor is there any real
danger to be apprehended from the exercise of this power, as
it cannot be supposed that any state will consent to fix the
election at inconvenient seasons and places in any other state,
lest she herself should hereafter experience the same incon-
venience ; but it is absolutely necessary that Congress should
have this superintending power, lest, by the intrigues of a
ruling faction in a state, the members of the House of Rep-
resentatives should not really represent the people of the state,
and lest the same faction, tiirou^h partial state views, should
altogether refuse to send representatives of the people to the
general government. The general government has not the
same authority with regard to the members of the Senate.
It would have been improper to have intrusted them with it;
for such a power would, in some measure, have authorized
them to fix the times and places when and where the state
legisl.itures should convene, and would tend to destroy that
necessary check which the general and state governments
will have on each other. The honorable gentleman, as if he
was determined to object to every part of the Constitution,
though he does not approve of electing representatives im-
mediately by the people, or at least cannot conceive how it
is to be effected, yet objects to the constitution of the Senate,
IjccHUse the senators are to be elected by the state legislatures,
and not immediately by the people. When the Constitu-
tion says the people shall elect, the g(»ntleman cries out. " It is
304 DEBATES. [PiNcufBr.
chimerical ! — the election will be merely virtual." When the
Constitution determines that the state legislatures are to elect,
he exclaims, "The people's rights are invaded ! — the election
should be immediately by them, and not by their representa-
tives." How, then, can we satisfy him, as he is determined
to censure, in this Constitution, that mode of election wh'x'h
he so highly approves in the old Confederation ? The reason
why our present state Constitution, mr^de in 1778, changed
the mode of electing senators from the mode prescribed by
our first constitution, passed in 1776, was because, by the
first, the senators were elected by this house, and therefore,
being their mere creatures, they could not be supposed to
have that freedom of will as to form a proper check on its
proceedings ; whereas, in the general Constitution, the
House of Representatives will be elected immediately by
the people, and represent them and their personal rights in-
dividually ; the Senate will be elected by the state legisla-
tures, and represent the states in their political capacity ;
and thus each branch will form a proper and independent
check on the other, and the legislative powers will be advan-
tageously balanced.
With regard to the objection that had been made to the
mode of electing the President of the United States, General
Pinckney asked what other mode would have been so proper.
If he was to be elected by the House of Representatives and
the Senate, as one of them have the power of impeaching
and the other of trying him, he would be altogether their
creature, and would not have independence enough to exer-
cise with firmness the revisionary power and other authorities
with which he is invested by the Constitution. This want
of independence might influence his conduct, in some degree,
if he was to be elected by one branch of the legislature
alone ; but as he is to be elected by the people, through the
medium of electors chosen particularly for that purpose, and
he is in some measure to be a check on the Senate and House
of Representatives, the election, in my opinion, could not
have been placed so well if it had been made in any other
mode.
In all elections of a chief magistrate, foreign influence is
to be guarded against. Here it is very carefully so ; and it
is almost impossible for any foreign power to influence thir-
teen different sets of electors, distributed throughout the
PiwcMBT.] SOUTH CAROLINA. 306
states, from New Hampshire to Georgia. By this mode,
also, and for the same reason, the dangers of intrigue ano
corruption are avoided, and a variety of other inconveniences,
which must have arisen if the electors from the different
states had been directed to assemble at one place, or if ei-
ther branch of the legislature (in case the majority of elect-
ors did not fix upon the same person) might have chosen a
President who had not been previously put in nomination
by the people. I have before spoken of the policy and jus-
tice of vesting the majority of Congress with the power ot
making commercial regulations, and the necessity there is,
in all well-constituted republics, that the majority should
control the minority ; and I should have had a very strong
objection if it had contained the restrictive clause the hon-
orable gentleman appears so anxious for, " that Congress
should not have it in their power to prevent the ships o(
any nation from entering our ports." I cannot think it
would have been prudent or fitting to have given the ships
of all foreign nations a constitutional right to enter our ports
whenever they pleased, and this, too, notwithstanding we
might be at war with them ; or they may have passed laws
denying us the privileges they grant to all other commercial
nations; or circumstances not now foreseen might render it
necessary for us to prohibit them. Such a clause would
have injured the Eastern States, would have been eventu-
ally detrimental to ourselves, and would have in fact amount-
ed to a declaration that we were resolved never to have a
navy. To such a clause the general declared he never
would hive consented, and desired the gentleman to produce
an instance of any independent power who did not give
exclusive advantages to their own shipping. He then took
notice that Chancellor Matthews had fully answered what
had been alleged concerning the exorbitant freights we
should be obliged to pay, and had clearly shown that no
danger was to be apprehended on that subject ; and that
the Eastern States could soon furnish us, and all the South-
ern States, with a sufficient number of ships to carry off
our produce. With regard to the general government im-
posing internal taxes upon us, he contended that it was
absolutely necessary they should have such a power : requi-
sitions had been in vain tried every year since the ratifica-
tion of the old Confederation, and not a* single state had
VOL. IV. 39
306 DEBATES. [Pincknei
p5iid the quota required of her. The general governmenl
could not abuse this power, and favor one state and oppress
another, as each slate was to be taxed only in proportion
to its representation ;• and as to excises, when it is consid-
ered how many more excisable articles are manufactured to
the northward than there are to the southward, and the ease
and convenience of raising a revenue by indirect taxation,
and the necessity there is to obtain money for the payment
of our debts, for our common defence, and for the general
welfare, he thought every man would see the propriety, and
even the necessity, of this clause. For his part, he knew
of no sum that he would not sooner have consented to have
paid, if he had had it, rather than have adopted Lord North's
conciliatory plan, which seems, by the argument of the gen-
tleman, to be in some respect preferable to the proposed
Constitution ; but in asserting this, the gentleman cer-
tainly cannot be serious. As to the payment of members
of the legislature out of the federal treasury. General Pinck-
ney contended it was rii^ht, and particiilarly beneficial to us,
who were so distant from the seat of the federal govern-
ment, as we at present paid our members not only while
they were actually in Congress, but for all the time they
were going there and returning home, which was an ex-
pense the Middle States felt but in a slight degree ; but now
that all the meml>ers are to be paid out of the public treasu-
ry, our remote situation will not be particularly expensive to
us. The case of the payment of the Massachusetts judges
under the royal government can by no ingenuity be made
applicable to the payment of the members of the federal
legislature. With regard to Mr; Lowndes's question, " What
harm had paper money done ? " General Pinckney answered,
that he wondered that gentleman should ask such a question,
as he had told the house that he had lost fifteen thousand
guineas by depreciation ; but he would tell the gentleman
what further injuries it had done — it had corrupted the
morals of the people ; it had diverted them from the paths
of honest industry to the ways of ruinous speculation ; it
had destroyed both ptiblic and private credit, and had brought
total ruin on numberless widows and orphans.
As to the judiciary department. General Pinckney observed,
that trial by jury was so deservedly esteemed by the people
of America, that it is impossible for their n^presenutives to
I NCKNVT.] SOUTH CAROLINA. 307
omit introducing it whenever it can with propriety he done.
In appeals from courts of chancery, it surely would he im-
proper. In a dispute between a citizen of Carolina and a
citizen of Georgia, if a jury was to try the case, from which
stale are they to be drawn ? If from both or either, would
the citizens of Carolina and Georgia choose to be summoned
to attend on juries eight hundred miles from their home^
and if the jury is to be drawn from the state in which Con-
gress shall sit, would these citizens wish that a cause rel-
ative to negro property should be tried by the Quakers of
Pennsylvania, or by the freeholders of those states thai have
not that species of property amongst them ? Surely not.
Yet it is necessary, when a citizen of one state cannot
obtain an impartial trial in another, that, for the sake of
justice, he should have a right to appeal to the supreme ju-
diciary of the United States to obtain redress; and as this
right of appeal does not extend to citizens of the same state,
(unless they claim under grants of different states,) but only
to the causes and persons particularly mentioned in the Con-
stitution, and Congress have power to make such regulations
and impose such restrictions relative to appeals as they think
proper, it can hardly be supposed that they will exercise it
in a manner injurious to their constituents.
Trials by jury are expressly secured in all criminal cases,
and not excluded in any civil cases whatsoever. But expe-
rience had demonstrated that it was impossible to adhere
to them in all civil cases: for instance, on the first establish-
ment of the admiralty jurisdiction, Congress pissed an ordi-
nance requiring all causes of capture to be decided by juries:
this was contrary to the practice of all nations, and we knew
it ; but still an attachment to a trial by jury induced the ex-
periment. What was the consequence ? The property of
our friends was, at times, condemned indiscriminately with
the property of our enemies, and the property of our citizens
of one state by the juries of another. Some of our citizens
have severely felt these inconveniences. Citizims of other
states and other powers experienced similar misfortunes from
this mode of trial. It was, therefore, by universal consent
and approbation, laid aside in cases of capture. As the ordi-
nance which regulated these trials was passed by Congress,
they had the power of altering it, and they exercised that
|iower' but had that ordinance been part of the Confede«^-
SU8 DEBATES. [LowNDLfe.
ti6o, it could not then have been repealed in the then situa-
cion of America ; and had a clause of a similar tendency
been inserted in this Constitution, it could only be altered by
a convention of the different states. This shows at once
how improper it would have been to have descended to
mmutiiB in this particular ; and he trusted it was unneces-
sary, because the laws which are to regulate trials must be
made by the representatives of the people chosen as this
house are, and as amenable as they are for every part of
their conduct. The honorable gentleman says, compacts
should be binding, and that the Confederation was a com-
pact. It was so ; but it w^as a compact that had been
repeatedly broken by every state in the Union ; and all the
writers on the laws of nations agree that, when the parties to a
treaty violate it, it is no longer binding. This was the case
with the old Confederation ; it was virtually dissolved, and it
became necessary to form a new constitution, to render us
secure at home, respectable abroad, and to give us that station
among the nations of the world, to which, as free and inde-
pendent people, we are justly entitled.
Hon. RAWLINS LOWNDES observed, that he had
been accused of obstinacy in standing out against such a
formidable opposition ; but he would sincerely assure the
house that he was as open to conviction as any gentleman
on the floor : yet he never would allow himself to be drawn
into the adoption of specious arguments ; for such he con-
sidered many of those now opposed against him to be. In-
deed, some gentlemen had departed from their usual candor
in giving an interpretation to his arguments which they did not
merit. In one instance, it had been stated as if he was of
opinion that treaties had not the force of law. This was
going too far. He did not recollect that he had asserted any
more than that the king of Great Britain had not a legal power
to ratify any treaty which trenched on the fundamental laws
of the country. He supposed a case, under the dispensing
act of William and Mary, asking, " If the king had made a
treaty with the Roman Catholics, could that which was
excepted by the laws ever be considered as paramount ? '^
The honorable gentleman again took an ample view of the
old Confederation, on which he dwelt with fervency for some
time, and ridiculed the depraved inconsistency of those who
pant for the change. Great stress was laid on the admirable
UwNPEs.] SOUTH CAROLINA. 30^
checks which guarded us, under the new Constitution, from
the encroachments of tjranny ; but too many checks in a
political machine must produce the same mischief as in a
mechanical one — that of throwing all into confusion. But
^ftupposing we considered ourselves so much aggrieved as to
reduce us to the necessity of insisting on redress, what
probability had we of relief? Very little indeed. In the
Involving on misfortune, some little gleams of comfort
resulted from a hope of being able to resort to an impartial
tribunal for redress; but pray what reason was there for
expectancy that, in Congress, the interest of five Southern
States would be considered in a preferable point of view to
the nine Eastern ones ? With respect to migration from the
Eastern States to the Southern ones, he did not believe that
people would ever iiock here in such considerable numbers,
because our country had generally proved so uncomfortable,
from the excessive heats, that our acquaintance, during the
beats, is rather shunned than solicited. The honorable gen-
tleman mentioned that he had sent for a person from Europe,
who did not long survive his introduction here, falling a
sacrifice to the baneful effects of fogs and swamps; so that,
from our limitation of importing: negroes after the term of
twenty years, instead of rising in representation, we should
gradually degenerate. He treated those fears of our falling
a prey to foreigners as one of those arguments tending to
precipitate us into measures inimical to our natural interest;
for was it to be supposed that the policy of France would
ever suffer America to become an appendage of the crown
of Great Britain; or that Great Britain, equally jealous of
France, would permit her to reduce us to subjection ? Our
danger of ruin should rather be apprehended from dissen-
sions amongst ourselves — from our running into debt with-
out any intention to pay : that was the rock on which we
might split, rather than foreign enemies ; and, therefore, all
ihose arguments for establishing the necessity of a navy and
standing army were nugatory, and entitled to very little
attention.
It was urged that, until we had a navy powerful enough
to protect us, our liberties and property were held only on
courtesy ; but if gentlemen adverted, where this navy, so
necessary, was to come from, — not from the Southern States,
but the Northern ones. — they would easily perceive to whom
310 DEBATES. [liO\rNDB8.
this country would belong. It was true, the old Confedera-
tion was a mere paper defence ; but then it was a good proof
on our behalf if we were overcome b^ unmerited wrongs.
Some had made this a question — "Will you join, or will
you be single ? " For his part, he did not think matters had
rome to such a crisis ; rather let us comply with Oiir federal
connection, which, not yet being broken, admits of being
strengthened. A gentleman had instanced Vattel in support
of his argument, and laid down, from that author, an ophiion
that where parties engaged in the performance of an obliga-
tion, should any one of them fly off from his agreement, the
original was null and void. He had ingeniously applied this
to our present Continental situation, and contended, as some
of the states acted in a refractory manner towards the Con-
tinental Union, and obstinately refused a compliance, on
their parts, with solemn obligations, that of course the Con-
federation was virtually dissolved. But Vaitel merely recited
such a case as where only a part of a confederation was
broken ; whereas ours was totally different, every state in the
Union having been uniform in refusing a compliance with
the requisitions of Congress. Some gentlemen had advanced
a set of assertions to prove that the Eastern States had
greatly suffered in the war. Pray, how had they suffered ?
Did they not draw from the Continental treasury large sums
of money? Was not every expense incurred by them
defrayed out of the Continental coffers ? Another great ad-
vantage held out was, that we should be eased, in future, from
the obligation and difficulty of defraying the expenses of del-
egates. Had we gained so much by this, when we had
fpven up the very means of furnishing this sort of supply,
formerly in our own option? As to the taxes, undoubtedly
they must be increased under this new government. We
paid at present two dollars per head u|X)n our negroes; but
the expenses attending our pompous government might in-
crease this expense into six dollars per head, and this enor-
mous sum collected by a sort of foreign power ; for did any
man, that knew America, suppose such tax will be easily
paid "^ But if there was such a universal propensity to set up
this golden image, why delay its inauguration ? Let us at
once go plump into the adoration of it ; let us at once sur-
render every right which we at present possess. A material
olijection of his to the offered plan was, that the President
Rci LEDGE.] SOUTH CAROLINA. ill
would have power to«caU both houses at what time aud place
he thought proper. Suppose a political cause for partiality,
might he not so arrange things, as to carry a favorite point,
by assembling the federal government, to the ruin or detri-
ment of those states he meant to crush, and laws be enacted
before those in extreme parts of the country knew any thing
of their tendency ? Surely some restrictions, as to time of
meeting, should have been specified. The President had
also the power of adjourning to any day he thought proper.
In our old constitution, no such power was given to the chif^f
magistrate to adjourn or dissolve. On the whole, this was
the best preparatory plan for a monarchical government he
had read. The Constitution of Great Britain he considered
as the best monarchical one he ever perused ; and this new
government came so near to it, that, as to our changing
from a republic to a monarchy, it was what every body must
naturally expect. How easy the transition ! No difficulty
occurred in finding a kinj^:: the President was the man proper
for this appointment. The Senate, hailing him a king, (con-
stituted, according to Mr. Adams's description, from the well-
born,) will naturally say to one anotlier, " You see how we
are situated ; certainly it is for our country's benefit that we
should be all lords;" and lords they are.
Mr. Lowndes concluded his speech with thanking the
house for their very great indulgence in permitting him to
take up so much time. He hoped that the vast importance
of the subject would plead his excuse. He also thanked
those gentlemen on the other side of the question for the
candid, fair manner in which they had answered his argu-
ments Popularity was what he never courted ; but on this
point he spoke merely to point out those dangers to which
his fellow-citizens were exposed — dangers that were so evi-
dent, that, when he ceased to exist, he wished for no other
epitaph, than to have inscribed on his tomb, " Here lies the
man that opposed the Constitution, because it was ruinous
to the liberty of America."
Hon. JOHN RUTLEDGE declared he had often heard
the honorable gentleman with much pleasure ; but on the
present occasion, he was astonished at his perseverance.
Well mij|ht he apologize for his taking up the time of gentle-
men, when, in the very outset, he declared that this Consti
tution must necessarily be submitted to a future convention
dl2 DEBATES. LLiNGouf.
of ihe people. Why, then, enter so largely in argument on
its merits, when the ultimate decision dej}ended on another
body? Mr. Rutledge then took up an argument relative to
treaties k.ot being paramount to the laws of the land. Was
not the lajt treaty contrary to the Declaratory Act, and a great
number o^ other acts of Parliament? Yet who ever doubted
its validit} ? The gentleman had declared that his senti-
ments were so much in contradiction to the voice of his con-
stituents, tuat he did not expect to be appointed a member
of the Couvention. Mr. Rutledge hoped he would be
appointed, aud did not hesitate to pledge himself to prove,
demonstrably, that all those grounds on which he dwelt so
much amounted to nothing more than mere declamation;
thai his boasted Confederation was not worth a farthing ;
and iliat, if Mr. Chairman was intrenched in such instru-
ments up to hw3 chin, they would not shield him from one
single national calamity. So far from thinking that the sun
of this country was obscured by the new Constitution, he
did not doubt Ix-t that, whenever it was adopted, the sun of
this state, uniteJ with twelve other suns, would exhibit a
meridian radiance astonishing to the world. The gentle-
man's obstinacy brought to his recollection a friend to this
country, once a .iiember of that house, who said, *' It is gen-
erally imputed tc me that I am obstinate. This is a mistake.
I am not so, but sometimes hard to be convinced."
Hon. PATRICK CALHOUN, of Ninety-six, mace some
observations on ihe too great latitude allowed in religion.
Hon. JAMES LINCOLN, of Ninety-six, declared, that
if ever any persviu rose in a public assembly with diffidence,
he then did ; if i;ver any person felt himself deeply interested
in what he thought a good cause, and at the same time la-
mented the want of abilities to support it, it was he. On a
question on which gentlemen, whose abilities would do honor
to the senate of ancient Rome, had enlarged with so much
eloquence and learning, who could venture without anxiety
and diffidence ? He had not the vanity to oppose his opin-
ion to such men ; he had not the vanity to sup))0se he could
place this business in any new light ; but the justice he owed
to his constituents — the justice he owed to his own feelings,
which would perhaps upbraid him hereafter, if he mdnlged
himself so far as to give merely a silent vote on this p;reat
(,uestion — impelled him, reluctantly impelled him, to intnido
Uwuuf.l SOUTH CAROUNA.
biniseir on the house. He had, for some years past, turnert
his thoughts towards the politics of this country ; he long
since perceived that not only the federal but the state Con-
stitution required much the hand of correction and revision.
They were both formed in times of confusion and distress,
and it was a matter of wonder they were so free from defects
as we found them. That they were imperfect, no one would
deny; and that something must be done to remedy those
imperfections, was also evident; but great care should be
taken that, by endeavoring to do some good, we should not
do an infinite deal of mischief. He had listened with eager
attention to all the arguments in favor of the Constitution ;
but he solemnly declared that the more he heard, the more
he was persuaded of its evil tendency. What does this pro-
|)osed Constitution do? It changes, totally changes, the
form of your present government. From a well-digested,
well-formed democratic, you are at once rushing into an
aristocratic government. What have you been contending
for these ten years past ? Liberty ! What is liberty ? The
power of governing yourselves. If you adopt this Constitu-
tion, have you this power ? No : you give it into the hands
of a set of men who live one thousand miles distant from
you. Let the people but once trust their liberties out of
their own hands, and what will be the consequence ? First,
a haughty, imperious aristocracy ; and ultimately, a tyranni-
cal monarchy. No people on earth are, at this day, so free
as the people of America. All other nations are, more or
less, in a state of slavery. They owe their constitutions
partly to chance, and partly to the sword ; but that of Amer-
ica is the offspring of their choice — the darling of their
bosom : and was there ever an instance in the world that a
people in this situation, possessing all that Heaven could give
on earth, all that human wisdom and valor could procure —
was there ever a people so situated, as calmly and deliberatcrly
to convene themselves together for the express purpose of
considering whether they should give away or retain those
inestimable blessings ? In the name of God, were we a
parcel of children, who would cry and quarrel for a hobby-
horse, which, when we were once in possession of, we
quarrel with and throw it away ? It is said this Constitu-
tion is an experiment ; but all regular-bred physicians are
cantious of experiments. If the constitution be crazed a
VOL. IV W) 27
/
314 DEBATES. [LiNcoij*.
little, or somewhat feeble, is it therefore necessary to kill ii
in order to cure it ? Surely not. There are many parts of
tliis Constitution he objected to : some few of them had not
been mentionc^d ; he would therefore request some informa-
tion thereon. The President holds his employment for four
years; but he may hold it for fourteen times four years : in
short, he may hold it so long that it will be imjwssible, with-
out another revolution, to displace him. You do not put the
same check on him that you do on your own state governor —
a man born and bred among you ; a man over whom you
have a continual and watchful eye ; a man who, from the
very nature of his situation, it it almost impossible can do
you any injury : this man, you say, shall not be elected for
more than four years ; and yet this mighty, this omnipotent
governor-general may be elected for years and years.
He would be glad to know why, in this Constitution, there
Is a total silence with regard to the liberty of the press.
Was it forgotten ? Impossible ! Then it must have been
purposely omitted ; and with what design, good or bad, he
left the world to judge. The liberty of the press was the
tyrant's scourge — it was the true friend and firmest sup-
porter of civil liberty; therefore why pass it by in silence?
He perceived that not till almost the very end of the Con-
stitution was there any provision made for the nature or form
of government we were to live under : he contended it should
have l)een the very first article ; it should have been, as it
were, the groundwork or foundation on which it should have
been built. But how is it ? At the very end of the Constitu
tion, there is a clause which says, — " The Congress of the
United States shall guaranty to each state a republican form
of government.'' But pray, who are the United States? —
A President and four or five senators ? Pray, sir, what se-
curity have we for a republican form of government, when
it depends on the mere will and pleasure of a few men, who,
with cm army, navy, and rich treasury at their back, may
change and alter it as they please ? It may be said thev
will be sworn. Sir, the king of Great Britain, at his coro-
nation, swore to govern his subjects with justice and mercy.
We were then his subjects, and continued so for a long time
after. He would be glad to know how he observed his oath.
If, then, the king of Great Britain forswore himself, what
security have we that a future President and four or five
PiNCKNEV.] SOUTH CAROLINA 315
senators — men like himself* — will think more solemnly of
so sacred an obligation than he did ?
VVhv was not this Constitution ushered in with the bill
of rights? Are the people to have no rights? Perhaps this
same President and Senate would, by and by, declare them.
He much feared they would. He ccmcluded by returning
his hearty thanks to the gentleman who had so nobly op-
posed this Constitution : it was supporting the cause of the
people ; and if ever any one deserved the title of man of
the people, he, on this occasion, most certainly did.
Gen. CHARLES COTESWORTH PINCKNEY an-
swered Mr. Lincoln on his objections. He said, that the
time for which the President should hold his office, and
vhether he should be reeligible, had been fully discussed in
we Convention. It had been once agreed to by a majority,
tiat he should hold his office for the term of seven years,
but should not be reelected a second time. But upon re-
considering that article, it was thought that to cut off all
hopes from a man of serving again in that elevated sta-
tion, might render him dangerous, or perhaps indifferent to
the faithful discharge of his duty. His term of service might
expire during the raging of war, when he might, perhaps,
be the most capable man in America to conduct it; and
would it be wise and prudent to declare in our Constitution
that such a man should not again direct our military opera-
tions, though our success might be owing to his abilities ?
The mode of electing the President rendered undue influence
almost impossible; and it would have been imprudent in us
to have put it out of our power to reelect a man whose tal-
ents, abilities, and integrity, were such as to render him the
object of the g(*neral choice of his country. With regard to
the liberty of the press, the discussion of that matter was
not forgotten by the members of the Convention. It was
fully debated, and the impropriety of saying any thing about
it in the Constitution clearly evinced. The general govern-
ment has no povveFS but what are expressly granted to it ;
it therefore has no power to take away the liberty of the
press. That invaluable blessing, which deserves all the en-
comiums the gentleman has justly bestowed upon it, is
secured by all our state constitutions ; and to have mentioned
it in our general Constitution would perhaps furnish an ar-
^iment, hereafter, that the general government had a right
316 DEBATES. [Mason
to exercise powers not expressly delegated to it. For the
same reason, we had no bill of rights inserted in our Con-
stitution ; for, as we might perhaps have omitted the enu-
meration of some of our rights, it might hereafter be said
we had delegated to the general government a power to
take away such of our rights as we had not enumerated ;
but by delegating express powers, we certainly reserve to
ourselves every power and right not mentioned in the Con-
stitution. Another reason weighed particularly, with the
members from this state, against the insertion of a bill of
rights. Such bills generally begin with declaring that all
men are by nature born free. Now, we should make that
declaration with a very bad grace, when a large part of our
property consists in men who are actually born slaves. As
to the clause guarantying to each state a republican form o^
government being inserted near the end of the Constitution,
the general observed that it was as binding as if it had
lieen inserted in the first article. The Constitution takes
its effect from the ratification, and every part of it is to be
ratified at the same time, and not one clause before the
other ; but he thought there was a peculiar propriety in
inserting it where it was, as it was necessary to form the
government before that government could guaranty any thing.
Col. MASON thanked Mr. Lowndes for his opposition,
by the desire of several gentlemen, members of that house.
It had drawn forth from the other side most valuable infor-
inition, and he thanked those gentlemen for the willingness
with which they had given it, with so much good-nature
Those gentlemen who lived in the country were now ena-
bled to satisfy their constituents.
The questioi being put, that a convention of the people
should be called for the purpose of considering, and of rat-
ifying or rejecting, the Constitution framed for the United
States by a Convention of delegates assembled at Philadel-
phia in May last, it was unanimously agreed to.
[There will appear some omissions in tchat fell from Mr. Lmondeb^
which could not he supplied, otoing to the loss of a notebook in the fire
ttfhich consumed the State- HouseJ]
Saturday, January 19, 1788.
On the question being put for the Convention to assemble
in Charleston on Monday, the 12th day of May next, the
ayes aad nays were as follows, vi^*. : —
SOUTH CAROUNA. 317
For tbk Parishes or St. Philip and St. Michakl, CBARLCsioif. — ,^if€s -
Edward Rutledge, Dr. David Ramsay, William Johnson, C C. Pinckncy; Edworl
Dtrrell, Tboman Jones, Isaac Motte, John Mathews, Daniel Cannon, Dnniel Ste-
vens, John Blake, Anthony Toomer, John F. Griinke, Thomas Heywoud, Jun.,
Richard Lusliinvton, Francis Kmloch, Jacob Read, £dward Blake, John Budd, Raw-
lins Lowndes, Michael Kaltcisen, Thomas Bee, Adanus Burke, Hugh Rutledge, Ed-
ward Lightwood. — J^ays: none.
Christ Church. — Ayes: Charles Pinckney, Plowden Weston, Joseph Manigault,
John Hatter. — Jfays: none.
St. John's, Bkrklet County. — <^yes : Peter Fassoux, Theodore Qourdme,
Thomas Simons. — jYays : Robert M'Kelvev, Gideon Kirke.
St. Andrew's. — Ayes: John Rivers, Glen Drayton, Thomas Farr, James Ladson,
Charles Drayton. — JSTay : William Scott.
St. George's, Dorchester. — Ayes: John Glaze, Walter Izard, William Postellf
John Bell. — J^ays: none.
St. James's, Goosk Creek. — Ays: Ralph Izard, Gabriel Manigault, William
Smith, John Parker, Jun. — J^Cays : none.
St. Thomas, and St. Dennis. — Ayes: Thomas Screven, Robert Daniel, Thomas
Shrubrick. — ^Vays : none.
St. Paul's. — Ayts: George Haig, William Washmgton, Paul Hamilton. — JCays'
none.
St. Bartholomew's. — Ayes: William Furguaon, Peter Toungblood, William C.
Snipes, John North. — Jfays : none.
St. Helena. — Ayts: William Hazard Wigg, John Joyner, John Jenkins, Robert
Barnwell, Benjamin Reynolds, Bernard Elliott. — JVay« : none.
St. James's, Santee. — Ayes: Thomas Horry, Jacob Bond, TOn, William Doui*
wint, Lewis Miles. — Nays: none.
Prince Georoe's, Wintaw. — Ayes: Thomas Waties, Matthew Irvine. — Jfays
} ames Withers, Thomas Dunbar.
All Saints. — Ayes: Robert Herriot, Daniel Morral. — Kays: none.
Prince Frederick's.^ Ayss: none. — JYays : John T. Green, John Dicky, Ben
^amin Porter, James Petligrew.
St. John's, Colleton County. — Ayes: Isaac Jenkins, William Smelie. — Kays.
none.
St. Peter's. — Ayes: none. — Kays: James Thompoon, John Chisholm, Joha
***enwick, Samuel Maner.
Prince William's. — Ayes: Pierce Butler, John Lightwood, John A. Cuthbert.—
.Yom; Stephen Bull, William Murray.
St. Stephen's. — Ayes : none. — Kays : Thomas Palmer, John Coutuier, T
Cordes.
District to thx Eastward op Wateree. — ^yM.* none. — JVby«: Isaac Alex-
ander, Thomas Sumter, Andrew Baskins, Joseph Lee, Thomas M'Faddin, G^rge
Cooper, Benjamin Cudworth, Samuel Dunlap, Hugh White.
District of Ninety-six. — Ayes : Patrick Calhoun, John Purvis. — Kays: Arthut
8impkins, James Lincoln, Adam Crain Jones, William Butler.
District of Saze-Gotha. — ^ye«; none. — Aay#: Joseph Culpeper, Henry
Pendleton, John Threewits, Llewellen Threewits.
Lower Districts, between Broad and Saluda Rivers. — Ayes: none. Kays
Philemon Waters, C^rge Ruff, John Lindsay, William Wadling^n.
Little River District. — Ayes: none. — Kays: John Hunter, Angus Campbel,
Levi Casey, James Mason.
Upper, or Spartan* District. — Ayes: none. — JVays .* Thomas Brandon, 8.
MVnnkin Winn, James Craig, John Gray, James Knox, John Turner, Aromanos
Lyles, John Cook, James Pedian.
District called the New AcquisiTioN. — Ayes: none. — Kays: Andrew Love,
lames Powell, William Fergus, William Bratton, Robert Patton, James RamsLy,
John Drennan, James Martin, Joseph Palmer, Alexander Moore.
St Matthew's. ^^tf^f; none. — Kays: Thomas Sabb, J. Frierson, Paul Warley
Orange Parish. — Ayes: none. — Kays: William Robinson, Lewis Lesterjette.
Srr. David's. — Ayes : none. — Kays : Calvin Spencer, Robert Baxwill, A. Hunter
District between Savannah River and the North Fork of Edisto. —
Ayes: none. — Kays: William Davis, Isaac Cush, James Fair, Daniel Greene.
J9ye$^ 76. | JVay*, 7S
So It was resolved in the affirmative.
JOHN SANDFORD DART, C. H. R
518 DEBATES. [PiNCKNET
DEBATES IN CONVENTION. -
Monday, May 12, 1788.
This day being appointed for the meeting of the state Convention, (Mr.
Thomas Bee, in the chair, j^ro tem.^) the returns were read, and there not
bcin£r a majority, adjourned until Tuesday, the 13th. ,
Tuesday, May 13, 1788.
On this day the Convention met, and the names being called over, there
appeared to be present one hundred and seventy-three members; upon
which they proceeded to ballot, when
His excellency, Governor THOMAS PINCKNEY, was elected Prtsu
dent.
Colonel JOHN SANDFORD DART was elected Secretary.
Mr. Atmore, Messenger. Mr. Athwell, Door-keeper. Mr. John
Bounetheau, Bar-keeper. Mr. Stevens, Cashier. Colonel Lushington,
Assistant-Cashier.
Wednesday, May 14, 1788.
Speech of Mr. CHARLES PINCKNEY, {one of the dele-
gates of tlie Federal Convention.)
Mr. President, after so much has been said with respect
to the powers possessed by the late Convention to form and
propose a new system — after so many observations have
been made on its leading principles, as well in the House of
Representatives as in the conventions of other states, w hose
proceedings have been published — it will be as unnecessary
for me again minutely to examine a subject which has been
so thoroughly investigated, as it would be difficult to carry
you into a field that has not been sufficiently explored.
Having, however, had the honor of being associated in the
delegation from this state, and presuming upon the indul-
gence of the house, I shall proceed to make some observations
which appear to me necessary to a full and candid discussion
of the system now before us.
It seems to be generally confessed that, of all sciences, that
of government, or politics, is the most difficult. In the old
world, as far as the lights of history extend, from the earliest
ages to our own, we find nations in the constant exercise of
all the forms with which the world is at present furnished.
We have seen among the ancients, as well as the moderns,
monarchies, limited and absolute, aristocracies, republics o<
PiNCKNcr] SOUTH CAROLLNA. 319
a single state, and federal unions. But notwithstanding all
their experience, how confined and imperfect is jheir knowl-
edge of government ! how little is the true doctrine of repre-
sentaticn understood ! how few states enjoy what we call
freedom ! how few governments answer those great ends of
public happiness which we seem to expect from our own !
In reviewing such of the European states as we are best
acquainted with, we may with truth assort that there is but
one among the most important which confirms to its citizens
their civil liberties, or provides for the security of private
rights. But as if it had been fated that we should be the
first perfectly free people the world had ever seen, even the
government I have alluded to withholds from a part of its
subjects the equal enjoyment of their religious liberties.
How many thousands of the subjects of Great Britain at this
moment labor Under civil disabilities, merely on account of
their religious persuasions ! To the liberal and enlightened
mind, the rest of Europe affords a melancholy picture of the
depravity of human nature, and of the total subversion of
those rights, without which we should suppose no people
could be happy or content.
We have been tnught here to believe that all power of
right belongs to the people ; that it flows immediately from
them, and is delegated to their officers for the public good;
that our rulers are the servants of the people, amenable to
their will, and created for their use. How different are the
governments of Europe ! There the people are the servants
and subjects of their rulers; there merit and talents have
little or no influence ; bur all the honors and offices of govern-
ment are swallowed up by birth, by fortune, or by rank.
From the European world are no precedents to be drawn
for a people who think they are capable of governing them-
selves. Instead of receiving instruction from them, we may,
with pride, affirm that, new as this country is in point of
settlement, inexperienced as she must be upon questions of
government, she still has read more useful lessons to the old
world, she has made them more acquainted with their own
rights, than they had been otherwise for centuries. It is with
pride I repeat that, old and experienced as they are, they
are indebted to us for light and refinement upon points of all
olliers the most interesting.
Had the American revolution not happened, would Ireland
320 DEBATES [PiNCKNET.
enjoy her present rights of commerce and legislation ? Would
the subjects jdF the emperor in the Netherlands have presumed
to contend for, and ultimately to secure, the privileges they
demanded ? Would the parliaments of France have resisted
the edicts of their monarch, and justified in a language that
will do honor to the freest peoj)le ? Nay, I may add, would
a becoming sense of liberty, and of the rights of mankind,
have so generally pervaded that kingdom, had not thuir
knowledge of America led them to the investigation ? Un-
doubtedly not. Let it be therefore our boast that we have
already taught some of the oldest and wisest nations to ex-
plore their rights as men ; and let it be our prayer that the
effects of the revolution may nc^ver cease to operate until
they have unshackled all the nations that have firmness to
resist the fetters of despotism. Without a precedent, and
with the experience of but a few years, were the Convention
called upon to form a system for a people differing from all
others we are acquainted with.
The first knowledge necessary for us to acquire. Was a
knowledge of the |)eople for whom this system was to be
formed ; for unless we were acquainted with their situation,
their habits, opinions, and resources, it would be impossible
to form a government upon adequate or practicable principles.
If we examine the reasons which have given rise to the
distinctions of rank that at present prevail in Europe, we
shall find that none of them do, or in all probability ever
will, exist in the Union.
The only distinction that may take place is that of wealth.
Riches, no doubt, will ever have their influence; and where
they are suffered to increase to large amounts in a few hands,
there they may become dangerous to the public — partic-
ularly when, from the cheapness of lal)or and the scarcity of
money, a great proportion of the people are |)oor. These,
however, are dangers that I think we have very little to
apprehend, for these reasons : One is from the destruction
of the right of primogeniture ; by which means, the estates
of intestates are equally to be divided among all their chil-
dren— a provision no less consonant to the principles of
a republican government, than it is to those of general equity
and parental affection. To endeavor to raise a name b}'
accumulating property in one branch of a family, at the ex
pcnse of others equally related and deserving, is a vanity no
hiicKirir-1 • SOUTH CAROLINA. 32 i
less unjust and cruel than dangerous to the interests of liberty
ii is a practice no wise state will ever encourage or tolerate
la the Northern and Eastern States, such distinctions among
children are seldom heard of. Laws have been long since
passed in all of them, destroying the right of primogeniture ,
and as laws never fail to have a powerful influence upon the
manners of a people, we may suppose that, in future, an
equal division of property among children will, in general,
take place in all the states, and one means of amassing inor-
dinate wealth in the hands of individuals be, as it ought,
forever removed.
Another reason is that, in the Eastern and Northern States,
the landed property is nearly equally divided : very few have
large bodies, and there are few that have not small tracts.
The greater part of the people are employed in cultivating
their own lands ; the rest in handicraft and commerce. They
are frugal in their manner of living. Plain tables, clothing,
and furniture, prevail in then* houses, and expensive appear-
ances are avoided. Among the landed interest, it may be
truly said there are few of them rich, and few of them very
poor ; nor, while the states are capable of supporting so many
more inhabitants than they contain at present — while so vast
a territory on our frontier remains uncultivated and unexplored
— while the means of subsistence are so much within every
man's power — are those dangerous distinctions of fortune to
be expected which at present prevail in other countries.
The [leople of 'the Union may be classed as follows:
Commercial men, who will be of consequence or not, in the
political scale, as commerce may be made an object of the
attention of government. As far as I am able to judge, and
presuming that proper sentiments will ultimately prevail upon
this subject, it does not appear to me that the commercial
line will ever have much influence in the politics of the
Union. Foreign trade is one of the enemies against which
we must be extremely guarded — more so than against any
other, as none will ever have a more unfavorable operation.
I consider it as the root of our present public distress — as
the plentiful source from which our future national calamities
will flow, unless great care is taken to prevent it. Divided
as we are from the old world, we should have nothing to do
with their politics, and as little as possible with their ccm-
VOL. IV. 41
)22 DEBATES. * IPiNcufvT.
morcc : they can never improve, but must inevitably cor-
rupt us.
Another clnss is that of professional men, who, from their
education and pursuits, must ever have a considerable influ-
ence, while your government retains the republican princi-
ple, and its affairs. are agitated in assemblies of the people.
The third, with whom I will connect the mechanical, as
generally attached to them, are the landed interest — the
owners and cultivators of the soil — the men attached to the
truest interests of their country from those motives which
always bind and secure the affections of the nation. In
these consists the great body of the people ; and here rests,
and I hope ever will continue, all the authority of the
government.
I remember once to have seen, in the writings of a very
celebrated author upon national wealth, the following re-
marks: "Finally,'' says he, "there are but three ways for
a nation to acquire wealth. The first is by war, as the
Romans did in plundering their conquered neighbors : this is
robbery. The second is by commerce, which is generally
cheating. The third is by agriculture, the only honest way,
wherein a man receives a real increase of the seed thrown
into the ground, in a kind of continual miracle wrought by
the hand of God in his favor, as a reward for his innocent
life and virtuous industry."
I do not agree with him so far as to suppose that com-
merce is generally cheating. I think there are some kinds
of commerce not only fair and valuable, but such as ought to
be encouraged by government. 1 agree with him in this
general principle — that all the great objects of government
should be subs(Tvient to the increase of agriculture and the
support of the landed interest, and that commerce should
only be so far attended to, as it may serve to improve and '
strength(»n them ; thit the object of a republic is to render
its citizens virtuous and happy ; and that an unlimited
foreign commerce can seldom fail to have a contrary tend-
encv.
These classes compose the people of the Union; and,
tortunately for their harmony, they may be said in a great
measure to be connected with and dependent upon each
other.
The merchant is dependent upon the planter, as the pur-
PiNCKNBY.] SOUTH CAROLINA. 323
chaser of his imports, and as furnishing him with the means
of his remittances. The professional men depend upon both
for employment in their respective pursuits, and are, in their
turn, useful to both. The landholder, though the most inde-
pendent of the three, is still, in some measure, obliged to
the merchant for furnishing him at home with a ready sale
for his productions.
From this mutual dependence, and the statement I have
made respecting the situation of the people of the Union,
I am led to conclude that mediocrity of fortune is a leading
feature in our national character ; that most of the causes
which lead to destructions of fortune among other nations
being removed, and causes of equality existing with us
which are not to be found among them, we may with safety
assert that the great body of national wealth is nearly
equally in the hands of the people, among whom there are
few dangerously rich or few miserably poor; that we may
congratulate ourselves with living under the blessings of a
mild and equal government, which knows no distinctions
but those of merits or talents — under a government whose
honors and offices are equally open to the exertions of all her
citizens, and which adopts virtue and worth for her own,
wheresoever she can find them.
Another distinguishing feature in our Union is its division
into individual states, differing in extent of territory, man-
ners, population, and products.
Those who are acquainted with the Eastern States, the
reason of their original migration, and their pursuits, habits,
and principles, well know that they are essentially different
from those of the Middle and Southern States ; that they
retain all those opinions respecting religion and government
which first induced their ancestors to cross the Atlantic ; and
that they are, perhaps, more purely republican in habits and
sentiment than any other part of the Union. The inhabit-
ants of New York and the eastern part of New Jersey —
originally Dutch settlements — seem to have altered less than
might have been expected in the course of a century ; indeed,
the greatest part of New York may still be considered as a
Dutch settlement, the people in the interior country gen-
erally using that language in their families, and having very
little varied their ancient customs. Pennsylvania and Del-
aware are nearly one half inhabited by Quakers, whose
\
3^ DEBATES. [Pu^c^Ksv.
passive principles upon questions of government, and rigid
ppinions in ptivatc, render them extremely different from the
citizens either of the Eastern or Southern States. Maryland
was originally a lioman Catholic colony, and a great number
of their inhabitants, some of them the most u'eaithy and culti-
vated, are still of* this persuasion. It is unnecessary for me
to state the striking difference in sentiment and habit which
nmst always exist between the Independents of the East —
the Calvinists and Quakers of the Middle States, and the
Roman Catholics of Maryland ; but striking as this is, it is
not to be compared with the difference that there is between
the inhabitants of the Northern and Southern States. When
I say Southern, I mean Maryland, and tlie states to the south-
ward of her. Here we may truly observe, that Nature has
drawn as strong marks of distinction in the habits and man-
ners of the people as she has in her climates and productions.
The southern citizen beholds, with a k'md of surprise, tho
simple manners of the east, and is too often induced tc
entertain undeserved opinions of the apparent purity of the
Quaker ; while they, in their turn, seem concerned at what
^hey term the extravagance and dissipation of their southern
friends, and reprobate, as unpardonable moral and political
evil, the dominion they hold over a part of the human race.
The inconveniences which loo frequently attend these differ-
ences in habits and opinions among the citizens that compose
the Union, are not a little increased by the variety of their
state governments ; for, as I have already observed, the con-
stitution or laws under which a people live never fail to have
a powerful effect upon the manners. We know that all the
states have adhered, in their forms, to the republican prin-
ciple, though they have differed widely in their opinions of
the mode best calculated to preserve it.
In Pennsylvania and Georgia, the whole powers of govern-
ment are lodged in n legislative body, of a single branch,
over which there is no control ; nor are their executives or ju-
dicial, from their connection and necessary dependence on
the legislature, capable of strictly executing their respective
offices. In all the other states, except Maryland, Massachu-
setts, and New York, they are only so far improved as to
bave a legislature with two branches, which completely
involve and swallow up all the powers of their government.
In neither of these are the judicicil or executive placed in
PmcKNiE'r.j SOUTH CAROLINA. 625
that firm or independent situation which can alorte secure the
safety of the people or the just administration of the lawSi
In Maryland, one branch of their legislature is a Senat^^
chosen, for five years, by electors chosert by the people.
The knowledge and firmness which this body have, upon all
occasions, displayed, not only in the exercise of their legis-
lative duties, but in withstanding and defeating such of the
projects of the other house as appeared to them founded in
local and personal motives, have long since convinced me
that the Senate of Maryland is the best model of a senate
that has yet been offered to the Union ; that it is capable of
correcting many of the vices of the other parts of theii*
Constitution, and, in a great measure, atoning for thosiS
defects which, in common with the states I have mentioned^
are but too evident in their execution — the want of stability
and independence in the judicial and executive departmeilts.
In Massachusetts, we fitid the principle of legislation moire
improved by the revisionary power which is given to their
n;overnor, and the independence of their judges.
In New York, the same improvement in legislation has
taken place as in Massachusetts ; but here, froUi the execu-
tive's being elected by the great body of the people ; holding
his office for three years, and being reeligible ; from the
appointment to offices being taken from the legislature and
placed in a select council, — I think their Constitution is,
upon the whole, the best in the Union. Its faults are the
want of permanent salaries to their judges, and giving to
their executive the nomination to offices, which is, in fact,
giving him the appointment.
It does not, however, appear to me, that this can be called
d vice of their system, as I have always been of bpinion that
^he insisting upon the right to nominate was a usurpation of
their executive's, not warranted by the letter or meaning of
their Constitution.
These are the outlines of their various forms, in few ot
which are their executive or judicial departments wisely con-
structed, or that solid distinction adopted between the
branches of their legislative which can alone provide for thd
influence of different principles in their operation.
Much difficulty was expected from the extent of country
to be {governed. All the republics we read of, either iti th^
ancient or modern world, have been extremely limited in
<28
^26 DEBATES. [PiNCKNKT.
terril )ry. Wo know of none a tenth part so large as the
United Slates ; indeed, we are hardly able to determine,
from the lights we are furnished with, whether the gov-
ernments we have heard of under the names of republics
really deserved them, or whether the ancients ever had any
just or proper ideas upon the subject. Of the doctrine of
representation, the fundamental of a republic, they certainly
were ignorant. If they were in possession of any other safe
or practicable principles, they have long since been lost and
forgotten to the world. Among the other honors, therefore,
that have been reserved for the American Union, not the
least considerable of them is that of defining a mixed sys-
tem, by which a people may govern themselves, possessin{
all the virtues and benefits, and avoiding all the dangers am
inconveniences, of the three simple forms.
I have said that the ancient confederacies, as far as we
are acquainted with them, covered up an inconsiderable
territory.
Among the moderns, in our sense of the word, there is no
such system as a confederate republic. There are, indeed,
some small states whose interior governments are demo-
cratic ; but these are too inconsiderable to afford information.
The Swiss cantons are only connected by alliances ; the
Germanic body is merely an association of potentates, roost
of them absolute in their own dominions ; and as to the
United Netherlands, it is such a confusion of states and
assemblies, that I have always been at loss what species of
government to term it. According to my idea of the word, il
is not a republic ; for I conceive it as indispensable, in a
republic, that all authority should flow from the people. In
the United f Netherlands, the people have no interference
either in the election of their magistrate or in the affairs of
government. From the experiment, therefore, never having
been fairly made, opinions have been entertained, and sanc-
tioned by high authorities, that republics are only suited to
small societies. This opinion has its advocates among all
those who, not having a sufficient share of industry or talents
to investigate for themselves, easily adopt the opinions of
such authors as are supposed to have written with ability
upon the ^subject; but I am led to believe other opinions
begin to prevail — opinions more to be depenaed upon,
because they result fromjiisier principles.
We begin now to suppose that the evils of a republic —
PiNCKNEY.l SOUTH CAROLINA. 327
dissension, tumult, and faction — are more dangerous in
small societies than in large confederate states. In the first,
the people are easily assembled and inflamed — are always
exposed to those convulsive tumults of infatuation and en
thusiasm which often overturn all public order. In the latter,
the multitude will be less imperious, and consequently loss
inconstant, because the extensive territory of each republic
and the number of citizens, will not permit them all to.br
assembled at one time and in one place : the sphere of gov-
ernment being enlarged, it will not easily be in the power of
factious and designing men to infect the whole people ; il
will give an opportunity to the more temperate and prudent
part of the society to correct the licentiousness and injustice
of the rest. We have strong proofs of the truth of this
opinion in the examples of Rhode Island and Massachusetts
— instances which have, perhaps, been critically afforded by
an all-merciful Providence to evince the truth of a position
extremely important to our present inquiries. In the former,
the most contracted society in the Union, we have seen their
licentiousness so far prevail as to seize the reins of govern-
ment, and oppress the people by laws the most infamous that
have ever disgraced a civilized nation. In the latter, where
the sphere was enlarged, similar attempts have been rendered
abortive by the zeal and activity of those who were opposed
to them.
As the Constitution before you is intended to represent
states as well as citizens, I have thought it necessary to make
these remarks, because there are, no doubt, a great number
of the members of this body, who, from their particular pur
suits, have not had an opportunity of minutely investigating
them, and because it will be impossible for the house fairly
to determine whether the government is a proper one or not,
unless they are in some degree acquainted with the people
and the states, for whose use it is instituted.
For a people thus situated is a government to be formed -
a people who have the justest opinion of their civil and reli-
gious rights, and who have risked every thing in asserting
and defending them.
In every government there necessarily exists a power from
which there is no appeal, and which, for that reason, may
be formed absolute and uncontrollable.
The person or assembly in whom this power resides is
928 DEBATE8. [Puvcknki
called the sovereign or supreme power of the state. Witli
us, the sovereignty of the Union is in the people.
One of the best political and moral writers (Paley, a dea-
con of Carlisle — vol, ii. 174, 175) I have met with, enu-
merates three principal forms of government, which, he says,
are to be regarded rather as the simple forms, by some com-
bination and intermixture of which all actual governments
arci composed, than as any where existing in a pure and ele-
mentary state. These forms are, —
1st. Despotism, or absolute monarchy, where the legisla-
ture is in a single person.
2d. An aristocracy, where the legislature is in a select
assembly, the members of which either fill up, by election,
the vacancies in their own body, or succeed to it by inherit-
ance, property, tenure of lands, or in respect of some per-
sonal right or qualification.
3d. A republic, where the people at large, either collec-
tively or by representation, form the legislature.
The separate advantages of monarchy are unity of council,
decision, secrecy, and despatch ; the military strength and
energy resulting from these qualities of government ; the
exclusion of popular and aristocratical contentions ; the pre-
venting, by a known rule of succession, all competition for
the supreme power, thereby repressing the dangerous hopes
and intrigues of aspiring citizens.
The dangers of a monarchy are tyranny, expense, exac-
tions, military dominations, unnecessary wars, ignorance, in
the governors, of the interest and accommodation of all people,
and a consequent deficiency of salutary regiilations; want of
constancy and uniformity in the rules of government, and,
proceeding from thence, insecurity of persons and property.
The separate advantage of an aristocracy is the wisdom
that may be expected from experience and education. A
permanent council naturally possesses experience, and the
members will always be educated with a view to the stations
they are destined by their birth to occupy.
The mischiefs of an aristocracv are dissensions in the rul-
mg orders of the slate ; an oppression of the lower orders by
the privilege of the higher, and by laws partial to the sepa-
rate interests of the law-makers.
The advantages ot a republic are liberty, exemption from
needless restrictions, equal laws, public spirit, averseness tc*
PiMOLNBT.] SOUTH CAROLINA. 329
Hrar, frugality, — above all, the opportunit'ujs afibrded) to men
of every description, of producing their abilities and counsels
to public observation, and the exciting to the service of the?
common wealth the faculties of its best citizens.
The evils of a republic are dissensions, tumults, faction,
the attempts of ambitious citizens to possess {)ower, the con
fusion and clamor which are the inevitable consequences of
propounding questions of state to the discussion of large
popular assemblies, the delay and disclosure of the public
councils, and too often the imbecility of the laws.
A mixed government is composed by the combination ot
two or more of the simple forms aliove described ; and in
whatever proportion each form enters into the constitution
of government, in the same proportion may both the advan-
tages and evils which have been attributed to that form be
expected.
The citizens of the United States would reprobate, with
ndignation, the idea of a monarchy. But the essential
qualities of a monarchy — unity of council, vigor, secrecy,
^nd despatch — are qualities essential in every government.
While, therefore, we have reserved to the people, the foun-
rain of all power, the periodical election of their first magis-
t rate, — while we have defined his powers, and bound them
to such limits as will eifectually prevent his usurping author-
ities dangerous to the general welfare, — we have, at the
same time, endeavored to infuse into this department Ihat
Jegree of vigor which will enable the President to execute
^ he laws with energy and despatch.
By constructing the Senate upon rotative principles, we
liave removed, as will be shown upon another occasion, all
danger of an aristocratic influence ; while, by electing the
■JJembers for six years, we hope we have given to this part
^f the system all the advantages of an aristocracy — wisdom,
experience, and a consistency of measures.
The House of Representatives, in which the people of the
Union are proportionably represented, are to be biennially
elected by them. Those appointments are sufficiently short
^o render the member as dependent as he ought to be upon
liis constituents.
They are the moving-spring of the system. With them
«ul grants of money are to originate : on them depend the
Wars we shall be engaged in, the fleets and armies we shaJ
VOL. IV. 42
"liJO DEBATES. LP«NCKNEY
raise and support, the salaries we shall |jay ; in short, on
theoi depend the appropriations of money, and consequently
all the arrangements of government. . With this powerful
influence of the purse, they will be always able to restrain the
usurpati(»ns of the other departments, while their own licen-
tiousness will, in its turn, be checked and corrected by them.
I trust that, when we proceed to review the system by
sections, it will be found to contain all those necessary pro-
visions and restraints, which, while they enable the general
government to guard and protect our common rights as a
nation, to restore to us those blessings of commerce and
mutual confidence which have been so long removed and
impaired, will secure to us those rights, which, as the citi-
zens of a state, will make us happy and content at home —
as the citizens of the Union, respectable abroad.
How different, Mr. President, is this government con-
structed from any we have known among us!
In their individual capacities as citizens, the people are
Eroportionably represented in the House of Representatives,
[ere they who are to pay to support the expenses of gov-
ernment, have the purse-strings in their hands; here the
people hold, and feel that they possess, an influence suf-
ficiently powerful to prevent every undue attempt of the
other branches, to maintain that weight in the political scale
which, as the source of all authority, they should ever pos-
sess'; here, too, the states, whose existence as such we have
often heard predicted as precarious, will find, in the Senate,
the guards of their rights as political associations.
On them (I mean the state systems) rests the general
fabric : on their foundation is this magnificent structure of
freedom erected, each depending upon, supporting, and pro-
tecting the other : nor — so intimate is the connection — can
the one be removed without prostrating the other in ruin :
like the head and the body, separate them and they die.
Far be it from me to suppose that such an attempt should
ever be made the good sense and virtue of our country for-
bid the idea. To the Union we will look up, as to the tem-
ple of our freedom — a temple founded in the aflfections, and
supported by the virtue, of the people. Here we will pour
out our giatitude to the Author of all good, for suflTering
us to participate in the rights of a people who govern them-
selves.
PiNCKNKT.] SOUTH CAROUNA. 331
Is there, at this moment, a nation upon earth that cnjojs
this right, where the true principles of representation are
understood and practised, and where all authority flows from,
ind returns at stated periods to, the people? I answer,
there is not. Can a government l>e said to be free where
these rights do not exist ? It cannot. On what dependis
the enjoyment of these rare, these inestimable privileges?
On the firmness, on the power, of the Union to protect and
defend them.
How grateful, then, should we be^ that, at this important
period, — a period important, not to us alone, but to the
general rights of mankind, — so much harmony and conces-
sion should prevail throughout the states; that the public
opinion should be so much actuated by candor, and an atten-
tion to their general interests ; that, disdaining to be governed
by the narrow motives of state policy, they have liberally de-
termined to dedicate a part of their advantages to the support
of that government from which they received them ! To
fraud, to force, or accidei.t, all the governments we know
have owed their births. To the philosophic mind, how new
and awful an instance do the United States at present
exhibit in the political world ! They exhibit, sir, the first
instance of a people, who, being dissatisfied with their gov-
ernment,— unattacked by foreign force, and undisturbed by
domestic uneasiness, — coolly and deliberately resort to the
virtue and good sense of their country, for a correction of
their public errors.
It must be obvious that, without a superintending govern-
ment, it is impossible the liberties of this country cctn long
be secured.
Single and unconnected, how weak and contemptible are
the largest of our states ! — how unable to protect themselves
from external or domestic insult ! How incompetent to na-
tional purposes would even partial union be ! — how liable
to intestine wars and confusion! — how little able to secure
the blessings of peace !
Let us, therefore, be careful in strengthening the Union.
Let us remember that we are bounded by vigilant and at
tentive neighbors, who view with a jealous eye our rise to
empire.
Let us remember that we are bound, in gratitude to oui
northern brethren, to aid them in the recovery of those rights
332 DEBATES [Tweed.
wiiich they have lost in obtaining for us an extension of our
commerce, and the security of our liberties. Let us not be
unmindful that those who are weak, and may expect sup-
|X)rt, must, in their turn, be ready to afford it.
We are called upon to execute an important trust — to
examine the principles of the Constitution now before you,
and, in the name of the people, to receive or reject it.
I have no doubt we shall do this with attention and har-
mony ; and flatter myself that, at the conclusion of our dis-
cussion, we shall find that it is not only expedient, but safe
and honorable, to adopt it.
Tuesday, May 20, 1788.
This day the Convention went through the discussion of
the Federal Constitution by paragraphs.
Mr. ALEXANDER TWEED, of Prince Frederick, said :
' Since I came to town, I have more than once heard it as-
serted, that the representatives of the parish of Prince Fred-
erick were, prior to their election, put under promise to their
constituen^ts, that they should by no means give their sanc^
tion to the adoption of the new Constitution. Any such
restriction, sir, on my own part, I deny. Had they taken
upon them so far as to dictate for me, I shou d have spurned
at the idea, and treated such proposals with that contempt
\ they would have justly merited ; and I am clearly of opin-
ion, and I think warranted to say, that these are the senti-
ments and situation of Tat least) some others of mj colleagues.
Notwithstanding, sir, from all I have heard or can learn, the
fenerar voice of the people is against it. For my own part,
Ir. President, I came not here to echo the voice of mvcon-
stituents, nor determined to approve or put a negative upon
the Constitution proposed. I came with a mind open to
conviction, in order to hear what, in the course of the debates
of this house, might be said for and against it. Much, very
much, sir, has been advanced on both sides. The matter in
hand I look upon to be the most important and momentous
that ever came before the representatives of the people of
South Carolina. We were told, sir, some days ago, by a
learned and honorable gentleman now on the floor, that, as
our case at present stood, we must adopt the Constitution
proposed ; for, if we did not, in all probability some power-
ful despot might start up and seize the reins of government
PmcKNRY.l SOUTH CAROUNA. 33i^
Another learned and honorable gentleman on my left hand
said, we must look up to it as the rock of our salvation. To
make short, sir, necessitas non habet legem was the word.
Those gentlemen, Mr. President, and some others, mem-
bers of this respectable Convention, — whose profound ora-
tory and elocution would, on the journals of a British House
of Commons, stand as lasting monuments of their great
abilities, — a man of my circumscribed scale of talents is noi
adequate to the task of contending with ; nor have I a turri
for embellishing my language, or bedecking it with all tb<^
flowers of rhetoric. In a word, Mr. President, my idea ol
the matter now under our consideration is, that we very much
stand in need of a reform of government, as the very sinews
of our present constitution are relaxed. But, sir, 1 would
fondly hope that our case is not so bad as represented. Arc
we invaded by a foreign enemy? Or are the bowels of our
country torn to pieces by insurrections and intestine broils ?
I answer. No.
Sir, admit but this, and then allow me to ask if history
furnishes us with a single instance of any nation, state, or
people, who had it more in their power than we at present
have to frame for ourselves a perfect, perm^uient, free, and
happy constitution. The Constitution, sir, now under con-
sideration, was framed (I shall say) by the wisdom of a Gen- .
eral Convention of the United States ; it now lies before us
to wait our concurrence or disapprobation. We, sir, as citi-
zens and freemen, have an undoubted right of judging for
ourselves ; it therefore behoves us most seriously to consider,
before we determine a matter of such vast magnitude. We
are not acting for ourselves alone, but, to all appearance, for
generations unborn.
Speech of Mr. CHARLES PINCKNEY, on the lOth Section
of Article \st of the Federal Constitution.
This section I consider as the soul of the Constitution, — as
containing, in a few words, those restraints upon the states,
which, while they keep them from interfering with th^ pow-
ers of the Union, will leave them always in a situation to
comply with their federal duties — will teach them to culti-
vate those principles of public honor and private honesty
which are the sure road to national character and happiness
334 DEBATES. [PiNCKNBT
^rhc only parts of this section that are objected to are
those which relate to the emission of paper money, and its
consequences, tender-laws, and the impairing the obligation
of contracts.
The other parts are supposed as exclusively belonging to,
and such as ought to be vested in, the Union.
If we consider the situation of the United States as they
are at present, either individually or as the members of a
general confederacy, we shall find it extremely improper
they should ever be intrusted with the power of emitting
money, or interfering in private contracts ; or, by means of
tender-laws, impairing the obligation of contracts.
1 apprehend these general reasonings will be found true
with respect to paper money : That experience has shown
that, in e\^ry state where it has been practised since the
revolution, it always carries the gold and silver out of the
country, and imj)overishes it — that, while it remains, all the
foreign merchants, trading in America, must suffer and lose
by it ; therefore, that it must ever be a discouragement to
commerce — that every medium of trade should have an in-
trinsic value, which paper money has not ; gold and silver
are therefore the fittest for this medium, as they are an equiva-
lent, which paper can never be — that debtors in the assem-
blies will, whenever they can, make paper money with
fraudulent views — that in those states where the credit of the
paper money has been best sup|)orted, the bills have never
kei)t to their nominal value in circulation, but have constantly
depreciated to a certain degree.
I consider it as a granted position that, while the produc-
tions of a state are useful to other countries, and can find a
ready sale at foreign markets, there can be no doubt of their
always being able to command a sufficient sum in specie to
answer as a medium for the purposes of carrying on this
commerce ; provided there is no paper money, or other means
of conducting it. This, I think, will be the case even in
instances where the balance of trade is against a state ; but
where the balance is in favor, or where there is nearly as
much exported as imported, there can be no doubt that the
products will be the means of always introducing a sufficient '
quantity of specie.
If we were to be governed by partial views, and each state
was only to consider how far a general regulation suited hei
Pin KNBY.] SOUTH CAROLINA 336
own interests, I think it can be proved there is no state in
the Union which ought to be so anxious to have this part of
the Constitution passed as ourselves.
We are to reflect that this Constitution is not framed to
answer temporary purposes. We hope it will last for ages
— that it will be the perpetual protector of our rights and
properties.
This state is, {)erhaps, of all others, more blessed in point
of soil and productions than any in the Union. Notwith-
standing all her sufferings by the war, the great quantity of
lands still uncultivated, and the little attention she pays tP
the improvement of agriculture, she already exports more
than any state in the Union, (except Virginia,) and in a
little time must exceed her.
Exports are a surer mode of determining the productive
wealth of a country than any other, and particularly when
these products are in great demand in foreign countries.
Thus circumstanced, where can be the necessity of paper
money ? Will you not have specie in sufficient quantities ^
Will you not have more money in circulation without paper
money than with it ? — I mean, without having only paper in
such quantities as you are able to maintain the credit of, as
at present. I aver you may, and appeal only to the experi-
ence of the last five or six vears. Will it not be confessed
that, in 1783 and 1784, we had more money than we have
dt present, and that the emission of your present paper ban-
ished double the amount out of circulation ? Besides, if
paper should become necessary, the general government still
possess the power of emitting it, and Continental paper,
well funded, must ever answer the purpose better than state
paper.
How extremely useful and advantageous must this restraint
be to those states which mean to be honest, and not to
defraud their neighbors ! Henceforth, the citizens of the
states may trade with each other without fear of tender-laws
or laws impairing the nature of contracts. The citizen of
South Carolina will then be able to trade with those of Rhode
Island, North Carolina, and Georgia, and be sure of receiv-
ing the value of his commodities. Can this be done at pres-
ent ? It cannot ! However just the demand may be, yet
still your honest, suffering citizen must be content to receive*
their depreciated paper, or give up the debt
336 DEBATES. [DoLLAu.
But above all, how much will this section tend to restore
your credit with foreigners — to rescue your national char-
acter from that contempt which must ever follow the most
flagrant violations of public faith and private honesty ! No
more shall paper money, no more shall tender-laws, drive
their commerce from our shores, and darken the American
name in every country where it is known. No nnore shall
our citizens conceal in their coffers those treasures which the
weakness and dishonesty of our government have long hid-
den from the public eye. The firmness of a just and even
system shall bring them into circulation, and honor and virtue
shall be again known and countenanced among us. No
more shall the widow, the orphan, and the stranger, become
the miserable victims of unjust rulers. Your government
shall now, indeed, be a government of laws. The arm of
.Justice shall be lifted on high ; and the poor and the rich^
the strong and the weak, shall be equally protected in their
rights. Public as well as private confidence shall again be
i.'Stablished ; industry shall return among us ; and the bless-
mgs of our government shall verify that old, but useful maxim,
that with states, as well as individuals, honesty is the best
policy.
Speech of Mr. PATRICK DOLLARDJ of Prince Fred-
erickh.
Mr. President, 1 rise, with the greatest diffidence, to
speak on this occasion, not only knowing myself unequal to
the task, but believing this to be the most im|X)rtant ques-
tion that ever the good people of this state were called
together to deliberate upon. This Constitution has been
ably supported, and ingeniously glossed over by many able
and respectable gentlemen in this house, whose reasoning,
aided by the most accurate eloquence, might strike conviction
even in the predetermined breast, had they a good cause to
sup|X)rt. Conscious that they have not, and also conscious of
my inability to point out the consequences of its defects, which
have in some measure been defined by able gentlemen in
this house, I shill therefore confine myself within narrow
bounds : that is, concisely to make known the sense and
language of my constituents. The people of Prince Freder-
ick's Parish, whom 1 have the honor to represent, are a brave*
DoLLARD.] SOUTH CAROLINA. 337
honest, and industrious people. In the late bloody contest,
they bore a conspicuous part, when they fought, bled, and
conquered, in defence of their civil rights and privileges,
vyhich they expected to transmit untainted to their posterity.
They are nearly all, to a man, opposed to this new Constitu-
tion, because, they say, they have omitted to insert a bill of
rights therein, ascertaining and fundamentally establishing,
the unalienable rights of men, without a full, free, and secure
enjoyment of which there can be no liberty, and over which
It is not necessary that a good government should have the
control. They say that they are by no means against vest-
ing Congress with ample and sufficient powers ; but to make
over to them, or any set of men, their birthright, comprised
in Magna Charta, which this new Constitution absolutely
does, they can never agree to. Notwithstanding this, they
h ive the highest opinion of the virtues and abilities of the
honorable gentlemen from this state, who represented us in
the General Convention ; and also a few other distinguished
eharacters, whose names will be transmitted with honor to
future ages; but 1 believe, at the same time, they are but
mortal, and, therefore, liable to err ; and as the virtue and
abilities of those gentlemen will consequently recommend
cheir being first employed in jointly conducting the reins of
^his government, they are led to believe it will commence
in a moderate aristocracy : but, that it will, in its future opera-
tions, produce a monarchy, or a corrupt and oppressive aris-
tocracy, they have no manner of doubt. Lust of dominion
is natural in every soil, and the love of power and superiority
is as prevailing in the United States, at present, as in any part
of the earth ; yet in this country, depraved as it is, there still
remains a strong regard for liberty: an American bosom is
apt to glow at the sound of it, and the splendid merit of pre-
serving that best gift of God, which is mostly expelled from
every country in Europe, might stimulate Indolence, and
animate even Luxury to consecrate herself at the altar of
freedom.
My constituents are highly alarmed at the large and rapid
strides which this new government has taken towards des-
potism. They say it is big with political mischiefs, and preg-
nant with a greater variety of impending woes to the good
people of the Southern States, especially South Carolina,
than atl the plagues supposed to issue from the poisonous
VOL. IV. 43 29
338 DEBATES. [ScMPTsft.
Ix)x of Pandora. They say it is particularly calculated for
the meridian of despotic aristocracy ; that it evidently tends
to promote the ambitions views of a few able and designing
men, and enslave the rest ; that it carries with it the appear-
ance of an old phrase, formerly made use of in despotic
reigns, and especially by Archbishop Laud, in the reign of
Charles I., that is, " non-resistance." They say they will
resist against it; that they will not accept of it unless com-
pelled by force of arms, which this new Constitution plainly
threatens ; and then, they say, your standing array, like
Turkish janizaries enforcing despotic laws, must ram it down
their throats with the points of bayonets. They warn the
gentlemen of this Convention, as the guardians of their lib-
erty, to beware how they will be accessory to the disposal of,
or rather sacrificing, their dear-Ixmght rights and privileges.
This is the sense and language, Mr. President, of the people;
and it is an old saying, and I believe a very true one, that
the general voice of the people is the voice of God. The
j^eneral voice of the people, to whom I am responsible, is
against it. I shall never betray the trust respostnl in me by
them ; therefore, shall give my hearty dissent.
Wednesday, May 21, 1788.
Gen. SUMPTER, agreeably to notice given yesterday^
(Tuesday, 20th,) moved for an adjournment of the Conven
tion to the (20th October) twentieth day of October next^
in order to give time for the further consideration of the
Federal Constitution. After considerable debate, it was
rejected by a mnjority of (46) forty-six — yeas, eighty-nine,
f89 ;) nays, one hundred and thirty-five (135).
Friday, May 23, 1788.
On motion, Resolved, That this Convention do assent to and ratify the
Constitution agreed to on the 17th day of September last, by the ConveDtion
of the United States of America, held at Philadelphia.
On the question being put to ajrree to the same, the yeas and nays w<!rc
called for by the unanimous voice of the Convention, and are as follows: —
For the Parishes of St. Philip and St. Michafl, CHARLEsroit. — Yhu
His excj^l'cncy, Govrmor 'I'homns Pinrknoy, did not vole. Lieutenant- Ooremor
Thomas Gadsden, C. C. Pinrknoy, (ffenoral,»'Chrislophor Gadsden, (general — niein-
ber of Congress of '6r>, at New York.) Edward Rulled^, (governor — one of theCon*
gress of 7(1,) David llamsny, (Dr.,) Thomas Iloyward, Jun., (judge — and one of the
Congress of 76,) Edward DarroU, Isaac Molt*', John Mathews, (governor.) Edward
Blake, Thomas Bee, ( judae,) Daniol Do Soiissiiro, Thomas Jones, John F. Grimke
'judge,) William Johnson, John J. Pringle, (attorney -general,) John Qlake, Dantel
SOUTH CAROLINA. 3S3
Steiens, Daniel Cannon, Anthony Toomer, Hu^h Rutledge, (judge,) John Budd,
SDr.,) Francis Kinloch, Thomas Sotnmersal], Michael Kalteisen, (captain of Fort
ohnson^ Richard Lushington, (colonel,) Nathaniel Russel, Josiah Smith, Lewis
Arlorris, Edward Lightwood, John Edwards. 31 .
Christ Chdrcu. — Yeas: Hon. Charles Pinckney, Hon. John Rutledge, Hon. A.
Vanderhorst, William Read, Joseph Manigault, Jacob Read, Joshua Toomer. 7.
St. Joiiif's, Berkley. — Yeas: Hon. Henrj' Laurens, Gen. William Moaitrie,
llenrv Laurens, J un. 3. — Nays: Peter Fayssoux, Keating Simons, Thomas Wal-
♦«r. 3 — Absent: Francis Marion. 1.
St. AifDREw's. — Yeas: Glen Drayton, Hon. Richard Hutson, Thomas FuHer,
James Ladson, Ralph Jzard, Jan., Charles Drayton, Hon. William Scott. 7. — Jfays:
none.
St. George's, Dorcmkster. — Yeas: John Glaze, Morton Waring, Thomas
'Vrarring, Maj. J. Postell, William Postcll, Mathias Hutchinson, John Dawson. 7. —
/\'avt5 : none.
St. James's, Goose Creek. — Yeas: Hon. Ralph Izard, Peter Smith, Hon. Ben-
'Uimin Smith, Gabriel Manigault, William Smith, J. Parker, Jun., J. Deas, Jun. 7. —
Jtfays : none.
St. Thomas and St. Dennis. — Yeas: Hon. John Huger, Thomas Karwon,
Thomas Screven, Robert Daniel, Lewis Fogartie, Isaac Harlcston, Isaac Parker. —
^aus: none.
St. Paul's Parish. — Yeas: Paul Hamilton, George Haig, Joseph Slann, Roger
I*arker Saunders, William Washington, (hero of Eutaw and Cowpens.) — Jfays
John Wilson, Hon. Melcher Garner. 2.
St. Bartholomew's. — Yeas: Hon. John Lloyd, John Crosskeys. — jXays : Ben-
iarain Postell, William Clay Snipes, O'ttrien Smith, Paul Walter, Edmund Bel-
linger. 5.
St. Heleha's. — Yeas: Hon. John Barnwell, Hon. John Joyner, Hon. John Kean,
Son. William H. Wigg, Hon. Robert Barnwell, Hon. William Elliott, Hon. James
Stuart. 7. — Jiays : none.
St. James's, Santee. — Yeas: Isaac Dubose, Lewis Miles, Samuel Warren, Richard
Withers, John Mayrant, Thomas Horry. 6. — JVay; John Bowman. 1.
Prince George's, Winyaw. — Yeas: Hon. Thomas Waties, (judge of C. C. p.,
«nd chancellor,) Samuel Smith. Cleland Kinloch, Hon. William Allston, Jun. 4. —
Ji'aas : none. — JibsenI : Peter Horry. 1 .
All Saints'. — Yeas: Daniel Morral, Thomas Allston. 2. — Jfays: none.
Prince Frederick's. — Yeas : William Wilson, Alexander Tweed, Williartl Frier-
•on, James Pettigrew 4. — Jfaijs : Patrick Dollard, William Read, J. Burges, Jun. 3.
St. John's, Colleton County. — Yeas : Thomas Leffare, Richard Muncreef, Jun.,
Hon. Daniel Jenkinsf Hugh Wilson, Isaac Jenkins, Ephraim Mikel, William Smelie.
- Jfays : none.
St. Peter's. — Yens : John Fen wick, Joachin Hartstone, Seth Stafford, Rev. Henry
riolcom. 4. — Jfays: John Chisholm, John Lewis Bourjin, Jun. 2. — Absent: Wil-
liam Stafford. J.
Prince William's. — Yeas: Thomas Hutson, John M'Pherson, James Maine,
John A. Cuthbert, John Lightwood, John Simmons, Stephen Devaux. 7. — Jfays:
none.
St. Stephen's. — Ypms : John Palmer, Hon. Hezekiah Mahams, Samuel Dubose,
John Peyre. 4. — Jfays: none. — AbseM : Thomas Cooper, Thomas Palmer. 1
'vacant
District Eastward of the Wateree. — Yea: John Chesnut. 1. — Jfays:
Thomas Sumter, Andrew Baskins, John Lowry, Benjamin Cudworth, William Mas-
•*y, Hugh White, Thomas Dunlap, Samuel Dunlap, John Montgomery. 9. — Absent:
8. Boykin.
District of Ninety-six. — Yea: Dr. John Harris. 1. — Jfays: James Lincoln,
Adam Crain Jones, Edmond Martin, Andrew Hamilton, Joseph Calhoun, William
Butler, John Bowie, Hon. John L. Gervais. 6. — Absent: John Ewing Calhoun,
Charles Davenport. 2.
North Side of Saluda. — Yeas: Samuel Earle, I^emuel J. Allstone, John Thomas,
^un. 3. — Jfays: none.
South Side of Saluda. — Yeas: John Miller, William M'Caleb. 2. — Jfays
Bone. — Absent : Robert Anderson. 1.
District of Saxe-Gotha. — Yea: Hon. Henry Pendleton. 1. — Jfays: Hon. Rich-
ard Hampton, J. Culpeper, William Fitzpatrick,'Llewellen Threewits, John Three-
rits, Wade Hampton. 6
Lower Districts between Bro\d and Saluda Rivers. — Yeas: none. — .^ays .
Hon. Edaoua Burke, J. Lindsay, Philemon Waters, Robert Ruthford, Hon. J. Uanip'
OtL 5.
340 SOUTH CAROLINA.
LiTiLC hTVER District. — Yeas: John Hunter, Thomas Wadnworth. 2 -^Kayw
Samuel Saxon, Joshua Saxon. 2. — Msent : James Mayson. 1.
Uppkr or Spartan District. — Yeas: none. — Jiays : William Kennedy, James
Jourdon, Charles Sims, Thomas Brandon, Hon. Zacariah Bullock. 5.
District between Broad and Catawba Rivers, Richland Countt. — Yeas:
none. — J^ays : Hon. Thomas Taylor, William Meyer, Thomas Howell. 3.
Fairfield County. — Nays: James Craig, Jacob Brown, John Gray, John
Cook. 4.
Chester District. — Yeas: none. — Xays : Edward Lacy, Joseph Brown, William
Miles, James Knox. 4.
District called the New Acquisition. — Yea: Rev. Francis Cummins. 1. —
Jfays : Hon. William Hill, Robert Patton, Samuel Watson, James Martin, James
G. Hunt, Samuel Lowry, Andrew Love, John M'Caw, Adam Meek, Abraham
Smith. 10.
St. Matthew's. — Yeas : Hon. "William Thompson, Hon. Paul Warley. 2. — JVoy •
Hon. John Linton. 1.
Orange. — Yras : Lewis Lesterjette, J&cob Rumph, Donald Bruce. 3. — J^ays.
none. — Absent: Lewis Golsan. 1.
St. David's. — Yeas: Lemuel Benton, William Dewitt, Calvin Spencer, Samuel
Taylor, R. Brownfield, Benjamin Hicks, Jun. 6. — Nays: none. — Absent: Trist.
Thomas. 1 .
District between Savannah River, and the North Fork of Edisto. — Yeas.
Stephen Smith, Hon. William Dunbar, Joseph Vince, William Robison, John Col«
lins, Jonathan Clark. 6. — Xays : none. — Absent: William Buford. 1.
Kea#, - - 149. | Xays, - - 73. | MajorUy, - - 76. | AbseiU, - 15
So it was r( solved in the affirmative.
JOHN S. DART, Secretary of Convention
Yeaa. Nays. Absanl
St. Philip and St. Michael, 31 0 0
Christ Church, 7 0 0
St John's, Berkley County, 3 3 1
St. Andrew's, 7 0 0
St. George's, Dorchester, 7 0 0
St. James's, Goose Creek, 7 0 0
St. Thomas and St. Dennis, 7 0 0
St. Paul's Parish, 5 2 0
St Bartholomew's, ^. 2 5 0
St. Helena's, 7 0 0
St. James's, Santee, 6 10
Prince George's, Winyaw, 4 0 I
AllSainU', 2 0 0
Prince Frederick's, 4 3 0
St. John's, Colleton County, 7 0 0
St. Peter's, 4 2 1
Prince Williams, 7 0 0
St. Stephen's, 4 0 3
District Eastward of the Wateree, 1 9 1
District of Ninety-six, 1 8 2
North side of the Saluda, 3 0 0
South side of the Saluda, 2 0 1
District of Saxe-Gotha, 1 6 0
Lower District, between Broad and Saluda Rivers, 0 5 0
Little River District, 2 2 1
Upper, or Spartan District, 0 5 0
Jistrict between Broad and Catawba Rivers, Richland County, 0 3 0
Fairfield County, 0 4 0
Chester County, 0 4 0
District called the New Acquisition, 1 10 0
St. Matthew's, 2 1 0
Orange, 3 0 1
St. David's, 6 0 1
District between Savannah River and the North Fork of Edisto, 6 0 1
149 "^ 14
SOUTH CAROUNA. 341
Two hundred and thirty-six members appointed to the Convention
Fourteen absent.
Two hundred and twenty- two attended, of which there were,
In favor of adoption^ 140
Against adoption, 73
Majority, 67
OVUM REIPUBLICiE. — The Congress of 1765.
[From Garden's Anecdotes, Second Series.]
South Carolina is literally one of the Nine primitive Muses of American
Liberty. ** Before the thirteen were — she is" We must never forget
that the parent of the revolution, the very Ovum Reipublica, was the Con-
gress which convened in New York, in 1765. But nine colonies were
represented, as four were overpowered by the royal party. But South
Carolina beat down the strong opposition of the crown, and was the only
one, south of the Potomac, that sent a delegation. This was the achieve-
ment of General Gadsden. In this primeval council, our members were
far from being insignificant. Three committees only were appointed, and
of two the sons of Carolina were chairmen. Mr. Lynch (father of the
patriot who signed the Declaration of Independence) was chairman of the
one to prepare an address to the House of Commons, and John Rutledge
(who was then but twenty-six years of age) of that for the house of lords.
This Convention of sages was the parent plant of our present confederacy
of republics. Thus was South Carolina among the aboriginal founders of
the Union.
Delegates to the Congress of 1765.
MtusachusettSj 3 — James Otis, Oliver Partridge, Timothy Ruggles.
Rhatle hland, 2 — Mctcalf Bowler, Henry Ward.
Connecticut^ 3 — Eliphalet Dyer, David Rowland, William S. Johnston.
New Yorkf 5 — Robert R. Livingston, John Cniger, .Philip Livingston, Willtanc
Bayard, Leonard Lispenard.
Aeio Jersey y 3 — Robert Ogden, Hendrick Fisher, Joseph Borden.
Pennsylvania^ 3 — John Dickinson, John Morton, George Bryan.
Delawarey 3 — Jacob Kolloch, Thomas M'Kean, Ciesar Rodney.
Maryland^ 3 — William Murdock, Edward Tilghman, Thomas Ringgold.
Souik CaroLinAy^ — Thomas Lynch, Christopher Gadsden, John Rutledge.
Nine colonies, and twenty-eight delegates.
Hztract from the official Journal of the Congress of 1765.
Met in New York, on Monday, 7th of October, 1765. After having
examined and admitted the certificates of appointment of the above mem-
bers, the said committees proceeded to choose a chairman by ballot; and
Timothy Ruorgries, Esq., of Massachusetts, on sorting and counting the
votes, appeared to have a majority, and thereupon was placed in the chair.
Resolved, nem. con., That John Cotton be clerk to this Congress, during
the continuance thereof.
Resofvrdf That the committee of each colony shall have one voice only,
10 determining any questions that shall arise in the Congress.
MS SOUTH CAROLINA.
After meeting regularly every day, with the exception of the Sabbath,
they concurred in a declaration of the rights and grievances of America,
and appointed the following committees, on Saturday, 19th October,
1765: —
Upon motion. Voted, That Robert R. Livingston, of New York, William Samuel
Johnston, and William Murdock, Esqrs., be a committpe to prepare an address to his
majesty, and lay the same before the Congress on Monday next.
yoled oLsOy Thui John Rutledge, of South Carolina, £dward Til^hman, and Philip
Livingston, Esars., be a comniillee to prepare a memorial and petition to the Lords in
Parliament, ana lay tlie same before the Congn^ss on Monday next.
Voted also. That Thomas Lynch, of South Carolina, James Otis, and lliomas
M'Kean, Esqrs., be a committee to prepare a petition to the House of Commons of
Great Britain, and lay the same before the Congress on Monday next. AAer having
attended daily, the last meeting was held on Thursday, 24th October, 1765.
Votedy urumimous'y^ That th« clerk of this Congress sign the minutes of their pro-
ceedings, and deliver a copy for the use of each colony and province. — See ^ Prin-
ciples and Acts of the Revolution."
It is to be regretted that the few speeches here published constitute all
of the able debates in the South Carolina Convention which could be
procured. The discussion commenced on the 14th of May, and, it is
understood, was continued with brilliancy eight days; Judge Burke, Mr.
Bowman, Dr. Fayssoux, and others, disclosing the abuses and miscon-
structions of which the Constitution was susceptible; Judge Pendleton,
General Pinckney, and Hon. J. Pr ingle, among many 6ther distinguished
members, enforcing the expediency and necessity of its adoption.
" This acceptance and ratification was not without opposition. In
addition to the common objections which had been urged against the
Constitution, South Carolina had some local reasons for refusing, or at
least delaying, a final vote on the question. Doubts were entertained of
the acceptance of the Constitution by Virginia. To gain time till the
determination of that leading state was known, a motion for postponement
was brought forward. This, aAer an animated debate, was overruled by
a majority of 46. The rejection of it was considered as decisive in favor
of the Constitution. When the result of the vote was announced, an
event unexampled in the annals of Carolina took place. Strong and
mvoluntary expressions of applause and joy burst forth fi'om the numerous
transported spectators. The minority complained of disrespect ; unpleasant
consequences were anticipated. The majority joined with the complain-
ing members in clearing the house, and in the most deucate manner
soothed their feelings. In the true style of republicanism, the minority
not only acquiesced, but heartily joined in supporting the determination
of the majority. The Constitution went into operation with general con*
sent, and has ever since been strictly observed." — Ramsay's History of
South Carolina, vol. ii. p. 432.
OPINIONS,
SELECTED FROM DEBATES IN CONGRESS.
FBOM
1789 TO 1836,
IHTOLVINO
CONSTITUTIONAL PRINCIPLES.
Oath. — On a Bill prescribing the Oaih to supptn-t the Cansii'
tution.
May 6, 1789
Mr. GERRY said, he did not discover what part of the Constitution
gave to Congress the power of making this provision, (for regulating the
time and manner of administering; certain oaths,) except so much of it
as respects the form of the oath ; it is not expressly given by any clause
of the Constitution, and, if it does not exist, must arise from the sweeping
clause, as it is frequently termed, in the 8th section of the Jst article (^
the Constitution, which authorizes Congress ** to make all laws which
shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the govern-
ment of the United States, or in any department or officer thereof." To
this clause there seems to be no limitation, so far as it applies to the ex-
tension of the powers vested by the Constitution ; but even this clause
gives no legislative authority to Congress to carry into effect any power
not expressly vested by the Constitution. In the Constitution, which i&
the supreme law of the land, provision is made that the members of the
legislatures of the several states, and all executive and judicial officers
thereof, shall be bound by oath to support the Constitution. But there is
no provision for empowering the government of the United States, or any
officer or department thereof, to piss a law obligatory on the members of
the legisluures of the several states, and other officers thereof, to take this
oath. This is made their duty already by the Constitution, and no such
law of Congress can add force to the obligation ; but, on the other hand,
if it is admitted that such a law is necessary, it tends to weaken the Con-
ititution, which requires such aid : neither is any law, other than to pre-
scribe the form (Tf the oath, necessary or proper to carry this part of the
Constitution into effect ; for the oath required by the Constitution, being
• necessary qualification for the state officers mentioned, cannot be dis-
l^sed with by any authority whatever, other than the people, and the
^ jodicial power of the United States, extending to all cases arising in law
344 Oath. — Sherman. [May 6
or equilj under this Constitution. The judges of the United States, who
are bound to support the Constitution, may, in all cases within their juris-
diction, annul the official acts of state officers, and even the acts of the
members of the state legi>latures, if such members and officers were dis-
qualified to do or pass such acts, by neglecting or refusing to take this
oath.
Mr. BLAND had no doubt respecting the powers of Congress on this
subject The evident meaning of the words of the Constitution implied
that Con stress should have the power to pass a law directing the time and
manner of taking the oath prescribed for supporting the Constitution.
There can be no hesitation respecting the power to direct their own offi-
cers, and the constituent parts of Congress : besides, if the state legi^la-
tures were to be left to direct and arrange this business, they would pass
different laws, and the officers might be bound in different degrees to sup-
port the Constitution. He not only thought Congress had the power to
do what was proposed by the Senate, but he judged it expedient also.
Mr. JACKSON. The states had belter be left to resrulate this matter
among themselves ; for an oath that is not voluntary is seldom held sacred.
Compelling people to swear to support the Constitution will be like the
attempts of Britain, during the late revolution, to secure the fidelity of
those who fell within the influence of her arms; and like those attempts
they will be frustrated. The moment the party could get from under her
wings, the oath of allegiance was disregarded. If the state officers will
not willingly pay this testimony of their attachment to the Constitution,
what is extorted from them against their inclination is not much to be re-
lied on.
Mr. LAWRENCE. Only a few words will be necessary to convince us
that Congress have this power. It is declared by the Constitution, that its
ordinances shall be the supreme law of the land. If the Constitution isy
the supreme law of the land, every part of it must partake of this- suprem-
acy ; consequently, every general declaration it contains is the supreme
law. But then these general declarations cannot be carried into effect
without particular regulations adapted to the circumstances : these par-
ticular regulations are to be made by Congress, who, by the Constitu-
tion, have power to make all laws necessary or proper to carry the
declarations of the Constitution into effect. The Constitution likewise
declares that the members of the state legislatures, and all officers, execu-
tive and judicial, shall take an oath to support the C/onstitution. This
declaration is general, and it lies with the supreme legislature to detail
and regulate it.
Mr. SHERMAN. It appears necessary to point out the oath itself, as
well as the time and manner of taking it. No other legislature is compe-
tent to all these purposes ; but if they were, there is a propriety in the
supreme legislature's doing it. At the same time, if the state legislatures
take it up, it cannot operate disagreeably upon them, to find all their
neighboring states obliged to join them in supporting a measure they ap-
prove. What a Ktate legislature may do, will be good as far as it goes.
On the same principle, the Constitution will apply to each individual of
the state officers : they may go, without the direction of the state legisla-
ture, to a justice, and take the oath voluntarily.
This, I suppose, would be binding upon them ; but this is not satisfac-
tory; the government ought to know that the oath has been properly
taken; and this can only be done by a general regulation. If it is in thr^
l"??^.] Duties, — Cakaoll. 345
discretion of the state legislatures to make laws to carry the declaration
of the Constitation into execution, they have the power of refusing, and
■nay avoid the positive injunctions of the Constitution. As the power of
Congress, in this particular, extends over the whole Union, it is most
proper for us to take the subject up, and make the proper provision for
carrying it into execution, to the intention of the Constitution.
Duties, — Bill laying Duties on Goods, !fc.
House or Represkntativks, J/ay 15.
Mr. WHITE. The Constitution, having authorized the House of
Representatives alone to originate money bills, places an important trust
in our hands, which, as their protectors, we ought not to part with. I do
not mean to imply that the Senate are less to be trusted than this house;
but the Constitution, no doubt for wise purposes, has given the immedi-
ate representatives of the people a control over the whole government in
this particular, which, for their interest, they ought not to let out of their
hands.
Mr. MADISON. The Constitution places the power in the House of*
originating money bills. The principal reason why the Constitution had
made this distinction was, because they were chosen by the people, and
supposed to be the best acquainted with their interest and ability. In
order to make them more particularly acquainted with these objects, the
democratic branch of the legislature consisted of a greater number, and
were chosen for a shorter period ; that so they might revert more fre-
quently to the mass of the people.
Mr. MADISON " moved to lay an impost of eight cents on all beer
imported. He did not think this would be a monopoly, but he hoped it
would be such an encouragement as to induce the manufacture to take
deep root in every state in the Union." — Lloyds Debates of Congress^
vol. i. p. 65.
The same. ** The states that are most advanced in population, and
ripe for manufactures, ought to have their particular interests attended to
ia some degree. While these states retained the power of making regu-
Utions of trade, they had the power to protect and cherish such institu-
tions. By adopting the present Constitution, they have thrown the exer-
cise of this power into other hands. They must have done this with an
expectation that those interests would not be neglected here." — Idem,
?.24.
The same. "There may be some manufactures which, being once
ibrmed, can advance towards perfection without any adventitious aid ;
while others, for want of the fostering hand of government, will be un-
able to go on at all. Legislative attention will therefore be necessary to
Collect the proper objects for this purpose." — Idem, p. 26.
Mr. CLYMER '* did not object to this mode of encouraging manutac-
tares, and obtaining revenues, by combining the two objects in one bill.
He was satisfied that a political necessity existed for both the one and
the other." — Idem, p. 31.
Mr. CLYMER " hoped gentlemen would be disposed to extend a de-
gree uf patronage to a manufacture [steel] which a moment's reflection
would cor vince them was highly deserving protection." — Idem, p. 69.
Mr. CARROLL '* moved to insert window and other glass. A manu>
&cture of this article was begun in Maryland, and attended with sonsid
voi^ y. 44
346 Duties, — BouDiNOT. L-^^ ^^
erahle success. If the legislature was to grant a small encouragement,
it would be permanently established." — Iflenif p. 94.
Mr. WADSWORTH. <* By moderating the duties, we shall obtain
revenue, and give that encouragement to manufactures which is in-
tended." — Idem, p. 128.
Mr. AMES ** thought this a useful and accommodating manufacture*
[nails J which yielded a clear gain of all it sold for ; but the cost of the
material, the labor employed in it, would be thrown away probably in
many instances. * * * He hoped the article would remain in the bill."
— Idem, p. 81.
The same. ** The committee were already informed of the flourishing
situation of the manufacture, [nails,] but they ought not to join the gen-
tleman from South Carolina, Mr. Tucker, in concluding that it did not.
therefore, deserve legislative protection. He had no doubt but the com-
mittee would concur in laying a small protecting duty in favor of this
manufacture." — Idem, p. ^.
Mr. FITZSIMONS ** was willing to allow a small duty, because it
conformed to the policy of the states who thought it proper in this mao-
tier to protect their manufactures." — Idem, p. 83.
The same. " It being my opinion that an enumeration of articles will
tend to clear away difficulties, I wish as many to be selected as possible.
For this reason I have prepared myself with an additional number :
among these are some calculated to encourage the productions of oar
country, and protect our infant manufactures." — Idem, p. 17.
Mr. HARTLEY. ** If we consult the history of the ancient world,
Europe, we shall see that they have thought proper, for a long time past,
to give great encouragement to establish manufactures, by laying such
partial duties on the importation of foreign goods, as to give the home
manufactures a considerable advantage in the price when brought to
market. * * * I think it both politic and just that the fostering hand of
the general government should e.xtend to all those manufactures which
will tend to national utility. Our stock of materials is, in many instances,
equal to the greatest demand, and our artisans sufficient to work them up,
even for exportation. In those cases, I take it to be the policy of every
enlightened nation to give their manufacturers that degree of encourage-
ment necessary to perfect them, without oppressing tho other parts of the
community ; and, under this encouragement, the industry of the manu-
facturer will be employed to add to the wealth of the nation." — Idem,
p. 22.
Mr. WHITE. ** In order to charge specified articles of manufacture so
as to encourage our domestic ones, it will be necessary to examine the
present state of each throughout the Union." — Idem, p. 19.
Mr. BLAND (of Virginia) '* thought that very little revenue was likely
to be collected from the importation of this article, [beef;] and, as it was
to be had in sufficient quantities within the United States, perhaps a tax
amountinsT to a prohibition would be proper." — Idem, p. 66.
Mr. BLAND " informed the committee that there were mines opened in
Virginia capable of supplying the whole of the United States; and, if some
restraint was laid on importation of foreign coals, those mines might be
worked to advantage." — Idem, p. 97,
Mr. BOUDINOT. " I shall certainly move for it, [the article of glass,]
a»I suppose we are capable of manufacturing this as well as many of the
others In fad, it is well known that we have and can do it bb well v
1789.] Duties, S47
most nations, the materials being almost all producta in our country/'—*
Idem, p. 2S.
The same. *' Let us take, then, the resolution of Congress in i7d3t
and make it the basis of our system, adding only such protecting duties at
are necessary to support the manufactures established by the legislatures
of the manufacturing states." — Idem, p. 34.
Mr. SINNICKSON ** declared himself a friend to this manufacture,
[beer,] and thought that, if the duty was laid high enough to etfect a
prohibition, the manufacture would increase, and of consequence the price
would be lessened." — Idem, p. 65.
Mr. LAWRENCE ** thought that if candles were an object of con-
siderable importation, they ought to be taxed for the sake of obtaining
revenue, and if they were not imported in considerable quantities, the
burden upon the consumer would be small, while it tended to cherish a
valuable manufacture." — Idem, p. 63.
Mr. FITZSLMONS " moved to lay a duty of two cents per pound on
tallow candies. The manufacture of candles is an important manufac-
ture, and far advanced towards perfection. I have no doubt but in a few
years we shall be able to supply the consumption of every part of the
continent." — Idem, p. 67.
The sane. '* Suppose 5s. cwt. were imposed, [on un wrought steel :]
it might be, as stated, a partial duty; but would not the evil be soon
overbalanced by the establishment of such an important manufacture ?" — -
Idem, p. 69.
The same. ** The necessity of continuing those encouragements which
the state legislatures have deemed proper, exists in a considerable degree.
Therefore it will be politic in the government of the United States to
continue such duties until their object is accomplished." — Idem, p. 67.
Mr. SMITH (of South Carolina.) " The people of South Carolina are
willing to make sacriiices to encourage the manufacturing and maritime
interests of their sister states " — Idem, p. 212.
Gen. Washington's Speech to Congress^ of January 11, 1790, declares,
'*That the safety and interest of a free people require that Congress
should promote such manufactures as tend to render them independent of
others for essential, particularly military supplies.
" The advancement of agriculture, commerce, and manufactures, by
all proper means, will not, I trust, need recommendation."
Extract from the reply of the Senate, to the speech of Gen. Wash"
ington, January, 1790. — "Agriculture, commerce, and manufactures,
forming the basis of the wealth and strength of our confederated republic,
must be the frequent subject of our deliberations, and shall be advanced
by all the proper means in our power."
Extract from the reply of the House of Representatives. — ** We con-
cur with you in the sentiment that * agriculture, commerce, and manu-
lactures, are entitled to legislative protection.' "
His speech of December, 1796, holds out the same doctrine. — ** Con-
gress have repeatedly, and not without success, directed their attention
to the encouragement of manufactures. The ooject is of too much im-
portance not to insure a continuance of these efforts in every way whicn
aball appear eligible.'*
Extract from the reply of the Senate to the speech of Gen. Washing'
Urn, December, 1796. — *' The necessity of accelerating the establishment
of certaia useful Sranches of manufactures^ by the interventiou of legis-
348 Duties. iJfoy lo
lative aid and protectioi ^ and the encouragement due to agriculture by
the creation of boards, (composed of intelligent individuals,) to patronize
the primary pursuit of society, are subjects which will readily engage our
most serious attention.''
Afr, Jefferson, in his Message of 1902, states that — "To cultivate
peace, maintain commerce and navigation, to foster our fisheries, and pro-
tect manufactures adapted to our circumstances, &c., are the landmarks
by which to guide ourselves in all our relations."
From Mr, Jefferson's Message of 1808. — ** The situation into which
we have been thus forced has impelled us to apply a portion of our in-
dustry and capital to internal manufacturing improvements The extent
of this conversion is daily increasing, and little doubt remains that the
establishments formed and forming will, under the auspices of cheaper
materials and subsistence, the freedom of labor from taxation with us, anH
protecting duties and prohibitions, become permanent."
Extract from the Message of Mr. Madison, December 5, 1815. — ** Un-
der circumstances giving powerful impulse to manufacturing industry, it
has made among us a progress, and exhibited an efficiency, which justify
the belief that, with a protection not more than is due to the enterprising
citizens whose interests are now at stake, it will become, at an early day,
not only safe against occasional competitions from abroad, but a source of
domestic wealth, and even of external commerce. • # • •
In selecting the branches more especially entitled to public patronage, a
preference is obviously claimed by such as will relieve the United States
from a dependence on foreign supplies, ever subject to casual failures, for
articles necessary for public defence, or connected with the primary wants
of individuals. It will be an additional recommendation of particular
manufactures, where the materials for them are extensively drawn from
our agriculture, and consequently impart and insure to that great fund of
national prosperity and independence an encouragement which cannot fail
to be rewarded."
Prom the Message of President Monroe , December , 1818. — "It is
deemed of importance to encourage our domestic manufactures. In what
manner the evils which we have adverted to may be remedied, and how it
may be practicable in other respects to afford them further encouragement,
paying due regard to the other great interests of the nation, is submitted
to the wisdom of Congress."
FVom the same, December 3, 1822. — ** Satisfied I am, whatever may be
the abstract doctrine in favor of unrestricted commerce, provided all na-
tions would concur in it, and it was not liable to be interrupted by war,
which has never occurred, and cannot be expected, that there are strong
reasons applicable to our situation, and relations with other countries,
which impose on us the obligation to cherish and sustain our manufac-
tures."
Prom the same, December, 1823. — ** Having communicated my views
to Congress, at the commencement of the last session, respecting the en-
couragement which ought to be given to our manufactures, and the prin-
ciple on which it should be founded, I have only to add that those views
remain unchanged, and that the present state of those countries with
which we have the most immediate political relations, and greatest com-
mercial intercourse, tends to confirm them. Under this impression, I re»>
ommend a review of the tariff, for the purpose of affording such additional
protection to those articles which we are prepared to manufacture, u
/789.] Duties. 5ib
^hich are more immediately connected with the defence and independence
of the country."
IVm. H, Crawford^ Secretary of the Treasury ^ %n his report, December,
1819, says, — "It is believed that the present is a favorable moment foi
affording efficient protection to that increasing and important interest, if it
can be done consistently with the general interest of the nation."
Extract from the Message of President Jefferson, December 2, 1806.* —
'* The qnestion now comes forward, To what objects shall surpluses be
appropriated, and the whole surplus of impost, after the entire discharge
of the public debt, and during those intervals when the purposes of war
shall not call for them ? Shall we suppress the impost, and give that ad-
vantage to foreign over domestic manufactures? On a few articles of a
more general and necessary use, the suppression, in due season, will doubt-
less be right; but the great mass of the articles on which impost is paid
are foreign luxuries, purchased only by those who are rich enough to afford
themselves the use of them. Their patriotism would certainly prefer its
continuance, and application to the great purposes of public education,
roads, rivers, canals, and such other objects of public improvement as it
may be thought proper to add to the constitutional enumeration of federal
powers. By these operations, new channels of communication will be
opened between the states; the lines of separation will disappear; their
interests will be identified, and the union cemented by new and indissolu-
ble ties. Education is here placed among the articles of public care. Not
that it would be proposed to take its ordinary branches out of the hands
t)f private enterprise, which manages so much better all the concerns to
which it is equal ; but a public institution alone can supply those sciences
which, though rarely called for, are yet necessary to complete the circle,
all the parts of which contribute to the improvement of the country, and
aome of them to its preservation. The subject is now proposed for the
consideration of Congress, because, if approved, by the time the state legis-
latures shall have deliberated on this extension of the federal trusts, and
the laws shall be passed, and other arrangements made for their execution,
the necessary funds will be on hand and without employment. I suppose
an amendment to the Constitution, by consent of the states, necessary, be-
cause the objects now recommended are not among those enumerated in
the Constitution, and to which it permits the public money to be ap-
plied." • • •
From the same, Nov. 8, 1808. — " The probable accumulation of sur-
pluses of revenue beyond what can be applied to the payment of the
public debt, whenever the freedom and safety of our commerce shall be
restored, merits the consideration of Congress. Shall it lie unproductive
in the public vaults ? Shall the revenue be reduced ? Or shall it not
rather be appropriated to the improvements of roads, canals, rivers, edu-
cation, and other great foundations of prosperity and «union, under the
powers which Congress may already possess, or such amendment of the
Constitution as may be approved by the states ? While uncertain of the
course of things, the time may be advantageously employed in obtaining
the powers necessary for a system of improvement, should that be thought
best." • • •
30
*i60 Prestdenfs Power of Removal. — Smith. [June 16,
Removal by the President. — On the Bill for establishing an
executive Department^ to be denominated the Department of
Forei,:^n Affairs,
House or Represkntatives, June 16, 1789.
The first clause, after recapitulating the title of the officer and his du-
ties, had these words: ** to be removable from office by the President of
the United States."
Mr. WHITE. The Constitution gives the President the power of
nominating, and by and with the advice and consent of the Senate, ap-
pointing to office. As I conceive the power of appointing and dismissing
to be united in their natures, and a principle that never was called in
question in any government, I am adverse to that part of the clause which
subjects the secretary of foreign affairs to be removed at the will of the
President. In the Constitution, special provision is made for the removal
of the judges : that I acknowledge to be a deviation from my principle ;
but as it is a constitutional provision, it is to be admitted. In all cases
not otherwise provided for in this Constitution, I take it that the princi-
ple I have laid down is the governing one. Now, the Constitution has
associated the Senate with the President in appointing the heads of de-
partment; for the words of the law declare that there shall be a depart-
ment established, at the head of which shall be an officer to be so de-
nominated. If, then, the Senate is associated with the President in the
appointment, they ought also to be associated in the dismission from office.
Upon the justness of this construction, I take the liberty of reviving the
moticm made in the committee of the whole for striking out these words,
" to be removable from office by the President of the United States."
Mr. SMITH, (of South Carolina.) The gentleman has anticipated me
in his motion. I am clearly in sentiment with him that the words ought
to go out. It is in the recollection of the committee, that, when the sub-
ject was last before us, this power was excepted to; and although the
words were then allowed to stand, it was generally understood that it'
should be further debated. I then was opposed to giving this power to
the President, and am still of opinion that we ought not to make this
declaration, even if he has the power by the Constitution.
I would premise, that one of these two ideas is just — either that the
Constitution has given the President the power of removal, and there-
fore it is nugatory to make the declaration here, or it has not given the
power to him, and therefore it is improper to make an attempt to confer
it upon him. If it be not given to him by the Constitution, but belongs
conjointly to the President and Senate, we have no right to deprive
the Senate of their constitutional prerogative; and it has been the opinion
of sensible men that the power was lodged in this manner. A publica-
tion of no inconsiderable eminence, in the class of political writings on
the Constitution, has advanced this sentiment. The author, or authors,
(for I have understood it to be the production of two cjentlemen of great
information,) of the work published under the signature of Publius, ha*
these words : —
" It has boon mpntionod as one of the advantages to be expected from the coop
eration of the Senate in the business of appointments, thai it would contribute to tht
stability of the administration. The consent of that body would be necessary to dis
place as well as appoint. A change of the chief maprisirate, then»fore, would not oc-
casion so violent or so general a revolution in the offices of the government as might
1 789.] President's Pawtr of Removal. — Smith. 35 1
be expected if he were the sole disposer ef afficea. Where a ma^ in anv itattoB,
has gi Ten satisfactory eyidenoe of his fitness for it, a new President would be re*
strained from attempting a change, in favor of a person more agreeable to him, bj
ihe apprehension that the discountenance of the Senate might frustrate the attempt,
and bring some degree of discredit upon himself. Those who can best estimate the
i'slue of a steady administration will be most disposed to prize a provision whicL
connects the official existence of public men with the approbation or disapprobation
of that body which, from the greater permanency of its own composition, will, in all
probability, be less subject to inconstancy than any other member of the govern-
ment."
Here this author lays it down, that there can he no doubt of the power
of the Senate in the business of removal. Let this be as it may, I am
clear that the President alone has not the power. Examine the Constitu-
tion ; the powers of the several branches of government are there defined ;
the President hris particular powers assigned him ; the judicial have, in like
manner, powers assigned them ; but you will find no such power as remov-
ing from office given to the President. I call upon gentlemen to show me
where it is said that the President shall remove from office. I know they
cinnot do it. Now I infer from this, as the Constitution has not given the
President the power of removability, it meant that he should not have that
power, and this inference is supported by that clause in the Constitution,
which provides that all civil officers of the United States shall be removed
from office on impeachment for and conviction of treason, bribery, or
other hiah crimes and misdemeanors. Here is a particular mode pre-
scribed for removing, and if there is no other mode directed, I contend
that the Constitution contemplated only this mode. But let me ask gen-
tlemen if any other mode is necessary. For what other cause should a
man be removed from office ? Do gentlemen contend that sickness or
ignorance would be a sufficient cause ? 1 believe, if they will reflect, they
cannot instance any person who was removed from ignorance. I venture
to say, there never was an instance of this nature in the United States.
There have been instances where a person has been removed for offences :
the same may again occur, and are therefore judiciously provided for in
the Constitution. But in this case, is he removed from his ignorance, or
his error, which is the consequence of his ignorance ? I suppose it is for
Ills error, because the public are injured by it, and not for incapacity.
The President is to nominate the officer, and the Senate to approve : here
is provision made against the appointment of ignorant officers. They
cannot be removed for causes which subsisted* before their coming into
office. Their ignorance therefore must arise after they are appointed ; but
this is an unlikely case, and one that cannot be contemplated as probable.
I imagine, sir, we are declaring a power in the President which may
hereafter be greatly abused, for we are not always to expect a chief magis-
trate in whom such entire confidence can be placed as in the present.
Perhaps gentlemen are so much dazzled with the splendor of the virtues
of the present President, as not to be able to see into futurity. The
framers of the Constitution did not confine their views to the first person
who was looked up to, to fill the presidential chair. If they had, they might
hive omitted those checks and guards with which the powers of the execu-
tive are surrounded. They knew, from the course of human events, that
Ihey could not expect to be so highly favored of Heaven, as to have the bless-
ing of his administration more than seven or fourteen years; after which,
tney >?upposed a man might get into power, who, it was possible, might
misl>ehave. We ought to follow their example, and contemplate this
power in the hands of an ambitious man, who might apply it to dangerouf
352 President's Power of Removal — Smith. [June 16t
|turposes. If we give this power to the President, he may, from caprice,
remove the most worthy men from office : his will and pleasure will be the
slight tenure by which an office is to be held ; and of consequence, you ren-
der the officer the mere state dependant, the abject slave, of a persjon who
may be disposed to abuse the confidence his fellow-citizens have placed in
him.
Another danger may resulL If you desire an officer to be a man of
capacity and integrity, you may be disappointed. A gentleman possessed
of these qualities, knowing he may be removed at the pleasure of the
President, will be loath to risk his reputation on such insecure ground. As
the matter stands in the Constitution, he knows, if he is suspected of doing
any thing wrong, he shall have a fair trial, and the whole of his transac-
tions developed by an impartial tribunal : he will have confidence in him-
self when he knows he can only be removed for improper behavior. But
if he is subjected to the whim of any man, it may deter him from entering
into the service of his country ; because, if he is not subservient to that per-
son's pleasure, he may be turned out, and the public may be led to sup-
pose for improper behavior. This impression cannot be removed, as a
public inquiry cannot be obtained. Beside this, it ought to be considered,
that the person who is appointed will probably quit some other office or
business in which he is occupied. Ought he, afler making this sacrifice
in order to serve the public, to be turned out of place without even a rea*
son being assigned for such behavior ? Perhaps the President does not do
this with an ill intention : he may have been misinformed, for it is pre-
sumable that a President may have round him men envious of the honors
Of emoluments of persons in office, who will insinuate suspicions into his
honest breast, that may produce a removal ; be this as it may, the event is
still the same to the removed officer. The public suppose him guilty of
malpractices — hence his reputation is blasted, his property sacrificed. I
say his property is sacrificed, because I consider his office as his property :
he is stripped of this, and left exposed to the malevolence of the world, con-
trary to the principles of the Constitution, and contrary to the principles
of all free government*!, which are, that no man shall be despoiled of his
property but by a fair and impartial trial.
I have stated that, if the power is given by the Constitution, the declara-
tion in the law is nugatory ; and I will add, if it is not given, it will be
nugatory also to attempt to vest the power. If the Senate participate, on
any principle whatever, in the removal, they will never consent to transfer
their power to another branch of the government ; therefore they will not
pass a law with such a declaration in it.
Upon this consideration alone, if there wps no other, the words should
be struck out, and the question of right, if it is one, left to the decision
of the judiciary. It will be time enough to determine the question when
the President shall remove an officer in this way. I conceive it can prop-
erly be brought before that tribunal ; the officer will have a right to a mem'
damns to be restored to his office ; and the judges would determine whether
the President exercised a constitutional authority or not.
Some gentlemen think the Constitution takes no notice of this officer,
as the head of a department. They suppose him an inferior officer in aid of
the executive. This, I think, is going too far ; because the Constitution, in
the words authorizing the President to call on the heads of departments
for their opinions in writing, contemplates several departments. It says,
" the prmcipal officer in each of the executive departments."
1789.] President's Power of Removal, — Sedgwick. 356
I have seriously reflected on this subject, and am conduced that the
Vresident h is not this power by the Constitution, and that, if we had the
right to invest him with it, it would be dangerous to do so.
Mr. HUNTINGDON. I think the clause ought not to stand. It was
well observed, that the Constitution was silent respecting the removal, oth-
erwise than by impeachment. I would likewise add, that it mentions no
other cause of removal than treason, bribery, or other high crimes and
misdemeanors. It does not, I apprehend, extend to cases of infirmity or
incapacity. Indeed, it appears hard to me thit, afler an officer has become
old in an honorable service, he should be impeached for this infirmity.
The Constitution, I think, must be the only rule to guide us on this occa-
sion. As it is silent with respect to the removal, Congress ought to say
nothing about it, because it implies that we have a right to bestow it, atid
I believe this power is not to be found among the enumerated powers
delegated by the Constitution to Congress.
It was said, if the President had this authority, it would make him more
responsible for the conduct of the officer. But if we have a vicious Pres-
ident, who inclines to abuse this power, which God forbid ! his responsi
bility will stand us in little stead : therefore that idea does not satisfy m(
that it is proper the President should have this power.
Mr. SED3WICK. I wish the words to be struck out, because I con-
ceive them to be unnecessary in this place. I do conceive, Mr. Speaker,
that this officer will be the mere creature of the law, and that very little
need be said to prove to you that of necessity this ought to be the easel I
apprehend, likewise, that it requires but a small share of abilities to point
out certain causes for which a person ought to be removed from office,
without being guilty of treason, bribery, or malfeasance ; and the nature
of things demands that it should be so. Suppose, sir, a man becomes in-
sane by the visitation of God, and is likely to ruin our affairs ; are the
hands of givernftsnt to be confined from warding off the evil ? Suppose
a person in office not possessing the talents he was judged to have at the
time of the appointment ; is the error not to be corrected ? Suppose he
acquires vicious habits, an incurable indolence, or total neglect of the
duties of his office, which forebode mischief to the public welfire ; is there
no way to arrest the threatened danger ? Suppose he becomes odious and
unpopular by reason of the measures which he pursues, — and this he may
do without committing any positive offence against the law, — must he
preserve his office in despite of the public will ? Suppose him grasping at
his own aggrandizement, and the elevation of his connections, by every
means short of the treason defined by the Constitution, — hurrying your af-
fairs to the precipice of destruction, endangering your domestic tranquillity,
plundering you of the means of defence, by alienating the affections of
your allies, and promoting the spirit of discord, — is there no way suddenly
to seize the worthless wretch, and hurl him from the pinnacle of power ?
Must the tardy, tedious, desultory road, by way of impeachment, be trav-
elled to overtake the man who, barely confining himself within the letter
of the law, is employed in drawing off the vital principle of the government t
Sir, the nature of things, the great objects of society, the express objects
of this Constitution, require that this thing should be otherwise. Well, sir.
this is admitted by gentlemen ; but they sny the Senate is to be united with
the President in th2 exercise of this power. I hope, sir, this is not the
case, because it would involve us in the most serious difficulty. Suppose
a discovery of any of thase events which I have just enumerated were to
VOL. IV. 45
354 PresidtnVs Power of Removal, — Mi^DisuN*. [Jun^ 16^
take place when the Senate is not in session ; how is the remedy to be ap-
plied 1 This is a serious consideration, at»d the evil could be avoided do
other way than by the Senate's sitting always. Surely no gentleman of
this house contemplates the necessity of incurring such au expense. 1 am
sure it will be very objectionable to our constituents; and yet this must be
done, or the public interest be endangered by keeping, an unworthy
officer in place until that body shall be assembled from tlie extremes of
the Union.
It has been said that there is danger of this power being abused if
exercised by one man. Certainly, the danger is as great with respect to
the Senate^ who are assembled from various parts of the continent, with
different impressions and opinions. It appears to me that such a body is
more likely to misuse this power than the man whom the united voice of
America calls to the presidential chair. As the nature of the governnoent
requires the power of removal, I think it is to be exercised in this way by
a hand capable of exerting itself with effect ; and the p>ower must be con-
ferred on the President by the Constitution, as the executive officer of the
government
I believe some difficulty will result from determining this question by a
mandamus. A mandamus is issued to replace an officer who has been re-
moved contrary to law. Now, this officer being the creature of the law,
we may declare that he shall be removed for incapacity ; and if so declared,
the removal will be according to law.
Mr. MADISON. If the construction of the Constitution is to be left
to its natural course, with respect to the executive powers of this govern-
ment, I own that the insertion of this sentiment in law may not be of
material importance, though, if it is nothing more than a mere declaration
of a clear grant made by the Constitution, it can do no harm ; but if it
relates to a doubtful part of the Constitution, I suppose an ex)K>8ition of
the Constitution may come with as much propriety from the legislature as
any other department of government. If the power naturally belongs to
the government, and the Constitution is undecided as to the body which
is to exercise it, it is likely that it is submitted to the discretion of the
legislatures, and the question will depend upon its own merits.
I am clearly of opinion with the ^/entleman from South Carolina, (Mr.
Smith,) that we ought, in this and every other case, to adhere to the Con-
stitution, so far as it will serve as a guide to us; and that we ought not to
be swayed in our decisions by the splendor of the character of our present
chief magistrate, but consider it with respect to the merit of men who, in
the ordinary course of things, may be supposed to fill the chair. I believe
the power here declared is a high one, and in some respects a dangerous
one ; but, in order to come to a right decision on this point, we must con-
sider both sides of the question — the possible abuses which may spring
from the single will of the first magistrate, and the abuse which may spring
from the combined will of the executive and the senatorial qualification.
When we consider that the first magistrate is to be appointed at prefsent
by the suffraijes of three millions of people, and, in all human prohability,
in a few years' time, by double that number, it is not to be presumed that
a vicious or bad character will be selected. If the government of any
country on the face of the earth was ever effectually guarded against the
election of ambitious or designing characters to the first office of the state,
I think it may with truth be ^aid to be the case under the Constitution of
tite Tnited States. With all the infirmities incident to a popular election
1789.] PresHieiU^s Power of Removai. — Madison. S5!i
corrected by the particular mode of conducting it, as directed under the
pre^nt system, 1 thinic we may fairly calculate that the instances will be
very rare in which an unworthy man will receive that mark of public con-
fidence which is required to designate the President of the United Statea
Where the people are disposed to give so great an elevation to one of thoir
fellow-citizens, I own that I am not afraid to place my confidence in hirn ;
especially when I know he is impeachable, for any crime or misdemeanor,
before the Senate at alt times; and that, at all events, he is impeachable
before the community at large every four years, and liable to be displaced
if his conduct shall have given umbrage during the time he has been in
office. Under these circumstances, although the trust is a high one, and
in some degree, perhaps, a dangerous one, I am not sure but it will be
safer here th in placed where some gentlemen suppose it ought to be.
It is evidently the intention of the Constitution that the first magistrate
should be responsible for the executive department ; so far, therefore, as
we do not mike the officers who are to aid him in the duties of that de«
partment responsible to him, he is not responsible to his country. Again :
is there no danger that an officer, when he is appointed by the concurrence
of the Senate, and has friends in that body, may choose rather to risk hie
establishment on the favor of that branch, than rest it upon the discharge
of his duties to the satisfaction of the executive branch, which is constitu-
tionally authorized to inspect and control his conduct f and if it should
happen that the officers connect themselves with the Senate, they nuij
mutuilly support each other, and, for want of eflicacy, reduce the power
of the President to a mere vapor, in which case his responsibility would
be annihilated, and the expectation of it unjust. The high executive offt-
cers, joined in ctbal with the Senate, would lay the foundation ofdiscord^
and end in an assumption of the executive power, only to be removed by
a revolution in the government. I believe no principle is more clearly
laid down in the Constitution than that of responsibility. After premisinff
this, I will proceed to an investigation of the merits of the question upon
constitutional ground.
I have, since the subject was last before the house, examined the Coik
stitiition with attention ; and I acknowledtre that it does not perfectly
correspond with the ideas I entertained of it from the first glance. I ann
inclined to think thit a free and systematic interpretation of the plan of
government will leave us less at liberty to abate the responsibilit); than
gentleiien imagine. I have already acknowledged that the powers of the
{^vernment must remain as apportioned by the Constitution. But it maf
be contended that, where the Constitution is silent, it becomes a subject
of legislative discretion. Perhaps, in the opinioh of .some, an argument in
fnvor of the clause may be successfully brought forward on this ground. I,.
however, leave it for the present untouched.
By H strict examination of the Constitution on what appear to l>e its true
principles, and considering the great department*; of the government in the
relation they have to each other, I have my doubts whether we are not ab-
solutely tied down to the construction declared in the bill.
Ill the 1st section of the 1st article, it is said that all lecrislative powers
herein granted shall be vested in a Congress of the United States. In the
21 article, it is affirmed that the executive power shall be vested in a
President of the United States of America. In the 3d article, it is declared
Will the judicial power of the United States shall be vested in one Supreme
Comt, and in such inferior courts as Congress may from time to time ot
556 Prtiifden^s Power of Removal, — Madiion. \June XQ^
daiii and establish. I suppose it would be readily admitted that, so far as
the Constitution has separated the powers of these great departments, it
would be improper to combine them together ; and so tar as it has lefl any
particular department in the entire possession of the powers incident to
that department, I conceive we ought not to qualify them further than they
are qualified by the Constitution. The legislative powers are vested in
Congress, and are to be exercised by them uncontrolled by any other de-
partment, except the Constitution has qualified it otherwise. The Consti-
tution has qualified the legislative power by authorizing the President to
object to any act it may puss — requiring, in this case, two thirds of both
houses to concur in making a law; but still the absolute legislative power
is vested in the Congress, with this qualification alone.
The Constitution affirms that the executive power shall be vested in the
President. Are there exceptions to this proposition 1 Yes, there are
The Constitution says that, in appointing to office, the Senate shall be as-
sociated with the President, unless in the case of inferior officers, when
the law shall otherwise direct. Have we a ri^^ht to extend this exception ?
I believe not. If the Constitution has invested all executive power in the
President, I venture to assert that the legislature has no right to diminish
or modify his executive authority.
The question now resolves itself into this : Is the power of displacing
an executive power ? I conceive that, if any power whatsoever is in ita
nature executive, it is the power of appointing, overseeing, and controlling
those who execute the laws. If the Constitution had not qualified the
power of the President in appointing to office, by associating the Senate
with him in that business, would it not be clear that he would have the
right, by virtue of his executive power, to make such appointment?
Should we be authorized, in defiance of that clause in the Constitution, —
" The executive power shall be vested in a President," — to unite the Senate
with the President in the appointment to office? I conceive not. If it is
admitted we should not be authorized to do this, I think it may be dis-
puted whether we have a right to associate them in removing persons from
office, the one power being as much of an executive nature as the other ;
and the first only is authorized by being excepted out of the general rule
established by the Constitution, in these words, *'The executive power
shall be vested in the President."
The judicial power is vested in a Supreme Court ; but will gentlemen
say the judicial power can be placed elsewhere, unless the Constitution
has made an exception ? The Constitution justifies the Senate in exer-
cising a judiciary power in determining on impeachments. But can the
judicial powers be further blended with the powers of that body ? They
cannot. I therefore say it is incontrovertible, if neither the legislative nor
judicial powers are subjected to qualifications other than those demanded
in the Constitution, that the executive powers are equally unabatable as
either of the other ; and inasmuch as the power of removal is of an ex-
ecutive nature, and not affected by any constitutional exception, it is be-
yond the reach of the legislative body.
If this is the true construction of this instrument, the clause in the bill
is nothing more than explanatory of the meaning of the Constitution, and
therefore not liable to any particular objection on that account. If the
Constitution is silent, and it is a power the legislature have a right to con-
fer, it will appear to the world, if we strike out the clause, as if we doubt-
ed the propriety of vesting it in the President of the United States. I
therefore think it best to retain it in the bill.
1789.] PresiderU^s Power of Removal, — Boudinot. 357
Mr. WHITE. I have no doubt in ray mind but an officer can be re-
moved without a public trial. I think there are cases in which it jwould
he improp.fr that his misdemeanors should be publicly known; the trail-
quillity and harmony of the Union might be endangered if his guilt was
not secreted from the world. I have therefore no hesitation in declaring,
as my sentiment/that the President and Senate may dismiss him.
The Constitution contemplates a removal in some other way besides
that by impeachment, or why is it declared, in favor of the judges only, that
they shall hold their offices during good behavior ? Does not this strongly
imply that, without such an exception, there would have been a discretion-
ary power in some branch of the government to dismiss even them ?
Several objections have arisen from the inconvenience with which the
power must be exercised, if the Senate is blended with the executive; and
therefore it is inferred that the President ought exclusively to have this
power. If we were framing a constitution, these arguments would have
their proper weight, and I might approve such an arrangement. But at
present, I do not consider we are \i liberty to deliberate on that subject ;
the Constitution is already formed, and we can go no farther in distributing
the powers than the Constitution warrants.
It was objected that the President could not remove an officer unless the
Senate was in session ; but yet the emergency of the case might demand
an instant dismission. I should imagine that no inconvenience would re-
8ult on this account; because, on my principle, the same power which can
make a temporary appointment, can make an equal suspension : the pow-
ers are opposite to each other.
The gentleman says we ought not to blend the executive and legislative
powers further than they are blended in the Constitution. I contend we
do not There is no expression in the Constitution which says that the
President shall have the power of removal from office : but the contrary
is strongly implied ; for it [s said that Congress may establish officers by
law, and vest the appointment, and consequently the removal, in the Pres-
ident alone, in the courts of law, or heads of departments. Now, this
shows that Congress are not at liberty to make any alteration by law in
the mode of appointing superior officers, and consequently that they are
Dot at liberty to alter the manner of removal.
Mr. BOUDINOT. This is a question, Mr. Speaker, that requires full
consideration, and ought only to be settled on the most candid discussion.
It certainly involves the right of the Senate to a very important power.
At present, I am so impressed with the importance of the subject, that I
dire not absolutely decide on any principle, although I am firmly per-
suaded we ought to retain the clause in the bill ; and, so far as it has
been examined, I agree that it is a leorislative construction of the Constitu-
tion necessary to be settled for the direction of your officers. But if it is
a deviation from the Constitution, or in the least degree an infringement
upon the authority of the other branch of the legislature, I shall most de-
cidedly be against it. But I think it will appear, on a full consideration
of this business, that we can do no otherwise thm agree to this construc-
tion, in order to preserve to each department the full exercise of its powers,
and to give this house security for the proper conduct of the ofi\pers who
ire to execute the laws.
The arguments adduced are to show that the power of removal lies either
in the President and the Senate, or the President alone, except in caset
of ie*DOval by impeachment There is nothing, I take it, in the Consti-
•i58 PruidmCs Pomer rf Removal, — BooDtAOT. [ Jiok 1&
Cation, CM the reason of the thing, that officers should be only renovftble
bjT irapeachnient. Such a provision would be derogatory to the powe-rs of
governoient, and subversive of the rights of the people. What says the
Constitution on this point? I fear, sir, it has not been rightly compre-
hended. That the House of Representatives shall have the sole power of
impeachment ; that the Senate shall have the sole power to try all ioipeach-
ments; and judgment shall not extend further than to removal from office,
and disqualification to huld it in future : then comes the clause declar-
ing, absolutely, that he shall be removed from office on impeachment for
and conviction of treason, bribery, or other high crimes or misdemeanors.
It is this clause which guards the right of the house, and enables thero
to pull down an improper officer, although he should be supported by all
the power of the executive. This, then, is a necessary security to the
(>eople, and one that is wisely provided in the Constitution. But I believe
it is nowhere said that officers shall never be removed but by impeachmeat ;
but it says they shall be removed on impeachment. Suppose the secreta-
ry of foreign affairs shall misbehave, and we impeach him; notwithstand-
ing tiie clearest proof of guilt, the Senate might only impose some trifling
punishment, and retain him in office, if it was not for this declaration in
the Constitution.
Neither this clause nor any other goes so far as to say it shall be the
only mode of removal : therefore we may proceed to inquire what the other
is. Let us examine whether it belongs to the Senate and President. Cer-
tainly, sir, there is nothing that gives the Senate this right in express terms;
but they are authorized in express words to be concerned in the appoint-
ment. And does this necessarily include the power of removal 7 If the
President complains to the Senate of the misconduct of an officer, and
desires their advice and consent to the removal, what are the Senate to
do? Most certainly, they will inquire if the complaint is well founded.
To do this, they must call the officer before them to answer. Who, then,
are the parties? The supreme executive officer against his assistant; and
then the Senate are to set judges to determine whether sufficient cause of
removal exists. Does not this set the Senate over the head of the Presi-
dent? But suppose they shall decide in favor of the officer; what a situ-
ation is the President then in, surrounded by officers with whom, by hia
situation, he is compelled to act, but hi whom he can have no confidence,
reversing the privilege, given him by the Constitution, to prevent his hav-
ing officers imposed upon him who do not meet his approbation I
But I have another more solid objection, which places the question in
a more important point of view. The Constitution has placed the Senate
as the only security and barrier between the House of Representatives
and the President. Suppose the President has desired the Senate to con-
cur in removing an officer, and they have declined ; or suppose the House
have applied to the President and Senate to remove an ofRcer obnoxious
to them, and they determine against the measure; the house can have re-
course to nothing but an impeachment, if they suppose the criminality of
the officer will warrant such procedure. Will the Senate, then, be that
upright court which they ought, to appeal to on this occasion, when they
have pr^udged your cause ? I conceive the Senate will be too much un-
der the control of their former decision, to be a proper body for this house
(o apply to for impartial justice.
As the Senate are the dernier ressort^ and the only court of judicature
iThic.h can determine on cases of impeachment, I am for preserving then
178UI] Premknt's Pcwer of RemonaL -^^mnH,
free ind independent, both on account of the offieer and this house. I
therefore conceive that it was never the intention of the Constitution Us
vest the power of removal in the President and Senate ; but as it must
exist Botnewhere, it rests on the President alone. I conceive this point
4ra8 made fully to appear by the honorable member from Virginia, (Mr.
Madison ;) inasmuch us the President is the supreme executive officer of
tMpe United States.
It was asked if ever we knew a person removed from office by reasoH
of sickness or ignorance. If there never was such a case, it is perhaps
nevertheless proper that they should be removed for those reasons, and w^
shall do well to establish the principle.
Suppose your secretary of foreign affairs rendered incapable of thought
or action by a paralytic stroke. I ask whether there would be any propri-
ety in keepmg such a person in office; and whether the salus pnpuli ^^ihe
lirst object of republican government — does not absolutely demand his
dismission. Can it be expected that the President is responsible for all
officer under these circumstances, although, when he went into office, Im
might have been a wise and virtuous man, and the President well inclined
lo risk his own reputation upon the integrity and abilities of the pcr«
son ?
I conceive it will be improper to leave the determination of this ques-
tion to the judges. There will be some indelicacy in subjectitig the exec-
utive action in this particular to a suit at law ; and there may be much
inconvenience if the President does not exercise this prerogative until it
is decided by the courts of justice.
From these considerations, the safety of the people, the security of this
house, and adherence to the spirit of the Constitution, I am disposed to
think the clause proper ; and as some doubts respecting the construction
of the Constitution have arisen, I think it also necessary ; therefore 1
hiipe it will remain.
Mr. SMITH, (of South Carolina.) The gentleman from Virginia has
Slid that the power of removal is executive in its nature. I do not believe
itii^ to be the case. I have turned over the constitutions of most of th^
Slates, and I do not find that any of them have granted this power to the
governt^r. — In some instances I find the executive magistrate suspends,
tmt none of them have the right to remove, officers; and I take it that the
Constitutir>n of the United States has distributed the powers of govern-
ment on the same principles which most of the state constitutions have
adopted ; fbr it will not be contended but the state governments fur^
nished the members of the late Convention with the skeleton of this
Constitution.
The gentlemen have observed that it would be dangerous if the Presi-
dent had not this power. But is there not danger in making your secre-
tary of foreign affairs dependent upon the will and pleasure of the Presi-
dent ? Can gentlemen see the danger on one side only t Suppose the
President averse to a just and honorable WMr which Congress have em-
barked in ; can he not countenance the secretary at war (for it is in con-
templation to establish such an officer) in the waste of public stores, and
misapplication of the supplies ? Nay, cannot he dragoon your officer into
a compliance with his designs by threatening him with a removal, by
which hi^ reputation and property wmdd be destroyed ? If the officer
was established on a better tenure, he would dare to be honest ; he would
ktum binMelf iatuluerable in his integrity, and defy the shafts of malevii*
360 President's Power of Removal, — Gkrrt. [June 16,
lence, though aimed with Machiavellian policy. He would be a barrier to
your executive officer, and save the t^tate from ruin.
But, Mr. Chairman, the argument does not turn upon the expediency of
tlie measure. The great question is with respect to its constitutionality ;
and as yet I have heard no argument advanced sufficiently cogent to
prove to my mind that the Constitution warrants such a di^positioIl of the
power of removal; and until I am convinced that it is both expedient and
constitutional, I cannot agree to it.
Mr. GERRY. Some gentlemen consider this as a question of policy ;
but to me it appears a question of constitutionality, and I presume it will
be determined on that point alone. The best arguments I have heard
urged on this occasion came from the honorable gentleman from Virginia,
(Mr. Madison.) He says, the Constitution has vested the executive pow-
er in the President ; and that he has a right to exercise it under the qual-
ifications therein made. He lays it down as a maxim, that tiie Constitu-
tion, vesting in the President the executive power, naturally vests him
with the power of appointment and removal. Now, I would be glad to
know from that gentleman, by what means we are to decide this question
Is his maxim supported by precedent drawn from the practice of the indi-
vidual states? .The direct contrary is established. In many cases, the
executives are not, in particular, vested with the power of appointment,
nor do they exercise that power by virtue of their office. It will be found
that other branches of the government make appointments How, then,
can gentlemen assert that the powers of appointment and removal are in-
cident to the executive department of the government ? To me it appears
at best but problematical. Neither is it clear to me that the power that
appoints naturally possesses the power of removal. As we have no cer-
tainty on either of these points, I think we must consider it, as established
by the Constitution.
It has been argued that, if the power of removal vests in the President
alone, it annuls or renders nugatory the clause in the Constitution which
directs the concurrence of the Senate in the case of appointment : it be-
hoves us not to adopt principles subversive of those established by the
Constitution. It has been frequently asserted, on former occasions, that
the Senate is a permanent body, and was so constructed in order to give
durability to public measures. If they are not absolutely permanent, they
are formed on a renovating principle which gives them a salutary stability.
This is not the case either with the President or House of Representa-
tives ; nor is the judiciary equally lasting, because the officers are subject
to natural dissolution. It appears to me that a permanency was expected
in the magistracy ; and therefore the Senate were combined in the ap-
pointment to office. But if the President alone has the power of removal,
it is in his power at any time to destroy all that has been done. It ap-
pears to me that such a principle would be destructive of the intention of
the Constitution expressed by giving the power of appointment to the
Senate. It also subverts the clause which gives the Senate the sole pow-
er of trying impeachments ; because the President may remove the offi
cer, in order to screen him from the effects of their judgment on an im-
peachment. Why should we construe any part of the Constitution in
such a manner as to destroy its essential principles, when a more conso-
nant construction can be obtained ?
It appears very clear to me that, however this power may be dif trihuted
by the Constitution, the House of Representatives have nothing to do ^itli
1789.] PrtsidmVs Power of Retiwval, — Ames. 361
lu Why, then, should we interfere in the business ? Are we afraid the Pica-
jdent and Senate are not sutficieiitiy informed to know their respective
duties? Our interposition argues that they want judgment, and are not
able to adjust their powers without the wisdom of this house to Assist
cbem. To say the least on this point, it must be deemed indelicate for us
to intermeddle with them. If the fdct is, as we seem to suspect, that they
do not understand the Constitution, let it go before the proper tribunal ;
the judges are the constitutional umpires on such questions. Why, let
me ask, gentlemen, shall we commit an infraction of the Constitution, for ,
fear the Senate or President should not comply with its directions?
It has been siid, by my colleague, that these officers are the creatures
of the law ; but it seems as if we were not content with that, — we are
making them the mere creatures of the President. They dare not exer-
cise the privilege of their creation, if the President shall order them to
forbear. Because he holds their thread of life, his power will be sov-
ereign over them, and will soon swallow up the small security we have in
the Senate's concurrence to the appointment, and we shall shortly need
no other than the authority of the supreme executive officer to nominate,
appoint, continue, or remove.
Mr. AMES. When this question was agitated at a former period, I
took no part in the debate. I believe it was then proposed without any
idea or intention of drawing on a lengthy discussion, and to me it ap-
peared to be well understood and settled by the house ; but since it has
been reiterated and contested again, I feel it my bounden duty to deliver
the reasons for voting in the manner I then did and shall do now. Mr.
Chairman, I look upon every question which touches the Constitution as
serious and important, and therefore worthy of the fullest discussion and
the most solemn decision. I believe, on the present occasion, we may
come to something near certainty, by attending to the leading principles
of the Constitution. In order that the good purposes of a federal gov-
ernment should be answered, it was necessary to delegate considerable
powers ; and the principle upon which the grant was made intended to
give sufficient power to do all possible good, but to restrain the rulers
from doing mischief.
The Constitution places all executive power in the hands of the Presi-
dent ; and could he personally execute all the laws, there would be no
occasion for establishing auxiliaries ; but the circumscribed powers of hu-
man nature in one man demand the aid of others. When the objects
are widely stretched out, or greatly diversi6ed, meandering through such
an extent of territory as what the United States possess, a minister cannot
see with his own eyes every transaction, or feel with his hands the mt/t?/-
tiiB that pass through his department : he must therefore have assistants.
But in order that he may be responsible to his country, he must have a
choice in selecting his assistants, a control over them, with power to re-
move them when he finds the qualifications which induced their appoint-
ment cease to exist. There are officers under the Constitution who hold
their office by a different tenure : your judges are appointed during good
behavior ; and from the delicacy and peculiar nature of their trust, it is
right it should be so, in order that they may be independent and impartial
in administering justice between the government and its citizens. But
the removability of the one class, or immovability of the other, is founded
on the same principle — the security of the people against the abuse of
power. Does any gentleman imagine that an officer is entitled *o hi»
VOL. n 46 31
362 PnssidtfU's F^er of Removal. — Aun%. [June 16
office a^ CO an estate ? Or does the legislature establish them for the con-
venienc« of an individual f For my part, I conceive it intended to carry
into eife(;t the purposes for which the Constitution was intended.
TKe executive powers are delegated to the President, with a ?iew to
have a responsible officer to superintend, control, inspect, and check,
the officers necessarily employed in administering the laws. Tlie only
bond between him and those he employs is the confidence he has in their
integrity and talents. When that conftdence ceases, the principal onghf
to have the power to remove those whom he cnn no longer trust with smfety.
If an officer shall be guilty of neglect or infidelity, there can be no doubt but
he ought to be removed ; yet there may be numerous causes for removal
which do not amount to a crime. He may pro|)ose to do a mischief, but
I believe the mere intention would not be cause of impeachment : he may
lose the confidence of the people upon suspicion, in which case it would
be improper to retain him in service ; he ought to be removed at any time,
when, instead of doing the greatest possible good, he is likely to do an
injury, to the public interest, by being combined in the administratitMi.
I presume gentlemen will generally admit that officers ought to be re-
moved when they become obnoxious ; but the question is, How shall this
power be exercised ? It will not, I apprehend, be contended that all offi-
cers hold their offices daring good behavior. If this is the case, it is a
most singular government. I believe there is not another in the universe
that be^rs the least semblance to it in this particular : such a principle, i
take it, is contrary to the nature of things.
But the manner how to remove is the question. If the officer misbe-
haves, he can be removed by impeachment. But, in this case, is impeach-
ment the only mode of removal t It would be found very inconvenient to
have a man continued in office afler being impeached, and when all confi-
dence in him was suspended or lost. Would not the end of impeacliment
be defeated by this means? If Mr. Hastings, who was mentioned by the
gentleman from Virginia, (Mr. Vining,) preserved his command in India,
could he not defeat the impeachment now pending in Great Britain ? If
that doctrine obtains in America, we shall find impeachments come too
late ; while we are preparing the process, the mischief will be perpetrated,
and the offender escape, I apprehend it will be as frequently necessary to
prevent crimes as to punish them ; and it may often happen that the only
prevention is by removal. The superintending power possessed by the
President will perhaps enaMe him to discover a base intention before it is
ripe for execution. It may happen that the treasurer may be disposed to
lietray the public chest to the enemy, and so injure the government beyond
tne possibility of reparation. Should the President be restrained from re-
moving 80 dangerous an officer until the slow formality of an impeachment
was complied with, when the nature of the case rendered the application
if a sudden and decisive remedy indispensable?
But it will, I say, be admitted that an officer may be removed : the ques-
tion then is, by whom ? Some gentlemen say, by the President alone ;
and others, by the President, by and with the advice of the Senate. By
the advocates of the latter mode it is alleged that the Constitution is in the
way of the power of removal being by the President alone. If this i«
absolutely the case, there is an end to all further inquiry. But before we
suffer this to be considered an insuperable impediment, we ought to be
clear that the Constitution prohibits him the exercise of what, on a fimf
vieur« nppeani to be a power incident to the executive branch of tb« gov
1789.] PfMinfs Pimer rf RtmofHd. — Amm &(k^
erDinent The geotleraan from Virginia (Mr. Madison) has ma<te so mtii}
observations to evince the constitutionality of the clause, that it is un
necessary to go over the ground again. I shall therefore confine myself to
answer only some remarks made by the gentleman from South Carf^ltna
(Mr. Smith.) The powers of the President are defined in the Consti-
tution ; but it is said that he is not expressly authorized to remove froui
office. If the Constitution is silent al:9o with respect to the Senate, the argu-
ment may be retorted. If this silence proves that the power cannot be
exercised by the President, it certainly proves that it cuMiot be exercised
by the Prei^ident, by and with the advice and conse^nt of the Senate. The
power of removal is incident to government; but, not being distributed
by the Constitution, it will come before the legislature, and, like every
other omitted case, must be supplied by law.
Qeotlemeci hnve s^id, when the question was formerly beA3re us, that all
powers aot intended to be given up to the general government were re-
tained. I beg gentleman, when they undertake to argue from implication,
to be consistent, and admit the force of other arguments drawn from the
same source It is a leading principle in every free government — it is a
prominent feature in this — that the legislative and executive powers
should be kept distinct ; yet the attempt to blend the executive and legis*
lative departments, in exercising the power of removal, is such a maxin*
as ought not to be carried into practice on arguments grounded on impli-
cation. And the gentleman from Virginia's (Mr^ White'^) reasoning is
wholly drawn from implication. He supposes, as the Constitution qualifies
the President's power of appointing to office, by subjecting his nomination
to the concurrence of the Senate, that the qualification follows of course
in the removal.
If this is to be considered as a question undecided by the Constitution,
and submitted on the footing of expediency, it will be well to consider
where the power can be most usefully deposited, for the security and ben*>
efit of the people. It has been said by the gentleman on the other side
of the house, (Mr. Smith,) that there is an impropriety in allowing the
exercise of this power ; that it is a dangerous authority, and much evil may
result to the liberty and property of the officer who may be turned out of
business without a moment's warning. I take it, the question is not
whether such power shall be given or retained ; because it is admitted, on
ill hands, that the officer may be removed ; so that it is no grant of
power — it raises no new danger. If we strike out the clause, we do not
keep the power, nor prevent the exercise of it; so the gentleman will de-
rive none of the security he contemplates by agreeing to the motion for
striking ont. It will be found that the nature of the business requires it
to be conducted by the head of the executive; and I believe it will be
(bond, even there, that more injury will arise from not removing improper
officers, than from displacing good ones. I believe experience has con-
vinced us that it is an irksome business ; and officers are more frequently
oontinued in one place after they become unfit to perform the duties,
than turned out while their talents and integrity are useful. But advan-
tages may result from keeping the power of removal, in terrorem^ over the
mds of (he officers ; they will be stimulated to do their duty to the satis*
faction of the principal, who is to be responsible for the whole executive
dmartment
The ^ntleroan has supposed there will be great difficulty in getting
of abilities to engage in the service of their country upon such
d64 Preiideni's Power of Removal. — Litbrmorb. [June 16
terms. There has never yet been any scarcity of proper officers in any
department of the government of the United States ; even during the war,
when men risked their lives and property by engaging in such service,
there were candidates .enough.
But why should we connect the Senate in the removal ? Their atten*
tion is taken up with other important business, and they have no constitu-
tional authority to watch the conduct of the executive officers, and
therefore cannot use such authority with advantage. If the President is
inclined to shelter himself behind the Senate, with respect to having con-
tinued an improper person in office, we lose the responsibility which is
our greatest security : the blame, amongst so many, will be lost. Another
reason occurs to me against blending these powers. An officer who
superintends the public revenue will naturally acquire a great influence.
Tf he obtains support in the Senate, upon an attempt of the President to
remove him, it will be out of the power of the house, when applied to by
the first magistrate, to impeach him with success ; for the very means of
proving charges of malconduct against him will be under the power of
the officer : all the papers necessary to convict him may be withheld while
the person continues in his office. Protection may be rendered for pro-
tection ; and, as this officer has such extensive influence, it may be exerted
to procure the reelection of his friends. These circumstances, in addi-
tion to those stated by the gentleman from New Jersey, (Mr. fioudinot,)
must clearly evince to every gentleman the impropriety of connecting the
Senate with the President, in removing from office.
I do not say these things will take eflect now ; and if the question only
related to what might take place in a few years, I should not be uneasy on
this point, because I am sensible the gentlemen who form the present
Senate are above corruption; but. in future ages, (and I hope this gov-
ernment may be perpetuated to the end of time,) such things may take
place, and it is our duty to provide against evils which may be foreseen, but
if now neglected, will be irremediable.
I beg to observe, further, that there are three opinions entertained by
gentlemen on this subject. One is, that the power of removal is prohib-
ited by the Constitution ; the next is, that it requires it by the President;
and the other is, that the Constitution is totally silent. It therefore ap-
pears to me proper for the house to declare what is their sense of the
Constitution. If we declare justly on this point, it will serve for a rule
of conduct to the executive magistrate : if we declare improperly, the judi-
ciary will revise our decision ; so that, at all events, I think we ought to
make the declaration.
Mr. LIVERMORE. I am for striking out this clause, Mr. Chairman,
upon the principles of the Constitution, from which we are not at liberty
to deviate. The honorable gentleman from Massachusetts (Mr. Sedg-
wick) calls the minister of foreign aflairs the creature of the law, and that
very properly ; because the l.iw establishes the office, and has the power
of creating him in what shape the legislature pleases. This being the
case, we have a right to create the office under such limitations and restric-
tions as we think proper, provided we can obtain the consent of the
Senate; but it is very improper to draw, as a conclusion from Having the
power of giving birth to a creature, that we should therefore bring forth a
monster, merely to show we had such power. I call that creature a mon-
ster that has not the proper limbs and features of its species. I think the
ereature we are forming is unnatural in its proportions It has been often
1789.] President* s Power of Removal* — Livermorb. 36t
said that toe Constitution declares the President, by and with the advice '
and consent of the Senate, shall appoint this officer. This, to be sure
is very true, and so is the conclusion which an honorable gentleman from
Virginia (Mr. White) drew from it — that an officer must be discharged
in the way he was appointed.
I believe, Mr. Chairman, this question depends upon a just construction
of a short clause in the Constitution — '* The President shall have power,
by and with the advice and consent of the Senate, to appoint ambassadors^
other public mininiers, and consuls, judges of the Supreme Court, and all
other officers of the United States." Here is no difference with respect
to the power of the President to mike treaties and appoint officers, only it
requires in the one case a larger majority to concur than in the other. I
will not, by any means, suppose that gentlemen mean, when they argue in
favor of removal by the President alone, to contemplate the extension of
the power to the repeal of treaties ; because, if they do, there will be
little occasion for us to sit here. But, let me ask these gentlemen — as
there is no real or imaginary distinction between the appointment of am*
bassadors and ministers, or secretaries of foreign affairs — whether they
mean that the President should have the power of recalling or discarding
ambassadors and military officers, — for the words in the Constitution
are, " all other officers," — as well as he can remove your secretary of
foreign affairs. To be sure,- they cannot extend it to the judges, because
they are secured under a subsequent article, which declares they shall hold
their offices during good behavior ; they have an inheritance which they
cannot be divested of but on conviction of some crime. But I presume
gentlemen mean to apply it to all those who have not an inheritance in
their offices. In this case, it takes the whole power of the President
and Senate to create an officer; but half the power can uncreate him.
Surely, a law passed by the whole legislature cannot be repe-iled by one
branch of it; so, I conceive, in the case of appointments, it requires the
same force to supersede an officer as to put him in office.
I acknowledge that the clause relative to impeachment is for the benefit
of the people. It is intended to enable their representatives to bring a
bad officer to justice, who is screened by the President. But I do not
conceive, with the honorable gentleman from South Carolina, (Mr. Smith,)
that it, by any means, excludes the usual ways of superseding officers. It
is said, in the Constitution, that the house shall have the power of choos-
ing their own officers. We have chosen a clerk, and, I am satisfied, a
very capable one; but will any gentleman contend that we may not dis-
charge him, and choose another, and another, as oflen as we see cause 7
And so it is in every other instance — where they have power to make,
they have likewise the power to unmake. It will be said, by gentlemen,
that the power to make does not imply rhe power of unmaking ; but I
believe they will find very few excepii^)ns in the United States.
Were I to speak of the expediency, every one of my observations would
be against it. When an important and confidential trust is placed in a
roan, it is worse than death to him to be displaced without cause; his
reputation depends upon the single will of the President, who may ruin
him on bare suspicion. Nay, a new President may turn him out on mere
caprice, or in order to make room for a favorite. This contradicts all my
notions of propriety ; every thing of this sort should be done with due
'leiiberation ; esei^ person ouaht to have a hcarinsf before they are
punished. It is on these considerations that I wish the general principle
laid down by the gentleman from Virginia (Mr. White) may be adhered ♦o.
36b Rttndenfs Power of Removal, — Hartley. \June 16,
I will adJ one word more, and I have done. This seems, Mr. Chair-
man, altogether to be aimed at the Senate. What have thcjr done to
chagrin us ? or why should we attempt to abridge their powers, because
we can reach them by our regulntions in the shape of a bill ? I think we
had better let it alone. If the Constitution has given them this power, they
will reject this part of the bill, and they will exercise that one privilege
judiciously however they may the power of removal. If the Constitution
has not given it to them, ii has not vested it any where else ; conse-
quently, this house would have no right to confer it.
Mr. HARTLEY. 1 apprehend, Mr. Chairman, that this officer can-
not be considered as appointed during good behavior, even in point of
policy; but with respect to the constitutionality, I am pretty confident he
cannot be viewed in that light. The Constitution declares the tenure of
the officers it recognizes, and says one class of them shall hold their
offices during good behavior ; they are the judges of your Supreme and
other courts; but as to any other officer being established on this firm
tenure, the Constitution is silent. It, then, necessarily follows that we
must consider every other according to its nature, and regulate it in a cor-
responding manner. The business of the secretary of foreign affairs is of
an executive nature, and must consequently be attached to the executire
department.
I think the gentleman from South Carolina goes too far, in saying that
the clause respecting impeachments implies that there is no other mode of
removing an officer. I think it does not follow that, because one mode
is pointed out by the Constitution, there is no other, especially if that pro-
vision is intended for nothing more than a punishment for a crime. The
4th section of the 2d article says that all civil officers shall be removed
on conviction of certain crimes. But it cannot be the intention of the
Constitution to prevent, by this, a removal in any other way. Such a
principle, if once admitted, would be attended with very inconvenient and
mischievous consequences.
The gentleman further contends that every man has a property in his
office, and ought not to be removed but for criminal conduct ; he ought
not to be removed for inability. I hope this doctrine will never he ad-
mitted in this country. A man, when in office, ought to have abilities to
discharge the duties of it. If he is discovered to be unfit, he ought to be
immediately removed ; but not on principles like what that gentleman con-
tends for. If he has an estate in his office, his right must be purchased,
and a practice like what obtains in Encrland will be adopted here. We
shall be unable to dismiss an officer, without allowing him a pension for
the interest he is deprived of Such doctrine may suit a nation which is
strong in proportion to the number of dependants upon the crown, but
will be very pernicious in a republic like ours. When we have established
an office, let the provision for the support of the officer be equal to com-
pensate his services ; but never let it be said that he has an estate in his
office when he is found unfit to perform his duties. If offices are to be
held during jnrood behavior, it is easy to foresee that we shall have as many
factions as heads of departments. The consequence would be, cornip-
lion in one of the great departments of trovernmeDt ; and if the balance is
once destroyed, the Constitution must fall amidst the ruins. From this
view of the "lubject, I have no difficulty to declare that l^e secretary of
foreign affairs is an officer during pleasure, and not during good behavior.
as contended for.
t789.] PrtsiektU's Power of Renwval, — Lawrbnob* 367
(lie gent.emao (Mr. White) holds the same principles, but differs with
respect to the power which ought to exercise the privilege of removal. On
this point we are reduced to a matter of construction ; hut it is of high
importance to the United States that a construction should be rightly
made. But gentlemen say it is inconsistent with the Constitutiofi to make
(his declaration ; that, as the Constitution is silent, we ought not to he too
explicit The Constitution has expressly pointed out several matters
which we can do, and some which we cannot ; but in other matters it
is silent, and leaves them to the discretion of the legislature. If this is
not the case, why was the last clause of the 8th section of the 1st article
mserted 1 It gives power to Congress to make all laws necessary and
proper to carry the government into effect.
I look upon it that the legislature have, therefore, a right to exercise
their discretion on such questions ; and, however attentively gentlemen
may have exanimed the Constitution on this point, I trust they have dis-
covered no clause which forbids this house interfering in business neces-
sary and proper to carry the government into eifect.
The Constitution grants expressly to the President the power of filling
all vacancies during the recess of the Senate. This is a temporary power,
like that of removal, and liable to very few of the objections which have
been made. When the President has removed an officer, ar»other must
be appointed ; but this cannot be done without the advice and consent of
the Senate. Where, then, is the danger of the system of favoritism ?
The President, notwithstanding the supposed depravity of mankind, will
hardly remove a worthy officer to make way for a person whom the Senate
may reject. Another reason why the power of removal should he lodged with
the President, rather than with the Senate, arises from their connection
with the people. The President is the representative of the people ; in a
near and equal manner, he is the guardian of his country. The Sen*
ate are the representatives of the Slate legislatures; but they are very
Unequal in that representation: each state sends two members to that
house, although their proportions are as ten to one. Hence arises a de-
gree of insecurity to an impartial administration; but if they possessed
every advantage of equ ility, they cannot be the proper body to inspect
into the behavior of officers, because they have no constitutional powers
for this purpose. It does not always imply criminality to be removed from
office, because it may he proper to remove for other causes ; neither do I
see any dinger which can result from the exercise of this power by the
President, because the Senate is to be consulted in the appointment which
is afterwards to take place. Under these circumstances, I repeat it, that
1 have no doubt, in my own mind, that this office is during pleasure; and
that the power of removal, which is a mere temporary one, ought to
be in the President, whose powers, taken together, are not very numer-
ous, and the success of this government depends upon their being unim-
paired.
Mr. LAWRENCE. It has been objected against this clause, that the
grantinor of this power is unconstitutional. It was also objected, if it is
not unconstitutional, it is unnecessary ; that the Constitution must contain,
in itself, the power of removal, and have given it to some body, or person,
of the government, to be exercised ; that, therefore, the law could make
no disposition of it, and the attempt to grant it was unconstitutional : or
the.liw is unnecessary ; — for, if the power is granted in the way the clause
RuppHises, the legislature can neither add to nor diminish the power by
niakinrr the declaration.
368 President's Power of Removal, — Lawrence. [June 16
With respect to the unconstitutionality of the measure, I observe, tliat,
if it is so, the Constitution must hnve given the power expressly to some
person or body other than the President ; otherwise, it cannot be said with
certainty that it is unconstitutional in us to declare that he shall have the
power of removal. I believe it is not contended that the Constitution ex-
pre!<sly gives this power to any other person ; but it is contended that the
objection is collected from the nature of the body which has the appoint-
ment, and the particular clause in the Constitutiiin i^hich declares, that all
officers shall be removed on conviction. It will be necessary to examine
the expressions of that clause ; but I believe it will be found not to com-
prehend the case we have under consideration. I suppose the Constitution
contemplates somewhere the power of removal for other causes besides
those expressed as causes of impeachment. I t ike it that the clause in
the Constitution respecting impeachments is making a provision for remo-
val against the will of the President ; because the house can carry the
offender before a tribunal which shall remove him, notwithstanding the
desire of the chief magistrate to keep him in office. If this is not to be
the construction, then a particular clause in the Constitution will be nuga-
tory. The Constitution declares that the judges shall hold their offices
during good behavior. This implies that other officers shall hold their
offices during a limited time, or according to the will of some persons ;
because, if all persons are to hold their offices during good behavior, and
to be removed only by impeachment, then this particular declaration in fa-
vor of the judges will be useless. We are told that an officer must misbe-
have before he can be removed. This is true with respect to those officers
who hold their commissions during good behavior; but it cannot be true
of those who are appointed during pleasure : they may be removed for
incnpacity, or. if their want of integrity is suspected ; but the question is,
to find where this power of removal resides.
It has been argued that we are to find this in the construction arising
from the nature of the authority which appoints. Here I would meet the
gentleman, if it was necessary to rest it entirely on that ground Let me
ask the gentleman, who appoints? The Constitution gives an advisory
power to the Sen^Ue; but it is considered that the President makes the ap-
pointment. The appointment and responsibility are actually his; for it is
expressly declared that he shall nominate and appoint, though their advice
is required to be taken. If, from the nature of the appointment, we are to
collect the authorit} of removal, then I say the latter power is lodged in
the President ; because, by the Constitution, he has the power of appoint-
ment : instantly as the Senate have advised the appointment, the act is
required to be executed by the President. The language is explicit: ** He
shall nominate, and, by and with the advice and consent of the Senate, ap-
point ; " so that, if the gentleman's general principle, that the power
appointing shall remove also, is true, it follows that the removal shall be
by the President.
It has been stated, as an objection, that we should extend the powers of
the President, if we give him the power of removal ; and we are not to
construe the Constitution in such way as to enlarge the executive power to
the injury of any other ; that, as he is limited in the power of appointment
by the control of the Senate, he ought to be equally limited in the removal.
Tf there is any weiifht in this arsrument, it implies as forcibly against
vesting the power conjointly m the President and Senate ; because, if we
are not to extend the powers of the executive beyond the express detail of
1 7]89.1 Presi UnVs Power of Removal, — Lawrbncb. 369
duties foupd in the Constitution, neither are we at liherty to extend the
duties of the Senate beyond those precise points fixed in the same instru*
vnent : of course, if we cannot say the President alone shall remove, wa
cannot say the President and Senate may exercise such power.
It is admitted that the Constitution is silent on this subject ; but it is
also silent with respect to the appointments it has vested in the legislature.
The Constitution declares that Congress may by law v&st the appointment
of such inferior officers as they think proper in the President alone, in the
courts of law, or heads of departments; yet says nothing with respect to
the removal. Now, let us suppose the legislature to have vested the pow-
er of appointment in the President in cases of inferior offices; can the
intention of the Constitution in this, (contemplating this mode of appoint-
ment for the sake of convenience,) be ever carried into effect if we say
nothing respecting the removal? What would be the consequence if the
legislature should not make the declaration? Could it be supposed that
he would not have the authority to dismiss the officer he has so appointed ?
To be sure he could. Then, of course, in those cases in which the Con*
stitution has given the appointment to the President, he must have the
power of removal, for the sake of consistency ; for no person will say that,
if the President should appoint an inferior officer, he should not have the
power to remove him when he thought proper, if no particular limitation
was determined by the law. Thus stands the matter with respect to the
Constitution. There is no express prohibition of the power, nor positive
grant. If, then, we collect the power by inference from the Constitution,
we shall find it pointed strongly in favor of the President, much more so
than in favor of the Senate combined with him.
This is a case omitted, or it is not ; if it is omitted, and the power is
oece^sary and essential to the government, and to the great interests of the
United States, who are to make the provision and supply the defect ? Cer-
tainly the legislature is the proper body. It is declared they shall establish of-
fices by law. The establishment of an office implies every thing relative to
M:a formation, constitution, and termination ; consequently, the Congress are
authorized to declare their judgment on each of these points. But if the ar-
guments of the gentleman from South Carolina (Mr. Smith) prevail, that, a«
the Constitution has not meditated the removal of an officer in any other way
than by impeachment, it would be an assumption in Congress to vest the Pres-
ident, courts of law, or heads of departments, with power to dismiss their offi-
cers in any other manner : — would a regulation of this kind be effectual to
Carry into effect the great objects of the Constitution ? I contend it would
tiot. Therefore, the principle which opposes the carrying of the Co»istitu-
tion into effect, must be rejected as dangerous and incompatible with the
general welfare: Hence all those suppositions, that, because the Constitu-
tion is silent, the legislature must not supply the defect, are to be treated
^8 chimeras and illusory inferences.
I believe it is possible that the Constitution may be misconstrued by the
legislature; but will any gentleman contend that it is more probable that
the Senate, one branch only of the legislature, should make a more up-
right decision on any point than the whole le/zfislature, — especially on a point
In which they are supposed by some s^entlemen to be so immediately inter-
ested, even admitting that honorable body to have more wisdom and more
integrity than this house ? Such an inference can hardly be admitted.
But I believe it seldom or never was so contended, that there was more wis*
doro or security in a part than in the whole.
VOL, IV, 47
HlO President's Power of Removal. — Lawrencb. [June 16
But supposing the power to vest in the Sennte, is it more safe Id their
hands than where we contend it should be ? Would it be more satisfactory
to our constituents for us to make such a declaration in their favor ? I
believe not.
With respect to this and every case omitted, *but which can be collected
from the other provisions made in the Constitutinn, the people look up to
the legislature, the concurrent opinion of the two branches, for their con-
struction ; they conceive those cases proper subjects for legislative wisdom;
they naturally suppose, where provisions are to be made, they ought to
spring from this source, and this source alone.
From a view of these circumstances, we may be induced to meet tlie
question in force. Shall we now venture to supply the defect? For my
part, I have no hesitation. We should supply the defect ; we should
place the power of removal in the great executive officer of the gov-
ernment.
In the Constitution, the heads of departments are considered as the
mere assistants of the President in the performance of his executive du-
ties. He has the superintendence, the control, and the inspection, of their
conduct; he has an intimate connection with them; they must receive from
him his orders and directions ; they must answer his inquiries in writing,
when he requires it. Shall the person hnving these superior powers to
govern — with such advantages of discovering and defeating the base inten-
tions of his officers, their delinquencies, their defective abilities, or their
negligence — be restrained from applying these ndvantages to the most use-
ful, nay, in some cases, the only useful purpose which can be answered
by them ?
It appears to me that the power can be safely lodged here. But it haa
been said by some gentlemen, that if it is lodged here it will be subject to
abuse ; that there may be a change of officers, and a complete revolution
throughout the whole executive department, upon the election of every
new President. I admit that this may be the case, and contend that it
should be the case if the President thinks it necessary. I contend that
every President should have those men about him in whom he can place
the most confidence, provided the Senate approve his choice. But we are
not from hence to infer that changes will be made in a wanton manner,
and from capricious motives; because the Presidents are checked and
guarded in a very safe manner with respect to the appointment of their
successors; from all which it may be fairly presumed that changes will
be made on principles of policy and propriety only.
Will the man chosen by three millions of his fellow-citizens, be such a
wretch as to abuse them in a wanton manner ? For my part I should think,
with the gentleman from Virginia, (Mr. Madison,) that a President, thus
selected and honorod by his country, is entitled to my confidence; and 1
see no reason why v/e should suppose he is more inclined to do harm than
good. Elected as he is, I trust we are secure. I do not draw these ob-
ftervations from the safety I conceive under the present administration, or
because our chief magistrate is possessed of irradiated virtues, whose lus-
tre brightens this western hemisphere, and incites the admiration of the
world ! But I calculate upon what our mode of election is likely to bring
forward, and the security which the Constitution affords. If the President
abuses his trust, will he escape the popular censure when the period which
terminates his elevation arrives? And would he not be liable to impeach-
ment for displacing a worthy and able man who enjoy«*d the confidence of
the people ?
'789.] President's Power of Removal, — Jackson. 371
We ought not to consider one side alone ; we should consider the ben
efit of such an arrangement, as well as the difficulties. We should also
consider the difficulties arising from the exercise of the power of removing
by the Senate. It was well observed by an honorable gentleman (Air
Sedgwick) on this point, that the Senate must continue in session the
whole year, or be hastily assembled from the extremes and all parts of the
continent, whenever the President thinks a removal necessary. Suppose
an ambassador, or minister plenipotentiary, negotiating or intriguing con-
trary to his instructions, and to the injury of the United States; before the
Senate can be assembled to accede to his recall, the interest of his country
may be betrayed, and the evil irrevocably perpetrated. A great number
of such instances could be enumerated ; but I will not take up the time
of the committee; gentlemen may suggest them to their own minds; and I
imagine they will be sufficient to convince them that, with respect to the
expediency, the power of removal ought not to be in the Senate.
I take it, Mr. Chairman, that it is proper for the legislature to speak
their sense upon those points on which the Constitution is silent. I be-
lieve the judges will never decide that we are guilty of a breach of the
Constitution, by declaring a legislative opinion in cases where the Consti-
tution is silent. If the laws shall be in violation of any part of the Con-
stitution, the judges will not hesitate to decide againj«t them. Where the
power is incident to the government, and the Constitution is silent, it can
be no impediment to a legislative grant. I hold it necessary, in such
cases, to make provision. In the case of removal, the Constitution is si-
lent. The wisdom of the legislature should therefore declare in what place
the power resides.
Mr. JACKSON. As a constitutional question, it is of great moment,
and worthy of full discussion. I am, sir, a friend to the full exercise of
all the powers of government, and deeply impressed with the necessity
there exists of having an energetic executive. But, friend as I am to the
efficient government, I value the liberties of my fellow-citizens beyond ev-
ery other consideration ; and where I find them endangered, I am willing
to forego every other blessing to secure them. I hold it as good a maxim
as it is an old on? — of two evils to choose the least.
It has been mentioned, that in all governments the executive magistrate
had the power of dismissing officers under him. This may hold good in
Europe, where monarchs claim their powers jure divino ; but it never can
be admitted in America, under a Coi»stitution delegating enumerated pow-
ers. It requires more than a mere ipse dixit to demonstrate that any pow-
er is in its nature executive, and consequently given to the President of
the United States by the present Constitution. But if this power is inci-
dent to the executive branch of government, it does not follow that it vests
in the President alone; because he alone does not possess all executive
powers. The Constitution has lodged the power of forming treaties, and
all executive business, I presume, connected therewith, in the President;
hut it is qualified by and with the advice and consent of the Senate — pro-
vided two thirds of the Senate agree therein. The same has taken place
with respect to (appointing officers. From this I infer that those arguments
are done awny which the gentleman from Virginia (Mr. Madison) used, to
prove that it was contrary to the principles of the Constitution that we
should blend the executive and legislative powers in the same body. It
miy be wrong that the great powers of government should be blended to
this manner, but we cannot separate them : the error is adopted in the
^72 Prcsidej^*s Poipfr of Mmopf^- — Jacwoh. [Jun^ UJ.
Qonstitutiou^ aqd cm only be eradicated by weeding it put cfC that iaslru-
ment. It may therefore be a proper subject for amendment, when we come
po consider that business again.
It has been observed, that the President ought to have this power to re-
move a man when he becomes obnoxious to the people, or disagreeable to
^imself. Are we, then, to have all the officers the mere creatures of the
president ? This thirst of power will introduce a treasury bench into the
house, and we shall have ministers obtrude upon us to govern and direct
the measures of the legislature, and to support the influence of their mas-
ter; and shall we establish a different influence between the people and the
President? I suppose these circumstances must take place, because they
fiave taken place in other countries. The executive power falls to the
{[round in England, if it cannot be supported by the Parliament; therefore
^ high game of corruption is played, and a majority secured to the minis-
try by tne introduction of placemen and pensioners.
The gentlemen have brought forward arguments drawn from possibility.
It is said that our secretary of foreign aflairs may become unfit for his office
)}j a fit of lunacy, and therefore a silent remedy should be applied. It is true
such a case may happen ; but it' may also happen in cases where there 'u<
qo power of removing. Suppose the President should be taken with a fii
pf lunacy ; would it be possible by such argument)) to remove him ? I ap-
prehend he must remain in office during his four years. Suppose the Sen-
jBte should be seized with a fit of lunacy, and it was to extend to the House
of Representatives ; what could the people do but endure this mad Con-
fress till the term of their election expired ? We have seen a king of
Inglaiid in an absolute fit of lunacy, which produced an interregnum in
the government. The same may happen here with respect to our Presi-
dent ; and although it is improbable that the majority of both houses of
Congress may be m that situation, yet it is by no means impossible. But
gentlemen have brought forward another argument, with respect to the
judges. It is said they are to hold their ofllices during good behavior. ]
agree that ought to be the case. But is not a judge liable to the act of
.God, as well as any other officer of government ? However great his legal
knowledge, his judgment and integrity, it may be taken from him at a
atroke, and he rendered the most unfit of all men to fill such an important
office. But can you remove him? Not for this cause: it is impossible;
because madness is no treason, crime, or misdemeanor. If he does not
choose to resign, like Lord Mansfield he may continue in office for
ninety or one hundred years; for so long have some men retained their
faculties.
But let me ask gentlemen if it is possible to place their officers in such
a situation — to deprive them of their independency and firmness ; for I ap-
prehend it is not intended to stop with the secretary of foreign affairs. Let
jt be remembered that the Constitution gives the President the command
of the military. If you give him complete power over the man with the
fitrong box, he will have the liberty of America under his thumb. It is
easy to see the evil which may result. If he wants to establish an arbi-
trary authority, and finds the secretary of finance not inclined to second
his endeavors, he ha« nothing more to do than to remove him, and get one
appointed of principles more congenial with his own. Then says he, *' I
^ave got the army ; let me have but the money, and I will establish my
throne upon the ruins of your visionary republic." Let no gentleman ?ay
[ am contemplating imaginary dangers — the mere chimeras of a heated
I7to.]
PtesidtnVs Pow& t)f Removal. — CLntER. 375
^raid. Behold the hatieful influence of the royal prerogative. All o(fic<ir^
till lately held their commissions during the pleasure of the crown.
At this moment, see the king of Sweden aiming at arbitrary power,
shutting the doors of his denate, and compelling, by the force of arms, hi^
shuddering councillors to acquiesce in his despotic mandates. I agree that
this is the hour in which we ought to establish our governmient ; but it is
an hour in which we should be wary and cautious, especially in what re-^
spects the executive magistrate. With him every power may be safely
lodged. Black, indeed, is the heart of that man who even suspects him
to be capable of abusing them. But alas! he cannot be with us forever;
he is liable to the vicissitudes of life ; he is but mortal ; and though I con-
template it with great regret, yet I know the period must come which will
separate him from his country ; and can we know the virtues or vices of
his successor in a very few years ? May not a man with a Pandora's box
in his breast come into power, and give us Sensible cause to lament our
present confidence and want of foresight ?
A gentleman has declared that, as the Constitution h^s given the po^er
of appointment, it has consequently given the power of removal. I agree!
with him in all that the Constitution expt'essly grants, but I mast differ in
the constructive reasoning. It was said by the advocates of this Constita-
tion, that the powers not given up in that instrument were reserved to thd
people. Under this ifnpression, it has been proposed, as a favorite amend-
ment to the Constitution, that it should be declared that all powers nctl
expressly given should be retained. As to what gentlemen have said of its
giving satisfaction to the people, I deny it. They never can be pleased
that we should give new and extraordinary powers to the executive. We
rhiist confine ourselves to the powers described in the Constittition ; and
the moment we pass it, we take an arbitrary stride toward a despotic gov*
ernment.
The gentleman from New York (Mr. Lawrence) contends that the Pres-
ident appoints, and therefore he ought to remove. I shall agree to give him
the same povi^er, in cases of removal, as he has in appointing; but nothing
more. Upon this principle, I would agree to give him the power of sus-
pension during the recess of the Senate. This, in my opinion, would eC*
fectually provide against those inconveniences which have been appre^
hended, arid notexpn>de the government to the abuses we have to dread from
the wanton and uncontrolled authority of removing officers at pleasure. I
am .the friend of an energetic government; but while we are giving vigdf
to the executive arm, we ought to be careful not to lay the foundation of
future tyranny.
For my part, I must declare that I think this power too great to be safe-
ly trusted in the hands of a single man ; especially in the bands of a man
who has so much constitutional power. I believe, if those powers had
been more contracted, the system of government would have been more
generally agreeable to our constituents ; that is, at present it would con-
form more to the popular opinion, at least. For my part, though 1 cani^
from a slate where the energy of government can be useful, and where li
is at this moment wanting, I cannot agree to extend this power ; becaus<5
I conceive it may, at some future period, l)e exercised in such a way as to
mjbvert the liberties of my country ; and no consideration shall ever in-
duce me to put them in jeopardy. It is under this impression that I shall
vote decidedlv against the clause.
Mr. CLYMEIt. If I was to give my vote merely on constitatlonaf
S7\ President's Power of Removal, — Paob. [Jmu 16^
ground, I should be totally indifferent whether the words were struck out
or not ; because I am clear that the executive has the power of removal,
as incident to his department; and if the Constitution had been silent
with respect to the appointment, he would have had that power also. The
reason, perhaps, why it was mentioned in the Conntitution, was to give
some further security against the improper introduction of improper men
into office. But in cases of removal there is not such necessity for this
check. What great danger would arise from the removal of a worthy
man, when the Senate must be consulted in the appointment of his suc-
cessor ? Is it likely that they will consent to advance an improper char-
acter ? The presumption therefore is, that he would not abuse this pow-
er; or, if he did, only one good man would be changed for another.
If the President is divested of this power, his responsibility is destroyed;
you prevent his efficiency, and disable him from affording that secu-
rity to the people which the Constitution contemplates. What use will it
be of, to call the citizens of the Union together every four years to obtain
a purified choice of a representative, if he is to be a mere cipher in the
government? The executive must act by others; but you reduce him to
a mere shadow, when you control both the power of appointment and re-
moval. If you take away the latter power, he ought to resign the power
of superintending and directing the executive parts of government into the
hands of the Senate at once ; and then we become a dangerous aristocra-
cy, or shall be more destitute of energy than any government on earth.
These being my sentiments, I wish the clause to stand as a legislative
declaration that the power of removal is constitutionally vested in the
President.
Mr. PAGE. I venture to assert that this clause of the bill contains
in it the seeds of royal prerogative. If gentlemen lay such stress on the
energy of the government, I beg them to consider how far this doctrine
may go. Every thing which has been said in favor of energy in the exec-
utive may go to the destruction of freedom, and establish despotism. This
very energy, so much talked of, has led many patriots to the Bastile, to the
block, and to the hrilter. If the chief magistrate can take a man away
from the head of a department without assigning any reason, he may as
well be invested with power, on certain occasions, to take away his exist-
ence. But will you contend that this idea is consonant with the princi-
ples of a free government, where no man ought to be condemned un-
heard, nor till after a solemn conviction of guilt on a fair and impartial
trial ? It would, in my opinion, be better to suffer, for a time, the mis-
chief arising from the conduct of a bad officer, than admit principles
which would lead to the establishment of despotic prerogatives.
There can be little occasion for the President to exercise this power,
unless you suppose that the appointments will be made in a careless man-
ner, which by no means is likely to be the case. If, then, you have a
good officer, why should he be made dependent upon the will of a single
man 1 Suppose a colonel in your army should disobey his orders, or
cowardly flee before the enemy; what would the general do? Would he
be at liberty to dismiss the officer? No ; he would suspend him, until a
court-martial was held to decide the degree of guilt. If gentlemen had
been content to say that the President might suspend, I should second
their motion, and afterward the officer might be removed by and with the
advice and consent of the Senate ; but to make every officet of the gov-
ernment dependent on the will and pleasure of one man, will b^. vesting
1789.] President s Power of Removal, — Suebman. IHk*
such arbitrary power in him as to occasion every friend to liberty to trem-
ble for his country. I confers it seems to me a matter of infinite con-
cem, and I should feel very unhappy if 1 supposed the clause would re-
mam in the bill.
Mr. SHERMAN. I consider this as a very important subject in every
point of view, and therefore worthy of full discussion. In my mind, it
involves three questions : First, whether the President has, by the Consti-
tution, the right to remove an officer appointed by and with the advice and
consent of the Senate. No gentlem;m contends but the advice and con-
sent of the Senate are necessary to make the appointment in all cases, un-
less in inferior offices, where the contrary is e:$tablished by law ; but then
they allege that, although the consent of the Senate is necessary to the
appointment, the President alone, by the nature of his office, has the pow-
er of removal. Now, it appears to me that this opinion is ill founded,
because this provision was intended for some useful purpose, and by that
construction would answer none at all. I think the concurrence of the
Senate as necessary to appoint an officer as the nomination of the Presi-
dent ; they are constituted as the mutual checks, each having a negative
upon the other.
I consider it as an established principle, that the power which appoints
can also remove, unless there are express exceptions made. Now, the
power which appoints the judges cannot di?<place them, because there is
a constitutional restriction in their favor ; otherwise, the President, by and
with the advice and consent of the Senate, being the power which ap-
pointed them, would be sufficient to remove them. This is the construc-
tion in England, where the king had the power of appointing judges ; it
was declared to be during pleasure, and they might be removed when
the monarch thought proper. It is a general principle in law, as well as
reason, that there should be the same authority to remove as to establish.
It is so in legislation, where the several branches whose concurrence was
necessary to pass a law, must concur in repealing it. Just so I take it
to be in cases of appointment ; and the President alone may remove
when he alone appoints, as in the case of inferior offices to be established
by l?iw.
Here another question arises — whether this officer comes within the
description of inferior officers. Some gentlemen think not, because he is
the head of the department for foreign affairs. Others may perhaps think
thit, as he is employed in the executive department in aid of the Presi-
dent, he is not such an officer as is understood by the term heads of dc"
partments ; because the President is the head of the executive department,
in which the secretary of foreign affairs serves. If this is the construction
which gentlemen put upon the business, they may vest the appointment
in the President alone, and the removal will be in him of consequence.
But if this reasoning is not admitted, we can by no means vest the ap-
pointment or removal in the chief magistrate alone. As the officer is the
mere creature of the legislature, we may form it under such regulations
as we pleise, with such powers and duration as we think good policy re-
quires. We may say he shall hold his office during good behavior, or that
he shall be annually elected ; we may say he shall be displaced for neglect
of duty, and point out how he should be convicted of it, without calling
upon the President or Senate.
The third question is, if the legislature has the power to authorize the
President alone to remove this officer, whether it is expedient to vest him
376 Prtst^ehfs Power of Removal. — Sxbiflt. [Jun^ 16,
with It 1 do not believe it is absolutefy necessary thai he' should have
sdtch power, becaase the power of suspending would answer aj] the pur-
poses which gentlemen have in view by giving the power of removal. I
do not think that the officer is only to be removed by impeachment, as is
argued by the gentleman from South Carolina, (Mr. Smith;) because he
is the mere creature of the law, and we can direct him to be removed on
conviction of mismanagement or inability, without calling upon the Sen-
ate for their concurrence. But I believe, if we make no such provision,
he may constitutionally be removed by the President, by and with the ad-
vice and consent of the Senate ; and I believe it would be most expedient
for as to say nothing in the clause on the subject.
Mr. STONE. I think it necessary, Mr. Chairman, to determine the
question before us. I do not think it would do to leave it to the determi-
nation of courts of law hereafler. It should be our duty, in cases like
the present, to give our opinion on the construction of the Constitution.
When the question was brought forward, I felt unhappy, because my
mind was in doubt ,* but since then, I have deliberately reflected upoh it,
and have made up an opinion perfectly satisfactory to myself. I consider
that, in general, every officer who is appointed should be removed by the
power that appoints him. It is so in the nature of things. The powei
of appointing an officer arises from (he power over the subject on which
the officer is to act. It arises from the principal, who appoints, having an
interest in, and a right to conduct, the business which he does by means
of an agent ; therefore this officer appears to be nothing more than an
agent appointed for the convenient despatch of business. This is my
opinion on this subject, and the principle will operate from a minister df
state down to a tide-waiter. The Constitution, it is admitted by every
gentleman, recognizes the principle ; because it has not been denied,
whenever general appointments are made under the Constitution, that
they are to be at will and pleasure ; that where an appointment is made
during good behavior, it is an exception to the general rule ; there you
limit the exercise of the power which appoints : it is thus in the case of
the judges.
Let us examine, then, whence originates the power of Congress with
respect to the officer under consideration. I presume it is expressly con-
tained in the Constitution, or clearly deducible from that instrument, that
we have a right to erect the department of foreign affairs. No gentleman
will consent to a reduction or relinquishment of that power. The Con-
stitution has given us the power of laying and collecting taxes, duties,
imposts, and excises ; this includes the power of organizing a revenue
board. It gives us power to regulate commerce ; this includes the power
of establishing a board of trade: to make war, and organize the militia ;
this enables us to establish a minister at war : and generally to make all
laws necessary to carry these powers into effect. Now, it appears to me,
•bat the erection of this department is expressly within the Constitution.
Therefore it seems to me, as Congress, in their legislative capacity, have
an interest in, and power over, this whole transJiction, that they conse-
quently appoint and displace their officers. But there is a provision in
the Constitution which takes away from us the power of appointing ofE-
cfers of a certain description ; they are to be appointed by the President,
by and with the advice and consent of the Senate ; then the Constituti6n
Unfits the legislature in appointing certain officers, which would otherwise
be within their oower.
1789.] l^esidenfs Powtr of Removdi, — Stone. Slit
It will, theti, become a cbnsiderabl^* question, as it has been iri my mind,
that as, in the natare of things, the power which appoints removes also
and as the po\i'er of app lintment, by the Constitution, is placed in th^
President aiid Senate, whether the removal does not follow as incideritaf
to that power. But I am averse to that construction, as the terms df the
Constitution are sufficient to invest the legislature with complete power
for performing its duties ; and since it has given the power of making
treaties, and judging of them, to the Senate and President, I shodld be
inclined to believe that, as they have an immediate concern in, and con-
trol over this business, therefore they ought to have the powerf" of re-
moval. It may be said, with respect to some other officers, that, agreea-
bly to thi^ principle, the President alone ought to have the sole power of
removal, because he is interested in it, and has the control over the busi-
ness they m.tnage ; for example, the minister at war. The President is
the comm^inder-in-chief of the army and militia of the United Stated ;
but the ground is narrowed by the Senate being combihed with him in
making tre ities ; though even here the ground is reduced, because of the
power combined in the U'hole legislature to declare war and grant supplies.
If it is considered that Congress have a right to appoint these officers, or
dictate the mode by which they shall be appointed, — and I calculate in
ray own opinion the manner of dismission from the mode of appointment,
— I should have no doubt but we might make duch regulations as w^
may judge proper. If the Constitution had given no rule by which dffl-
cers were to be appointed, I should search for drie in hry own mind. But
sti the Constitution has laid down the rule, I consider the mode of r^
nioval as clearly defined as by implication it can be : it ought to be th^
sarae with that of the appointment. What quality of the human mind is
necessary for the one that is not necessary for the other ? Informatioii,
impartiality, and judgment in the business to be conducted, are hecessary
to make a good appointment. Are not the same properties requisite for a
dismission 1 It appears so to me.
I cannot Subscribe to the opinion, delivered by some gentlemen, that the
executive in its nature implies the power to appoint the officers of govern-
ment. Why does it imply it? The appointment of officers depends upon
the qualities that are necessary for forming a judgntent on the merits of
men ; and the displacing of them, instead of including the idea of what is
necessary for an executive officer, includes the idea necessary for a judicial
one ; therefore it cannot exist, in the nature of things, that an executive
power is either to appoint or displace the officers of government. Is it a
political dogma? Is it founded in experience? If it is, I confess it has
been very long wrapped up in mysterious darkness. As a political rule, it
is not common in the world, excepting monarchies, where this principle
is established, that the interest of the state is included in the interest
of the prince ; that whatever injures the state is an injury to the sovereign ;
because he has a property in the state and the government, and is to take
care that nothing of that kind is to be injured or destroyed, he being so
intimately connected with the well-being of the nation, it appears a point
of justice only to suffer him to manage his own concerns. Our principles
of government are different ; and the President, instead of being master
of the people of America, is only their great servant. But. if it arises
^om a political dogma, it must be subject to exceptions, which hold good
as they are applied to governments which give greater or lesser proportiohfl
d* power to their executive. I shall only remark that the Constitution
VOL. IV, 43
378 President's Power of Removal — Madison. [June 16
i
in no ono part of it, so far as I can see, supposes that the President is the
sole judge of the merits of au appointment ; it is very forcible to my mind,
that the Constitution has confined his sole appointment to the case of
inferior officers. It also strikes me, from the clause that gives the Presi-
dent the power to grant reprieves and pardons for offences against the
United States, except in cases of impeachment, that the Constitution
reposes a confidence in the Senate which it has not done in this officer ;
and therefore, there is no good reason for destroying that participation of
power which the system of government has given to them.
Whether it would be expedient to give the power of removal to the
President alone, depends on this consideration : — they are both bodies
chosen with equal care and propriety ; the people show as much confidence
in the one as in the other ; the best President aud the best Senate, it is to
be presumed, will always be chosen that they can get. All the difficulties
and embarrassments that have been mentioned can be removed by giving
to the President the power of suspension during the recess of the Senate ;
and I think that an attention to the Constitution will lead us to decide
that this is the only proper power to be vested in the President of the
United States.
Mr. MADISON. I feel the importance of the question, and know
that our decision will involve the decision of all similar cases. The
decision that is at this time made will become the permanent exposition
of the Constitution ; and on a permanent exposition of the Constitution
will depend the genius and character of the whole government. It will
depend, perhaps, on this decision, whether the government shall retain
that equilibrium which the Constitution intended, or take a direction
towards aristocracy, or anarchy, among the metnbers of the government.
Hence, how careful ought we to be to give a true direction to a power so
critically circumstanced ! It is incumbent on us to weigh, with particular
attention, the arguments which have been advanced in support of the
various opinions "with cautious deliberation. I own to you, Mr. Chairman,
that I feel great anxiety upon this question. I feel an anxiety, because I am
called upon to give a decision in a case that may affect the fundamental prin-
ciples of the government under which we act, and liberty itself But all
that I can do, on such an occasion, is to weigh well every thing advanced
on both sides, with the purest desire to find out the true meaning of the
Constitution, and to be guided by that, and an attachment to the true
spirit of liberty, whose influence I believe strongly predominates here.
Several constructions have been put upon the Constitution relative to
the point in question. The gentleman from Connecticut (Mr. Sherman)
has advanced a doctrine which was not touched upon before. He seems
to think (if I understood him right) that the power of displacing from
office is subject to legislative discretion, because, it having a right to
create, it may limit or modify, as is thought proper. I shall not say but at
first view this doctrine may seem to have some plausibility. But when I
consider that the Constitution clearly intended to maintain a marked
distinction between the legislative, executive, and judicial powers of
government ; and when I consider that, if the legislature has a power such
as contended for, they may subject, and transfer, at discretion, powers from
one department of government to another ; they may, on that principle,
exclude the President altogether from exercising any authority in the
lemoval of officers ; they may give it to the Senate alone, or the President
nod Senate combined ; they may vest it in the whole Congress, or they mnv
1789.] Pres^denfs Power of Removal. — Madi{»on. tJ7
reserve it to be exercised by this house. When I consider the conse-
quences of this doctrine, and compare them with the true principles of
the Constitution, I own that I cannot subscribe to it.
Another doctrine, which has found very respectable friends, has been
particularly advocated by the gentleman from South Carolina, (Mr.
Smith.) It is this : When an officer is appointed by the President and
Senate, he can only be displaced, from malfeasance in his office, by
impeachment. I think this would give a stability to the executive depart-
ment, so fir as it may be described by the heads of departments, which is
more incompatible with the genius of republican governments in general,
and this Constitution in particular, than any doctrine which has yet been
proposed. The danger to liberty — the danger of maladministration — has
not yet been found to lie so much in the facility of introducing improper
persons into office, as in the difficulty of displacing those who are unworthy
of the public trust. If it is said that an officer once appointed shall not
be displaced without the formality required by impeachment, I shall be
glad to know what security we have for the f lithful administration of the
government. Every individual in the long chain, which extends from the
highest to the lowest link of the executive magistracy, would find a
security in his situation which would relax his fidelity and promptitude
in the discharge of his' duty.
The doctrine, however, which seems to stand most in opposition to the
principles I contend for is, that the power to annul an appointment i.s, in
the nature of things, incidental to the power which makes the appoint-
ment. I agree that, if nothing more was said in the Constitution than
that the President, by and with the advice and consent of the Senate,
should appoint to office, there would be great force in saying that the
power of removal resulted, by a natural implication, from the power of
appointing. But there is another part of the Constitution no less explicit
than the one on which the gentleman's doctrine is founded ; it is that part
which dec] ires that the executive power shall be vested in a President of
the United States. The association of the Senate with the President, in
exercising that particular function, is an exception to this general rule:
and exceptions to general rules, I conceive, are ever to be taken strictly.
But there is another part of the Constitution which inclines, in my judg-
ment, to favor the construction I put upon it : the President is required
to take care that the laws be faithfully executed. If the duty to see the
laws faithfully executed be reqtiired at the hands of the executive magis-
trate, it would seem that it was generally intended he should have that
species of power which is necessary to accomplish that end.
Now, if the officer, when once appointed, is not to depend upon the
President for his official existence, but upon a distinct body, (for where
there are two negatives required, either can prevent the removal,) I confess
I do not see how the President can take care that the laws be faithfully
executed. It is true, by a circuitous operation, he may obtain an impeach-
ment, and even without this it is not impossible he may obtain the concur-
rence of the Senate, for the purpose of^ displacing an officer ; but would
this give thnt species of control to the executive magistrate which seems
to be required by the Constitution? I own, if my opinion was not con-
trary to that entertained by what I suppose to be the minority on this
question, I should be doubtful of being mistaken, when I discovered how
inconsistent that construction would make the Constitution with itself. 1
cai\ hara.y bring myself to imagine, the wisdom of the Convention wh<i
framed the Constitution contemplated such incongruity.
39f Presidents Powet of Rtmovnl, — ALiDtfON. [June i(S,
•
There is another maxim which ought to direct as in expoanding th^
Constitutron, and is of great importance. It is laid down in most of thd
constitutions, or bills of rights, in the republics of America, — it is to b6
found in the political writings of the most celebrated civilians, and is
every where held as essential to the preservation of liberty, — that the
three great departments of government be kept separate and distinct ; and
if in any case they are blended, it is in order to admit a partial qualifica^
tion, in order more effectually to guard against an entire consolidation. I
think, therefore, when we review the several parts of this Constitution, —
when it sdys that the legislative (lowers shall be vested in a Congress of
the United States, under certain exceptions, and the executive power vested
in the President, with certain exceptions, — we must suppose they werfc
intended to be kept separate in all cases in which they are not blended,
and ought, consequently, to expound the Constitution so as to blend them
as little as possible.
Every thing relative to the merits of the question, as distinguished frorii
a constitutional question, seems to turn on the danger of such a powef
vested in the President alone. But when I consider the checks under whicti
he lies in the exercise of this power, I own to you I feel no apprehension^
but what arise from the dangers incidental to the power itself; for danger^
will be incidental to it, vest it where you please. 1 will not reiterate whal
was said before, with respect to the mode of election, and the extrehie
improbability that any citizen will be selected from the mass of citizens
who is not highly distinguished by his abilities and worth : in this alone
we have no small security for the faithful exercise of this power. But,
throwing that out of the question, let us consider the restraints he wiP
feel after he is placed in that elevated station. It is to be remarked thdt
the power, in this case, will not consist so much in continuing a bad man
in office as in the danger of displacing a good one. Perhaps the great
danger, as has been observed, of abuse m the executive power, lies in the
improper continuance of bad men in office. But the power we contend
for will not enable him to do this; for if an unworthy man be continued
in office by an unworthy President, the House of Rf^presentatives can ait
any time impeach him, and the Senate can remove him, whether tH^
President chooses or not. The danger, then, consists merely in this — -
the President can displace'from office a man who?;e merits require that h^.
should be continued in it. What will be the motives which the President
can feel for such abuse of his power, and the restraints that operate to
prevent it ? In the first place, he will be impeachable by this house, befbrci
the Senate, for such an act of maladministration ; for I contend that the
wanton removal of meritorious officers would subject him to impeachment
and removal from his own hicrh trust. But what can be his motives fbr
displacing a worthy man 7 It must be, that he may fill the place with ah
unworthy creature of his own. Can he accomplish this end ? No : he
can place no man in the vacancy whom the Senate shall not approve ; arid
if he could fill the Vacancy with the man he might choose, I am sure he
would have little inducement to make an improper removal.
Let us consider the consequences. The injured man will be snpporteldf
by the popular opinion ; the community will take sides with him againsi
the President; it will facilitate those combinations, and give success tc/
those exertions which will be pursued to prevent his reelection. To diih
place a man of high merit, and who, from his station, may be supposed it
man of extensive influence, are considerations which will excite Mric
J 789.] President's Power of RemovcU. — Madisom. 381
reflections beforehaod in the mind of any man who may (ill the presides
tial chair : the friends of those individuals, and the public sympathy, \vi.
be against him. If this should not produce his impeachment before thf
Senate, it will amount to an impeachment before the community, who will
have the power of punishment by refusing to reelect him. But suppose
this persecuted individual cannot obtain revenge in this mode : there are
other modes in which he could make the situation of the President very
inconvenient, if you suppose him resolutely bent on executing the dictates
of resentment. If he had not influence enough to direct the vengeance
of the whole community, he may probably be able to obtain an appoint-
ment in Oiie or other branch of the legislature ; and, being a man of >^cight,
talents, and influence, in either case he may prove to the President trouole-
some indeed. We have seen examples, in the history of other nations,
which juMify the remark I now have made: though the prerogatives of
the British king are as great as his rank, and it is unquestionably known
that he has a positive influence over both branches of the legislative body,
yet there have been examples in which the appointment and removal of
ministers has been found to be dictated by one or other of those branche.s.
Now, if this is the case with an hereditary monarch, possessed of those
high prerogatives, and furnished with so many means of influence, can we
suppose a President, elected for four years only, dependent upon the poi>-
ular voice, impeachable by the legislature, little if at all distinguished, for
wealth, personal talents, or influence, from the head of the department
himself; — I say, will be bid deflance to all these considerations, and
vrantonly dismiss a meritorious and virtuous officer ? Such abuse of power
exceeds my conception. If any thing takes place in the ordinary course
of business of this kind, my imagination cannot extend to it on any
rational principle.
But let us not consider the question on one side only : there are dan-
gers to be contemplated on the other. Vest the power in the Senate
Jointly with the President, and you abolish at once the j^reat principle of
unity and responsibility in the executive department, which was intended
for the security of liberty and the public good. If the President should
possess alone the power of removal from office, those who are employed
in the execution of the law will be in their proper situation, and the chain
of dependence be preserved ; the lowest officer, the middle grade, and the
highest, will depend, as they ought, on the President, and the President
on the community. The chain of dependence, therefore, terminates in
the supreme body, namely, in the people; who will possess besides, in aid
of their original power, the decisive engine of impeachment. Take the
other supposition — thit the power should be vested in the Senate, on the
principle that the power to displace is necessarily connected with the
power to appoint. It is declared by the Constitution, that we may by law
vest the appointmejit o^ inferior officers in the heads of departments, the
power of removal being incidental, as stated by some gentlemen. Where
does this terminate ? If you begin with the subordinate officers, they are
dependent on their superior, he on the next superior, and he, on whom '' —
on the Senate, a permanent body, by its peculiar mode of election, in
reality existing forever — a body possessing that proportion of aristocratic
power which the Constitution no doubt thought wise to be established in
the system, but which some have strongly excepted against. And, let me
uk, gentlemen, is there equal security in this case as in the other ? Shall
we trust the Senate, respo isible to individual legislatures, rather than the
382 President's Power of RtmovaL — Madison. [June 16,
porson who is responsible to the whole community ? It is true, the Senate
do not hold their offices for life, like aristocracies recorded in the historic
page ; yet the fact is, they will not possess that resp(»nsibility for the exer-
cise of executive powers which would render it safe for us to vest such
powers in them. What an aspect will this give to the executive ! Instead
of keeping the departments of government distinct, you make an execu-
tive out of one branch of the legislature; you make the executive a two-
headed monster, to use the expression of the gentleman from New Hamp-
shire, (Mr. Livermore ;) you destroy the great principle of responsibility,
and perhaps have the creature divided in its will, defeating the very pur-
poses for which a unity in the executive was instituted.
These objections do not lie against such an arrangement as the bill es-
tablishes. I conceive that the President is sufficiently accountable
to the community: and if this power is vested in him, it will be vested
where its nature requires it should be vested : if any thing in its nature w
executive, it must be that power which is employed in superintending, and
seeing that the laws are faithfully executed ; the laws cannot be executed
but by officers appointed for that purpose ; therefore, those who are over
such officers naturally possess the executive power. If any other doctrine
be admitted, what is the consequence? You may set the Senate at the
head of the executive department, or you may require that the officers hold
their places during the pleasure of this branch of the legislature, if you
cannot go so far as to say we shall appoint them ; and by this means you
link together two branches of the government which the preservation of
liberty requires to be constantly separated.
Another species of argument has been urged against this clause. It is
said that it is improper, or at least unnecessary, to come to any decision
on this subject. It has been said by one gentleman that it would be offi-
cious in this branch of the legislature to expound the Constitution, so far
as it relates to the division of power between the President and the Sen-
ate. It is incontroveriibly of as much importance to this branch of the
government as to any other, that the Constitution be preserved entire. It
is nur duty, so far as it depends upon us, to take care that the powers of
the Constitution be preserved entire to every department of government
The breach of the Constitution in one point will facilitate the breach in
another: a breach in this point may destroy the equilibrium by which the
house retains its consequence and share of power ; therefore we are not
chargeable with an officious interference. Besides, the bill, before it can
have effect, must be submitted to both those branches who are particular-
ly interested in it; the Senate may negative, or the President may object,
if he thinks it unconstitutional.
But the great objection, drawn from the source to which the last argu-
ments would lead us, is, that the legislature itself has no right to expound
the Constitution; that wherever its meaning is doubtful, you must leave it
to take its course, until the judiciary is called upon to declare its meaning.
I acknowledge, in the ordinary course of government, that the exposition
of the laws and Constitution devolves upon the judicial ; but I beg to know
upon what principle it can be contended that any one department draws
from the Constitution greater powers than another, in marking out the
limits of the powers of the several departments. The Constitution is the
charter of the people in the government ; it specifies certain great powers
;is absolutely granted, and marks out the departments to exercise thero.
(f the constitutional boundary of either be brought into question, I do not
1 :S9. ] President's Power of Removal — Ge»»t. 383
•ee that any one of these independent departments has more right than
another to declare their sentiments on that point
Perhaps this is an admitted case. There is not one government on the
face of the earth, so far as I recollect — there is not one in the United
States — in which provision is m?^de for a particular authority to determine
the limits of the constitutional division of power between the branches
of the government. In all systems, there are points which must be ad-
justed by the departments themselves, to which no one of them is compe-
tent. If it cannot be determined in this way, there is no resource left but
the will of the community, to be collected in some mode to be provided by the
Constitution, or one dictated by the necessity of the case. It is, therefore,
a fair question, whether this great point may not as well be decided, at
least by the whole legislature, as by pirt — by us, as well as by the executive
or the judicial. As 1 think it will be equally constitutional, I cannot im-
agine it will be less s^fe, that the exposition should issue from the legisla-
tive authority, than any other; and the more so, because it involves in the
decision the opinions of both those departments whose powers are sup-
posed to be aflfected by it. Besides, I do not see in whnt way this question
could come before the judges to obtain a f lir and solemn decision ; but even
if it were the case that it could, I should suppose, at least while the gov-
ernment is not led by passion, disturbed by faction, or deceived by any
discolored medium of sight, but while there is a desire in all to see and be
guideJ by the benignant ray of truth, th it the decision may be made with
the most advantage by the legislature itself
My conclusion from these reflections is, thnt it will be constitutional to
retain the clause; that it 'expresses the meaning of the Constitution as it
must be established by fair construction — and a construction which, upon
the whole, not only consists with liberty, but is more favorable to it than
any one of the interpretations that have been proposed.
Mr. GERRY. I am clearly of opinion, with the gentleman last up, that
it is of importance to decide this question on its true principles; and am
free to declare that I shall be as ready to oppose every innovation or en-
croachment upon the rights of the executive, as upon those of the legisla-
tive. I conceive myself bound to do this, nr)i only by oath, but by an ob-
ligation equally strong — I mean the obligation of honor.
I wish, sir, to consider this question so far as to ascertain whether it is
or is not unconstitutional. I have listened with attention to the arguments
which have been urged on both sides; and it does appear to me that the
clause is as inconsistent with the Constitution as any set of words which
could possibly be inserted in the bill.
There are two questions relative to this clause — the first, whether the
sovereignty of the Union has delei^ated to the government the power of re-
moval ; and the second, to whom? That they have delegated such power
his been clearly proved by the gentlemen who advocate the clause — who
justly say, if the power is not delegated, the clause in the Constitution,
declaring the appointment of judges to be during good behavior, would be
nugatory, unless some branch of govprnment could otherwise have removed
them from office. As to the second qiiestion, it depends upon the first:
if the power is delegated, it must vest in some pirt of the govern fnent.
The gentlemen will agree that this house has not the power of removal ;
they will also agree that it does not vest in the judicial : then it must vest
in the President, or the President by and with the advice and consent of
the Senate. In either of these cases, the clause is altogether useless ana
384 President's Power of Removal — Qmwf. [June I (J,
Qugatory. )t U useless if the power vests in the President; because, whei^
the question comes before him, he will decide upon the provision made in
the Constitution, and not on what is contained in this clause. If the pow-
er vests in the President and Senate, the Senate will not consent to pas^
the bill with this clause in it ; therefore the attempt is nugatory : but if the
Senate will assent to the exercise of the power of removal by the President
alone, whenever he thinks proper to use it so, then, in that case, the clau^
is, as I said before, both useless and nugatory.
The second question which I proposed to examine is, to whom the
power of removal is committed. The gentlemen in favor of this clause
have not shown that, if the constructiou that the power vests in the Presir
dent and Senate is admitted, it will be an improper construction. I call
on gentlemen to point out the impropriety, if they discover any. To me
it appears to preserve the unity of the several clauses of the Constitution ;
while their construction produces a clashing of powers, and renders of
none effect some powers the Senate by express grants possess. What be-
comes of their power of appointing, when the President can remove al
discretion 1 Their power of judging is rendered vain by the President's
dismission , for the power of judging implies the power of dismi.s8ing, which
will be totally insignificant in its operatitm, if the President can imme-
diately dismiss an officer whom they have judged and declared innocent.
It is said that the President will be subject to an impeachment for dis-
missing a good man. This, in my mind, involves an absurdity. How can
the house impeach the President for doing an act which the legislature hat
submitted to his discretion ?
But what consequence may result from giving the President the absolute
control over all officers ? Among the rest, I presume he is to have an un->
limited control over the officers of the treasury. I think, if this is the case*
you may as well give him at once the appropriation of the revenue ; for of
what use is it to make laws on this head, when the President, by looking
at the officer, can make it his interest to break them ? We may expect
to see institutions arising under the control of the revenue, and not of
the law.
Little, then, will it answer to say that we can impeach the President,
when he can cover all his crimes by an application oi^ the revenue to those
who are to try him. This application would certainly be made in case of
a corrupt President. And it is against corruption in him that we must
endeavor to guard. Not that we fear any thing from the virtuous character
who now fills the executive chair; he is perhaps to be safer trusted with
such a power ihnn any man on earth ; but it is to secure us against those
who may hereafter obtrude themselves into power.
But if we give the President the power to remove, (though I contend, if
the Constitution has not given it him, there is no power on earth that can,
— except the people, by an alteration of the Constitution, — though I will
suppose it for argument's sake,) you virtually give him a considerable power
over the appointment, independent of the Senate ; for if the Senate should
reject his first nomination, which will probably be his favorite, he roust
continue to nominate till the Senate concur : then, immediately afler ihe
recess of the Senate, he may remove the officer, and introduce his own
cre;iture, as he has this power expressly by the Constitution. The influ-
ence created by this circumstance would prevent his removal from an'
o0ice which he held by a temporary appointment from his patron.
This has been supposed by some gentlemen to he an omitted case, and
^789.]
Presidents Power of Removal. — Gerry. 386
that Congress have the power of supplying the defect. Let gentlemen^
consider the ground on which they trend. If it is an omitted case, an at-
tempt in the legislature to supply the defect will be, in fact, an attempt to
amend the Constitution. But this can oitly be done in the way pointed
out by the fifth article of that instrument ; and an attempt to amend it io
any other way may be a high crime or misdemeanor, or perhaps something
worse. From this view of our situation, gentlemen may perhaps be led \m
consent to strike out the clause.
In Great Britain tht;re are three estates — King, Lords, and Commons
Neither of these can be represented by the other ; but they conjointly can
form constructions upon the rights of the people, which hive been obtained
sword in hand, from the crown. These, with the legislative acts, form
the British constitution ; and if there is an omitted case, Parliament has a
right to make provision for it. But this is not the case in America, con-
sisting of a single estate. The people have expressly granted certain
powers to Congress, and they alone had the right to form the Constitution.
In doing so, they directed a particular mode of making amendments, which
we are not at liberty to depart from.
The system, it cannot be denied, is in many parts obscure. If Congresi
are to explain and declare what it shall be, they certainly will have it in
their power to make it what they please. It has been a strong objection
lo the Constitution, that it was remarkably obscure ; nay, .some have gone
so far as to assert that it was studiously obscure — that it might be applied
t.o every purpose by Congress. By this very act, the house are assuming
*^ power to alter the Constitution. The people of America can never be
^afe, if Con:(ress have a right to exercise the power of giving constructions
^<o the Constitution different from the original instrument. Such a power
^^^rould render the most important clause in the Constitution nugatory ; and'
^j^ne without which, I will be bold to say, this system of government never
^^irould have been ratified. If the people were to find that Congress meant
'^o alter it in this way, they would revolt at the idea : it would be repug-
viant to the principles of the revolution, and to the feelings of every freeman
mn the United States.
It is said that the power to advise the President in appointing officers is
^n exception to a general rule. To what general rule ? That the
President, being an executive officer, has the right of appointing. From
"whence is this general rule drawn ? Not from the Constitution, nor from
custom, because the state governments are generally against it. Before
^he gentleman had reasoned from this general i[ule, he ought to have de-
monstrated that it was one. He ought to have shown that the President,
<x ojieio, had the power to appoint and remove from office ; that it was
necessarily vested in the executive brandh of the government.
It is said to be the duty of the President to sec the laws faithfully
executed, and he could not discharge this trust without the power of
removal. I ask the gentleman if the power of suspension, which we are
willing to give, is not sufficient for that purpose ? In case the Senate
should not be sitting, the officer could be suspended ; and at their
next session the causes which require his removal might be inquired into. '
It is said to be incumbent on us to keep the departments distinct. I agree
to this; but, then, I ask, what department is the Senate of, when it exer-
cises it«» power of appointment or removal ? If legislative, it shows that
the power of appointment is not an executive power ; hut if it exercis*s
the power as an executive branch of government, there is no mixing of
VOL. IV. 49 33
386 PresidefWs Power of Removal. — Benson. [June 16,
the departments; and therefore the gentleman's objections fall to th«;
^ound.
The dangers which lie against investing this power jointly in the Senate
and President, have been pointed out ; but I think them more than
counterbalanced by the dangers arising from investing it in the President
alone. It was said thnt the cointnunity would take part with the injured
officer against the President, and prevent his reelection. I admit that the
injured officer may be a man of influence and talents; yet it is fifty to one
against him, when he is opposed by such a powerful antagonist. It is s;iid
that, if the Senate should have this power, the government would contain
a two-headed monster ; but it appears to me, that if it consists in blending
the power of making treaties and appointing officers, — as executive officers,
with their legislative powers, the Senate is already a two-headed monster.
If it is a two-headed monster, let us preserve it a consistent one ; for sure-
ly it will be a very inconsistent monster, while it has the power of appoint-
ing, if you deprive it of the power of removing. It was said that the judges
could not have the power of deciding on this subject, because the Consti-
tution was silent ; but I may ask if the judges are, ex officio, judges of the
law; and whether they would not be bound to declare the law a nullity, if
this clause is continued in it, and is inconsistent with the Constitution.
There is a clause in this system of government that makes it their duty ;
I allude to that which authorizes the President to obtain the opinions of
the heads of departments in writing; so the President and Senate may re-
quire the opinion of the judges respecting this power, if they have any
doubts concerning it.
View the matter in any point of light, and it is utterly impossible to ad-
mit this clause. It is both useless and unnecessary ; it is inconsistent with
the Constitution, and is an officious interference of the house in a business
which does not properly come before them. We expose ourselves to most
dantrerous innovations by future legislatures, which may finally overturn
the Constitution itself.
Mr. BENSON. I will not repeat what has been said to prove that tTie
true construction is, that the President alone has the power of removjil, but
will state a case to show the embarrassment which must arise by a combi-
nation of the senatorial and legislative authority in this particular. I will
instance the officer to which'the bill relates. To him will necessarily be
comniilted nesrotiations with the ministers of foreign courts. This is a
very delicate trust. The supreme executive officer, in superintending this
depirtment, may be entangled with suspicions of a very delicate nature,
relative to the transactions of the officer, and such as, from circumstances,
would be injurious to name : indeed, he may be so situated, that he will
not, cannot, give the evidence of his suspicion. Now, thus circumstanced,
suppose he should propose to the Senate to remove the secretary of foreign
affairs: are we to expect the Senate will, without any reason being
assigned, implicitly submit to his proposition? They will not.
S'ippose he should say he suspected the man's fidelity : they woultl say,
" We must proceed farther, and know the reasons for this suspicion ;" they
would insist on a full communication. Is it to be supposed that this man will
iiot have a single friend in the Senate who will contend for a fair trial and
ful. hearing? The President, then, becomes the plaintiff, and the secretary
the defendant. The Senat»» are sitting in judirment between the chief
magistrate of the United States and a subordinate officer. Now, I submit
to the candor of the gentlemen, whether this looks like good government.
A"^^.]
President's Power of Removal. — Sedgwick. 387
et, in every instance when the President thinks proper to have an officer
removed, this absurd scene must be displayed. How much belter, even
Oil principles of expediency, will it be thai the President alone have the
power of removal !
But suppose the Senate to be joined with the President in the exercisii
of the power of removal; what mode will they proceed in? Shall th«
President always propose the removal, or shall the Senate undertake this
part of the business? If so, how are they to act 1 There is no part of
the Constitution which obliges the President to meet them, to state his
reasons for any measure he may recommend. Are they to wait upon the
President? In short, it appears to me that introducing this clashing of
the powers, which the Constitution has given to the executive, will be
destructive of the great end of the government. So far will restraining
the powers of that department be from producing security to the liberties
of the people, that they would inevitably be swallowed up by an aristo-
oratic body.
Mr. SEDGWICK. It will be agreed, on all hands, that this officer,
without observing on the subject at large, is merely to supply a natural
incompetency in man: in other words, if we could find a Pre^sident cnpa-
h>le of executing this and all other business assigned him, it would be un-
«-iecessary to introduce any other officer to aid him. It is then merely
ffronti necessity thit we instittite such an office; because all the duties de-
railed in the bill are, by the Constitution, pertaining to the department of
Che executive magistrate. If the question respected the expediency, 1
s<hould be content to advocate it on that ground, if expediency is at all to
^e considered. Gentlemen will perceive that this man is as much an instru-
vnent, in the hands of the President, as the pen is the instrument of the
secretary in corresponding with foreign courts. If, then, the secretary of
foreign affiirs is the mere instrument of the President, one would suppose,
«>n the principle of expediency, this officer should be dependent upon him.
It would seem incongruous and absurd, that an officer who, in the reason
and nature of things, was depenHent on his principal, and appointed
merely to execute such business as was committed to the charge of his
superior, (for this business, I contend, is committed solely to his charge,)
— I say it would be absurd, in the highest degree, to. continue such a
person in office contrary to the will of the President, who is responsible
thit the business be conducted with propriety, and for the general interest
of the nation. The President is made responsible, and shall he not judge
'»f the talents, abilities, and integrity of his instruments?
Will you depend on a m in who has imposed upon the President, and
V)ntinue him in office when he is evidently disqualified, unless he can be
removed by impeachment? If this idea should prevail, — which God for-
bid ! — what woidd be the result? Suppose even that he should be remov-
able by and with the advice and consent of the Senate; what a wretched
situation might not our public councils be involved in! Suppose the Presi-
dent has a secretary in whom he discovers a great deirree of ignorance, or
a total incapacity to conduct the business he has assigned him ; suppose
him inimicd to the President; or suppose any of the great variety of cases
which would be good cause for removal, and impress the propriety of such
a measure .strongly on the mind of the President, without any other evi-
lence than what exists in his own ideas from a contemplation of the man's
conduct and character day by day; what, let me ask, is to be the conae-
^t&eiice if the Senate are to be applied to ? If they are to do any thing io
381 President's Power of Removal, — Les. [Jwi€ IC\
ihi<« business, I presume they are to deliberate, because they are to advifle
and consent ; if they are to deliberate, you put them between tlie officer
and the President ; they are then to inquire into the causes of removal ;
the President must produce his testimony. How is the question to be in-
vestigated ? — because, I presume, there must be some rational rule for
conducting this business.
Is the President to be sworn to declare the whole truth, and to bring for-
ward facts 1 or are they to admit suspicion as testimony ? or is the word of
the President to be taken at all events ? If so, this check is not of the
least efficacy in nature. But if proof is necessary, what is then the con-
sequence 1 Why, in nine cases out of ten, where the case is very clear
to the mind of the President that the man ought to be removed, the effect
cannot be produced ; because it is absolutely impossible to produce the
necessary evidence. Are the Senate to proceed without evidence? Some
gentlemen contend not ; then the object will be lost. Shall a man, under
these circumstances, be saddled upon the President, who has been appointed
for no other purpose, in the creation, but to aid the President in perform-
ing certain duties ? Shall he be continued, I ask again, against the will
of the President 1 If he is, where is the responsibility ? Are you to look
for it in the President, who has no control over the officer, no power to
remove him if he acts unfeelingly or unfaithfully ? Without you make
him responsible, you weaken and destroy the strength and beauty of your
system. What is to be done in cases which can only be known from a
long acquaintance with the conduct of an officer? But so much has
been said on this subject, that I will add no further observations upon it.
Let me ask, what will be the consequence of striking out these words?
Is the officer to be continued during an indefinite time ? for it has been
contended that he cannot be removed but by impeachment. Others have
contended that he is always in the power of them who appoint him. But
who will undertake to remove him 1 Will the President undertake to ex-
ercise an authority which has been so much doubted here, and which will
appear to be determined against him if we consent to strike out the words?
Will the Senate undertake to exercise this power 1 I apprehend they will
not. But if they should, would they not also be brought before the judges,
to show by what authority they did it ? because it is »up|x>sed by one gen-
tleman, that the case might go before that tribunal, if the President alone
femoved the officer. But how is this to be done? Gentlemen tell you,
the man who is displaced must apply for a mandamvs to admit him to his
office. I doubt much if this would be adequate to the purpose. It would
be difficult to say whether the mandamus should be directed to the Presi-
dent, to the President and Senate, to the legislature, or to the people.
Could the President be compelled to answer to a civil suit, for exercising
the power vested in him by law and by the Constitution ? The question
upon either of those points would be involved in doubts and difficulties.
If these observations strike the committee in the same point of light,
and with the same force, as they have struck my mind, they will proceed
to determine the present question ; and I have no doubt but they will de-
termine right,
Mr. LEE. I contend we have the power to modify the establishmep
of offices. So ought we, Mr. Chairman, to modify them in such a way as
to promote the general welf ire, which can only be done by keeping the
three branches distinct; by informing the people where to look, in order
to guard against improper executive acts. It is our duty, therefore, to vrf4
^^69.1 Prtsidenfs Powtr of Retnovai. — Boudinot S8^
^^\ executive power, belonging to the government, where the Corventioo
intended it should be placed. It adds to the responsibility of the most re*
sponsible branch of the government; and without responsibility, we should
have little security against the depredations and gigantic strides of arbi-
trary power. I say it is necessary, sir, to hold up a single and specific
object to the public jealousy to watch : therefore it is necessary to connect
the power of removal with the President. The executive is the source of
nil appointments : is his responsibility complete unless he has the power
of removal ? If he has this power, it will be his fault if any wicked or
mischievous act is committed ; and he will hardly expose himself to the
resentment ol three millions of people, of whom he holds his power, and
to whom he is accountable every four years.
If the power of removal is vested in the Senate, it is evident, at a single
view, that the responsibility is dissipated, because the fault cannot be fixed
on any individual : besides, the members of the Senate are not account-
able to the people ; they are the representatives of the state legislatures ;
but even if they were, they have no powers to enable them to decide with
propriety in the case of removals, and therefore are improper persons to
exercise such authority.
Mr. BOUDINOT. Sir, the efficacy of your government may depend
upon the determination of this house respecting the present question. For
my part, I shall certainly attend to the terms of the Constitution in making
9 decision ; indeed, I never wish to see them departed from or construed,
kf the government can possibly be carried into eflfect in any other manner.
But I do not agree with the gentleman, that Congress have no right to
vnodify principles established by the Constitution ; for, if this doctrine be
Erue, we have no business here. Can the Constitution be executed, if its
principles are not modified by the legislature? A Supreme Court is es-
tablished by the Constitution ; but do gentlemen contend that we cannot
modify that court, direct the manner in which its functions shall be per«
formed, and assign and limit its jurisdiction? I conceive, notwithstand-
mg the ingenious arguments of the gentleman from Virginia, (Mr. White,)
and the ingenious arguments of the gentleman from South Carolina, (Mr
Smith,) that there has not been, nor can be, any solid reason adduced to
prove that this house has not power to modify the principles of the Con-
stitution. But is the principle now in dispute to be found in the Consti-
tution? If it is to be found there, it will serve as a line to direct the
modification by Congress. But we are told that the members of this
house appear to be afraid to carry the principles of the Constitution into
effect. I believe, sir, we were not sent here to carry into effect every
principle of the Constitution ; but I hope, whenever wel^re convinced it
is for the benefit of the United States to carry any of them into effect, we
fthall not hesitate.
The principle of the Constituli(m is, generally, to vest the government
Id three branches. I conceive this to be completely done, if we allow for
one or two instances, where the executive and legislative powers are
intermixed, and the case of impeachment. These cases I take to be
exceptions to a principle which is highly esteemed in America. Let
gentlemen attend to what was said by some of the conventions when they
ratified the Constitution. One great objection was, that the powers were
not totally separated. The same objection is, I believe, to be found among
the amendments proposed by the state of North Carolina. Now, I con*
ceive, if we do any thing to conciliate the minds of people to the Con.sti*
idl President s Power of Removal — Boudinot. [Jtnie 16,
tution, we ought not to modify the principle of the government so as to
increase the evil complained of, by a further blending of the executive and
legislative powers, and that too upon construction, when gentlemen deny
that we ought to use construction in any case.
Now, let us take up the Constitution, and consider, from the terms and
principles of it, in whom this power is vested. It is said by some gentle-
men to be an omitted case. I shall take up the other principle, which is
easier to be maintained, — that it is not an omitted case, — and say the
power of removal is vested in the President. I shall also take up the
principle laid down by the gentleman from Virginia, (Mr. White,) at the
beginning of this argument, that, agreeably to the nature of all executive
powers, it is right and proper that the person who appoints should re-
move. Thi? leads me to consider in whom the appointment is vested by
the Constitution. The President nominates and appoints: he is further
expressly authorized to commission all officers. Now, does it appear,
from this distribution of power, that the Senate appoints ? Does an officer
exercise powers by authority of the Senate? No. I believe the Presi-
dent is the person from whom he derives his authority. He appoints, but
under a check. It is necessary to obtain the consent of the Senate; but
at\er that is obtained, 1 ask, who appoints? who vests the officer with au-
thority ? who commissions him ? The President does these acts by his
sole power ; but they are exercised in consequence of the advice of another
branch of government. If, therefore, the officer receives his authority
and commission from the President, surely the removal follows as co-
incident.
Now, let us examine whether this construction consists with the true
interest of the United States and the general principlesof the Constitution.
It consists with the general principles of the Constitution, because the
executive power is given to the President, and it is by reason of his inca-
pacity that we are called upon to appoint assistants Mention, to be sure,
is made of principal officers in departments; out it is from construc-
tion only that we derive our power to constitute this particular office. If
we were not at liberty to modify the principles of the Constitution, I do
not see how we could erect an office of foreign affairs. If we establish an
office avowedly to aid the President, we leave the conduct of it to hi^
discretion. Hence the whole executive is to be left with him, agreeably
to this maxim — All executive power shall be vested in a President. But
how does this comport with the true interest of the United States? Let
me ask gentlemen where they suspect danger. Is it not made expressly
the duty of the secretary of foreign affairs to obey such orders as shall be
given to him by the President ? And would you keep in office a man who
should refuse or neglect to do the duties assigned him ? Is not the Presi-
dent responsible for the administration ? He certainly is. How, then, can
the public interest suffer ?
Then, if we find it to be naturally inferred, from the principles of the
Constitution, coincident with the nature of his duty, that this officer should
be dependent upon him, and to the benefit of the United States, for what
purpose shall Congress refuse a legislative declaration of the Constitution,
and leave it to remain a doubtful point ? Because, if Congress refuses to
determine, we cannot conceive that others will be more entitled to decide
upon it than we are. This will appear to give ground for what the gentle
mefi have asserted — that we are afraid to carry the Constitution into
effect. This, I apprehend, would not be doing our duty.
1789.] Presidents Power of Ranoval, — Gerry. 591
Gentlemen say they have a sufficient remedy for every evil likely to re
suit from connecting the Senate with ihe President. Tins they propose tt
do by allowing the power of suspension. This, in the hrst place, does not
answer the end ; because there is a possibility that the officer may not be
displaced after a hearing before the Senate; and in the second place, it
is entirely inconsistent with the whole course of reasoning pursued by the
gentlemen in opposition. I would ask them, if the Constitution does not
give to the President the power of removal, what part is it that gives the
power of suspension 1 If you will in one case construe the Constitution,
you may do it in another ; for I look upon it as dangerous to give the«power
of suspension, by implication, as to give the full power of removal. Gen-
tlemen, observe that t take it for granted that the President his no express
right to the power of suspension; and that, if he is to exercise it, it must
be drawn, by constructive reasoning alone, from the Constitution. Jf we
are to exercise our authority, we had better at once give a power that
would answer two valuable purposes, than one altogether nugatory. In
the first place, it would entirely separate the legislative and executive de-
partments, conformably to the great principles of the Constitution ; and
in the second place, it would answer the end of government better, and
secure real benefits to the Union.
The great evil, as was stated by the gentleman from Virginia, (Mr.
Madison,) yesterday, is, that bad officers shall continue in office, and not
that good ones be removed; yet this last is all that is in the power of the
President. If he removes a good officer, he cannot appoint his successor
without the consent of the Senate ; and it is fairly to be presumed, that,
if at any time he should be guilty of such an oversight as to remove a
useful and valuable officer, the evil^ will be small, because another as valu-
able will be placed in his stead. If it is said that this is an injury to the
individual, I confess that it is possible that it may be so. But ought we
not, in the first place, to consult the public good 1 But, on mature con-
sideration, I do not apprehend any very great injury will result to the
individual from this practice ; because, when he accepts of the office, he
knows the tenure by which he is to hold it, and ought to be prepared
against every contingency.
These being the principles on which I. have formed my opinion, in
addition to what was stated, I do conceive that I am perfectly justified to
my constituents, and to my oath, to support this construction. And when
I give my vote that the President ought to have the power of removal from
office, I do it on principle ; and gentlemen in the opposition will leave us
to the operation of our judgments on this as well as every other question
that comes before us. For my part, I conceive it is impossible to carry
into execution the powers of the President, in a salutary manner, unless he
has the power of removal vested in him. I do not mean that, if it was not
vested in him by the Constitution, it would be proper for Congress to
confer it, though I do believe the government would otherwise be very
defective ; yet we would have to bear this inconvenience until it was reo-
tified by an amendment of the Constitution.
Mr. GERRY. The Parliament of England is one of the most impor-
tant bodies on earth ; but they can do nothing without the concurrence of
the executive magistrate. The Congress of the United States are likely
to become a more important body ; the executive magistrate has but a
qualified negative over them. The Parliament of England, with the con-
sent of the king, can expound their constitution ; in fact, they are the
392 President's Power of Removal. — Gbrry. [June 16,
oonbtitu ion itself. But Congress may, if <ince the doctrine of construc-
tion is established, make the Constitution what they please, and the Pre6i<*
dent can have no control over them.
It has been baid by my colleague, (Mr. Sedgwick,) that the President
not only nominates, but appoints, the officers ; and he infers from hence,
that, as the power of removal is incident«il to the power of appointing, the
President has the power of removal also. But I should be glnd to know
how it can with justice be said that the President appoints. The Consti-
tution requires the consent of the Senate; therefore they are two distinct
bodies^ and intended to check each other. If my colleague's is a true
construction, it may be extended farther, and said, that, in the act of nom-
inating, the assent of the Senate is virtually given, and therefore he has a
right to make the whole appointment himself, without any interference on
the pijrt of the Senate. I contend, sir, that there is- just as much propriety
in the one construction as in the other. If we observe the enacting style
of the statutes of Great Britain, we shall find pretty near the same words
as what are used in the Constitution with respect to appointments : — ** Be
it enacted by the king^s moat excellent majesty, by and with the advice
and consent of Parliament/' Here it might be said the king enacts ail
laws ; but I believe the truth of this fact will be disputed in that country.
I believe no one will pretend to say that the king is the three branches of
Parliament ; and unless my colleague will do all this, I never can admit
that the President, in himself, has the power of appointment.
My colleague has gone farther, to show the dependence of this ofiicer
on the President. He says the neces^^ity of appointing a secretary of for-
eign affairs arises from a natural defect in man ; that if the President was
able to administer all these departments, there would be no occasion of
making provision by law. If the President had power superior to the lim-
its of humanity, he might render his country great services ; but we are
not likely to have any such Presidents ; the Constitution itself contem-
plates none ; it makes provision for the infirmities of human nature ; it
authorizes us to establish offices by law; and this is the ground upon
which we stand ; indeed, this is the ground that was assumed yesterday by
my colleague, when he said, that this officer was the creature of the law.
If he is the creature of the la.vv, let him conduct according to law ; and
let it not be contended that he is the creature of the President, because he
is no further the creature of the President than that he is obliged to give
his opinion in writing when required. But it is said the President is
responsible for the conduct of this officer. I wish to know what this re-
sponsibility is. Does it mean, if a subordinate executive officer commits
treason, that the President is to suffer for it? This is a strange kind of
tesponsibility. Siippose, in the case of the secretary of the treasury,
there should be a defalcation of the public revenue ; is he to make good
the loss? Or, if the hejid of the army should betray his trust, and sacri-
fice the liberties of his country, is the President's head to be the devoted
sacrifice? The Constitution shows the contrary, by the provision made
for impeachment ; and this I take to be one of the strongest arguments
against the President's having the power of removing one of the principal
officers of government — that he is to bear his own responsibility.
The question before the committee must be decided on one of these
two grounds. Either they must suppose this power is delegated particu-
.arly to the President by the Constitution, or it is not. Let us examine
these two cas<s. If gentleman say that it is delegated by the Conptitu-
1789.] Prutdent^s Power of Removal. — Sherman 395
fion, then there is no use for the clause : but if it is not particularly dele-
gated to the President by the Constitution, and we are inclined to authorize
him to exercise this power, I would ask gentlemen whether this is the
prefer way to do it ; whether a little clause hid in the body of a bill can
be called a declaratory act. I think it cannot. It looks as if we were
afraid of avowing our intentions. If we are determined upon making a
declaratory act, let us do it in such a manner as to indicate our intention.
But perhaps firentlemen may think we have no authority to make declara-
tory acts. They may be right in this opinion ; for though I have exam-
ined the Constitution with attention, I have not been able to discover any
clause which vests Congress with that power. But if the power of ma
king declaratory acts really vests in Congress, and the judges are bound by
our decisions, we may alter that part of the Constitution which is secured
from being amended by the 5th article; we may say, that the 9th section
of the Constitution, respecting the migration or importation of persons,
does not extend to negroes ; that the word persons means only white men
and women. We then proceed to lay a duty of twenty or thirty dollars
per head on the importation of negroes. The merchant does not construe
the Constitution in the manner that we have done. He therefore ins^titutes
a suit, and brings it before the supreme judicature of the United States
for trial. The judges, who are bound by oath to support the Constitution,
declare against this law ; they would therefore give judgment in favor of
the merchant.
But, say Congress, we are the constitutional expounders of this clause,
and your decision in this case has been improper. Shall the judge.^, be-
cause Congress have usurped power, and made a law founded in construe;
tion, be impeached by one branch, and convicted by the other, for doing
a meritorious act, and standing in opposition to their usurpation of power ?
If this is the meaning of the Constitution, it was hardly worth while to
have had so much bustle and uneasiness about it. I would ask gentlemen,
if the Constitution has given us power to make declaratory acts, where is
the necessity of inserting the 5th article for the purpose of obtaining
amendments? The word amendment implies a defect; a declaratory act
conceives one. Where, then, is the difference between an amendment
and a declaratory act? I call upon the gentleman to point out what part
of the Constitution says we shall correct that instrument by a declaratory
HCt. If gentlemen once break through the constitutional limits of their
authority, they will find it very difficult to draw a boundary which will
secure to themselves and their posterity that liberty which they have so
well contended for.
Mr. SHERMAN. The Convention, who formed this Constitution,
thought it would tend to secure the liberties of the people, if they prohib-
ited the President from the sole appointment of all officers. They knew
that the crown of Great Britain, by having that prerogative, has been ena-
bled to swallow up the whole administration ; the influence of the crown
upon tl>e legislature subjects both houses to its will and pleasure. Perhapg
it may bethought, by the people of that kingdom, that it is best for the
executive magistrate to have such kind of influence ; if so, it is very well,
and we have no right to complain that it is injurious to them, while they
themselves consider it beneficial. But this government is different, and
intended by the people to be different. I have not heard any gentleman
prodtice an authority from law or history which proves, where two branches
are interested io the "appointment, that one of them has the power of r^
VOL. IV 50
SJ4t President's Power of Remova — Ames [June 16,
mnva]. I remember that the gentleman from Massachusetts (Mr. Sedg-
wick) told lis that the two houses, notwithstanding the partial negative of
the President, possessed the whole legislative power; but will the gentle-
man infer from that, because the concurrence of both branches is neces-
sary to pass a law, that a less authority can repeal it ? This is all we
contend for.
Some gentlemen suppose, if the President has not the power by the
Constitution, we ought to vest it in him by law. For my part, I very
much doubt if we have the power to do this. I take it we would be pla-
cing the heads of departments in a situation inferior to what the Constitu-
tion contemplates; but if we have the power, it will be better to exercise
it than attempt to construe the Constitution. But it appears to me, that
the best way will be to leave the Constitution to speak for itself whenever
occasion demands.
It has been said, that the Senate are merely an advisory body. I am
not of this opinion, because their consent is expressly required; if this is
not obtained, an appointment cannot be made. Upon the whole, I look
upon it as necessary, in order to preserve that security which the Consti-
tution affords to the liberty of the people, that we avoid making this
declaration, especially in favor of the Piesident; as I do not believe the
Constitution vests the authority in him alone.
Mr. AMES. I believe there are very few gentlemen on this floor who
have not made up their opinions; therefore it is particularly disagreeable
to solicit their attention, especially when their patience is already ex-
hausted, and their curiosity sated ; but still I hope to be of some use in
collecting the various arguments, and bringing them to a point. I shall
rather confine myself to this task, than attempt to offer any thing that is
new. I shall just observe, that the arguments of the gentleman from
Pennsylvania, (Mr. Scott,) which are complained of as being ridiculous,
were arguments addressed to the understandings of the committee; my
own understanding was enlightened by them, although they wore the garb
of pleasantry. But to proceed to my main object.
The question, so far as it relates to the Constitution, is this — whether
it has vested the sole power of removing in the President alone, or whether
it is to take place by and with the advice and consent of the Senate, If
the question of constitutionality was once despatched, we should be left to
consider of the expediency of the measure. I take it to be admitted on
all hands, though it was at first objected to by a worthy gentleman from
South Carolina, that the power of removal from office, at pleasure, resides
somewhere in the government. If it does not reside in the President, or
the President and Senate, or if the Constitution has not vested it in any
particular body, it must be in the legislature; for it is absurd to suppose
that officers once appointed cannot be removed. The argument tending
to prove that the power is in the President alone, by an express declaration,
may not be satisfactory to the minds of those gentlemen who deem the
Constitution to be silent on that head. But let those gentlemen revert to
the principles, spirit, and tendency, of the Constitution, and they will be
compelled to acknowledge that there is the highest degree of probability
that the power does vest in the President of the United States. I shall
not undertake to say that the arguments are conclusive on this point. I
do not suppose it is necessary that they should be so; for I believe nearly
as good conclusions may be drawn from the refutations of an argument as
from any other proof; for it is well said, that destructio unius est gener
alio alterius.
'789.]
President's Pou ir of Removal, — Ames. 395
It has been said, and addressed with solemnity to our consciences, th.u
we eight not to destroy the Constitution, to change, or modify it; nay, it
Has been inferred that it is unnecessary and dangerous for us to proceed
in this inquiry. It is true, we may decide wrong, and therefore there may
bie danger; but it is not unnecessary : we have entered too fur into the
ciiscussion to retreat with honor to ourselves or security to our country :
-we are sworn as much to exercise constitutional authority, for the general
good, as to refrain from assuming powers that are not given to us: we are
as responsible for forbearing to act, as we are for acting. Are we to leave
this question undetermined, to be contended between the President and
Senate ? Are we to say that the question to us is indissoluble, and there-
fore throw it upon the shoulders of the President to determine ? If it iii
complex and difBcult, it is certainly disingenuous in us to throw off the
decision : besides, after so long a debate has been had, a decision must be
made ; for it never would do to strike out the words, as that would be de-
ciding, and deciding against the power of the President.
It must be admitted that the Constitution is not explicit on the point in
contest; yet the Constitution strongly infers that the power is in the Presi-
dent alone. It is declared that the executive power shall be vested in the
President. Under these terms, all the powers properly belonging to the
executive department of the government are given, and such only taken
away as are expressly excepted. If the Ccmstitution had stopped here,
and the duties had not been defined, either the President had had no pow-
ers at all, or he wtmld acquire from that general expression all the pow-
ers properly belonging to the executive department. In the Constitution,
the President is required to see the laws faithfully executed. He cannot
do this without he has a control over officers appointed to aid him in the
performance of his duty. Take this power out of his hands, and you vir-
tually strip him of his authority ; you virtually destroy his responsibility,
the great security which this Constitution holds out to the people of
America.
Gentlemen will say that, as the Constitution is not explicit, it must be
matter of doubt where the power vests. If gentlemen's consciences will
not let them agree with us, they ought to permit us. to exercise the like
liberty on our part. But they tell us we must meet them on the ground
of accommodation, and give up a declaration that the power of removal
is in the President, and they will acquiesce in declaring him to have the
power of suspension ; but they should recollect that, in so doing, we sac-
rifice the principles of the Constitution.
It has been frequently said, that the power of removing is incidental
to the power of appointing : as the Constitution implies that all officers,
except the judges, are appointed during pleasure, so the power of remo-
val may, in all cases, be exercised. But suppose this general principle
true ; yet it is an arbitrary principle, I take it, and one that cannot be
proved : if it was denied, it could not be established ; and if it was es-
tablished, it is still doubtful whether it would make for the Jidverse side
of this question or not, because it is dubious whether the Senate do ac-
tually appoint or not. It is admitted that they may check and regulate
he appointment by the President ; but they can do nothing more ; they
are merely an advisory body, and do not secure any degree of responsi-
bility, which is one great object of the present Constitution : they are not
answerable for their secret advice ; but if they were, the blame, divide<1
UDong so many, would fall upon none.
'596 President's Power of Retnoval, — Ames. [June 16,
Certainly this assumed principle is very often untrue; but if it is true,
It is not favorable to the gentlemen's doctrine. The President, I con-
tend, has expressly the power of nominating and appointing, though he
must obtain the consent of the Senate. He is the agent : the Senate
may prevent his acting, but cannot act themselves. It may be diificult
to illustrate this point by examples which will exactly correspond : but
suppose the case of an executor, to whom is devised lands, to be sold with
the advice of a certain person, on certain conditions ; the executor sella
with the consent, and upon the conditions, required in the will: the con-
ditions are broken ; may the executor reenter for the breach of them ? or
has the person whom he was obliged to consult with in the sale any pow
er to restrain him ? The executor may remove the wrongful possessor
from the land, though, perhaps, by the will, he may hold it in trust for
another person's benefit. In this manner, the President may remove
from office, though, when vacant, he cannot fill it without the advice of
the Senate. We are told it is dangerous to adopt constructions ; and
that what is not expressly given is retained. Surely it is as improper
in this way to confer power upon the Senate aa upon the President ; for
if the power is n»»t in the President solely by the Constitution, it never
can be in the President and Senate by any grant of that instrument :
any arguments, therefore, that tend to make the first doubtful, operate
against the other, and make it absurd. If gentlemen, therefore, doubt
with respect to the first point, they will certainly hesitate with respect to
the other. If the Senate have not the power, — and it is proved that
they have it not, by the arguments on both sides, — the power either vesis
with the President or the legislature. If it is in the disposal of the latter,
and merely a matter of choice with us, clearly we ought not to bestow it
on the Senate ; for the doubt, whether the President is not already enti-
tled to it, is an argument against placing it in other hands : besides, the
exercise of it by the Senate would be inconvenient ; they are not always
sitting : it would be insecure, because they are not responsible : it would
be subversive of the great principles of the Constitution, and destructive
to liberty, because it tends to intermingle executive and legislative pow-
ers in one body of men, and this blending of powers ever forms a tyranny.
The Senate are not to accuse offenders ; they are to try them : they are
not to give orders ; but, on complaint, to judge of the breach of them.
We are warned against betraying the liberties of our country : we are
told that all powers tend to abuse : it is our duty, therefore, to keep them
single and distinct. Where the executive swallows up the legislature, it
becomes a despotism ; where the legislature trenches upon the executive,
it approaches towards despotism; and where they have less than is neces-
sary, it approximates towards anarchy.
We should be careful, therefore, to preserve the limits of each authoi-
ity, in the present question. As it respects the power of the people, it ia
but of little importance ; it is not pretended that the people have reserved
the power of removing bad officers. It is admitted, on all hands, that
the government is possessed of such power ; consequently, the people can
neither lose nor gain power by it. We are the servants of the people; we
are the watchmen ; and we should be unfaithful, in both characters, if we
should so administer the government as to destroy its great principles and
most essential advantages. The question now amon£r us is, which of these
servants shall exercise a power already granted. Wise and virtuoi»« nf
the Senate may be, sue i a power lodged in their hands will not only tend
I'^^.l
President's Pow/r of Runoval, — Ames. 397
^ abuse, but cannot tend to any thing else. Need I repeat the incon-
veniences which will result from vesting it in the Senate? No. I app3aJ
^> that maxim which has the sanction of experience, and is authorized by
the decision of the wisest men : to prevent an abuse of power, it must b^
distributed into three branches, who must be made independent, to watch
and check each other : the people are to watch them all. While these
nriaxinis are pursued, our liberiies will be preserved. It was from neg-
lecting or despising these maxims, the ancient commonwealths were de-
stroyed. A voice issues from the tomb which covers their ruins, and pro
claims to mankind the sacred ness of the truths that are at this moment
in controversy.
It is said that the Constitution has blended these powers which we
advise to keep separate, and, therefore, we ought to follow in completing
Similar regulations ; but gentlemen ought to recollect, that has been an
objection against the Constitution ; and if it is a well-founded one, W€
oujrht to endeavor, all that is in our power, to restrain the evil, rather than to
increase it. But, perhaps, with the sole power of removal in the President,
the check of the Senate in appointments may have a salutary tendency :
ill removing from office, their advice and consent are liable to all the ob<
Jcctions that have been stated It is very proper to guard the introduction
<:if a man into office by every check that can properly be applied ; but aA
^er he is appointed, there can be no use in exercising a judgment upon
events which have heretofore taken place. If the Senate are to possess!
Vhe power of removal, they will be enabled to hold the person in office,
let the circumstances be what they may, that point out the necessity or pro-
priety of his removal ; it creates a permanent connection ; it will nurse
tfaction; it will promote intrigue to obtain protectors, and to shelter tools.
Sir, it is infusing poison into the Constitution ; it is an impure and un-
<:haste connection : there is ruin in it : it is tempting the Senate with for-
bidden fruit : it ought not to be possible for a branch of the legislature
even to hope for a share of the executive power ; for they may be tempted
to increase it, by a hope to sliare the exercise of it. People are seldom
jealous of their own power ; and if the Senate become part of the execu-
tive, they will be very improper persons to watch that department : so far
from being champions for liberty, they will become conspirators against it.
The executive department should ever be independent, and sufficiently
energetic to defeat the attempts of either branch of the legislature to usurp
its prerogative. But the proposed control of the Senate is setting that
body above the President : it tends to establish an aristocracy. And at the
moment we are endangering the principles of our free and excellent Con-
stitution, gentlemen are undertaking to amuse the people with the sound
of liberty. If their ideas should succeed, a principle of mortality will be
infused into a government which the lovers of mankind have wished might
last to the end of the world. With a mixture of the executive and legislative
powers in one body, no government can long remain uncorrupt. With a
corrupt executive, liberty may long retain a tremblitig existence. With a
corrupt legislature, it is impossible : the vitals of the Constitution would
be mortified, and death must follow in every step. A government thus
formed would be the most formidable curse that could befall this country.
Perhaps an enlightened people might timely foresee and correct the error;
but if a season was allowed for such a compound to grow and produce its
natural fruit, it would either banish liberty, or the people would be driven
to exercife their unalienable right, the right of uncivilized nature, anc?
34
l>9& President's Power of Removal. — Madison. [June 10,
destroy a monster whose voracious and capacious jaws could crush and
swallow up themselves and their posterity.
The principles of this Constitution, while they are adhered to, will
perpetuate that liberty which it is the honor of Americans to have well
contended for. The clause in the bill is calculated to support those prin-
ciples ; and for this, if there was no other reason, I should be inclined to
give it fny support.
Mr. LIVERMORE. The decision of this question depends upon
the construction of a short clause in the Constitution, in which is designa-
ted the power of the President. It is said he shall have power, by and
with the advice and consent of the Senate, to make treaties, provided
two thirds of the senators present concur. He shall nominate, and, by
and with the advice and consent of the Senate, appoint ambassadors, other
public ministers, and consuls, justices of the Supreme Court, and all oth^r
officers of the United Stales. Such strange constructions have been given
to this advice and consent of the Senate, which, if agreed to, will make
the whole Constitution nothing, or any thing, just as we please. If we
can deprive the Senate of their powers in making treaties, and say, with
truth, that they have no authority in the business, the legislature will be-
come a dangerous branch of the government. So, in the case of appoint-
ing officers, if it can be truly said that these heads of departments are the
servants of the President alone, we shall make the executive depart-
ment a dano^erous one.
I do not admit that any man has an estate in his office. I conceive all
officers to be appointed during pleasure, except where the Constitution
stipulates for a different tenure — unless, indeed, the law should create the
office, or officer, for a term of years. After observing this, I must con-
tend that the power of removal is incidental to the power of appointment.
If it was the President alone that appointed, he alone could displace. If
the President and Senate, by a joint agreement, appoint an officer, they
alone have the power to suoersede him ; and however any gentleman may
say he doubts, or does not understand, the force of this principle, yet to
me it appears as clear and demonstrable as any principle of law or jujftice
that I am acquainted with. There is another method to displace officers
expressly pointed out by the Constitution ; and this implies, in the clear-
est manner, that in all other cases officers may be removed at pleasure ;
and if removed at pleasure, it must be at the pleasure of the parties who
appointed them.
Congress are enabled, by the Constitution, to establish offices by law.
In many cases they will, no doubt, vest the power of appointing inferior
officers in the President alone. They have no express right, by the Con-
stitution, to vest in him the power of removing these at pleasure; yet no
gentleman will contend but inferior officers ought to be removable at
pleasure. How, then, can the President acquire this authority, unless ii
be on the principle that the power of removal is incidental, and the natu-
ral consequence of the power of appointinir. If gentlemen will maintain
consistency, they will be compelled to acknowledore the force of this prin-
ciple and if they acknowledge the principle, they must agree to strike
out the words.
Mr. MADISON The question now seems to be brought to this —
whether it is proper or improper to retain these words in the clause, pro-
vided they are explanatory of the Constitution. I think this branch of the
legislature is as much interested in the establishment of the true meaning
1789.]
President's Power of Removal. — Smith. 399
of the Coiisiitution, as either the President or Senate; and when the Con-
stitution submits it to us to establish offices by law, we ought to know by
v^hat tenure the office should be held, and whether it should depend upop
Che concurrence of the Senate with the President, or upon the will of the
President alone, because gentlemen may hesitate, in either case, whether
they will make it for an indefinite or precise time. If the officer can be
removed at discretion by the President, there may be safety in letting it be
Tor an indefinite period. If he cannot exert his prerogative, there is no
security, even by the mode of impeachment; because the officer may in-
Ireiich himself behind the authority of the Senate, and bid defiance to
every other department of government. In this case, the question of
duration would take a different turn. Hence it is highly proper that we
and our constituents should know the tenure of the office. And have we
not as good a right as any branch of the government to declare our sense
of the meaning of the Constitution?
Nothing has yet been offered to invalidate the doctrine, thiit the meaning
of the Constitution may as well be ascertained by the legislative as by the
judicial authority. When a question emerges, as it does in this bill, —
and much seems to depend upon it, — I should conceive it highly proper
to make a legislative construction. In another point of view, it is proper
that this interpretation should now take place, rather than at a time when
the exigency of the case may require the exercise of the power of removal.
At present, the disposition of every gentleman is to seek the truth, and
abide by its guidance when it is discovered. I have reason to believe the
same disposition prevails in the Senate. But will this be the case when
some individual officer of high rank draws into question the capacity of the
President, with the Senate, to effect his removal I If we leave the Ctmsti-
tution to take this course, it can never be expounded until the President
shall think it expedient to exercise the right of removal, if he supposes he
has it. Then the Senate may be induced to .set up their pretensions; and
will they decide so calmly as at this time, when no important officer in
any of the great departments is appointed to influence their judgments?
The imacrination of no member here, or of the Senate, or of the President
himself, is heated or disturbed by faction, if over a proper moment for
decision should offer, it must be one like the present.
I do not conceive that this question has been truly stated by some gen-
tlemen. In my opinion, it is not whether we sh.ill take the power from
one branch of the government, and give it to another; but the question
is, to which branch has the Constitution given it ? Some gentlemen
have said that it resides in the people at large, and that, if it is neces-
sary to the government, we must apply to the people for it, and obtain
it by way of amendment to the Constitution. Some gentlemen con-
tend, that although it is given in the Constitution as a necessary power to
carry into execution the other powers vested by the Constitution, yet it is
vested in the le^jislature. I cannot admit this doctrine either, because it
i^ setting the legislature at the head of the executive branch of the govern-
ment. If we take the other construction, of the gentleman from South
Carolina, that all officers hold their places by the firm tenure of good be-
havior, we shall find it still more improper. I think gentlemen will see,
upon reflection, that this doctrine is incompatible with the principles o^
free government. If there is no removability but by way of impeachment,
then all the executive officers of government hold their offices by the firm
tenure of good behavior, from the chief justice down to the tide-waiter.
[Mr. 8MITH interrupted Mr. Madison, and said, that he had admitted
-UK) Presidents Power of Removal. — Baldwin. [June 10,
that inferior officers might be removed, because the Constitution had left
It in the power of the legislature to establish them on what terms thejf
pleased ; consequently, to direct their appointment and removal]
Mr. MADISON had understood the gentleman as he now explained
himself. But still he contended that the consequences he had drawn
would necessarily follow ; because there was no express authority given to
the legislature, in the Constitution, to enable the President, the courts
of law, or heads of departments, to remove an inferior officer. All that
was said on that head was confined solely to the power of appointing them.
If the gentleman admits, says he, that the legislature rany vest the pow^r
of removal, with respect to inferior officers, he must also ndmit that the
Constitution vests the President with the power of removal in the case of
superior officers, because both powers are implied in the same words ; the
President may appoint the one class, and the legislature may authorize
the courts of law or heads of departments to appoint in the other case.
If, then, it is admitted that the power of removal vests in the President, or
President and Senate, the arguments which I urged yes»terday, and those
which have been urged by honorable gentlemen on this side of the ques-
tion for these three days past, will fully evince the truth of the construc-
tion which we give, — that the power is in the President alone. I will not
repeat iliera, because they must have full possession of every gentleman's
mind. I am willing, therefore, to rest the decision here, and hope that it
will be made in such a manner as to perpetuate the blessings which thiB
Constitution was intended to embrace.
Mr. BALDWIN. I have felt an unusual anxiety during the debate upon
this question. I have attentively listened to the arguments which have
been brought forward, and have weighed them in my mind with great
deliberation ; and as I consider a proper decision upon it of almost
infinite importance to the government, I must beg the indulgence of the
house while I submit a few observations.
The main ground on which the question is made to rest is, that if we
adopt this clause, we violate the Constitution. Many of the gentlemen
who advocate the present motion for striking out, would, if they could do
it with consistency to the Constitution, be in favor of the clause. We
have been reminded of our oaths, and warned not to violate the solemn
obligation. This injunction has come from so many parts of the house, that
it arre.sted my whole attention for a few minutes; and then they produced
us the clause in the Constitution which directed that officers should be
appointed by and with the advice and consent of the Senate. They then
tell us that he should be removable in the same manner. We see the
clause by which it is directed that they should be appointed in that manner,
but we do not see the clause resj>ectiniT their removal in the same way.
Gentlemen have only drawn it as an inference from the former: they
construe that to be the meaning of the Constitution, as we construe the
reverse. I hope, therefore, gentlemen will chancre their expression, and
say, we shall violate their construction of the Constitution, and not the
Constitution itself. This will be a very different charge! unless the
gentlemen pretend to support the doctrine of infallibility, as it respects
their decisions; and that would perhaps be more than the house are
willing to admit, and more than the people in this country are accustomed
to believe.
I have said the gentlemen rest their principal opposition on this point —
that the Constitution plainly means that the officers must be removed in
the way they are appointed. Now, when gentlemen tell me that I wa/i
1789.] Presideni*s Power of Removal. — Baldwin. 401
going to construe the Constitution, and many interpret it in a manner
which was never intended, I am very cautious how 1 proceed. I do no»
like lo construe over much. It is a very delicate and critical branch of
our duty ; and there is not, perhaps, any part of the Constitution ou
which wc siiould be more cautious and circumspect than on the present.
I am well authorized to say, that the n^ingling the powers of the Presi-
dent and Senate was strongly opposed in the Convention which had the
honor to submit to the consideration of the United States, and the differ-
ent states, the present system for the government of the Union. Some
gentlemen opposed it to the last; and finally it was the principal ground
on which they refused to give it their signature and assent. One gentle-
man called it a monstrous and unnatural connection, and did not hesitate
to atiirm it would bring on convulsions in the government. This objection
Mras not confined to the walls of the Convention ; it h is been the subject of
newspaper declamation, and perhaps justly so. Ought not we, therefore,
Co be careful not to extend this unchaste connection any ftrther?
Gentlemen who undertake to construe, say that they see clearly thai
Che power which appoints must also remove. Now, I have reviewed this
subject with all the application and discernment my mind is capable of,
sand have not been able to see any such thing. There is an agency given
'Co the President, in making appointments, to which the Senate are con-
nected. But how it follows that the connection extends to the removal,
^positively I cannot see. They say that it follows as a natural, inseparable
consequence. This sounds like logic. But if we consult the premises,
perhips the conclusion may not follow. The Constitution opposes this
wnaxim more than it supports it. The President is appointed by electors
chosen by the people themselves, or by the state legislatures. Can the state
legislatures, either combined or separate, effect his removal ? No. But the
Senate may, on impeachment by this house. The judges are appointed!
by the President, by and with the advice and consent of the Senate ; but
they are only removable by impeachmeikt ; the President has no agency in
the removal. Hence, I siy, it is not a natural consequence that the power
which appoints should have the power of removal also.
We may find it necessary that subordinate officers should be appointed^
in the first instance, by the President and Senate. I hope it will not be
contended that the President and Senate shall be applied to in all cases
when their removal may be necessary. This principle, sir, is not pur-
sued by the Senate themselves, in the very bill that is now before this
house, sent down by the Senate, to establish the judicial courts of the
United States It is directed that a marshal shall be appointed for each
district, who shall have power to appoint one or more deputies ; and these
deputies are to be removable from office by the judge of the District
Court, or the Circuit Court sitting within the district, at the pleasure of
either. It is not said they shall be appointed by the marshal, who may re-
move them at pleasure ; which ought to be the case, if the maxim is true,
that the power which appoints necessarily has the power of removal.
But I dispute the maxim altogether ; for though it is sometimes true, it is
oflen fallacious ; but by no means is it that kind of conclusive argument
which they contend for.
Gentlemen proceed in their constructions, and they ask, "Why did
not the Convention insert a clause in the Constitution, declaring the re-
moval to be in a manner different from the appointment ? " They tell us
bat it must naturally have occurred to them, and that here and there was the
VOL. IV. 61
40i President's Power of Removal. — Baldwin. [June 16,
proper place to insert such a clause. Now, let me ask them, also, if theirs
is the natural construction, why the Convention, after declaring that offi-
cers should be appointed by and with the advice and consent of the Senate,
did not add, to be removed in like maimer. It must have as naturaliy
occurred to insert the one as the other. It is very possible that such a
clause might have been moved and contended for ; but it is hardly prob-
able it would meet with success from those who opposed giving the Senate
any check or control whatsoever over the powers of the President ; much
less WHS it probable that tliose gentlemen who opposed it there should
wish to enlarge it by construction : for my part, I hope never to see it in-
creased in this way. What of this nature is brought in by the letter of
' the Constitution, let it be there ; but let us never increase evils of which
we have some right to complain. A gentleman asks, ** Where is the
danger of mixing these powers, if the Constitution has already done it?"
That gentleman knows that it has always been viewed as nn evil, and an
association of the legislative and executive powers in one body has been
found to produce tyranny. It is a maxim among the wisest legislators not
to blend the branches of government further than is necessary to carry
their separate powers into more complete operation. It was found neces-
sary to blend the powers to a certain degree ; so far we must acquiesce.
The Senate must concur with the President in making appointments;
but with respect to the removal, they are not associated ; no such clause
is in the Constitution ; and, therefore, I should conclude that the Convention
did not choose they should have the power. But what need was there that
such a clause should be there ? What is the evil it \ias intended to guard
against ? Why, we are afraid the President will unnecessarily remove a
worthy man from office ; and we say it is a pity the poor man should be
turned out of service without a hearing ; it is injurious to his reputation;
it is his life, says the gentleman from New Hampshire, (Mr. Livermore;)
it is cruelty in the extreme. But why are wc to suppose this? I do not
see any well-grounded apprehension for such an abuse of power. Let us
attend to the operation of this business. The Constitution provides for
what ? That no bad man should corne into office : this is the first evil.
Hence we have nothing to dread from a system of favoritism ; the public
are well secured against that great evil ; therefore the President cannot be
influenced by a desire to get his own creatures into office; for it is fairly
presumable that they will be rejected by the Senate. But suppose that
one such could be got in ; he can be got out again, in spite of the Presi-
dent: we can impeach him, and drag him from his place; and then there will
be some othrr person appointed.
Some gentlemen seem to think there should be another clause in the
Constitution, providing that the President should not turn out a good
officer, and then they would not apprehend so much danger from that
(juirter. There are other evils which might have been provided against, and
other things which might have been regulated ; but if the Convention had
undertaken to have done them, the Constitution, instead of being con-
tained in a sheet of paper, would have swelled to the size of a folio vol-
ume. But what is the evil of the President's being at liberty to exercise
tliis power of removal ? W^hy, we fear that he will displace, not one gocd
officer only, but, in a fit of passion, all the good officers of the government,
by which, to be sure, the public would suffir : but I venture to say he
would suffer himself more than any other man. But I trust there is no
dearth of good men. I believe he couhl not turn out so many, hut that the
1789.] President's Power of Removed. — Gbrrt. 403
Senate would still have some choice, out of which to supply a good onei
But, even if he was to do this, what would be the consequence ? He
would be obliged to do the duties himself; or, if he did not, we would
impeach him, and turn him out of office, as he had done others. I must
admit, though, that there is a possibility of such an evil, but it is a remote
possibility indeed.
I think gentlemen must concede that, if there should be such a pas-
sion,— such resentment as I have supposed between the President and the
heads of departments, — the one or the other ought to be removed ; they
must not go on pulling different ways, for the public will receive mo«t
manifest injury : therefore it mitigates the appearance of the evil by suffer-
ing the public business to go on, which, from their irreconcilable differ-
ence, would otherwise be at a stand.
Mr. GERRY. The judges are the expositors of the Constitution and
the acts of Congress. Our exposition, therefore, would be subject to their
revisal. In this way the constitutional balance would be destroyed. The
legislature, with the judicial, might remove the hend of the executive
branch. But a further reason why we are not the expositors, is, that the
judiciary may disagree with us, and undo what all our efforts have labored
to accomplish. A law is a nullity, unless it can be carried into execution :
in this case, our law will be suspended. Hence all construction of the
meaning of the Constitution is dangerous, or unnatural, and therefore
ou^ht to be avoided.
This is our doctrine, that no power of this kind ought to be exercised
by the legislature. But, we say, if we must give a construction to the Con-
stitution, it is more natural to give the construction in favor of the power
of removal vestinir in the President, by and with the advice and consent
of the Senate, because it is in the nattire of things that the power which ap-
points removes also. If there are deviations from this general rule, the
instances are few, and not sufficient to warrant our departure on this
occasion. We say our construction is superior also, because it does not
militate against any clause of the Constitution ; whilst their construction
militates against several, and, in some respects, renders them mere nul-
lities.
There is a consistency, under a monarchy, of the king's exercising the
power of appointment and removal at pleasure. In Great Britain this is
the prerogative of the throne ; where it is likewise held a maxim, that the
kiricr can do no wroncr. The chief macristrate under this Constitution is a
different character. There is a constitutional tribunal, where he may be
arraigned, condemned, and punished, if he does wrong. The reason of
this distinction I take to be this : the majesty of the people receives an
injury when the President commits an improper act, for which they are to
receive satisfaction. King«« have a property in government; and when a
monarch acts unwisely he injures his own interest, but is accountable to
none, because satisfaction is due to himself alone. He is established in
his office for life ; it is an estate to him which he is interested to transmit
In his posterity unimpaired ; the good of the people, upon principles of
interest, will be his peculiar studv; he ought, therefore, to have power to
»ct in such a manner as is most likely to. secure to him this object; then,
necessarily, he must have the ritrht of choosing or displacing his agents.
There can be no difficulty on this point. But in a confederated republic
the chief magistrate his no such trust ; he is elected but for four years,
ader which the government goes into other hands; he is not stimulated :i.
404 Amendments to the Constitution. — Ames. [1789
improve a patriniooy, and therefore has no occasion for complete poweT
over the officers of the government. If he has such power, it can only be
made useful to him by being the means of procuring him a reelection, but
can never be useful to the people by inducing him to appoint good officers
or remove bad ones. It appears to me that such unbounded power vitiates
the principles of the Constitution ; and the officers, instead of being the
machinery of the government, moving in regular order prescribed by the
legislature, will be the mere puppets of the President, to be employed or
thrown aside as useless lumber, according to his prevailing fancy.
If gentlemen will take this step, they must take another, and secure the
public good by making it the interest of the President to consult it ; they
must elect him for life, or, what will be more consistent still, they must
make his office hereditary. Then gentlemen may say, with some degree
of truth, that he ought to have the power of removal, to secure in his hands
a balance in the government. But if gentlemen are willing to remain
where they are, and abide by the Constitution, regarding its true principles,
they will not contend that there is a necessity, or even a propriety, in vest-
ing this power in the President alone.
Gentlemen tell us they are willing to consider this as a constitutional
question ; and yet the bill shows that they consider the Constitution silent,
for the clause grants the power in express terms : this also implies that
the legislature have a right to interfere with the executive power contrary
to their avowed principles. If the legislature has not the power of remo-
val, they cannot confer it upon others ; if they have it, it is a legislative
power, and they have no right to transfer the exercise of it to any othei
body ; so, view this question in whatever point of light you please, it it
clear the words ought to be struck out.
The call for the question being now very general, it was put — Shall
the words " to be removable by the President" be struck out?
It was determined in the negative ; being yeas 20, nays 34.
Amendments to the Constitution,
House of Represkntatives, JIugust 13, 1789.
Mr. GERRY. The Constitution of the United States was proposed by
a Convention met at Philadelphia ; but with all its importance, it did not
possess as high authority as the President, Senate, and House of Repre-
sentatives of the Union ; for that Convention was not convened in conse-
quence of any express will of the people, but an implied one, through
their members in the state lecrjslatures. The Constitution derived no au-
thority from the first Convention ; it was concurred in by conventions of
the people, and that concurrence armed it with power, and invested it
with dignity. Now, the Concijress of the United States are expressly au-
thorized, by the sovereign and uncontrollable voice of the people, to pro-
pose amendments whenever two thirds of both houses shall think fit.
Now, if this is the fact, the propositions of amendment will be found to
originate with a higher authority than the original system. The conven-
tions of the states respectively have agreed, for the people, that the state
legislatures shall be authorized to decide upon these amendments in the
manner of a convention. If these acts of the state legislatures are not
good, because they are not specifically instructed by their constituents,
neither were the acts calling the first and subsequent conventions.
Mr. AMES. It is not necessary to increase the representation, in ordi»*
1789, 1790.] DofnesHe Debt. — Smith. 405
to guard against corruption ; because no one will presume to think that t
body composed like this, and increased in a ratio of 4 to 3, will be much
less exposed to sale than we are. Nor is a greater number necessary to
secure the rights and liberties of the people, for the representative of a
great body of people is likely to be more watchful of its interests than the
representative of a lesser body.
Mr. MADISON. Suppose they, the people, instruct a representative
by his vote to violate the Constitution ; is he at liberty to obey such in-
structions 1 Suppose he is instructed to patronize certain measures, and
from circumstances known to him, but not to his constituents, he is con«
vinced that they will endanger the public good ; is he obliged to sacrifice
his own judgment to them ? Is he absolutely bound to perform what he is
instructed to do? Suppose he refuses; will his vote be the less valid, or
the community be disengaged from that obedience which is due, from the
laws of the Union ? If his vote must inevitably have the same effect,
what sort of a right is this, in the Constitution, to instruct a representative
who has a right to disregard the order, if he pleases ? In this sense, the
right does not exist; in the other sense, it does exist, and is provided
largely for.
Domestic Debt.
HousK OK RspRESsNTATiYES, February 32, 1790.
Mr. SMITH, (of S9Uth Carolina.) The Constitution itself was op*
posed to the measure, (discrimination of the domestic debt;) for it waa
^in ex post facto law, which was prohibited in express terms. The trans-
ference of public securities was Uwful at the time these alienations were
tnade ; an attempt therefore to punish the transferees, is an attempt to
make an ex post facto law, by making that unlawful which was lawful at
^e time it was done ; it alters the nature of the transaction, and annexes
the idea of guilt to that which, at the moment of commission, was not only
perfectly innocent, but was explicitly authorized and encouraged by a
public act of Congress. By that act, those who had money were invited
to purchase of those who held securities; and now they were called upon
to punish the purchasers who bought under that invitation. The Consti-
tution restrains the states from passing any law impairing the force of
contracts: a fortiori, h the legislature of the Union restrnined ? What
an example to hold up to the judiciary of the United States ! How could
they annul a state law, when the state would be able to plead a precetient
on the part of Congress ? The right of property was a sacred right ; no
tribunal on earth, nor even legislative body, could deprive a citizen of his
property, unless by a fair equivalent, for the public welfare. The pur-
chaser was vested, by the sale, with an absolute right to the full amount
of the security, and it was beyond their authority to divest him of' it.
They might, indeed, by an act of power, declare that he should be paid
only half; but his right to the other moiety would not be extinguished.
The present Constitution, which is a mild one, met with considerable
opposition. Had it been rejected, the public securities would never have
been paid.
It was the surest policy of governments to adhere strictly to their plight-
ed faith, when it was in their power to do so, even should such strict
idhcrence work an injury to some part of the community. This was the
p.iictice of nations in the case of a treaty, which, when made by compe*
tf nt aatlif litr the? considered themselves bound to observe* although they
'VOB Slave Trade. — TvcKER. [March,
deemed it disadvantageous to them, lest a refusal should deter other nations
firom treating with them in future. It is hy this line of conduct that public
credit can alone be supported.
Mr. MADISON. The constitutionality of the proposition had been
drawn into question. He (Mr. Madison) asked whether words could be
devised that would place the new government more precisely in the same
relation to the real creditors with the old. The power was the same ; the
objection was the same : the means only were varied.
if the gentlemen persisted, however, in demanding precedents, he was
happy in being able to gratify them with two, which, though not exactly
parallel, were, on that account, of the greater force, since the interposition
of government had taken place where the emergencies could less require
them. The first was the case of the Canada bill. During the war which
ended in 17G8, and which was attended with a revolution in the government
of Canada, the supplies obtained for the French army in that province
were paid for in bills of exchange and certificates. This paper deprecia-
ted, and was bought up chiefly by British merchants. The sum and the
depreciations were so considerable as to become a subject of negotiation
between France and Great Britain at the peace. The negotiation pro-
duced a particular article, by which it was agreed by France that the
paper ought to be redeemed, and admitted by Great Britain that it
should be redeemed, at a stipulated value. In the year 1766, this article
was accordingly carried into effect by ministers from the two courts,
who reduced the paper, in the hands of the British holders, in some in-
stances as much as seventy-five per cent, below its nominal value. It
was stated, indeed, by the reporter of the case, that the holders of the
paper had themselves concurred in the liquidation; but it was not proba-
ble that the concurrence was voluntary. If it was voluntary, it shows that
they themselves were sensible of the equity of the sacrifice.
The other case was of still greater weight, as it had no relation to war
or to treaty, and took place in the nation which had been held up as a
model with respect to public credit. In the year 1715, the civil list of
Great Britain had fallen in arrears to the amount of <£500,000. The
creditors who had furnished supplies to the government, had> instead of
money, received debentures only from respectable officers. These had
depreciated. In that stnte they were assigned in some instances ; in others,
covenanted to be assigned. When the Parliament appropriated funds for
satisfying these arrears, they inserted an express provision in the act, that
the creditors who had been obliged, by the defaults of government, to
dispose of their paper at a loss, might redeem it from the assignees by
repaying the actual price, with an interest of six per cent., and that all
agreements and covenants to assign should be absolutely void. Here,
then, was an interposition on the very principle that a government ought
to Redress the wrongs sustained by its default, and on an occasion trivial
when compared with that under consideration ; yet it does not appear
that the public credit of its nation was injured by it
Slave Trade, — On committing' the Memorial of the Quakers on
the Slave Trade.
HousF. OF RFPRESFNTAxms, Mavchy 1790.
Mr. TUCKER said, he conceived the memorial to be so glaring ar
interference with the Constitution, that he had hoped tb< house wotUd
1700.] Slave Trade.— Smith. 407
not have given so much couatenaDce to a request so improper in itself.
He was sorry that the society had discovered so lit.'e prudence in their
memorial, as to wish that Congress should intermeddle in the internal reg-
ulations of the pirticular states. He hoped the petition would nut be
committed, as it would operate directly against the interest of those it
was designed to benefit. This is a bu:<iness that may be attended with
the most serious consequences; it may end in a subvers^ion of the govern-
ment, being a direct attack on the rights and property of the Southern
States. He then inquired what satisfaction was to be. made to the pro-
prietors of slaves. He believed it was not in the power of the states to
make indemnification for the loss that would attend emancipation. He
reprobitted the interposition of the society, and denied that they possessed
any more humanity thnn other denominations.
Mr. GERRY replied to Mr. Tucker, and desired the gentleman to point
out any part of the memorial which proposed that the legislature should
iiifrmge on the Constitution. For his part, he heard nothing re id that
hid such a tendency. Its oidy object was, that Congress should exert
their constitutional authority to abate the horrors of slavery so far as they
could. He hoped the petition would be committed. Indeed, he consid-
ered that all altercation on the subject of commitment was at an end, as
the house had essentially determined that it should be committed.
Mr. BURKB reprobated the commitment, as subversive of the Consti-
tution, as sounding an alarm, and blowing the trumpet of sedition in the
Southern St;ites. He should oppose the business totally ; and if chosen
on the committee, he should decline serving.
Mr. SCOTT was in favor of the commitment
Mr. JACKSON was opposed to it, and painted in strong colors the
alarming consequences to be apprehended from taking up the business, —
revolt, insurrection, and devastation, — and concluded by an observation
similar to Mr. Burke^s.
Mr. SHERMAN could see no difficulty in committing the memorial;
the committee may bring in such a report as may prove satisfactory to
gentlemen on all sides.
Mr. BALDWIN referred to the principles of accommodation which pre-
vailed at the time of forming the government. Those mutual concessions
which then took pi ice gave us a Constitution which was to insure the
peace and the equal rights and properties of the various states: and to
prevent all infraction of the rights in this particular instance, they preclu-
ded themselves, by an express stipulation, from all interposition in the
slave trade. Congress are not called upon to declare their sentiments
upon this occasion ; they cannot constitutionally interfere in the business.
He deprecated the consequences of such a measure in very forcible terms,
and hoped the house would proceed no farther in the investigation of the
subject.
Mr. SMITH, (of South Carolina,) recurring to the memorial, observed,
that Congress could not constitutionally interfere in the business, upon
the prayer of the memorialists, as that went to an entire abolition of
slavery ; it could not, therefore, with propriety, be referred to a com-
m.ttee.
In the Southern States, difficulties on this account had arisen in respect
*o th» ''atification of the Constitution ; and, except their apprehensions on
t^t« head had been dissipated by their property being secured and guaran-
tiee! to tlem by the Constitution itself, they never could have adopted it
k)8 Slave Trade. — Gerky. [MarcA
lie then depicted the miseries th t would result from the interference of
C(»ngress in the southern governments. He asserted, as his opinion, that
if theie were no slaves in the Southern States, they would be entirely
depopulated; from the nature of the country, it could not be cultivated
without them. Their proprietors are persons of as much humanity as the
inhabitants of any part of the continent : they are as conspicuous for their
morals as any of their neighbors.
He then asserted that the Quakers are a society not known to the laws ;
that they stand in exactly the same situation with other religious societies.
Their memorial relates to a matter in which they are no more interested
than any other sect whatever ; and it must therefore be considered in the
light of advice ; and is it customary to refer a piece of advice to a com-
mittee? He then contrasted this memorial with one which might be
presented from the sect called Shaking Quakers, whose principles and
practices are represented in a very exceptionable point of light; and asked
whether Congress would pay any attention to such a memorial. He
hoped the memorial would not bo committed.
Mr. PAGE was in favor of the commitment. He hoped that the
benevolent designs of the respectable memorialibts would not be frustrated
at the threshold, so far as to preclude a fair discu^^sion of the prayer of
their memorial. He observed that they do not apply for a total abolition
of slavery. They only request that such measures may be taken, consist-
ent with the Constitution, as may finally issue in the total abolition of the
slave trade. He could, not conceive that the apprehensions entertained by
the gentlemen from Georgia and South Carolina were well founded, as
they respected the proposed interference of Congress.
Mr. MADISON observed, that it was his opinion, yesterday, that the
best way to proceed in the business was to commit the memorial, without
any debate on the subject. From what has taken place, he was more con«
vinced of the propriety of the idea ; but, as the business has engaged the
attention of many members, and nmch has been said by gentlemen, he
would offer a few observations for the consider.ition of the house. He
then entered into a critical review of the circumstances respecting the
adoption of the Constitution ; the ideas upon the limitation of the powers
of Congress to interfere in the regulation of the commerce in slaves, and
showing that they undeniably were not precluded from interposing in their
importation; and generally, to regulate the mode in which every species
of business shall be transacted. He adverted to the western country, and
the cession of Georgia, in which Congress have certainly the power to
regulate the subject of slavery ; which shows that gentlemen are mistaken
in supposing that Congress cannot constitutionally interfere in the business
in any degree whatever. He was in favor of committing the petitions,
and justified the measure, by repeated precedents in the proceedings of
the house.
Mr. GERRY entered into a justification of the interference of Con-
gress, as being fully compatible with the Constitution. He descanted on
the miseries to which the Africans are subjected by this traffic, and said
that he never contemplated this subject without reflecting what his own
feelings would be, in case himself, his children, or friends, were placed in
the same deplorable circumstances. He then adverted to the flagrant
acts of cruelty which are committed in carrying on that traffic, and asked
whether it can be supposed that Congress has no power to prevent such
trans ictions as far as possible. He then referred to the Constitution, and
1790.] Slave Trade. — Jackson. 409
pointed out the restrictions laid on the general government respecting thb
importation of slaves. It is not, he presumed, in the contemplation of any
gentleman in this house to violate that part of the Constitution ;. but that
we have a right to regulate this business is as clear as that we have any
rights whatever ; nor has the contrary been shown by any person who hai*
spoken on the occasion. Congress can, agreeably to the Constitution,
Hy a duty of ten dollars a head on slaves: they may do this immediately.
He made a calculation of the value of the slaves in the Southern States.
He supposed they might be worth about ten million of dollars. Congress
have a right, if they see proper to make a proposal to the Southern States,
to purchase the whole of them ; and their resources in the western coun«
try may furnish them with means. He did not mean to suggest a measure
of this kind : he only instanced these particulars to show that Congress
certainly have a right to intermeddle in this business. He thought that
no objections had been offered of any force to prevent the committing of
the memorial.
Mr. BOUDINOT was in favor of the commitment, enlarged on the
idea suggested by Mr. Gerry, and observed that the memorial contained
only a request that Congress would interfere their authority in the
cause of humanity and mercy.
Mr. GERRY and Mr. STONE severally spoke again on the subject.
The latter gentleman, in opposition to the commitment, said, that this
memorial was a thing of course ; for there never was a society of any con-
siderable extent which did not interfere with the concernsof other people;
and this interference has at one time or other deluded the world with blood.
On this principle he was opposed to the commitment.
Mr. TUCKER moved to modify the first paragraph by striking out all
the words after the word opinion, and to insert the following : ** that the
several memorials proposed to the consiideratioii of this bouse a subject on
which its interference would be unconstitutional, and even its deliberations
highly injurious to some of the states of the Union."
Mr. JACKSON rose,' and observed, that he had been silent on the sub-
ject of the reports coming before the committee, because he wished the
principles of the resolutions to be examined fairly, and to be decided on
their true grounds. He was against the propositions generally, and would
examine the policy, the justice, and use of them ; and he hoped, if he could
make them ap|>ear in the same light to others as they did to him by fair
argument, that the gentlemen in opposition were not so determined in their .
opinions as not to give up their present sentiments.
With respect to the policy of the measure, — the situation of the slaves
here, their situation in their native states, and the disposal of them in
case of emancipation, should be considered. That slavery was an evil
habit he did not mean to controvert ; but that habit was already established,
and there were peculiar situations in countries which rendered that habit
necessary. Such situations the states of South Carolina and Georgia were
in: large tracts of the most fertile lands on the continent remained uncul-
tivated for the want of population. It was frequently advanced on the
floor of Congress how unhealthy those climates were, and how impossible
it was for northern constitutions to exist there. What, he asked, is to be
done with this uncultivated territory ? Is it to remain a waste? Is the
rice trade to be banished from our coasts ? Are Congress willing to de-
>nve themselves of the revenue arising from that trade, and which isdail)
VOL. IV. 59 35
ilO Slave Trcide, — Boudinot. [March.
iDcreasing, and to throw this great advantage into the hands of other
countries 1
Let us examine the use or the b( neiit of the resolutions contained in the
report. I call upon gentlemen to' give me one single instance in which
ihey can be of service. They are of no use to Congress. The powers of
that body are already defined, and those powers cannot be amended, con-
firmed, or diminished, by ten thousand resolutions. Is not the first prep-
osition of the report fully contained in the Constitution 1 l6 not that the
guide and rule of this legislature ? A multiplicity of laws is reprobated in
any society, and tends but to confound and to perplex. How strange w<»uld
a law appear which was to confirm a law ! and how much more strange
must it appear for this body to pass resolutions to confirm the Constitution
under which they sit! This is the case with others of the resolutions.
A gentleman from Maryland (Mr. STONE) very properly observed ihat
the Union had received the different states with all their ill habits about
them. This was one of these habits established long before the Constitu-
tion, and could not now be remedied, lie begged Congress to reflect on
the number on the continent who were opposed to this Constitution, and
on the number which yet remained in the Southern States. The violation
of this compact they would seize on with avidity; they would make a
handle of it to cover their designs against the government ; and many good
federalists, who would be injured by the measure, would be induced to join
them. His heart was truly federal, and it had always been so, and he
wished those designs frustrated. He begged Congress to beware, before
they went too far. He called on them to attend to the interest of two
whole states, as well as to the memorials of a society of Quakers, who
came forward to blow the trumpet of sedition, and to destroy that Consti-
tution which they had not in the least contributed by personal service or
supply to establish.
He seconded Mr. Tucker's motion.
Mr. SMITH (of South Carolina) said, the gentleman from Massachusetts
(Mr. GERRY) had declared that it was the opinion of the select commit-
tee, of which he was a member, that the memorial from the Pennsylvania
society required Congress to violate the Constitution. It was not less
astonishing to see Dr. Franklin taking the lead in a business which looks
so much like a persecution of the southern inhabitants, when he recol-
lected the parable he had written some time ago, with a view of showing
. the impropriety of one set of men persecuting oihers for a difference of
opinion. The parable was to this effect : " An old traveller, hungry and
weary, applied to the patriarch Abraham for a night's lodging. In con-
versation, Abraham discovered that the stranger differed with him on re-
ligious points, and turned him out of doors. In the night, God appeared
unto Abraham, and said. Where is the stranger? Abraham answered, I
found that he did not worship the true God, and so I turned him out of doors.
The Almighty thus rebuked the patriarch: Have I borne with him three-
score and ten years, and couldst thou not bear with him one night ? '' Has
not the Almighty, said Mr. Smith, borne with us for more than threescore
years and ten ? He has even made our country opulent, and shed the
blessings of affluence and prosperity on our land, notwithstanding all its
slaves ; and must we now be ruined on account of the tender consciences
of a few scrupulous individuals, who differ from us on this point?
Mr. BOUDINOT agreed with the general doctrines of Mr. S., but
could not agree that the clause in the Constitution rel'M\ng io the want of
1791.] National Bank.-- Giles. 411
power in Congress to prohibit the importation of such persons as any of
the states, now txisting, shall think proper to admit, prior to the year 1808|
and authorizing a tax or duty on such importation, not exceeding ten
dollars for each person, did not extend to negro slaves. Candor required
that he should acknowledge that this was the express design of the Con-
stitution; and therefore Congress could not interfere in prohibiting the
importation or promoting the emancipation of them prior to that period.
Mr. Boudinot observed, that he was well informed that the tax or (lutv of
ten dollars was provided, instead of the five per cent, ad valorem, and was
so expressly understood by all parties in the Convention ; that, therefore,
it was the interest and duty of Congress to impose this tax, or it would
not be doing justice to the states, or equalizing the duties throughout the
Union. If this was not done, merchants might bring their whole capitals
into this branch of trade, and save paying any duties whatever. Mr.
Boudinot observed, that the gentleman had overlooked the prophecy of
St. Peter, where he foretells that, among other damnable heresies,
** through covetousness shall they with feigned words make merchandise
of you."
[Note. — In the first edition, p. 211, vol. iv., this head terminated, ^* Memorial re-
jecUd" — a mi^itake, which the editor in the present edition corrects, by stating that
with other petitions of a similar object, it was committed to a select committee : that
committee mide a report; the report was referred to a committee of the whole house,
and discussed on four successive days : it was then reported to the house with amend-
ments, and by the house ordered to be inscribed in its Journals, and then UUd on lAs
tubfe.
That report, as amended in committee, is in the following words : " The committee
to whom were referred sundry memorials from the people called Quakers, and also a
memorial from the Pennsylvania Society for promoting the Abolition of Slavery, sub-
mit the following report, (as amended in committee of the whole :) —
** First. That the migration or importation of such j>ersons, as any of the states now
existing shall think proper to admit, cannot be prohibited by Congress prior to the year
1808.
"Secondly. That Congress have no power to interfere in the emancipation of
alaves, or in the treatment of them, within any of the states; it remaining with the
■everal states alone to provide any regulation therein which humanity and true policy
JTtiay require.
•* Thirdly. That Congress have authority to restrain the citizens of the Unitea
States from carrying on the African slave trade, for the purpose of supplying foreigners
Vrith slaves, and of providing, by proper regulations, for the humane treatment, during
t.heir passage, of slaves imported by the said cit.zens into the states admitting such
importations.
" Fourthly. That Congress have also authority to prohibit foreigners from fitting
C3ut vessels in any part of the United States for transporting persons from Africa to
^ny foreign port.' ]
On the Establishment of a National Bank.
House or Representatives, February 2, 1791.
Mr. GILES said he was disposed to consider the plan as containing a
principle not agreeable to the Constitution, and in itself not altogether
expedient.
To show its unconstitutionality, he read the 1st section of the bill which
established the subscribers of the bank into a corporation, to do which, he
conceived the Constitution had given Congress no power. He read the
clause in the Constitution which had been adduced as sanctioning the
exercise of such a power. This clause only respects, he said, all the
necessary powers to carry into effect such as were expressly delegated ;
iiat of forming corporations was not expressly granted. He then adverted
4«1 2 National Bank, — Madison. [February 2,
(t the power of borrowing money, vested in Congress by the Constitution,
and controverted the idea that a bank was necessary to carry it into execu-
tion. It might, he granted, conduce to a greater facility in exercising
that power ; but that it was expedient or necessary he denied, either to
effect loans or establish the government.
If Congress, in this instance, he observed, exercised the power of erect-
ing corporations, it was nowhere limited, and they might, if they thought
fit, extend it to every object, and, in consequence thereof, monopolies of
the East and West India trade be established ; and this would place us, he
said, in the precise situation of a nation without a free constitution.
He referred to the clause in the Constitution which prohibits Congress
from giving a preference to one part of the United States over another.
This he considered, together with his other objections, fully sufficient to
justify a rejection of the plan.
He then offered some observations relative to the expediency of the
measure. If it is problematical only, whether the establishment of this
national bank is agreeable to the Constitution, this ought to be, he thought,
sufficient to prevent an adoption of the system. He showed the conse-
quences which will result from a doubt of the legality of the measure. He
noticed the objection which had been originally made by the people to the
Constitution, and the pains which were taken to obviate their fears and
apprehensions. The adoption of this plan, he said, would realize many
of their disagreeable anticipations. He denied the necessity of a bank for
the preservation of government. The only object, as the subject struck
his mind, was to raise stock ; but it was certainly not expedient, he con-
ceived, to kindle the flame of discontent, and rouse the fears and jealousies
of the people, in many states, to raise stock.
He took notice of some observations which had fallen from a gentleman
from Connecticut, respecting incidental powers, and denied that Congress
possessed those powers. The general government, he said, was not a con-
solidated government, but a federal government, possessed of such powers
as the states or the people had expressly delegated ; but to support these
nicidental powers, ceded to Congress, was to make it, not a federal, not
even a republican consolidated government, but a despotic one. If this
idea was contemplated, the people would be alarmed, they would be justly
alarmed, and he hoped they would be alarmed.
Mr. VINING observed, that he had endeavored to give the subject a
full and dispassionate consideration; and, so far from thinking the
plan contrary to the Constitution, he considered it perfectly consonant
to it.
He adverted to the principles, design, and operations of the bank sys-
tems. Their usefulness he deduced from the experience of those coun-
tries which had been the longest in the use of those institutions. The
constitutionality of the measure he urged from a fair construction of those
powers, expressly delegated, and from a necessary implication ; for he in»
sisted that the Constitution was a dead letter, if implied powers were not
to be exercised.
Mr MADISON did not oppose nil the banking systems, hot did not
approve of the plan now under consideration.
Upon the general view of banks, he recapitulated the several advan-
tages which may be derived from them. The public credit, he granted,
might be raised for a time, but only partially. Banks, he conceived,
tended to diminish the quantity of precious metals in a country ; and the
179L] National Bank. — Madison. hVd
articles received in lieu of a portion of them, which was banisheo, con-
ferred no substantial benefit on the country. Ue dwelt on the casuahien
that banks are subject to.
To be essentially useful in so extensive a country, banks, he said, should
be fixed in ditferent parts of the United States ; and in this view, tb'i local
banks of the several states, he said, could be employed with more advan-
tage than if any other banking system was substituted. Circumstances,
in Great Britain, he observed, required that there should be one bank, as
the object there is to concentrate the wealth of the country to a point, as
the interest of their public debt is all paid in one place. Here a dilfcr-
ence in circumstances called for another kind of policy : the public debt
is piid in all the different states.
He then expressly denied the power of Congress to establish banks
And this, he said, was not a novel opinion ; he had long entertained it.
All power, he said, had its limits ; those of the general government were
ceded from the mass of general power inherent »n the people, and were
consequently confined within the bounds fixed by their act of cession.
The Constitution was this act ; and to warrant Congress in exercising the
power, the grant of it should be pointed out in that instrument. This, he
said, had not been done ; he presumed it could not be done. If we ven*
tured to construe the Constitution, such construction only was admissible,
as it carefully preserved entire the idea on which that Constitution is
founded.
He adverted to the clauses in the Constitution which had been adduced
as conveying this power of incorporati(m. He said he could not find it
in that of laying taxes. He presumed it was impossible to deduce it from
the power given to Congress to provide for the general welfare. If it is
admitted that the right exists there, every guard set to the powers of the
Constitution is broken down, and the limitations become nugatory.
The present Congress, it was said, had all the powers of the old Con-
federation, and more. Under the old government a bank had been estab-
lished ; and thence it was deduced that the present legislature had indubi-
tably that power. The exigencies of government were such, he answered,
under the old Confederation, as to justify almost any infraction of parch-
ment rights ; but the old Congress were conscious they had not every
power necessiry for the complete establishment of a bank, and recom-
mended to the individual states to make sundry regulations for the com-
plete establishment of the institution.
To exercise the power included in the bill was an infringement on the
rights of the several states ; for they could establish banks within their
respective jurisdictions, and prohibit the establishment of any others. A
law existed in one of the states prohibitory of cash notes of hand, paya-
ble on demand. The power of making such a law could not, he pre-
sumed, be denied to the states ; and if this was granted, and such laws
were in force, it certainly would effbctually exclude the establishment
of a bank.
This power of establishinir a bank hud been, he said, deduced from
tne right, granted in the Constiiutirm, of borrowing money ; but this, he
conceived, was not a bill to borrow money. It was said that Congress
had not only this power to borrow money, but to enable people to lend.
In answer to this, he observed that, if Congress had a right to enable
those people to lend, who are willing, but not able, it might be said
that they have a right to compel those to lend, who were able, and
not willing.
1. 1 4 National Bank. — Am es. [February a,
He ad\ ;rte ! to that clause in the Constitution which empowers Congress
10 pass all the laws necessary to carry its powers into execution, and, ob-
rterving on the diffusive and ductile interpretation of these words, and the
boundless latitude of construction given them by the friends of the bank,
said that, by their construction, every possible power might be exercised.
The government would then be paramount in all public cases : charters,
incorporations, and monopolies, might be given, and every limitation effect-
ually swept away, and could supersede the establishment of every bank in
the several states. The doctrine of implication, he warned the friends to
this system, was a dangerous one, which, multiplied and combined in the
manner some gentlemen appeared to contemplate, would form a chain
reaching every object of legislation of the United States. This power to
incorporate, he contended, was of primary importance, and could by no
means be viewed as a subaltern, and therefore ought to be laid down in
the Constitution, to warrant Congress in the exercise of it, and ought not
to be considered as resulting from any other power.
Incorporation, he said, is important as the power of naturalization ; and
Congress, he presumed, would not exercise the power of naturalizing a
foreigner, unless expressly authorized by the Constitution. He read a
sentence in the bill respecting the power of making such regulations as
were not contrary to law. What law ? Was it the law of the United
States? There were so few, that this allowed a very considerable lati^
tude to the power of making regulations, and more than any member,
ho conceived, would wish to grant. Were the laws of the individual
states contemplated by this provision? Then it would be in the power of
the separate states to defeat an institution of the Union. He asked by
what authority Congress empowered a corporation to possess real estate.
He reprobated this idea. To establish this bink was, he said, establishing
a monopoly guarantied in such a manner that no similar privilege could
be granted to any other number of persons whatever. He denied the
necessity of instituting a bank at the present time. The Constitution
ouorht not to be violated without urgent necessity indeed. There were
banks, in several of the states, from which some advantages could be
derived which could not be gained from an institution on the plan pro-
posed.
In confirmation of his sentiments, he adduced certain passages from
speeches made in several of the state eom'>entions by those in favor of
adopting the Constitution. These passages were fully in favor, of this idea
— that the general government could not exceed the cTpressli/'delegaied
powers. In confirmation also of this sentiment, he adduced the amend-
ments proposed by Congress to the Constitution.
He urged, from a variety of considerations, the postponement of the
buisness to the next session of Congress.
Mr. AMES. For his own part, he never doubted the constitutionality
of the plan ; and if the pul)lic sense was to be regarded on the occasion,
their approbation of the measures taken by the old Confederation, respect-
inor ihe Bank of North America, and their total silence on the constitu-
tionality of the plan before Conorrcss at this day, were to him sufficient
proofs of their opinions on the subject.
The first question that occurred on this subject was, whether the powers
of the house were confined to those expressly granted by the letter of the
Constitution, or whether the doctrine of implication was safe ground to
proceed upon. If the letter of the Constitution was to be adhered to.
i79l.] National Bank. — Ames. 416
the question he .deemed determined; but if a more rntiond plan wm
adopted, and the sense of the Constitution, upon strict examination, ap>
peared even doubtful, every memoer must then appeal to his conscience
and understanding. If the powers of ihe house were circumscribed by
the letter of the Constitution, much expense might have been saved to
the public, as their hands would have been completely tied. But, by the
"very nature of government, the legislature had an implied power of using
^very means, not positively prohibued by the Constitution, to execute the
ends for which that government was instituted. Every constitutional right
should be so liberally construed as to effect the public good. This, it
has been siid, was taking too great a latitude; but certainly to promote
the ends of government was the end of its existence ; and by the ties of
conscience, each member was bound to exercise every lawful power which
could have a tendency to promote the general welfare. It had been said
that the doctrine of implication was dangerous, and would alarm the
people. He thought it would not, unless the alarm was f<»unded.
Suppose, he said, the power of raising armies was not expressly granted
to the general government; would it be inferred from hence, that the
power of declaring war, without the means of carrying it on, had been
ceded to them ? Would it be said that the blood of fellow-citizens w«i8
crying for vengeance, though their lives and property called for protection
from the hand of government? Would it be said that they had not a
constitutional right to be protected ? Would it be urged that the Con-
stitution, by not ejy)ressly granting to the general government the power
of levying armies, had put it out of their power to protect its citizens T
This, he conceived, would be a very dangerous doctrine.
Suppose the power of borrowing money had not been expressly given to
the federal government ; would it not, in emergencies, be inferred from
the nature of the general powers granted to it? Suppose the power to
lend had not been, mentioned, and a surplus of revenue in the public cof-
fers : should it not be distributed among the people, but locked up and
suffered to remain unproductive in the treasury ? He imagined not. Sup-
pose the question of redeeming the prisoners in captivity at Algiers was
before the house; would it be uraed that nothing could be done in their
/hvor by the general government, because no power was specially granted?
No. Every person, he conceived, that felt as a man, would not think his
hands lied when they were to be extended to the relief of suffering fellow-
citizens. The power of buying certificates was not particularly mentioned
in the Constitution ; yet it had been exercised by the general government,
^nd was inferred from that of paying the public debt, and from the reason
of the case. The power of establishing banks, he conceived, could be
cieduced from the same source — from their utility in the ordinary opera-
tions of government, and their indispensable necessity in cases of sudden
Emergencies. It was said that the state banks would serve all these pur-
p)uses; but why deprive the general government, he asked, of the power
«^f self-defence?
Mr. Ames proceeded to prove that the power of incorporating the sub-
5?cribers to the bank could be deduced from that clause in the Cotistitution
^vhich had been termed the swrrpiufr rlausc. Unless a re:is<mable latitude
^f construction of this part of the Constitution was allowed, he did not
fiee upon what authority several acts of Congress would rest. ^Vhence
did the general government draw the authority they had exercised over the
western territory? That authority, he answered, must of necessity belong
to Congress : it cou\d not rest with the individual states
416 National Bank. — Ames. [Ftbruarp S^
The power here was derived by implication, and was deduced from the
reason and necessity of the case ; and the power contended for iq the pres-
ent case might, for the same reasons, be exercised, and was drawn from
the same source. The government of the western territory was a species
of corporation — a corporation in its nature the most important ; and
would it be said that Congress had acted unconstitutionally when they
established it? And would the territory be left under the control of the
individual states ? He presumed not.
By the Constitution, a power of regulating trade was .specially given to
(congress; and under this clause they had established regulati(ms affecting
ships, seamen, lighthouses, 6lc. By parity of reasoning, he conceived
th>«t, as the power of collecting taxes was specified among the rights granted
by the Constitution to Congress, they undoubtedly were entitled to make
regulations affecting the instruments by means of which those taxes were
to be collected.
Some opposition to the system arose from the idea that it was an in-
fringement on the rights of the individual states. This objection he an*
swered. It could not be denied, he said, that Congress had the right to
exercise complete and exclusive jurisdiction over the district of ten miles
square, ceded for the seat of permanent residence, and over such spots as
were ceded for the establishment of lighthouses, &.c. In these places,
then, it must be granted that Congress had authority to establish a bank.
If this was allowed, (and he could not see how it could be denied,) then
the question became a question of place, and not of j)rinciple. He ad-
verted to the preamble of the Constitution, which declares that it is estab-
lished for the general welfare of the Union. This vested Congress with
the authority over all objects of national concern, or of a general nature.
A national bank undoubtedly came under this idea; and though not spe-
cially mentioned, yet the general design and tendency of the Constitution
proved more evidently the constitutionality of the system, than its silence
in this particular could be construed to express the contrary. He deduced
the power also from those clauses in the Constitution which authorize
Congress to lay and collect taxes. This, he said, could not be done from
every corner of so extended an empire without the assistance of paper. In
the power of borrowing money, he saw that of providing the means, by
the establishment of a bank. But it has been said that, if Congress could
exercise tne power of making those who were willing, able to lend, they
might carry their authority to creating the will in those who were able
This would be, he said, an abuse of power, and reasonings drawn from it
could not l>e just.
Gentlemen had noticed the amendment proposed by Congress to the
Constitution, as conveying the sense of the legislature on the nature of the
powers vested by that instrument. The amendment stated, that it should
be declared, that the powers not expressly delegated to the general govern-
ment, and such as could be exercised by the states, should be considered
as belonging to the states. But the power of establishing a national bank,
he said, could not be exercised by the stales, and therefore rested nowhere
but in the federal legislature.
The doctrine of implication, it had been said, would excite alarms. It
had been resorted to, and alarms had not been excited. He conceived it
a necessary doctrine in many cases.
He had no desire to extend the powers granted by the Constitution
beyond the limits prescribed by them. But in cases where there %▼»•
1 71) 1 .] National Bank. — Madison. 41"
cJoiibt as to its meaniog aad iDtention, he thought it his duty to consult
iiis conscience and judgment to solve them ; and even if doubts did stiJl
xemaiu on two different interpretations of it, he would constantly embrace
that the least involved in doubt.
Mr. SEDGWICK expressed his surprise at the objections made to the
constitutionality of the bill.
A gentleman from Virginia (Mr. Madison) had taken some pains to
convince the house that he had uniformly been opposed to seeing the gen-
eral government exercbe the power of establishing banks. He did not
wish to dispute with the honorable member the merit of consistency, but
only begged leive to remark that the same gentleman had not always been
averse to the exercise of power by implication. Witness the proceedings
on the propriety of vesting the President of the United Stated with the
authority of removing officers. But in this case, he was willing to take
up the question solely on its own merits, without reference to former
opinions.
In the present case, he conceived the determination of the question
rested, in a great measure, on the meaning of the words necessary and
proper,
Mr. MADISON. Those two words had been, by some, taken in a
very limited sense, and were thought only to extend to the passing of such
law:$ as were indispensably necessary to the very existence of the govern-
ment. He was disposed to think that a more liberal construction should
be put on them, — indeed, the conduct of the legislature had allowed them
a fuller meaning, — for very few acts of ihe legislature could be proved
essentially necessary to the absolute existence of government. He wished
the words understood so as to permit the adoption of measures the best*
calculated to attain the ends of government, and produce the greatest
guoji/iijn of public utility.
In the Constitution, the great ends of government were particularly
enumerated ; but all the means were not, nor could they all be, pointed
out, without making the Constitution a complete code of laws: some dis^
cretionary power, and reasonable latitude, must be.Iefl to the judgment of
the legirjlature. The Constitution, he said, had given power to Congress
to lay and collect taxes ; but the quantum, nature, means of coUeciii^g,
d&c, were of necessity lefl to the honest and sober discretion of the legis-
lature.
It authorized Congress to borrow money ; but of whom, on what terms,
and in whit manner, it had not ventured to determine; these points o{
aecondary importance were also left to the wisdom of the legislature. The
tnore important powers are specially granted ; but the choice from the
known and useful means of carrying the power into effect, is left to the
ciecision of the legislature. He enumerated some other powers which are
specified in the Constitution as belonging to Congress, and of which the
raeans of execution are not mentioned ; and concluded this part of his
Tirgument by observing that, if the bank which it was proposed to establish
Ijy the bill before the house could be proven necessary and proper to carry
into execution any one of the powers given to Congress by the Constku.
ition, this would at once determine the constitutionality of the measure.
He would not, he said, dwell any longer on the constitutionality cf the
plan under consideration, but would only observe that no power could be
exercised by Congress, if the letter of the Constitution was strictly ad-
hered to, and no latitude. of construction allowed, and all the good that
VOL. IV. 63
41 8 National Bank. — Stone. [February 2»
might be reasonably expected from an efficient government entirely frus*
trated.
Mr. LAWRENCE. The principles of the government, and ends of
the Constitution, he remarked, were expressed in its preamble. It is
established for the common defence and general welfare. The body of
that instrument contained provisions the beet adapted to the intention of
those principles and attainment of those ends. To these ends, principles,
and provisions, Congress was to have, he conceived, a constant eye ; and
then, by the sweeping clause, they were vested with the powers to carry
the ends into execution.
Mr. JACKSON. From the power given the general government of
making all necessary laws concerning the property of the United States, a
right to establish a national bank had been deduced ; and it was asked if
bank notes were not property. He said they were a property of a peculiar
nature. They were not property as well as an ox or an ass; so they could
not be taxed.
It had been asked whether Cono^ress could not establish a bank within
the ten miles square, granted to the general government for the permanent
residence of the federal legislature. Congress could not, because they
had no authority to force the circulation of this paper beyond the limits
of the ten miles. The fiscal administration of the Union was said to be
vested in Congress. But this did not authorize their adoption of any
measures they should think fit for the regulation of the finances. The
very Constitution which granted these fiscal powers restricted them by
particular clauses; for example, Congress could not without control lay
a poll tax, and could not, in any shape, impose duties on exports; yet
they were undoubtedly fiscal operations.
Gentlemen, he said, had deduced this power from various parts of the
Constitution. The preamble and context had been mentioned ; the clause
that provides for laying taxes had been particularly dwelt upon; but surely
the bill before the house did neither lay an excise, direct tax, or any other,
and could, therefore, not come within the meaning of the clause.
Mr. BOUDINOT. But gentlemen say that the Constitution does not
expressly warrant the establishment of such a corporation. If, by expressly ^
express words are meant, it is agreed that there are no express words; and
this is the case with most of the powers exercised by Congress ; for if the
doctrine of necessary implication is rejected, he did not see what the su-
preme legislature of the Union could do in that character ; if this power
is not clearly given in the Constitution by necessary implication, then it
is a necessary end proposed and directed, while the common and useful
necess try means to attain that end are refused, or at least not granted.
Mr. Boudinot was firmly of opinion that the national bank was the neces-
sary means, without which the end could not be obtained.
Mr. S rONE thought that the friends of the bill were not willing to
confine themselves to such means as were necessary and prnpfr^ but had
extended their views to those eonrenient and agreeable. If, in the plan
before the house, he said, a provision had been made to secure a certainty
that money could be procured by the government on loan from this bank,
there would be more plausibility, he tliought, in urging its establishment
by a construction of the power of borrowing money. But the bank could,
and, whenever it was their interest, certainly would, refuse lending to gov-
ernment. If the power, in this case, was deduced by implication, and
was exercised because it was thought nceessitry and proper, it might b*
17D1.] ^ iVoftoita/ BoitiE:. -^ Gbrrt. 419
the opinion of a future Confess that monopolies, in certain cases, migat
be useful, and a door would then be open for their establishment
February 7, 1791.
Mr. GERRY. The gentlemen on different sides of the question do
not disagree with respect to the meaning of the terms taxes, duties^ im-
posts, excises, &»c., and of horrotoing money, but of the word necessary ,
and the question is, What is the general and popular meaning of the
term ? Perhaps the answer to the question will be truly this — That, jn a
general and popular one, the word does not admit of a definite meaning,
but that this varies according to the subject and circumstances. With
respect to the subject, for instance; if the people, speaking of a garrison
besieged by a superior force, and without provisions or a prospect of re-
lief, should say it was under the necessity of surrendering, they would
mean a physical necessity ; for troops cannot subsist long without pro-
visions. But if, speaking of a debtor, the people should say he was fright-
ened by his creditor, and then reduced to the necessity of paying his
debts, they would mean a legal, which is very different from a physical
necessity ; for although the debtor, by refusing payment, might be con-
fided, he would be allowed sustenance; and the necessity he was under
to pay his debts would not extend beyond his confinement. Again, if it
should be said that a client is under the necessity of giving to his lawyer
more than legal fees, the general and popular meaning of necessity would
in this case be very different from that in the other cases. The necessity
would neither be physical nor legal, but artificial, or, if I may be allowed
the expression, a long-robed necessity. The meaning of the word ^^neceS'
5riry " varies, also, according to circumstances : for, although Congress
have power to levy and collect taxes, duties, &c. ; to borrow money ; and
to determine the time, quantum, mode, and every regulation necessary and
proper for supplying the treasury, — yet the people would apply a different
meaning to the word necessary under different circumstances. For in-
stance, without a sufficiency of precious metals for a medium, laws creat-
ing an artificial medium would be generally thought necessary for carry-
m:X into effect the power to levy and collect taxes ; but if there was a
sufficiency of such metals, those laws would not generally be thought
necessary. Again, if specie was scarce, and the credit of the government
low, collateral measures would be by the people thought necessary for
obtaining public loans; but not so if the case was reversed. Or, if parts
of the states should be invaded and overrun by an enemy, it would be
thought necessary to levy on the rest heavy taxes, and collect them in a
short period, and to take stock, grain, and other articles, from the citi-
zens, without their consent, for common defence ; but in a time of peace
^nd safety such measures would be generally supposed unnecessary. In-
stances m ly be multiplied in other respects, but it is conceived that these
are sufficient to show that the popular and general meaning of the word
** necessiry *' varies according to the subject and circumstances.
The Constitution, in the present case, is the great law of the people,
who are themselves the SDvereigrn legislature ; and the preamble is in these
words — "We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity, provide for
the common defence, promote the general welfare, and secure the blessing
ol liberty to ourselves and our posterity, do ordain and establish this Con*
%tiintion for the United States of America."
4Si National BmtL — Gww. [February
Thtse ire the ^eat objects lor which the Constitution was establislrtd :
and iu adminiivteriiig it, we should always keep them in view. And hete
it is remarkable, that, although common defence and general welfare are
held up, in the preamble, amongst the primary objects of attention, cney
are again mentioned in the 8th section of the 1st article, vi^reby wr are
enjoined, in laying taxes, duties, &c., particularly to regard the con^^on
defence and general welfare. Indeed, common sense dictates the ii*eas*
fire ; for the security of our property, famijies, and liberties — of every tnia^
de^r to us — depends on our ability to defend them. I'he means, tWre-
fore, for attaining this object, we ought not to omit a year, a nrK>Dtb, or
even a day, if we could avoid it ; and we are never provided for defti^ce
unless prepared for sudden emergencies.
In the present case, the gentlemen in the opposition generally, as well
as the gentleman first up, from Virginia, give the whole clause by wbioh
Congress are authorized *' to make -all laws necessary and proper,'' d»«c.,
no meaning whatever; for they say the former Congress bad the same
power under the Confederation, without this clause, as the present Congress
have with it. The " Federalist " is quoted on this occasion ; but, although
the author of it discovered great ingenuity, this part of his performance I
consider as a political heresy. His doctrine, indeed, was calculated Co
lull the consciences of those who differed in opinion with him at that
lime; and, having accomplished his object, he is probably desirous that it
may die with the opposition itself The rule in this case says, that where
the words bear no signification, we must deviate a little; and as this devi-
ation cannot be made by giving the words less than no meaning, it must
be made by a more liberal construction than is given by gentlemen in the
opposition. Thus their artillery is turned against themselves; for their
own interpretation is an argument against itself
The last rule mentioned relates to the ppirit and reason of the law;
and the judge is of opinion ** that tlie most universal and effectual way of
discovering the true meaning of a law, when the words are dubious, is by
considering the reason and spirit of it — of the cause which moved the
legislature to enact it." The causes which produced the Constitution
were an imperfect union, want of public and private confidence, internal
commotions, a defenceless community, neglect of the public welfare, and
danger to our liberties. These are known to be the causes, not only by
the preamble of the Constitution, but also from our own knowledge of
the history of the times which preceded the establishment of it. If these
' weighty causes produced the ConstKution, and it not only gives power for
removing them, but also authorizes Congress to make all laws necessary
and proper for carrying these powers into effect, shall we listen to asser-
tions, that these words have no meaning, and that the new Constitution
has not more energy than the old ? Shall we thus unnerve the govern-
ment, leave the Union as it was under the Confederation, — defenceless
against a banditti of Creek Indians, — -and thus relinquish the protection
of its citizens? Or shall we, by a candid and liberal construction of the
powers expressed in the Constitution, promote the great and important
objects thereof? Each member must determine for himself I shall,
without hesitation, choose the latter, and leave the people and states to
determine whether or not I am pursuing their true interest. If it is in-
' quired where we are to draw the line of a liberal construction, I would
also inquire. Where is the line of restriction to be drawn ?
The interpretation of the Constitution, like the prerogative of a aove*
I
1 791 .] NaiimuU Rank. — Gabrt. 4fiK|jr «
r«ign, may be abused ; but from hence the disabuse of either caoiiot be
inferred. In the exercise of prerogative, the minister is responsible for
imis advice to his sovereign^ and the members of either house are respoa-^
9ible to their constituents for their c^induct in construing the Constitution,
"VTe act at our peril : if our conduct is directed to the attainment of th^
^reat objects of government, it will be approved, and not otherwise. Bui
^his cannot operate as a reason to prevent our discharging the trusts
reposed in us.
L:a us now compare the different modes of reasoning on this subject,,
^nd determine which is right — for both cannot be.
The gentleman from Virginia (Mr. Madison) has urged the dangerous
tendency of a liberal coustruction; but which is most dangerous, a liberal
«~>r a destructive interpretation ? The liberty we have taken in interpret-
ing the Constitution, we conceive to be necessary ^ and it cannot be denied
'^Jd be useful in attaining the objects of it ; but whilst he denies us this
1 iberty, he grants to himself a right to annul part, and a very important ;
part, of the Constitution. The same principle that will authorize a
destruction of part, will authorize the destruction of the whole, of the
^Constitution ; and if gentlemen have a right to make such rules, they
liave an equal right to make others for enlarging the powers of the Consti-
tution, and indeed of farming a despotism. Thus, if we take the gentle-
man for our pilot, we shall be wrecked on the reef which he cautions us
to avoid.
The gentleman has referred us to the last article of the amendment prcv
posed to the Constitution by C(mgress, which provides that the powers not
delegated to Congress, or prohibited to the states, shall rest in them or
the people; and the question is, What powers are delegated? Does the
gentleman conceive that such only are delegated as are expressed? Jf
so, he must admit that our whole code of laws are unconstitutional. This
he disavows, and yields to the necessity of interpretation, which, by a
fair and candid application of established rules of construction to the Con-
stitution, authorize, as has been shown, the measure under consideration.
The usage of Congress has also been referred to ; and if we look at
their acts under the existing Constitution, we shall find they are generally
the result of a liberal construction. I will mention but two. The first
relates to the establishment of the executive departments, and gives to the
President the power of removing officers. As the Constitution is silent
on this subject* the power mentioned, by the gentleman's own reasoning,
is vested in tlie states or the people. He, however, contended for an
assumption of the power, and, when assumed, urged that it should be
rested in the President, although, like the power of appointment, it was,
; l»y a respectable minority in both houses, conceived that it should have
been vested in the President and Senate. His rule of interpretation then
was, therefore, more liberal than it is now. In the other case. Congress
determined by law, with the sanction of the President, when and where
they should bold their next session, although the Constitution provides
that this power shall rest solely in the two houses. The gentleman al«o
advocated this measure, and yet appears to be apprehensive of the conse-
quences that maif result from a construction of the Constitution whicli
admits of a national bank. But from which of these measures is danger
to be apprehended I The only danger from our interpretation would bo
the exercise by Congress of a general power to form corporations ; but
the dangers &eaulUDg firom the gentleman's interpretation are very difTer*
36
4£2 Militia Bill. — SuBRMikN. [Dectmbet ^
ent ; for whal matf we not apprehend from the precedent of having assumed
a power on which the Constitution was silent, and from having annexed
It to the supreme executive ? If we have this right in one instance, we
may extend it to others, and make him a despot.
Militia Bill.
Duember 22^ 179U.
Mr. BLOODWORTH moved to strike out the words in the 1st seo
tion, *' except as herein exempted," and to insert, in lieu thereof, ** except
such as shall be exempted by the legislatures of the particular states."
Mr. SHERiVIAN wished the gentleman would consent to alter his
motion, and let it be all between certain ages, and who are not exempted
from militia duty by the respective states.
Mr. MADISON said, the motion ought to go still farther, and exempt
the judges of the federal courts; because some states, having no militia
laws, could not have exempted them, and the propriety of exonerating
them from militia duty was too apparent to need any arguments to
prove it.
Mr. SHERMAN thought the motion was simple as it stood, and would
decide a question upon which the house seemed to be divided. It would
afterwards be open for amendment, so far as to add the exemptions.
Mr. MADISON said, if the gentleman would vary his motion, so as to
embrace his idea, he would have no objection tc the adoption of that part
which was first moved. •
Mr. LIVERMORE declared, that he had several objections. The first
was, that the expression in the motion was of a doubtful import. It could
not be readily ascertained, whether it had relation to .the militia laws at
this time existing in the several states, or to the existing and future laws.
If it opens a door to future laws, it is impossible for us to foresee where
it will end. It destroys that certainty which is necessary in a government
of laws, and renders us incapa^ble of judging of the propriety of our own
act. Some states may exempt all persons above thirty years of age ;
some may exempt all mechanics; and others all husbandmen, or any
general description of persons; and this uncertainty will be productive of
inconceivable inconveniences. Hence it will be improper to adopt the
amendment in the present form.
Mr. SHERMAN observed, that most of the powers delegated to the
government of the United States, by the Constitution, were altogether
distinct from the local powers retained by the individual states. But in
the case of the militia it was different. Both governments are combined
in the authority necessary to regulate that body. The national govern-
ment is to provide for organizing, arming, and disciplining the militia,
and for governing such part of them as may be employed in the service
of the United States. But, then, it is to be observed, that the states do,
respectively and expressly, reserve out of such power the right of appoint-
ing officers, and the authority of training the militia; so that the concur-
rence of both governments is evidently necessary, in order to form and
train them. Now, in governing the mililia, the states have, at times
other than when they are in the actual service of the United States, an
nidisputable title to act as their discretion shall dictate. And here it
was an allowable supposition, that the particular states would have the
greatest advantage of judging of the disposition of their own citizens,
and who are the most proper characters to be exempted from their gov
1 790.] Militia Bill — Williamson. 42^
ernment. He admitted, however, that the general governmeat bad (uDde*
that clause of the Constitution which gave the authority to exercise all
powers necessary to carry the particularly enumerated powers into effect)
a right to make exemptions of such officers of the government whose
duties were incompatible with those of militiamen. Every thing, besides
this, he believed, was vested in the particular states ; and he would ask
the gentleman whether it was not a desirable thing to give satisfaction on
these points; and whether they ought not to avoid stretching the general
ptiwer, which he had mentioned, beyond what was absolutely necessary to
answer the end designed.
An accommodation (continues Mr. Sherman) on this point took place
Letween the gentlemen, and the two motions were blended and made into
^ne; whereupon Mr. GILES rose and said, he had now greater objections
10 the motion than before, and was well persuaded that if the gentleman
{Mr. Sherman) attended to its consequences, he would find that it was
T)ot only extremely dissimilar in its principles, but tended to overthrow the
very doctrine laid down in the first proposition, which was intended to
decide whether, under the division of the authority for forming and raising
the militia, the power of making exemptions remained in the state govern-
raents, or was granted by the Constitution to the government of the
United States. Now, in the compromised proposition, there appears to
he a mixture of power ; the first part seems to declare that the states
ought to make the exemptions; yet the subsequent absolutely exercises it
on the part of the United States. If, then, the power of exemption be
either ceded to the general government, or reserved to the state govern-
ments, the amendment must fall to the ground.
But this was not his only objection. lie conceived that, whether the
power of exemption was in the state or federal government, there was one
description of men mentioned in the proposition which could not be ex-
empted or further privileged by the house. He alluded to the members
of the legislature of the United States. The privilege of these persons
was taken up and duly considered by the Convention, who then decided
what privileges they were entitled to. It is under this clause, said he, that
every thincr necessary or proper to be done for members of Congress was
done. *' The senators and representatives shall receive a compensation
for their services, to be ascertained by law, and paid out of the treasury of
the United States. They shall in all cases, except treason, felony, and
breach of peace, be privileged from arrest during their attendance at the
session of their respective houses, and in going to and returning from the
sime ; and fi>r any speech or debate in either house, they shall not be
questioned in any other place." Now, if the Convention took up this sub-
ject, (as it is plain from the foregoing clause that they did,) it is reason
able to presume that they made a full declaration of all our privileges; and
it is improper to suppose that we are possessed of similar powers with the
Convention, and able to extend our own privileges. I conceive that every
inconvenience which would attend the want of an exemption in the bill, is
completely remedied by the Constitution ; and therefore it is impolitic to
make a useless resfulation.
Mr. WILLIAMSON. When we departed from the straight line of
cJiity marked out for us by the first principles of the social compact, we
found ourselves involved in difficulty. The burden of militia duty lies
equally upon all persons ; and when we contemplate a departure from this
principle, by making exemptions, it involves us in our present embarrass
fn^nt I wish, therefore, that, before we proceed any farther in consider
124* Time of choosing Electors, — Sherman. [Januafy Y4
ing the propriety of the amendment, we should consider the intention of
the Constitution. When it speaks of regulating the militia, was it for
organizing, arming, and disciplining, the militia of the several states, that
Congress ought to provide? I think it was not the militia of the nation,
but that which existed in the several states. It is impossible the Con-
vention could have had any thing else in contemplation ; because the Con-
stitution says that Congress shall have the power of such parts of them as
may be employed in the service of the United States. If we are, then,
to govern the militia, it must be such men as the particular states have
declared to be militia.
Mr. BOUDINOT. With respect to the power of exempting from mi-
litia duty, I believe little doubt will remain on the mind of any gentle-
man, aAer a candid examinatioii of the Constitution, but that it is vested
in Congress. This, then, reduces the question to the doctrine of expedi-
ency. Is it more expedient that the general government should make
the exemptions, or leave it to the state legislatures ? For my part, I think
we ought to exercise the power ourselves ; because I can see neither ne-
cessity, propriety, nor expediency, in leaving that to be done by others
which we ourselves can do without inconvenience.
Mr. JACKSON, (a gentleman of superior talents, who had been an
active member of the Federal Convention, in framing the general Constitu-
tion, and who is one of the judges of the Supreme Court of the United
States ; was likewise a member of the late Convention of Pennsylvania ;
and it is in evidence that he gave his assent to the present Constitution of
that state, one article of which declared that persons conscientiously scru-
pulous of bearing arms shall be exempted from performing militia duty,
upon the condition of their paying an equivalent.) Is not this a dechifa-
tion of the sense of the people of Pennsylvania, tnat they, and they only,
had the right to determine exemptions so far as relates to their own citi-
zens ? And it is observable that this Constitution has been framed whilst
the federal government was in full operation. If this privilege belongs to
the state, as they have declared it does, why shall Congress attempt to
wrest it from them, first by undei taking exemptions for them, and then
depriving them of a tax, which they contemplate to receive into the state
li'easury, as an equivalent for such exemption ? Certainly such conduct
must excite alarm, and occasion no inconsiderable degree of jealousy.
These circumstances and considerations are forcible arguments with me
to desist.
December 24, 1790.
. Mr. LIVERMORE. He saw no reason why Congress should grant
in exemption to those who are conscientiously scrupulous of bearing arms,
nore than to any other description of men. They ought, in his opinion,
X> be exempted by the state legislatures. As to the money accruing from
such exemptions, he could not conceive that Congress was authorized to
raise a revenue for the United States by the militia bill ; nor was any such
thing ever intended by the Constitution.
Bill to determine the Time when the Electors of President and
Vice-President shall be chosen,
HouBK OF Representatives, January 14, 1791
Mr. SHERMAN showed, from the Constitution, that Congress possess
the power of appointmg the time of choosing the electors, and ine time
1791.] Post'Office Bin, — Bournv. 42€
irhcn they should meet to gire in their votes. He was in faror of Con-
fess exercising this power, in order to guard against ail intrigue ; and
this, he conceired, was agreeable to the people ; for in none of the con-
ventions was an amendment of this article ever nioved for.
On the Post' Office Bill. — On a Motion to authorize the
President to cJioose the Mail Route,
HovsE or REPRBSKfTTATivES, December G, 1791.
Mr. SEDGWICK. As to the constitutionality of this delegation, (of
'Ki^ower to establish post-roads, J it was admitted by the committee them-
^^elves, who brought in the bill ; for, if the power was altogether indele-
^^ble, no part of it could be delegated; and if a part of it could, he saw
wio reason why the whole could not. The 2d section was as unconstitu-
tional as the l!4t; for it is there said, that " it shall be lawful for the post-
^nnster-general to establish such other roads, or post-roads, as to him may
«eem necessary."
Congress, lie observed, are authorized not only to establish post-offices and
post-roads, but also to borrow money. But is it understood that Congress
are to go, in a body, to borrow every sum that may be requisite ? Is it not
rather their office to determine the principle on which the business is ta
be conducted, and then delegate the power of carrying their resolves into
execution ?
Mr. GERRY observed, that, since the words of the Constitution ex-
presdy vested in Congress the power of establishing post-offices and post-
rosds, and since the establishing of post-roads cannot possibly mean any
thing else but to point out what roads the post shall follow, the proposed
amendment cannot take effect without altering the Constitution. The
house could not transfer the power which the Constitution had vested in
them. Supposing even they could ; still it must be allowed that they,
assembled from every quarter of the Union, must collectively possess
more of that kind of information which the present subject required, than
could be obtained by any executive officer. If it was thought necessary,
in the present instance, to transfer the power from their own to other
hands, with what decree of propriety conid they be said to have under-
taken to determine the ports of entry throughout the United States, since
the Constitution mentions nothing further on that subject than the power
of laying duties, imposts, and excises? According to the arguments now
advanced, the legislature might have contented themselves with simply
xletermrning the amount of the duties and excises, and left the rest to the
ntecutive. But if such conduct would have been improper in that in--
Mtance, much more so would it appear in the present case ; since, on the
one hand, there is no provision in Congress that should establish ports of
entry, whereas there is no other for the establishment of post-roads.
Mr. B. BOURNE was in favor of the amendment, which he thought
both expedient and constitutional. In speaking of post-offices and post-
roads, the Constitution, he observed, speaks in general terms, as it does
o* a mint, excises, Slc. In passing the excise law, the house, not thinking
themselves possessed of sufficient information, empowered the President
•o mark out the districts and surveys ; and if they had a right to delegate
!«och power to the executive, the further delegation of the power of mark-
ing out the roads for the conveyance of the mail could hardly be thought
daogermm. The Con^titntior meant no more than that Congress should
voi^ IV. 64
126 Cod Fishery Bill — Giles. [Fe^iiorj 3.
possess the exclusive right of doing that by themseives, or by any other
person, which amounts to the same thing: the business he thought much
more likely to be well executed by the President, or the postmaster-general,
than by Congress.
Post' Offices and Post-Roods.
HousK or Represektativcs, January 3, 1792.
On a motion of Mr. FITZSIMONS, to allow stage proprietors, who
transport the mail, to carry passengers also, it was argued —
That clause of the Constitution which empowers the federal government
to establish post-offices and post-roads, cannot (it was said) be understood
to extend farther than the conveyance of intelligence, which is the proper
subject of the post-office establishment: it gives no power to send men
and baggage by post. The state governments have always poi«sessed the
power of stopping or taxing passengers. That power they have never
given up : and the proposition now made to wrest it from them might be
viewed as an attempt to lay the state legi>latures prostrate at the feet of
the general government, and will give a shock to every state in the
Union.
If, by the construction of that clause of the Constitution which
authorizes Congress to make all laws necessary for carrying into execu-
tion the several powers vested in them, they should establish the proposed
regulations for the conveyance of the mail, they may proceed farther, and
so regulate the post-roads as to prevent passengers from travelling on
them; they may say what weights shall be cariied on those roads, and at
what seasons of the year; they may remove every thing that stands in the
way; they may level buildings to the ground, under the pretence of ma-
king more convenient roads; they may abolish tolls and turnpikes; they
may, where an established ferry has been kept for a hundred years past in
the most convenient place for crossing a river, give the post-rider authority
to set up a new one beside it, and ru*n the old establishment; they may
say, that the person who carries the mail shall participate in every privi-
lege that is now exclusively enjoyed by any man or body of men ; — and
allege, as a reason for the^e encroachments, that they are only necessary
encouragements to carry the mail of the United States : in short, the in-
genuity of man cannot devise any new proposition so strange and incon-
sistent, as not to be reducible within the pale of the Constitution, by such
a mode of construction. If this were once admitted, the Constitution
would be a useless and dead letter ; and it would be to no purpose that the
states, in convention assembled, had framed that instrument, to guide the
steps of Congress. As well might they at once have said, "There shall
be a Congress who shall have full power and authority to make all laws
which to their wisdom will seem meet and proper."
On the Cod Fishery Billy granting Bounties.
House of Represestativks, February 3, 1792.
Mr. GILES. The present section of the bill (he continued) appears
to contain a direct bounty on occupations ; and if that be its object, it is
\\\(! first attempt as yet made by this government to exercise such author-
ity ; — and its constitutionality struck him in a doubtful point of view;
for in no part of the Constitution could he, in express terms, find a power
given o Congress to grant bounties on occupations : the power is neither
1792.] Cod Fishery ilia -^MiADiBOH. ^\2l
directly granted, nor (by any reaaonable construction that he could give)
annexed to apy other specified in the Constitution.
February 7, 1792
Mr. WILLIAMSON. In the Constitution of this government, there
are two or three remarkable provisions which seem to be in point. It is
provided that direct taxes shall be apportioned among the several states ac-
cording to their respective numbers. It is also provided that '* all duties,
imposts, and excises, shall be uniform throughout the United States;"
and it is provided that no preference shall be given, by any regulation of
c^)inrnercial revenue, to the ports of one state over those of another. The
clear and obvious intention of the articles mentioned was, that Congress
might not have the power of imposing unequal burdens — that it might
not be in their power to gratify one part of the Union by oppressing another.
It appeared possible, and not very improbable, that the time might come,
when, by greater cohesion, by more unanimity, by more address, the rep-
resentatives of one part of the Union might attempt to impose unequal
taxes, or to relieve their constituents at the expense of the people. To
prevent the possibility of such a combination, the articles that! have men-
tioned were inserted in the Constitution.
I do not hiizard much in saying that the present Constitution had never
been adopted without those preliminary guards on the Constitution.
Establish the general doctrine of bounties, and all the provisions I have
mentioned become useless. They vanish into air, and, like the baseless
fabric of a vision, leuve not a trace behind. The common defence and
general welf ire, in the hands of a good politician, may supersede every
part of our Constitution, and leave us in the hands of time and chance.
Manufactures in general are useful to the nation ; they prescribe the public
good and general welfare. How many of them are springing up in the
Northern States! Let them be properly supported by bounties, and you
will find no occasion for unequal taxes. The tax may be equal in the be-
ginning ; it will be sufficiently unequal in the end.
The object of the bounty, ami the amount of it, are equally to be dis*
regarded in the present case. We are simply to consider whether bounties
may safely be given under the present Constitution. For myself, I would
rather begin with a bounty of one million per annum, than one thousand.
I wish that my constituents may know whether they are to put any confi-
dence in that paper called the Constitution.
Unless the Southern States are protected by the Constitution, their val-
%iable staple, and their visionary wealth, must occasion their destruction.
"Three short years has this government existed ; it is not three years ; but
>re have already given serious alarms (o many of our fellow-citizens. Estab-
lish the doctrine of bounties; set aside that part of the Constitution which
Tequires equal taxes, and demands similar distributions ; destroy this bar-
rier ; — and it is not a few fishermen that will enter, claiming ten or twelve
thousand dollars, but all manner of persons ; people of every trade and oc-
cupation may enter in at the breach, until they have eaten up the bread of
our children.
Mr. MADISON. It is supposed, by some gentlemen, that Congress
have authority not only to grant bounties in the sense here used, merely
as a commutation for drawback, but even to grant them under a power by
virtue of which they may do any thing which they may think conducive to
^he general welfare! This, sir, in my mind, raises the important and fun-
damental question, whether the general terms which have been oited are
^28 Cad Fishery BiH — Madison. [February 7
to be considered as a sort of oaption.or general descriptioo of the specified
powers; and rs having no further meaning, and giving no further powers,
than what is found in that specification, or as an abstract and indefinite
delegation of power extending to all cases whatever — to all such, at least,
as will admit the application of money — which is giving as m«ch latitude
as any government could well desire.
It sir, have always conceived — I believe those who proposed the Con-
stitution conceived — it is still more fully known, and more material to
observe, that those who ratified the Constitution conceived — that this is
not an indefinite government, deriving its powers from the general terms
prefixed to the specified powers — but a limited government, tied down to
the specified powers, which explain and define the general terras.
It is to be recollected that the terms *' common defence and general
welfare,'' as here used, are not novol terms, first introduced into this Con
stitution. They are terms familiar in their construction, and well known
to the people of America. They are repeatedly found in the old Articles
of Confederation, where, although they are susceptible of as great a lati-
tude as can be given them by the context here, it was never supposed or
pretended that they conveyed any such power as is now assigned to them.
On the contrary, it was always considered clear and certain that the old
Congress was limited to the enumerated powers, and that the enumeration
limited and explained the general terms. I ask the gentlemen themselves,
whether it was ever supposed or suspected that the old Congress could
give away the money of the states to bounties to encourage agriculture, or
for any other purpose they pleased. If such a power had been possessed
by that body, it would have been much less impotent, or have borne a very
difierent character from that universally ascribed to it.
The novel idea now annexed to those terms, and never before enter-
tained by the friends or enemies of the government, will have a farther
consequence, which cannot have been taken into the view of the gentle-
men. Their construction would not only give Congress the complete
legislative power I have stated, — it would do more; it would supersede
all the restrictions understood at present to lie, in their power with respect
to a judiciary. It would put it in the power of Congress to establish
courts throughout the United States, with cognizance of suits between
citizen and citizen, and in all cases whatsoever.
This, sir, seems to be demonstrable ; for if the cianse in question really
authorizes Congress to do whatever they think fit, provided it be for the
eeneral welfare, of which they are to judge, and money can be applied to
It, Congress must have power to create and support a judicial y establish
(nent, with a jurisdiction extending to all cases favorable, in their opinion,
'o the general welfare, in the same manner as they have pcvwer to pass
aws, and apply money providing in any other way for the general welfare.
1 shall be reminded, perhaps, that, according to the terms of the Constitu*-
tion, the judicial power is to extend to certain cases only, not to all cases.
But this circnmstance can have no efiect in the argument, it bemg pre-
supposed by the gentlemen, that the s(>ecification of certain objects does
not limit the import of the general terms. Taking these terms as an ab-
stract and indefinite grant of power, they comprise all the objects of legis-
lative regulations — as well such as fall under the judiciary article in the
Constitution as those falling immediately under the legislative article; and
if the partial enumeration of objects in the legislative article does not, as
' these gentlemen contend, lim t the general power, neither will it be 4miteH
bj the partial eiraneratiofft ol objects ia the jn iioiary srtiek
1792 ' Reduction ofHu Public Debt, - MBacsR. 4!2ii
T-here are consequences, sir, still more extensive, which, as thej follow
clearly from the doctrine combated, mus. either be admitted, or the doc-
trine must be given up. If Congress can employ money indefinitely to the
general welfare, and are tiie sole and supreme judges of the general wel-
fare, they may take the care of religion into their own hands ; they may
appoint teachers in every state, county, and parish, and pay them out of
their public treasury ; they may take iuto their own hands the education
^>f children, establishing in like manner schools throughout the Union ;
Ubey may assume the provision for the poor; they may undertake the
iregulation of all roiids other than post-roads ; in slK>rt, every thing, from
the highest object of stale legislation down to the most minute object of
police, would be thrown under the power of Congress; for every object
I have mentioned would admit of the application of money, and might be
called, if Congress pleased, provisions for the general welfare.
The language held in various discussions of this house is a proof that
the dootrioe in question was never entertained by this body. Argunjents,
wherever the subject would permit, have constantly been drawn from the
peculiar nature of this government, as limited to certain enumerated
powers, instead of e^tendmg, like other governments, to all cases not par*
ticularly excepted. In a very late instance — I mean the debate on the
representation bill — it must be remembered that an argument much used,
particularly by gentlemen from Massachusetts, against the ratio of 1 for
30,030, was, that this government was unlike the state governments,
which had an indefinite variety of objects within their power; that it had
a small number of objects only to attend to; and therefore, that a smaller
number of representatives would be sufficient to administer it.
Arguments have been advanced to show that because, in the regulation
of trade, indirect and eventual encouragement is given to manufactures,
therefore Congress have power to give money in direct bounties, or to
grant it in any other way that would answer the same purpose. But
surely, sir, there is a great and obvious difference, which it cannot be
necessary to enlarge upon. A duty laid on imported implements of hus-
bandry would, in its operation, be an indirect tax on exported produce;
but will any one say that, by virtue of a mere power to lay duties on im-
ports, Congress might go directly to the produce or implements of agricul-
ture, or to the articles exported ? It is true, duties on exports are
expressly prohibited ; but if there were no article forbidding them, a power
directly to tax exports could never be deduced from a power to tax imports,
although such a power might indirectly and incidentally affect exports.
In short, sir, without going farther into the subject, which I should not
have here touched at all but for the reasons already mentioned, I venture
to declare it as my opinion, that, were the power of Congress to be estab-
lished in the latitude contended for, it would subvert the very foundations,
and transmute the very nature of the limited government established by
the people of America; and what inferences might be drawn, or what
consequences ensue, from such a step, it is incumbent on us all to
consider.
On the Proposition introduced by Mr. Fitzi>imons^ that Pro-
vision should be made for the Reduction of the Public Debt.
House of Reprkseictativxs, JVovcmber 20, 1792.
Mr. MERCER. The Constitution permits the head of the treasury to
propose plans. It may be proper, then, that the different secretaries mav
^0 Reduction of the Public Debt, — Ames. , [1792.
prepare such plans as are within their respective departments, which the
chief magistrate may propose to the legislatures, if he sees fit; and when
BO done, it is constitutional, and the legislature may or may not, at their
discretion, take them up ; any other exposition is unconstitutional and idle.
This is also the exposition of the documents and information that arise
in the administration of government, which this house may require of the
executive magistrate, and which he will communicate as he sees fit. The
house may go too far in asking information. He may constitutionally
deny such information of facts there deputed as are unfit to he communi-
cated, and may assist in the legislation I always wish for. But I want no
opinions resulting from them. If they are to influence us, they are wrong;
if not to influence, they are useless. This mode of procedure, o^ origina
ting laws with the secretary, destroys the responsibility; it throws it on a
man not elected by the people, and over whom they have no control.
Jfovember 21, 1792.
Mr. AMES. What is the clause of the Constitution, opposed to the
receiving a plan of a sinking fund from the secretary ? Bills for raising
revenue shnll originate in this house. I verily believe the members of this
house, and the citizens at large, would be very much surprised to hear
this clause of the Constitution formally and gravely stated as repugnant to
the reference to the treasury department for a plan, if they and we had not
been long used to hear it.
To determine the force of this amazing constitutional objection, it will
be sufficient to define terms.
What is a bill ? It is a term of technical import, and surely it cannot
need a definition : it is an act of an inchoate state, having the form but not
the authority of the law.
What is originating a bill? Our rules decide it. Every bill shall be
introduced by a motion for leave, or by a committee.
It may be said, the plan of a sinking fund, reported by the secretary, is
not, in technical, or even in popular language, a bill — nor, by the rules
of the house or those of common sense, is this motion the originating a
bill. By resorting to the spirit of the Constitution, or by adoptitig any
reasonable construction of the clause, is it possible to make it appear re-
pugnant to the proposition for referring to the secretary? The opposers
of this proposition surely will not adopt a construction of the Constitution.
They have often told us, we are to be guided by a strict adherence to the
letter; that there is no end to the danger of constructions.
The letter is not repugnant ; and will it be seriously affirmed that, ac-
cording to the spirit and natural meaning of the Constitution, the report
of the Secretary will be a revenue bill, or any other bill, and that this prop-
osition is originating such a hill ? If it be, where shall we stop ? If the
idea of such a measure, which first passes through the mind, be cor
founded with the measure subsequent to it, what confusion will ensue!
The President, by suiijTesting the proposition, may as well be pretended to
oriainate a revenue bill ; even a newspaper plan would he a breach of the
exclusive privilege of tl.is house, and the liberty of the press, so justly dear
to us, would be found unconstitutional. Yet if, without any order of the
house, the draft of an act were printt*d, and a copy laid before every member
ni his scat, no person will venture to say that it is a bill — that it is origin-
ated, or can be brought under cocrnizance of the house, unless by rt motion
I reply upon it, that neithfir the letter of the Constitution, nor aiiy
17W.] Relief of St Domingo Refugees. — Madison. 4iil
meaning that it can be tortured into, will support the objection which has
8o often been urged with solemn emphasis and persevering zeal.
We ma} repeat it, what color is there for saying that the secretary legis*
UUes? Neither my memory nor my understanding can discern any. I
am well aware that no topic is better calculated to make popular ia*pres-
sions ; but I cannot persuade myself that they will charge us with neglect
or violation of duty, for puttmg ourselves into a situation to discharge it
in the best and most circumspect manner.
Mr. MADISON. I insisted that a reference to the secretary of the
treasury on subjects of loans, taxes, and provisions for loans, d&c., was in
fact a delegation of the authority of the legislature, although it would
admit of much sophistical argument on the contrary.
On the Memorial of the Relief Committee of Baltimore^ for the
Relief of St. Domdngo Refugees.
House op Representatives, January 10, 1794.
Mr. MADISON remarked, that the government of the United States is
a definite government, confined to specified objects. It is not like the
state governments, whose powers are more general. Charity is no part of
the legislative duty of the government. It would puzzle any gentleman to
lay his finger on any part of the Constitution which would authorize the
government to interpose in the relief of the St. Domingo sufferers. The
report of the committee, he observed, involved this constitutional question
— whether the money of our constituents can be appropriated to any other
than specific purposes. Though he was of opinion that the relief contem-
plated could not be granted in the way proposed, yet he supposed a mode
might be adapted which would answer the purpose without infringing the
Constitution.
Mr. NICHOLAS concurred in the sentiment with Mr. Madison. He
considered the Constitution as Refining the duty of the legislature so ex-
pressly, as that it left them no option in the present case.
Mr. BOUDINOT supported the question on constitutional grounds.
He instanced several cases, which had occurred and might occur, in which
relief must necessarily be granted, and that without occasioning any doubt
of the constitutionality of the business; such as granting pensions, afford-
ing relief to the Indians, supporting prisoners, &c. He alluded to the
circumstance of the alliance between the United States and France, the
connection between the citizens of the United States and that country, &,c.
Mr. DEXTER stuted sundry objections from the Constitution. It
will not be pretended, he supposed, thit the grant of moneys, on this
occision, was for the general welfire ; it is merely a private charity. He
was in favor of going into a committee on the subject, but wished a short
delay, th it he miijht revolve the question more fully in his own mind.
Mr. MADISON, in reply to Mr. Boudinot, who had stated several cases
as in point, observed, that those cases came within the law of nntions, of
which this government has express cognizance; the support of prisoners
is a case provided for by the Ijws of n itions ; but the present question, he
remarked, could not be considered in any such point of view. {Motion
:o<i.)
[JVb/e. In May, 1812, ** An Act for the relief of the citizens of Venozuela " waa
|>a«sst-d, authorizing the President to expend $50,000 to purchase provisionii for thai
obj<H;t. The motion to fill th> blank with that amount was moved by Mr. Calhoun,
\od carried by ayes, 45 ; noes, 2d.]
432 Commtrcial Restrictions, — Madison. [Januarjf 31t
Commercial Restrictions.
House of Representatives, January 31, 1794.
Mr. MADISON insisted that trade ought to be lef\ free to find its
|>roper channels, under the conduct of merchants; that the mercantile
opinion was the best guide in the case now depending ; and that that opin-
ion was against the resolutions.
In answer to this objection, he said it was obvious to remark that, in
the very terms of the proposition , trade ought to be free before it could
tiud its proper channel. It was not free at present : it could not, therefore,
tiiul the ch lunels in which it would most advantageously flow. The dikes
must be thrown down, before the waters could pursue their natural course.
Who would pretend that the trade with the British West Indies, or even
with Great Britain herself, was carried on, under the present restrictions,
as it would go on of itself, if unfettered from restrictions on her part, as it
is on ours? Who would pretend that the supplies to the West Indies,
for example, would not flow thither in American bottoms, if they flowed
freely? Who would pretend that our wheat, our flour, our £sh, di:,c.,
would not find their way to the British market, if the channels to it were
open for them ?
It seemed to have been forgotten that the principle of this objection struck
at every regulation in favor of manufactures, as much, or even more, than
at regulations on the subject of commerce. It required that every species
of business ought to be lefl to the sagacity and interest of those carry ir^
it on, without any interference whatever of the public authority.
The interest of the mercantile class may happen to differ from that of
the whole community. For example; it is, generally speaking, the interest
of the merchant to import and export every thing ; the interest of manu*
facturera to lessen imports in order to raise the price of domestic fabrics,
and to check exports, where they may enhance the price of raw materials.
In this case, it would be as improper to allow the one for the other as to
allow either to judge for the whole. *
It may be the interest of the merchant, under particular circumstances,
to con6ne the trade to its established channels, when the national interest
would require those channels to be enlarged or changed. The best wri-
ters on poliiicid economy have observed, that the regulations most un-
friendly to the national wealth of Great Britain have owed their birth to
mercantile counsels. It is well known that, in France, the greatest oppo-
sition to that liberal policy which was as fivorable to the true interest of
that country as of this, proceeded from the interests which merchants had
in keeping the trade in its former course.
If, in any country, the mercantile opinion ought not to be implicitly
tbllowed, there were the strongest reasons why it ought not in this. The
body of merchants who carry on the American commerce is well known
to be composed of so great a proportion of individuals who are either
British subjects, or trading on British capital, or enjoying the profits of
British consignments, that the mercantile opinion here might not be an
American opinion; nay, it might be the opinion of the very country of
which, in the present instance at least, we ought not to take counsel.
What the genuine mercantile American opinion would be, if it could be
collected apart from the general one, Mr. M. said he did not undertake
positively to decide. His belief was, that it would be in favor of thi».
resolutions.
1794.] Embargoes. — Madison. 433
Direct Taxes.
May 6, 1794.
Mr. SEDGWICK said, that, in forming a constitution for a national
government, to which was intrusted the preservation of that government,
and of the existence of society itself, it was reasonable to suppose that
^very mean necessary to those important ends should be granted. This
"^vas in fact the case in the Constitution of the United States. To Con-
egress it was expressly granted to impose '* taxes, duties, imposts, and ex*
^^ises.'' It had been universally concluded, and never, to his knowledge,
denied, but that the legislature, by those comprehensive words, had au-
"•hority to impose taxes on every subject of revenue. If this position was
^ust. a construction which limited their operation of this power (in its
xiature and by the Constitution illimitable) could not be the just con-
struction.
He observed that, to obviate certain mischief, the Constitution had pro-
vided that capitation and other direct taxes should be proportioned ac-
cording to the ratio prescribed in it. If, then, the legislature was author-
ized to impose a tax on every subject of revenue, (and surely pleasure
carriages, as an object of luxury, and in general owned by those to whom
contributions would not be inconvenient, were fair and proper subjects
of taxation,) and a tax on them could not be proportioned by the consti-
tutional ratio, it would follow, irresistibly, that such a tax, in this sense of
the Constitution, was pot *' direct." On this idea he enlarged his reason*
ing, and showed that such a tax was incapable of apportionment.
He said that, so far as he had been able to form an opinion, there had
been a general concurrence in a belief that the ultimate sources of public
contributions were labor, and the subjects and effects of labor; that taxes,
being permanent, had a tendency to equalize, and to diffuse themselves
through a community. According to these opinions, a capitation tax, and
taxes on land, and on property and income generally, were a direct charge,
as well in the immediate as ultimate sources of contribution. He had
considered those, and those only, as direct taxes in their operation and
effects. On the other hand, a tax imposed on a specific article of persona]
property, and particularly of objects of luxury, as in the case under con-
sideration, he had never supposed had been considered a direct tax with-
in the meaning of the Constitution. The exactfon was indeed directly of
the owner; but by the equalizing operation, of which all taxes more or
less partook, it created an indirect charge on others besides the owners.
The Bill for authorizing the President to lai/, regulate, and re-
voke Embargoes.
House of Represextatives, May 29, 1794.
Mr. MADISON did not accede to the principle of the bill. He did
not see any such immediate prospect of a war as could induce the house
to violate the Constitution. He thought that it wns a wise principle in
the Constitution to make one branch of the government raise an army,.
and another conduct it. If the legislature had the power to conduct an
urnij, they might imbody it for that end. On the other hand, if the
President was empowered to raise an army, as he is to direct its motions
when raised, he might wish to assemble it for the sake of the influence
lo be acquired by the command. The Constitution had wisely guarde^ti
VOL. IV. 65 37
434 Internal Improvement. — Williams. [February 1 1
against the danger on either side. Upon the whole, he could not venture
to give his consent for violating so salutary a principle of the Constitu-
tion as that upon which this bill encroached.
On the Motion of Mr, Tazewell to strike out a complimentary
Reply to the French Republic,
Senate, January 6, 1796.
Mr. ELLSWORTH combated the resolution, as originally offered, as
unconstitutional. Nothing, he contended, could be found in ihe Consti-
tution to authorize either branch of the legislature to keep up any kind of
correspondence with a foreign nation. To Congress were given the pow-
ers of legislation, and the right of declaring war. If authority beyond
this is assumed, however trifling the encroachment at first, where will it
stop ?
Mr. BUTLER. There was nothing in the Constitution, he contended,
that could prevent the legislature from expressing their sentiments. It
was not an executive act, but a mere complimentary reply to a complimen-
tary presehtation. If this r\ght was denied them, where would the prin-
ciple stop 1 The Senate might be made in time mere automata.
Internal Iinprovement.
House or Rkprksrntatives, February 11, 17C6.
Mr. MADISON moved that the resolution laid on the table some days
ago be taken up, relative to the survey of the post-roads between the prov-
ince of Maine and Georgia ; which being read, he observed that two good
effects would arise from carrying this resolution into effect : the shortest
route from one place to another would be df termined upon, and persons
having a stability of the roads would not hesitate to make improvements
upon them.
Mr. BALDWIN was glad to see this business brought forward ; the
sooner it could be carried into effect the better. In many parts of the
country, he said, there were no improved roads, nothing better than the
original Indian track. Bridges and other improvements are always made
with reluctance whilst roads remain in this state ; because it is known, as
the country increases in population and wealth, better and shorter roads
will be made. All expense of this sort, indeed, is lost. It was properly
the business of the general government ^ he said, to undertake (he twprovt'
went of the roads ; for the different states are incompetent to the busi-
ness, their different designs clashing with each other. It is enough for
them to make good roads to the different seaports; the cross-roads should
be left to the government of the whole. The expense, he thought, would
ru t be very great. Let a surveyor point out the shortest and best track,
and the money will soon be raised. There was nothing in this country,
he said, of which we ought to be more ashamed than our public roads.
Mr. BOURNE thought very valuable effects would arise from the car-
rying of this resolution into effect. The present may be much shortened,
he observed. The Eastern States, he said, had made great improvement
in their roads ; and he trusted the best effects would arise from having
regular mails from one end of the Union to the other.
Mr. WIJjLIAMS did not think it right for the revemies ^f the post-
officii to be applied to this end. He acknowledged the j^rcrpriety oi* ex*
1796.] Treaty-making Power, — Gallatin. 43£
tending the post-roads to every part of the Union. He thought the house
had belter wait for the report of the committee, to which busineftfi
relative to the post-office had been referred, which was preparing td h¥
laid before the house.
Mr. MADISON explained the nature and object of the fesolutiort
He said it was the commencement of an important work. He wislied not
to extend it at present. The expenses of the survey would be great.
The post-office, he believed, would have no objection to the intended
regulation.
After some observations from Mr. THACHER, on the obtaining of the
shortest distance from one place to another, and the comparing old witfe
new roads, so as to come at the shortest and best, the resolution
was agreed to, and referred to a committee of five, to prepare and bririg
in a bill.
Treaty-Making Power. — [Jay^s Treaty.]
HousK OF Representatives, March 23, 1796.
Mr MURRAY said, in construing our Constitution, in ascertaining
tiie metes and bounds of its various grants of power, nothing, at the pres*
ent day, is left for expedience or sophistry to new-model or to mistake. The
explicitness of the instrument itself; the contemporaneous opinions, stilf
fresh from the recency of its adoption ; the journals of that Convention
which formed it, still existing, though not public, — all tend to put this ques-
tion, in particular, beyond the reach of mistake. Many who are now
present were in the Convention ; and on this question, he learned a vote
was actually taken.
That the paper upon the table, issued by the President's proclamation^
ns a treaty, was a treaty in the eye of the Constitution, and the law of na-
tions ; that, as a treaty, it is the supreme law of the land, agreeably to the
Constitution; that, if it is a treaty, nothing that we can rightfully do,
or refuse to do, will add or diminish its validity, under the Constitution
and law of nations.
March 24, \796.
Mr. GALLATIN said, the only contemporaneous opinions which could
have any weight in favor of the omnipotence of the treaty-making power,
were those of gentlemen who had advocated th? adoption of the Constiv
tiiiion; and recourse had been had to the debates of the state convention^
in order to show th:it such gentlemen had conceded that doctrine. The
debates of Virginia had first been partially quoted for that purpose ; yet
when the whole was read and examined, it had clearly appeared that, on
the contrary, the general sense of the advocates of the Cemstitution there
was similar to that now contended for by the supporters of the motion.
The debates of the North Carolina Convention had also been partially
quoted; and it was not a little remarkable that, whilst gentlemen from thai
state had declared, on that floor, durincr the present debate, that they were
members of the Convention which ratified mid adopted the Constitution,
that they had voted for it, and that their own and the general impressiori
of thit Convention was, that the treaty-makinsj power was limited by tlie
other parts of the Constitution, in the manner now mentioned, — it was
not a little remarkable, that, in opposition to those declarations, a gentlen
man from Rhode Island had quoted partial extracts of the debates of a
Contention in North Carolina which rejected the Constitution.
46fJ Treaty^making Power, — Madison. [i4/>n* 15,
A gentleman from New York (Mr. Williams) had read to thera an
amendment proposed in the Convention of that state, by which it was re-
quired that a treaty should not abrogate a law of the United States ; from
whence he inferred that that Convention understood the treaty-making
powers would have that effect, unless the amendment was introduced.
The gentleman, however, forgot to inform the committee that the amend-
ment did not obtain; and, therefore, that the inference was the reverse of
what, he stated. Leaving, however, to other gentlemen, to make further
remarks on the debates of the Conventions of their respective states, he
would conclude what he had to say on that ground, by adverting to the
debates of the Pennsylvania Convention.
The only part of those debates which had been printed contained the
speeches of the advocates of the Constitution ; and although the subject
was but slightly touched, yet what was said on the subject by the ablest
advocate of the Constitution in Pennsylvania, by the man who had been
most efficient to enforce its adoption in that state, would be found to be in
point. He then read the following extracts from Judge Wilson's speech,
(page 468, Debates of the Pennsylvania Convention :) ** There is no
doubt but, under this Constitution, treaties will become the supreme law
of the land ; nor is there doubt but the Senate and President possess the
power of making them."
Mr. Wilson then proceeds to show the propriety of that provision, and
how unfit the legislature were to conduct the negotiations ; and then ex-
presses himself in the following words : " It well deserves to be remarked
that, though the House of Representatives possess no active part in making
treaties, yet their legislative authority will be found to have strong restrain-
ing influence upon both President and Senate. In England, if the king
and his ministers find themselves, during their negotiation, to be embar-
rassed because an existing law is not repealed, or a new law enacted,
they give notice to the legislature of their situation, and inform them that
it will be necessary, before the treaty can operate, that some law be
repealed, or some be made. And will not the same thing take place
here ? "
ApHl 15, ITSe.
Mr. MADISON. The proposition immediately before the committee
was, that the treaty with Great Britain ought to be carried into effect by
such provisions as depended on the House of Representatives. This was
the point immediately in question.
If the propositions for carrying the treaty into effect be agreed to, it
must be from one of three considerations : either that the legislature is
bound by a constitutional necessity to pass the requisite laws, without ex-
amining the merits of the treaty; or that, on such examination, the
treaty is deemed in itself a good one ; or that there are good extrane-
ous reasons for putting it into force, although it be in itself a bad treaty.
The first consideration being excluded by the decision of the house that
they have a right to judge of the expediency or inexpediency of passing
laws relative to treaties, the question first to be examined must relate to
the merits of the treaty.
He mentioned the permission to aliens to hold lands in perpetuity, as a
very extraordinary feature in this part of the trt'aty. He would not in-
quire how far this might be authorized by constitutional principles ; but
he would continue to say, that no example of such a stipulation was to be
•796.1 Treaty-making Power. — Lyman. 43 i
found in any treaty that ever was made, either where territory was ceded^
mr where it was acknowledged by one nation or another. Although it was
<x>minon and right, in such regulation, in favor of the property of the in-
liabitants, yet he believed that, iu every case that ever had happened, the
owners of landed property were universally required to swear allegiance
to the new sovereign, or to dispose of their landed property within a rea-
sonable time. With respect to the great points in the law of nations,
comprehended in the stipulations of the treaty, the same want of real reci-
procity, and the same sacrifice of the interests of the United States, were
conspicuous.
It is well known to have been a great and favorite object with the
United States, " that free ships make free goods." They had established
the principle in their other treaties. They had witnessed, with anxiety,
the general efforts, and the successful advances, towards incorporating this
principle into the law of nations — a principle friendly to all neutral na-
tions, and particularly interesting to the United States. He knew that, at
a former period, it had been conceded, on the part of the United States,
that the law of nations sto )d as the present treaty regulates it. But it did
not follow, that more than acquiescence in that doctrine was proper.
There was an evident distinction between silently acquiescing in it, and
giving it the support of a formal and positive stipulation. The former was
all that could have been required, and the latter was more than ought to
have been unnecessarily yielded.
Mr. LYMAN. I have no doubt of its constitutionality, notwithstand-
ing all the arguments which I have either seen or heard. Many argu-
ments might be adduced in suppQrt of this opinion ; but I will dispense
ivith all but one, and that I consider as conclusive ; and that is this : The
itioulations in this treaty are nearly all of such nature as not to respect
objects of legislation. They respect objects which lie beyond the bounds
of our sovereignty; and beyond these limits our laws cannot extend, as
rules to regulate the conduct of subjects of foreign powers; and although
some of these stipulations respect objects which are within the reach of
our sovereignty, yet it is in such manner as to be not only pertinent, but
perhaps absolutely necessary in forming the treaty. This conclusion, I
think, is the natural and necessary result of a fair construction of the
principles of the Constitution, and especially of that paragraph which
Fests the power of making treaties in the supreme executive, with the ad-
vice of the Senate.
In acts of the smallest importance, we see, daily, that, ailer they have
Undergone any possible chance of fair and impartial discussion in this
house, they are transmitted to another, who equally proceed to correct and
amend them ; and even this not being deemed sufficient to secure, as it
were, against all possibility of danger, they are sent to the President, who
lias ten days to consider, and who may return them with his objections.
These we are bound respectfully to inscribe on our Journals, and if we
disagree in opinion with the President, the majority of two thirds of both
l>ranches is requisite to give validity to the law. Do we not discover in
all this infinite caution a wish rather not to act at all, by the difference of
^be branches among each other, than to act imprudently or precipitately ?
ind can we ima^rine that a Constitution thus guarded with respect to laws
if little consequence, hath lefl without check the immense power of ma-
ting treaties — embracing, as in the instrument before us, all our greatest
interests, whether they be of territory, of agriculture, commerce, naviga
i38 Mma Bill, — Rutherford. { 179G.
tioa, or i.ianufactures, and this for an indefinite length of time ? No. By
one of the auurds of that Constitution, relative to appropriations of money,
Ihis trealy nath, in the lai$t stage of its progce^s, come before us,
** We have resolved/' according to our best judgment of the CoustitU"
lion, and, as we have seen above, according to the meaning of it, that we
have a right to judge of the expediency or inexpediency of carrying it into
effect. This will depend on its merits ; and this is the discussion that is
DOW before ua.
Our duty requires of us, before we vote 90,000 dollars of the people's
money, — the sum required to carry this treaty into effect, — to pause, and
inquire as to the why and wherefore. But is it merely the sum of 90,000
dollars that is in question 7 If it was, we ought to proceed slowly and
cautiously to vote away the money of our constituents. But it is in truth
a sum indefinite, for British debts, the amount of which we know not ; and
we are to grant this in the moment our treasury is empty ; when we are
palled upon to pay five millions to the bank, and when no gentleman hath
iresources to suggest, but those of borrowing, at a time when borrowing
ps unusually difficult and expensive. But is it merely a question of money 1
No. It is the regulation of our commerce ; the adjustment of our limits ;
the restraint, in many respects, of our own faculties of obtaining good or
avoiding bad terms with other nations. In short, it is all our greatest and
most interesting concerns that are more or less involved in this question.
I must confess, Mr. Chairman, that the first point of view in which
this treaty struck me with surprise, was the attitude Great Britain assumes
in it of dictating laws and usages of reception and conduct different to-
wards us, in every different part of her empire, while the surface of our
country is entirely laid open to her in one general and advantageous point
pf admission. In Europe, we are told, we may freely enter her ports. In
the West Indies we were to sail in canoes of seventy tons burden. In the
East Indies we are not to settle or reside without leave of the local gov«
^rnment. In the seaports of Canada and Nova Scotia we are not to be
admitted at all : — while all our rivers and countries are opened without the
least reserve ; yet surely our all was as dear to us as the all of any other
nation, and ought not to have been parted with but on equivalent terms.
On the Bill for organizing^ arming, and disciplining ^ the Militia
of the United States,
House or Represektatives, DecemheVy 1796.
Mr. RUTHERFORD said, he believed the government of the United
States had nothing to do with the militia of the several sovereign states.
This was his opinion, and it was the opinion of the people at large — how-
ever, of nine tenths of them. The Constitution is express upon this sub-
ject. It says, when the militia is called into actual service, it shall be
under the direction of the general government, but not until that takes
place; the several states shall have command over their own children —
their own families. If the United States take it up, they will defeat the
end in view — they grasp too much.
With respect to the unconstitutionality, Mr. R. joined in opinion with
the gentleman from New Jersey, (Mr. Henderson.) This law would tend
to alienate the minds of the people of the Eastern States, whose militia
were already well disciplined.
He hoped nothing more would be done, in that home, than to adfise
1797, 1798.] Foreign Interiourse BUL — PiNciLMfti 439
tboee states who had neglected their militia to revise and amend thei'
laws, and make them more effectual. This i9 all this house can do — all
they have a right to do.
Appropriations of Money for fitting out Vessels of War.
House of RErRKSKNTATivis, February 25, 1797.
Mr. GALLATIN conceived the power of granting money to be vested
folely in the legislature, and though, according to the opinion of some
gentlemen, (though not in his,) the President and Senate could so bind
the nation as to oblige the legislature to appropriate money to carry a
treaty into effect, yet, in all other cases, he did not suppose there had been
any doubt with respect to the powers of the legislature in this respect,
March 2, 17£r7.
Mr. NICHOLAS. The power of this house to control appropriations
has been settled. It was indeed an absurdity to call a body a legislature,
and at the same time deny them a control over the public purse. If it
were not so, where would be the use of going through the forms of that
house with a money bill ? The executive might as well draw upon the
treasury at once for whatever sums he might stand in need of. A doctrine
like this would be scouted even in despotic countries.
Patronage, — During the Discussion of the Foreign Inters
course Bill,
House op Representatives, January 18, 1798.
Mr. GALLATIN said, he believed, upon the whole, our government
was in a great degree pure. Patron nge was not very extensive, nor had
it any material effect upon the house, or any other part of the government;
yet he could suppose our goverinnent to be liable to abuse in this way.
By the nature of the governm(»nt, the different powers were divided; the
power of giving offices was placed in the executive — an influence which
neither of the other branches possessed ; and if too large grants of money
were made, it might give to that power an improper weight.
Our government, he said, was in its childhmid ; and if patronage had
any existence, it could not, of course, be as yet alarming; but he desired
gentlemen to look at all governments where this power was placed in the
executive, and see if the greatest evil of the government was not the exces-
sive influence of that department. Did not this corruption exist, in the
government which was constituted most similar to ours, to such a degree
as to have become a part of the system itself, and without which, it is said,
ihe government could not go on ? Was it not, therefore, prudent to keep
i watchful eye in this respect ?
He did not, however, speak against the power itself: it was necessary
to be placed somewhere. The Constitution had fixed it in the executive.
If the same power had been placed in the legislature, he believed they
would have been more corrupt than the executive. He thought, there-
fore, the trust was wisely placed in the executive.
January 19, 1796.
On the game occasion, Mr. PINCKNEY said, all commercial regula-
tions might an well be carried on by consuls as by ministers; and if any
44U Alien and Sedition Laws. — Livingston. [1798
differences should arise betwixt this country and any of the European
governments, special envoys might be sent to settle them, as heretofore.
Janvary 22, 1706.
Mr. BAYARD. It had been supposed, by gentlemen, that he might
appoint an indefinite number of ministers; and were the house, in that
case, he asked, blindly to appropriate for them ? This question was predi-
cated upon an abuse of power, whilst the Constitution supposed it would
be executed with fidelity. Suppose he were to state the question in an
opposite light. Let it be imagined that this country has a misunderstand-
ing with a foreign power, and that the executive should appoint a minister,
but the house, in the plenitude of its power, should refuse an appropria-
tion. What might be the consequence? Would not the house have
contravened the Constitution by taking from the President the power
which by it is placed in him 1 It certainly would. So that this suppo-
sition of the abuse of power would go to the destruction of all authority.
The legislature was bound to appropriate for the salary of the chief justice
of the United States : and though the President might appoint a chimney^
sweeper to the office, they would still be bound. The Constitution had
trusted the President, as well as it had trusted that house. Indeed, it was
not conceivable that the house could act upon the subject of foreign min-
isters. Our interests with foreign countries came wholly under the juris-
diction of the executive. The duties of that house related to the internal
affairs of the country; but what related to foreign countries and foreign
agents was vested in the executive. The President was responsible for
the manner in which this business was condqcted. He was bound to
communicate, from time to time, our situation with foreign powers ; and
if plans were carried on abroad for dividing or subjugating us, if he were
not to make due communication of the design, he would be answerable for
the neglect.
Retaliation for Aggressions,
May 03, 1798.
Mr. SITGRii.WES said, it is a principle as well settled as any in the
law of nations, that, when a nation has received aggressions from another
nation, it is competent for the injured nation to pursue its remedy by
reprisal before a declaration of wnr takes place; and these reprisals shall
be perfectly warrantable whilst they are commensurate only with the
injuries received ; and are not, under such circumstances, justifiable cause
of war. It is even clear that these reprisals may be made during the
pendency of a negotiation, and oennot, according to the law of nations, be
justifiable ground for the rupture of any such negotiations.
Alien and Sedition Laws.
June, 1798.
Mr. LIVINGSTON. By this act the President alone is empowered to
make the law ; to fix in his own mind what acts, what words, what thoughts,
or looks, shall constitute the crime contemplated by the bill ; that is, the
crime of being " suspected to be dangerous to the peace and safety of the
United States." This comes completely within the definition of despot-
ism— a union of legislative, executive, and judicial powers. My opin-
ions on this subject are explicit: they are, that wherever oui laws mani-
festly infringe the Constitution under which they were madr, the people
1 799, 1830.] Reduction of the Army. — Randolph. 4^!
ought not to hesitate which to obey. If we exceed our powers, we becomd
tjrants, and our acts have no etifect.
Mr. TAZEWELL opposed the bill. He knew but of one power, given
to Congress by the Constitution, which could exclusively apply to aliens;
and thit was the power of naturalization. Whether this was a powei
which excluded the states from its exercise, or gave to Congress only a con
current authority over the subjects, he would not now pretend to say. Il
neither authorized Congress to prohibit the migration of foreigners to any
state, nor to banish them when admitted. It was a power which could
only authorize Congress to give or withhold citizenship. The states, not-
withstanding this power of iiaturaliz;)tion, could impart to aliens the rights
of suffrage, the right to purchase and hold lands. There were, in this
respect, no restraints upon the states. The states, Mr. T. said, had not
parted from their power of admitting foreigners to their society, nor with
that of preserving the benefit which their admission gave them in the
general government, otherwise than that by which they would be deprived
of a citizen. [The bill passed the Senate by yeas, 16 ; nays, 7.]
On the same Subject, — 1799.
Prom a Report of Congress, — ** The right of removing aliens, as inci-
dent to the power of war and peace, according to the theory of the Con-
stitution, belongs to the government of the United States. By the 4th
section of the 4th article of the Constitution, Congress is required to
protect each state from invasion ; and is vested by the 8th section of the
5th article with powers to make all laws which shall be proper to curry
into effect all powers vested by the Constitution in the government of the
United States, or any department or officer thereof; and, to remove from
the country, in times of hostility, dangerous aliens, who may be employed
in preparing the way for invasion, is a measure necessary for the purpose
of preventing invasion, and, of course, a measure it is empowered to
adopt."
In relation to the sedition act, the committee report that '' a law to
punish false, scandalous, and malicious writings against the government,
with intent to stir up sedition, is a law necessary for carrying into effect
the power vested by the Constitution in the government of the United
States, and in the officers and departments thereof, and, consequently, such
a law as Congress may pass."
Further — ** Although the committee believe that each of the measures
[alien and sedition laws] adopted by Congress is susceptible of an analytical
justification, on the principles of the (Jonstitution and national policy,
yet they prefer to rest their vindication on the same ground of consid-
ering them as parts of a general system of defence, adapted to a crisis of
extraordinary difficulty and danger."
[See Virginia and Kentucky Retolutioiu of '98, at the end of thii volume.]
Reduction of the Standing Army.
House of Rbprkskhtatites, JoiiiMiryS, 1800.
Mr. RANDOLPH. I suppose the establishment of a standing army*
•n the country not only a useless and enormous expense, but, upon the
ground of the Constitution, the spirit of that instrument and the genius
of a fiee people are equally hostile to this dangerous institution* which
VOL. IV. 66
4 12 Judiciary SysUm. — Mason. [IdOO, 1602.
ought to be resorted to (if it all) only in extreme cases of difficulty and
danger, yet let it be remembered that usage, that immemorial custom, is
paramount in every written obiigaiion ; and let us beware of engrafting
this abuse upon the Constitution. A people who mean to continue free
must be prepared to meet danger in person, not to rely upon the fallacious
protection of mercenary armies.
Amendment to the Constitution. — Election of President of the
United States.
Senate, Jarvuary 23, 1800.
Mr. C. PINCKNEY (of South Carolina) thouglit it a very daugerous
practice to endeavor to amend the Constitution by making laws for tne
purpose. The Constitution was a sacred deposit put into their hands,
they ought to take great care not to violate or destroy the essential provis-
ions made by this instrument. He remembered very well that, tit the
Federal Convention ^ great care was used to provide for the election of the
President of the United States independently of Congress, and to take the
busijiesSf as far as possible, out of their hands.
On an Act laying Duties on LAcenses^ Sf*c.
House of Representatives, December 'M, 1800.
Mr. BIRD said, that he considered Congress as incompetent to trans-
fuse into the state governments the right of judging on cases that oc-
curred under the Constitution and laws of the federal government, as they
were to transfuse executive or legislative power, derived from that Constitu-
tion, into the hands of the executive and legislative organs of the state
governments.
Judiciary. — On Mr. Breckenridge^s Motion to repeal the Act
passed for a new Organization of the Judiciary System.
Senate, Janwary 8, 1800.
Mr. J. MASON. It will be found that the people, in forming their
Constitution, meant to make the judg^es as independent of the legislature
as of the executive; because the duties they have to perform call upon
them to expound not only the laws, but the Constitution also ; in which is
involved the power of checking the legislature, in case it should pass any
laws in violation of the Constitution. For this reason, it was more im-
portant that the judges in this country should be placed beyond the con-
trol of the legislature, than in other countries, where no such power
attaches to them.
Mr. Mason knew that a legislative body was occasionally subject to the
dominance of violent passions. He knew that they might pass uncon-
stitutional laws; and that the judges, sworn to support the Constitution,
would refuse to carry them into effect; and he knew that the legislature
might contend for the execution of their statutes. Hence the necessity of
placing the judges above the influence of these passions ; and for these
reasons the Constitution had put them out of the power of the legislature.
January 13, 1809.
Mr MASON, (of Virginia.) When I view the provisions of the C oa
■titution on this subject, I observe a clear distinctiou between the Supreme
1832.] Judiciary System. ^- Stone. 443
Court and other courts. With regard to the institution of the Supreme
Court, the words are imperative ; while with regard to inferior tribunals
they are discretionary. The first shall, the last may, be established
And surely we are to infer, from the wise sages that formed thut Consti-
tution, that nothing was introduced into it iii vain. Not only sentences,
but words, and even points, elucidate its meaning. When, therefore, the
Constitution, using this language, says a Supreme Court shall be estab-
lished, are we not justified in considering it a constitutional creation ?
and on the other, from the language applied to inferior courts, are we not
equally justified in considering their establishment as dependent upon the
legiijlature, who may, from time to time, ordain them, as the public good
requires? Can any other meaning be applied to the words ** from time to
time " 1 And nothing can be more important on this subject than that
the legislature should have power, from time to time, to create, to annul, or
to modify, the courts, as the public good may require — not merely to-day,
but forever, and whenever a change of circunistincea may suggest the
propriety of a different organization. On this point, there is great force
in the remark, that, among the enumerated powers given to Con>rress,
while there is no mention made of the Supreme Court, the power of es*
tablishing inferior courts is expressly given. Why this difTerence, but
that the Supreme Court was considered by the framerp of the Constitution
as established by the Constitution ? while they considered the inferior
courts as dependent upon the will of the legislature.
January 13, 1802.
Mr. STONE, (of North Carolina.) No part of the Constitution ex-
pressly gives the power of removal to the President ; but a construction
has been adopted, and practised upon from necessity, giving him that
power in all cases in which he is not expressly restrained from the exercise
of it. The judges afford an instance in which he is expressly restrained
from removal — it being declared, by the 1st section of the 3d article of
the Constitution, that the judges, both of the supreme and inferior courts,
aball hold their offices during good behavior. I'hey doubtless shall, (as
against the President's power to retain them in office,) in common with
other officers of his appointment, be removed from office by impeacli-
ment and conviction; but it does not follow that they niaynot be removed
by other means. They shall hold their offices during good behavior, and
they shall be removed from office upon impeachment and conviction of
treason, bribery, and other high crimes and misdemeanors. If the words
'mmpeachment of high crimes and misdemeanors be understood according
to any construction of them hitherto received and established, it will be
Ibund that, although a judtre, guilty of high crimes and misdemeanors, is
^ways guilty of misbehavior in office ; yet that, of the various species
^ misbehavior in office which may render it exceedingly improper that a
judge should continue in office, many of them are neither treason nor
bribery; nor can they properly be, dignified by the appellation of high
crimes and misdemeanors; and for impeachment of which no precedent
can be found, nor would the words of the Constitution justify such
impeachment.
To what source, then, shall we resort for a knowledge of what consti-
utes this thing called misbehavior in office ? The Constitution did not in-
tend that a circumstance, as a tenure by which the judges hold their offices,
•tiouiQ oe incapable of being ascertained. 2%eir misbehavior certainly Is
|44 Judiciary System. — Hemphill. [January 18,
not ail mpeachable offence ; still it is the ground by which the judges are
to be remoTed from office. The process of impeachment, therefore, can-
not be the only one by which the judges may he removed from office,
under and according to the Constitution. I take it, therefore, to be a
thing undeniable, that there resides somewhere in the government a power
that shall amount to define misbehavior in office by the judges, and to remove
them from office for the same without impeachment. The Constitution
does not prohibit their removal by the legislature, who have the power to
make all laws necessary and proper for carrying into execution the powers
vested by the Constitution in the government of the United States.
Mr. BRECKENRIDGE. To make the Constitution a practical sys-
tem, the power of the courts to annul the laws of Congress chnnot possi-
bly exist. My idea of the subject, in a few words, is — That the Consti-
tution intended a separation only of the powers vested in the three great
departments, giving to each the exclusive authority of acting on the sub-
jects committed to each ; that each are intended to revolve within the
sphere of their own orbits, are responsible for their own motion only, and
are not to direct or control the course of others ; that those, for example,
who make the laws, are presumed to have an equal attachment to, and in-
terest in, the Constitution, are equally bound by oath to support it, and
have an equal right to give a construction to it ; that the construction of
one department, of the powers particularly vested in that department, is of
as high authority, at least, as the construction given to it by any other de-
partment ; that it is, in fact, more competent to that department, to which
powers are exclusively confided, to decide upon the proper exercise of
those powers, than any other department, to which such powers are not
intrusted, and who are not consequently under such high and responsible
obligations for their constitutional exercise; and that, therefore, the legis-
lature would have an equal right to annul the decisions of the courts,
founded on their construction of the Constitution, as the courts would
have to aimul the acts of the legislature founded on their construction.
Although, therefore, the courts may take upon them to give decisions
which go to impeach the constitutionality of a law, and which, for a time,
may obstruct its operation, yet I contend that such law is not the less obli-
gatory because the organ through which it is to be executed has refused
Its aid. A pertinacious adherence of both departments to their opinions
would soon bring the question to an issue, which would decide in whom
the sovereign power of lecrislation resided, and whose construction of the
Constitution as to the law-making power ought to prevail.
Mr. HEMPHILL. I have ever understood that there was difference in
opinion on this point : that the general opinion was, that the words in the
Constitution rendered the judges independent of both the other branches
of the government. This appears, from the debates in the Convention in
Virginia, to have been their opinion; it appears also, from the strongest
implication, to have been the opinion of the author of the Notes on Vir-
ginia.
Wn'it is the meaning of the words yrom time to time ? They are used
but ii three other parts of the Constitution, and, when used, they do not
convey the idea of what may be done. Indeed, they are used in cases
where it is impracticable to undt> what shall have been done. [Mr. Hemp-
hill here read 5th sec. 1st art. No. 3, 9th sec. 1st art. No. 6, and 3d sec.
2d art] What do these words mean in that part of the Constitution under
discussion ? The Supreme Court had been mentioned in 2d and 3d art
1802.] Juiiciary 8if:>tem» — Rutledge. 445
— <A« Supreme Court, which implies that there should be but one. Thej
'virere not used to gi?e Congress power to constitute inferior courts, for
chat power had been previously given; and if the inferior courts, together
^th the offices of the judges, are, as is contended, subjects of ordinary
legislation, these words were unnecessary to enlarge the powers of Con-
fess on them ; for, on all subjects of ordinary legislation, Congress have
an unquestionable right to enact and repeal at pleasure.
It is not said, in the 8th section, 1st article, that Congress shall have
the power to borrow money from time to time, to regulate commerce from
time to time, or to establish post-offices and post-roads from time to time ; yet
nobody doubts that Congress have a right to enact and repeal laws on these
subjects when it may appear expedient ; and the same power would have
extended to the clause giving power to constitute inferior tribunals, if there
had been no restriction in any other part of the Constitution. As these
words are unnecessary to give the power contended for, they must have
some other meaning. The plain meaning is this — that these words,
together with the first part of the section, were not used to give a power to
constitute courts ; for that power had been expressly given : they were
merely introduced to dispose of judiciary power, and to declare where it
should reside. The judiciary power of the United States shall be vested
in one Supreme Court, and in such inferior courts as the Congress may,
from time to time, ordain and establish ; meaning the power before given,
which was discretionary as to number. The clause in the 8th section of
the 1st article is brought here into view; and in the very next sentence,
the offices are positively fixed and limited. Here, then, is an express and
positive provision, uncontradicted by any express declaration, or by any
violent implication.
Mr. BAYARD. The 2d section of the 3d article of the Constitution
expressly extends the judicial power to all cases arising under the Consti-
tution, the laws, &c. The provision in the 2d clause of the 6th article
leaves nothing to doubt. This Constitution, and the laws of the United
States which shall be made in pursuance thereof, &c., shall be the su-
preme law of the land. The Constitution is absolutely the supreme
law. Not so of the acts of the legislature. Such only are the laws of
the land as are made in pursuance of the Constitution.
Mr. RUTLEDGE. Taught by examples the value of a good judiciary,
the patriots who met at Philadelphia determined to establish one which
should be independent of the executive and legislature, and possess the
power of deciding rightfully and finally on conflicting claims between
them. The Convention laid their hand upon this invaluable and protect-
ing principle : in it they discovered what was essential to the security and
duration of free stales; what would prove the shield and palladium of our
liberties; and they boldly said, notwithstanding the discouragement in
other countries, in past times, to efforts in favor of republicanism, our
•experiment shill not miscarry, for we will establish an independent
iudiciary ; we will create an asylum to secure the government and protect
♦he people in all the revolutions of opinion, and struggles of ambition and
faction. They did establish an independent judiciary. There is nothing,
f think, more demonstrable thin th^it the Convention meant the judiciary
to be a coordinate, and not a subordinate branch of the government.
This is my settled opinion. But on a subject so momentous as this is, I
«un unwilling to be directed by the feeble licrhts of my own understanding;
and as my judgment, at all times very fallible, is liable to err much where
38
446 Judiciary System, — Rutledge. [January 18
my anx.c ties, are much excited, I hnve had recourse to other sources for
the true nrjeaiitng of this Constitution. Daring the throes and ^aams, as
ihey have heen termed, which conrulsed this nation prior to the late
presidentifd election, strong doubts were very strongly expressed whether
the gentleman who now administers this government was attached to it as
it is. Shortly after his election, the legislature of Rhode Island presented
a congralulatory address which our chief magistrate considered as solicit-
ing some declaration of his opinions of the Federal Constitution; and in
his answer deeming it fit to give them, he said, '* the Constitution shall he
administered bv me according to the safe and honest meaninor contem-
plated by the plain understanding of the people at the time of its adoption
— a meaning to be found in the explanations of those who advocated, not
those who opposed it. These explanations are preserved in the publican
lions of the time" To this high authority I appeal — to the honest mean-
ing of the instrument, the plain understanding of its framers. I, like Mr.
Jefferson, appeal to the opinions of those who were the friends of the Con-
stitution at the time it was submitted to the states. Three of our most
distinguished statesmen, who had much agency in framing this Constitu-
tion, finding that objections had been raised against its adoption, and that
much of the hostility produced against it had resulted from a misunder-
standing of some of its provisions, united in the patriotic work of explain-
ing the true meaning of its framers. They published a series of papers,
under the signature of Publius, which were afterwards republished in a
book called the Federalist. This contemporaneous exposition is what Mr.
Jefferson must have adverted to when he speaks of the publication of the
time. From this very valuable work, for which we are indebted to Messrs.
Hamilton, Madison, and King, I will take the liberty of reading some ex
tracts, to which I solicit the attention of the committee. In the seventy
ciorhth number we read, ** Good behavior for the continuance in office of
the judicial magistracy, is the most valuable of the modern improvements
in the practice of government. In a republic, it is a barrier to the en-
«;roachments and oppressions of the representative body ; and it is the best
expedient that can be deviled in any government to secure a steady, up-
right, and impartial administration of the laws. The judiciary ^ in a gov-
ernment where the departments of power are separate from each other,
from the nature of its functions, will always be the least dangerous to the
political rights of the Constitution. It has no influence over the sword or
the purse, and may be truly said to have neither ^brrf nor will, but merely
judijment. The complete independence of the courts of justice is essen-
tial in a limited constitution ; one containing specified exceptions to the
legislative authority ; such as thnt it shall pass no ei post facto law, no bill
of attainder, &c. Such limitations can be preserved in practice no other
way than through the courts of justice, whose duty it must be to declare
all &cts manifestly contrary to the Constitution void. Without this, all
the reservations of particular rights or privileges of the states or the people
would amount to nothinir. Where the will of the legislature, declared in
Its statutes, stands in opposition to that of the people, declared in the Con-
stitution, the courts, designed to be an intermediate body between the peo-
ple and the legislature, are to keep the latter within the limits assigned to
their authority. The Convention acted wisely in establishing good beha^
vtor as the tenure of judicial oflices. Their plan would have been inex-
cusably defective had it wanted this important feature of good government."
The authority I have read proves to demonstration what was the intention
1803.] Judiciary System. — Rutleogb. 447
of the Convention on this subject — that it was to establish a judiciary
completely independent of the executive and legislature, and lo have
judges removable only by impeachment. This was not only the intention
of the General Convention, but of the state conventions when tliey adopted
this Constitution. Nay, sir, hud they not considered the judicial power to
be coordinate with the other two great departments of government, they
never would have adopted the Constitution. I feel myself justified in ma-
king this declaration by the debates in the ditferent state conventions.
FroHEi those of the Virginia Convention I will read some extracts, to show
what were there the opinions of the speikers of both political parties.
General Marshall, the present chief justice, says, '^Can the government
of the United States go beyond those delegated powers? If they were to
make a law not warranted by any of the powers enumerated, it would be
considered as an infringement of the Constitution, which they are to guard:
they would not consider such a law as coming under their jurisdiction .
tkey would declare it void.'' Mr. Grayson, who opposed the Constitution,
we find saying, " The judges will not be independent, because their sala-
ries may be atigmented. This is left open. What if you give <£(iOO or
£1000 annually to a judge ? 'Tis but a trifling object, when, by that
little money, you purchase the most invaluable blessing that any country
can enjoy. The judges are to defend the Constitution." Mr. Madison,
iu answer, says, " I wished to insert a restraint on the augmentation as
well as diminution of the compensation of the judges; but I was over-
ruled. The business of the courts must increase. If there was no power
to increase their pay, according to the increase of business, dtiring the life
of the judges, it might happen that there would be such an accumulation
of business as would reduce the pay to a most trivial consideration."
Here we find Mr. Madison not using the words good behavior^ but saying,
(what we t<ay was meant by good behavior,) during the life of the judges.
The opinions of Mr. Madison I deem conclusive a.s to the meaning of the
words good behavior. Let us now see what was the opinion on this sub-
ject of the first Congress under the Constitution, when the first judiciary
bill was debated. Mr. Stone says, ** The establishment of the courts is
immutable" Mr. Madison says, '* The judges are to be removed only on
impeachment and conviction before Congress." Mr. Gerry, who had been
a member of the General Convention, expresses himself in this strong and
unequivocal m;mner : *^ The judges will be independent, and no power
can remove them : they will be beyond the reach of the other powers of
the government ; they will be unassailable, and cannot be affected but by
the united voice of America, aiid that only by a change of government."
Here it is evident Mr. Gerry supposed a project like the present could only
be eflfected by the people, through the medium of a convention ; he did not
suppose it possible for Congress ever lo grasp at this power. The same
opinions were held by Mr. Lawrence and Mr. Smith.
As early as the year 1769, among the first acts of the government, the
legislature explicitly recognized the right of a state court to declare a
treaty, a statute, and an authority exercised under the United States, void,
subject to the revision of the Supreme Court of the United States; and it
has expressly given the final power to the Supreme Court to affirm a judg-
ment which is against the validity either of a treaty, statute, or an author
itjr of the gof ernment.
448 Acquisition of Louisiana. — Tract. [October 2E^
Louisiana Treaty,
House of REpRKsxNTATiyKS, October 25, 1803.
Mr. ELLIOT. The Constitution is silent on the subject of the acqui-
sition of territory; therefore the treaty is unconstitutional. This question
is not to be determined from a mere view of the Constitution itself,
although it may be considered as admitted that it does not prohibit, in
express terms, the acquisition of territory. It is a rule of law that, in
order to ascertain the import of a contract, the evident intention of the
parties, at the time of forming it, is principally to be regarded. Previous
to the formation of this Constitution, there existed certain principles of
the law of nature and nations, consecrated by time and experience, in
conformity to which the Constitution was formed. The question before us,
I have always believed, must be decided upon the law of nations alone.
Dr. MITCHELL. The people, in forming their Constitution, had an
eye to that law of nations which is deducible by natural reason, and estab-
lished by common consent, to reguhte the intercourse and concerns of
nations. With a view to this law the treaty-making power was constituted,
and, by virtue of this law, the government and people of the United States,
in common with all other nations, possess the power and right of making
acquisitions of territory by conquest, cession, or purchase.
Mr. SMILIE. We are obliged to admit the inhabitants according to
the principles of the Constitution. Suppose those principles forbid their
admission; then we are not obliged to admit them. This followed aa
an absolute consequence from the premises. There, however, existed a
remedy for this case, if it should occur; for. if the prevailing opinion shaL
be, that the inhabitants of the ceded territory cannot be admitted under
the Constitution, as it now stands, the people of the United States can, if
they see fit, apply a remedy, by amending the Constitution so as to author-
ize their admission. And if they do not choose to do this, the inhabitants
may remain in a colonial state.
Mr. RODNEY. In the view of the Constitution, the Union is composed
of tvvo corporate bodies — of states and territories. A recurrence to the
Constitution will show that it is predicated on the principle of the United
States' territory, either by war, treaty, or purchase. There was one part
of that instrument within whose capacious grasp all these modes of ac-
quisition were embraced. By the Constitution, Congress have power to
" lay and collect taxes, duties, imposts, and excises ; to pay the debts and
provide for the common defence and gener;d welfare of the United States."
To provide for the general welfare. The import of these terms is very
comprehensive indeed. If this general delegation of authority be not at
vari mce with other particular powers specially granted, nor restricted by
them, — if it be not in any degree comprehended in those subsequently
delegated, — I cannot perceive why, within the fair meaning of these gen-
eral provisions, is not included the power of increasing our territory, if
necessary for the general welfare or common defence.
Mr. TRACY, among other objections, said that the 7th article admits,
for twelve years, the ships of France and Spain into the ceded territory,
free of foreign duty. This is giving a commercial preference to tho8(*
ports over the other ports of the United States, because it is well known
that a duty of forty-four cents on tonnage, and ten per cent, on duties, are
paid by all foreign vessels in all the ports of the United States. If it be
said we must repeal those laws, and then the preference will cease, the
1803.] Acquisition of Louisiana, — Adams. 449
answer is, that this 7th article gives the exclusive right of entering the
ports of Louisiana to the ships of France and Spain ; and if our discrim-
inating duties were repealed this day, the preference would be given to
the ports of the United States to those of Louisiana ; so that the prefer-
ence, by any regulation of commerce or revenue, which the Constitutio'i
expressly forbids from being given to the ports of one state over those of
another, would be given by this treaty, in violation of the Constitution.
We can hold territory ; but to admit the inhabitants into the Union,
to make citizens of them, and states, by treaty, we cannot constitutionally
do, and no subsequent act of legislation, or even ordinary amendment to
our Constitution, can legalize such measures.
Mr. ADAMS. It h^s been argued that the bill ought not to pass, be-
cause the treaty itself is an unconstitutional, or, to use the words of the
gentleman from Connecticut, (Mr. IVacy,) an extra-constitutional act,
because it contains engagements which the powers of the Senate were
not competent to ratify, the powers of Congress not competent to confirm ;
and, as two of the gentlemen have contended, not even the legislatures of
the number of states requisite to effect an amendment of the Constitution,
are adequate to sanction. It is, therefore, they say, a nullity. We can*
not fulfil our part of its conditions; and on our failure in the performance
of any one stipulation, France may consider herself as absolved from the
obligations of the whole treaty on hers. I do not conceive it necessary
to enter into the merits of the treaty at this time. The proper occasion
for that discussion is past, fiut allowing even that this is a case for
which the Constitution has not provided, it does not, in my mind, follow
that the treaty is a nullity, or that its obligations, either on us or on France,
must necessarily be cancelled. For my own part, I am free to confess,
that the 3d article, and more especially the 7th, contain engagements
placing us in a dilemma, from which I see no possible mode of extricat-
ing ourselves but by an amendment, or rather an addition, to the Con-
stitution.
The gentleman from Connecticut, (Mr. Tracy,) both on a former oc-
casion and in this day's debate, appears to me to have shown this to dem-
onstration. But what is this more than saying that the President and
Senate have bound the nation to engagements which require the coopera-
tion of more extensive powers than theirs to carry them into execution ?
Nothing is more common, in the negotiations between nation and nation,
than for a minister to agree to and sign articles beyond the extent of his
powers. This is what your ministers, in the very case before you, have
confessedly done. It is well known that their powers did not authorizi
them to conclude this treaty ; but they acted for the benefit of their
country, and this house, by a large majority, has advised to the ratifica-
tion of their proceedings. Suppose, then, not only that the ministers who
signed, but the President and Senate who ratified, this compact, have ex-
ceeded their powers ; suppose that the other house of Congress, who have
^iren their assent by passing this and other bills for the fulfilment of the
obligitions it imposes on us, have exceeded their powers ; nay, suppose
even that the majority of the states competent to amend the Constitution
in other cases, could not amend it in this, without exceeding their pow-
ers, — and this is the extremest point to which any gentleman on tni6
floor has extended his scruples; — suppose all this, and there still remam»
in the country a power competent to adopt and sanction every part of our
engagements, and to carry them entirely into execution ; for, notwithstand^
VOL, !¥• 67
4i5(> A rquisition of Louisicma. — Mitch ell. [ October 25»
•
ing the objections and apprehensions of many individuals, of many wise,
able, and excellent men, in various parts of the Union, yet, such is the
puolic favor attending the transaction which commenced by the negotia*
lion of this treaty, and which I hope will terminate in our full, undis-
turbed, and undisputed possession of the ceded territory, that I firmly
believe, if an amendment to the Constitution, amply sufficient for the ac-
complishment of every thing for which we have contracted, shall be pro-
posed, as 1 think it ought, it will be adopted by the legislature of every
state in the Union. We can, therefore, fulfil our part of the convention,
and this is all that France has a right to require of us. France can
never have a right to come and say, " I am discharged from the obligation
of this treaty, because your President and Senate, in ratifying, exceeded
their powers ; " for this would be interfering in the internal arrangements
of our government. It would be intermeddling in questions with which
she has no concern, and- which must be settled altogether by ourselves.
The only question for France is, whether she has contracted with the de-
partment of our government authorized to make treaties ; and this being
clear, her only right is to require that the conditions stipulated in our
name be punctually and faithfully performed. I trust they will be so per-
formed, and will cheerfully lend my hand to every act necessary to the
purpose; for I consider the object as of the highest advantage to us: and
the gentleman from Kentucky himself, who has displayed, with so much
eloquence, the immense importance, to this Union, of the possession of
the ceded country, cannot carry his ideas farther on the subject than I do.
With these impressions, sir, perceiving in the first objection no sub-
stantial reason requiring the postponement, and in the second no adequate
argument for the rejection, of this bill, I shall give my vote in its favor.
Mr. TRACY. It is unreasonable to suppose that Cc;ngress should, by
a majority only, admit new foreign states, and swallow up, by it, the old
partners, when two thirds of all the members are made requisite for the
least alteration in the Constitution.
Dr. MITCHELL. The 3d section of the 4th article of the Constitu-
ion contemplates that territory and other property may belong to the
United States. By a treaty with France, the nation has lately acquired
title to a new territory, with various kinds of public property on it and
annexed to it. By the same section of the Constitution, Congress is so
clothed with the power to dispose of such territory and property, and to
make all needful rules and regulations respecting it. This is as fair an
exercise of constitutional authority as that by which we assemble and
hold our seats in this house. To the title thus obtained, we wish now to
add the possession ; and it is proposed, for this important purpose, the
President shall be empowered.
^J\''ote. JeflTorson himself (under whose auspices the treaty was made) was of
opmion that the measure was unconstitutional, and required an amendment of the
Constitution to justify il. He accordinsrly urfrvd his friends strenuously to that courae ;
at the same time he added, '* that it will be desirable for Cong^ress to do what is neces-
sary in silence ; " " what<»ver Confrress shnll think necessary to do, should be don*
v/ilh as little debate as possible, and partirularly so far as nspecta the constitutional
difticulty ; " "1 confess, then, I think it important, in the present case, to set an ex-
ample agrftinst broad construction by appealinir for new power to the people. If, how
ever, our friends shall think differently, certainly T shnll acquiesce with satisfaction ,
confidinpr that the good sense of our country will correct the evil of constnictioi:
when it shall produc^ ill effects."
Ills letter to Dr. Sibley, (in .June, IHCf^,) recently published, is decisive that h^
thought an amendment of the Constitution necessary. Yet he did not heiifate, with
iSOa] Duelling. — Davis. 431
oat iuch amendment, to give effect to every measure to carry the treaty into efiti^t
daring hit administration. See Jefferson's Corresp., ii. pp. 1, 2, 3 ; Story's Comm."}
District of Columbia. — On the Report of the Committee of
Elections^ on the Case of John P. Van Ness.
House of Represrntatives, January 17, 1803.
Mr. VAN NESS said, the reasons he should offer to the committee fw
retaining his seat were few and simple. He thought the fair, liberal, and
sound construction did not affect his case ; that the incapacitating pro-
vision only applied to civil offices. The Constitution was only a digest
of the most approved principles of the constitutions of the several states, in
which the spirit of those constitutions was combined. Not one of those
constitutions excluded from office those who had accepted military appoint-
ments, except in the regular service. He, therefore, felt a full conviction
that it never was the intention of the framers of the Constitution of the
United States to exclude militia officers from holding a seat in Congress.
And however important it might be to adhere to the letter of the Consti-
tution, yet, when the spirit of it was so clear as it appeared to him, it
ought to have weight in the decision of the question before the committee
which might affect objects of great importance. The right of every portior
of the Union to a representation in that house was very important, and
ought to be respected in all cases which may either directly or indirectly
affect it.
Mr. BACON observed, though the first part of the section of the Con-
stitution referred to civil offices, yet the latter part used the expression
any office^ which was more comprehensive, and appeared to them to have
been intended to have a universal effect.
The question was then taken on the report of the committee of elec-
tions, which was agreed to without a division.
On Mr. Bacon^s Resolution to re-cede the District of Columbia.
FIousR OF Representatives, February 9, 1803.
Mr. BAYARD. Now, the states of Maryland and Virginia have made
this cession, with the consent and approbation of the people in the ceded
territory, and Congress has accepted the cession, and assumed the jurisdic-
tion. Are they, then, at liberty, or can they relinquish it, without the
consent of the other parties ? It is presumed they cannot. In his opin-
ion, they were constitutionally and morally bound to proceed in the exer-
cise of that power regularly assumed, either immediately by themselves,
or by the intervention of a territorial legislature, chosen and acting under
a special act of Congress for that purpose. To relinquish the jurisdiction
at this time, and re-cede the territory, would, in his view, exhibit a sur-
prising inconsistency of conduct in the legislature; it would discover such
a versitility, such a disposition to change, as could not fail to unsettle
the minds of the people, and shake their confidence in the government.
Duelling. — On a Resohition for rendering all Persons concerned
in a Duel incapable of holdinsc an Office under the General
Oovemment of the United States.
House or Representatives, December 31, 1803.
Mr. DAVIS said, if the house could be made sensible that the resf>-
Incion embraced a subject on which it could not constitutionally aci^
4% Impeachment of Judge Chase. — Hopkinbon. [1604, 18(16
they wonld reject it. To him it was plain that, if the house pursoed the
object of the resolution, it led them on forbidden ground. In the first
place, it took from the citizens a right which, by their Constitution, they
liad secured themselves, — to wit, the right of free elections. Do what the
resolution contemplates, and no man can hold a seat here who ever fought
a duel, or gave or carried a challenge, although he may be the choice of
the people. No such thing is said in the Constitution. The people, in
that instrument, have already defined the disqualifications to office ; that
charter of their rights declares that no person who hes been impeached
and found guilty shall hold an office ; and I contend that Congress cannot
impeach a person for any offence done by him as an individual. Two
things are requisite to ground an impeachment. First, the person must
be an officer of the United States : secondly, he must have been guilty of
some malfeasance in the discharge of the duties imposed on him by that
office. If an individual who does not hold an ofiice under the United
States commits murder, I deny the right of Congress to impeach him.
He is made amenable to the state laws. While we were busy in impeach-
ing him, he might be executed by the statute laws of the states. My
observations disclaim the right we have to act on it.
The resolution was negatived.
On the Amendment to the Constitution,
HousB OF Rr.pRF.sErfTATivES, De4^ember 9, 1804.
Mr. JACKSON. The fate of the other little republics warranted the
idea that the smaller members would be swallowed up by the larger ones,
who would, in turn, attack each other; and thus the liberty achieved by
the blood of some of the bravest men that ever lived would pass away
without leaving a trace behind it. They, therefore, yielded every thing
to the little states, knowing they were not numerous, and naturally
jealous of the large ones. If we examine the Constitution, we shall
find the whole of the great powers of the government centred in the
Senate.
O71 the Impeachment of Judge Chase.
HousiE OF Representatives, FebruAry2\f 1805.
Mr. HOPKINSON. What part of the Constitution declares any of
the acts charged and proved upon Judge Chase, even in the worst aspect,
to be impeachable ? He has not been guilty of bribery or corruption ;
he is not charged with them. Has he» then, been guilty of " other high
crimes and misdemeanors ^' ? In an instrument so sacred as the Constitu-
tion, I presume every word must have its full and fair meaning. It is
not, then, only for crimes and misdemeanors that a judge is impeachable,
but it must be for high crimes and misdemeanors. Although this qualify-
. ing adjective **high" immediately precedes, and is directly attached to
the word ** crimes," yet, from the evident intention of the Constitution,
and upon a just grammatical construction, it must also be applied to ** mis-'
demeanors,*^ If my construction of this part of the Constitution be not
admitted, and the adjective ** high" be given exclusively to " crimes," and
denied to " misdemeanors," this strange absurdity must ensue — that when
an officer of the government is impeached for a crime, he cannot be con-
victed, unless it proves to be a high crime ; but he may, nevertheless, be
convicted of a misdemeanor of the most petty grade. Observe, sir tne
1806.] Madi$on*t Commercial Restrictions. 45d
crimes with which these '* other high crimes" are classed in the Constiti**
tion, and we may learn uomething of their character. They stand in con-
nection with " bribery and corruption^* — tried m the same manner, and
subject to the same penalties. But, if we are to lose the force and meming
of the word " high,*' in relation to misdemeanors, and this description of
offences must be governed by the mere meaning of the term ** misdemean-
ors/' without deriving any grade from the adjective, still my position re>
mains unimpaired — that the offence, whatever it is, which is the ground
of impeachment, must be such a one as would support an indictment.
''Misdemeanor'' is a legal and technical term, well understood and dehned
in law ; and in the construction of a legal instrument, we must give words
their legal significations. A misdemeanor, or a crime, — for in their jusi
and proper acceptation they are synonymous, — is an act committed,
or omitted, in the violation of a public law, either forbidding or com-
manding it.
[Xote. In the few cases of impeachment which have hitherto been tried, no one of
the charges has rested upon any suitable misdemeanors. It seems to be the settled
doctrine of the high court of impeachment, (the Senate,) that though the common
law cannot be a foundation of a jurisdiction not eiven by the Constitution or laws,
that jurisdiction, when given, attaches, and is to oe exercised according to the rules
of the common law ; and that what are, and what are not, high crimes and misde-
meanmrs, is to be ascertained by a recurrence to the great basis of American jurispru-
dence. — Story* s Comm.]
Mr, Madison^s Motion for Commercial Restrictions,
HousK OF Reprsssntati¥KS, February 14, 1806.
Resolved, As the opinion of this committee, that the interest of the
United States would be promoted by further restrictions and higher duties,
in certain cases, on the manufactures and navigation of foreign nations
employed in the commerce of the United States, than those now im-
posed.
I. Resolved^ As the opinion of this committee, that an additional duty
ought to be laid on the following articles, manufactured by European na-
tions having no commercial treaty with the United States : —
On articles of which leather is the material of chief value, an addi*
tional duty of per cent, ad valorem.
On all manufactured iron, steel, tin, pewter, copper, brass, or other ar-
ticles, of which either of these metals is the material of chief value, an
additional duty of per cent ad valorein.
On all articles of which cotton is the material of chief value, an addi-
tional duty of per cent, ad valorem.
On all cloths of which wool is the material of chief value, where the
estimated value on which the duty is payable is above , an additional
duty of per cent, ad valorem ; where such value is below , an
additional duty of per cent, ad valorem.
On all other articles of which wool is the material of chief value, an
additional duty of per cent, ad valorem.
On all cloths of which hemp or flax is the article of chief value, and of
which the estimated value on which the duty is payable is below , an
additional duty of per cent, ad valorem.
On all manufactures of which silk is the article of chief value, an addi-
tional duty of per cent, ad valorem.
3. Resohed^ As the opinion of this committee, that an additional duty
454 GnUractars. — Eppbb. [18&6.
of per ton oaght to be laid on the vessels belonging to nations bar-
ing no commercial treaty with the United States.
li. Resolved, As the opinion of this conimitiee, that the duty on vessels
belonging to nations having commercial treaties with the United States,
ought to be reduced to per ton.
4 Resolved, As the opinion of this committee, that where any nation
may refuse to consider as vessels of the United States any vessels not
built within the United States, the foreigrn-built vessels of such nation
ought to be subjected to a like refusal, unless built within the United
States.
5. Resolved^ As the opinion of this committee, that where any natioB
may refuse to admit the produce and manufactures of the United States,
unless in vessels belonging to the United States, or to admit them in ves-
sels of the United States if last imported from any place not within the
United States, a like restriction ought, after the day of , to be
extended to the produce and manufactures of such nation ; and that, in the
mean time, a duty of per ton, extraordinary, ought to be imposed on
vessels so importing any such produce or manufacture.
6. Resolved, As the opinion of this committee, that where any nation
may refuse to the vessels of the United States a carriage of the produce
and manufactures thereof, while such produce or manufactures are ad-
mitted by it in its own vessels, it would be just to make the restriction
reciprocal ; but, inasmuch as such a measure, if suddenly adopted, might
be particularly distressing in cases which merit the benevolent intention of
the United States, it is expedient, for the present, that a tonnage extraor-
dinary only of be imposed on the vessels so employed ; and that all
distilled spirits imported therein shall be subject to an additional duty of
one part of the existing duty.
7. Resolved, As the opinion of this committee, that provision ought to
be made for liquidating and ascertaining the losses, sustained by citi-
zens of the United States, from the operation of particular regulations of
any country, contravening the law of nations; and that such losses be
reimbursed, in the first instance, out of the additional duties on manufac-
tures, productions, and vessels of the nation establishing such unlawful
regulations.
Contractors.
March 23, 1806.
Resolved, ThRi h contractor, under the government of the United States,
is an offirer within the purview and meaning of the Constitution, and, as
such, is incapable of holding a seat in this house.
Mr. EPPES. I do not believe Congress have power to pass this reso-
lutifm. The words of the Constitution are, "No person holding an office
under the United States shall be a member of either house during his
continuance in office.**
These words are plain and clear. Their obvious intention was, to have
officers excluded, and officers only. It would certainly have been equally
wise to have excluded contractors, because the reason for excluding offi-
cers applies to them with equal force. We are not, however, to inquire
what the Constitution ought to have been, but what it is. We cannot
legislate on its spirit against the strict letter of the instrument. Our in-
quiry must be, is he an officer ? If an officer, under the words of the
Constitution, he is excluded. If not an officer, we cannot exclude him
by law.
1S07, 1808.] To suspend tlie Embargo. — Quincy. 456
An extensi?e meaning has been given to the word ojice. How far sucb
a construction of the meaning of this word is warranted, I leave fur othem
to decide. That all contractors are not officers 1 am certain. A man,
ibr instance, makes a contract with government to furnish supplies. He
certainly is not an officer, according to the common and known accepta-
tion of that word. He is, however, a contractor, and, under this resolu-
tion, excluded from a seat here. A carrier of the mail approaches very
near an officer. The person takes an oath, is subject to penalties, the
remission of which depends on the executive
Public Lands, — On the Resolution for investing a certain Por-
tion of the Public Lands in Shares of the Chesapeake Canal.
Senate, February 13, 1807.
Mr. BAYARD. It is admitted that the Constitution does not expressly
give the power to cut canals ; but we possess, and are in the daily exercise
of, the power to provide for the protection and safety of commerce, and the
defence of the nation. It has never been contended that no power exists
which has not been expressly delegated.
There is no express power given to erect a fort or magazine, though it
13 recognized in the delegation of exclusive legislative powers in certain
cases. The power to erect lighthouses and piers, to survey and take the
soundings on the coast, or to erect public buildings, is neither expressly
given nor recognized in the Constitution ; but it is embraced by a liberal
and just interpretation of the clause in the Constitution, which legitimates
all laws necessary and proper for carrying into execution the powers ex-
pressly delegated. On a like principle, the Bank of the United States was
mcorporated. Having a power to provide for the safety of commerce and
the defence of the nation, we may fairly infer a power to cut a canal — a
measure unquestionably proper with a view to either subject.
To suspend the Embargo.
House of Represertatites, Ajnil 19, ISUb
Mr. QUINCY. The Constitution of the United States, as I understand
It, has in every part reference to the nature of things and necessities of
Boci»:»ty. No portion of it was intended as a mere ground for the trial of
technical skill, or of verbal ingenuity. The direct, express powers with
which it invests Congress are always to be so construed as to enable the
people to attain the end for which they were given. This is to be gath-
ered from the nature of those powers, compared with the known exigen-
cies of society, and the other provisions of the Constitution. If a ques-
tion arise, as in this case, concerning the extent of the incidental and
implied powers vested in us by the Constitution, the instrument itself
contains the criterion by which it is to be decided. We have authority to
make ** laws necessary and proper for carrying into execution " powers
unquestionably vested. Reference must be had to the nature of these
powers to know what is necessary and proper for their wise execution.
When this necessity and propriety appear, the Constitution has enabled us
jo make the correspondent provisions. To the execution of many of the
|>owers vested in us by the Constitution, a discretion is necessarily and
properly incident; and when this appears from the nature of any par-
ticalir power, it is certainly competent for us to provide, by law, that
aaeh discretion shall be exercised.
456 / 'nutd States Bank Charter. — Alston. [ \9W.
Mr. KEY said, all the respectiTe representatives of the people, of the
states at large, and the sovereignty in a political capacity of each state,
must concur to enact a law. An honorable gentleman from Tennessee
(Mr. Campbell) admitted that the power to repeal must be coextensive
with the power to make. If this be admitted, I will not fail to convince
you that, in the manner in which this law is worded, we cannot constitu-
tionally assent to it. What does it propose ? To give the President of
the United States power to repeal an existing law now in force : — upon
what ? Upon the happening of certain contingencies in Europe ? No.
But in those contingencies which they suppose in his judgment shall render
it safe to rt*|ical the law, a discretion is committed to him -^ upon the hap-
pening of those events — to suspend the law. It is that discretion to which
I object. I do not say it will be improperly placed at all; but the power
and discretion to judge of the safety of the United States, is a power legis-
lative in its nature and effects, and as such, under the Constitution, cannot
be exercised by one branch of the legislature. I pray gentlemen to note
this distinction, that whenever the events happen, if the President exercise
his judgment upon those events, and suspend the law, it is the exercise of
a legislative power : the people, by the Constitution of the country, never
meant to confide to any one man the power of legislating for it.
Renewal of the Charter of the United States Bank.
House or Representativks, ^ril 13, 1810.
Mr. LOVE. The question of the constitutionality of the bank solely
depends on the question, whether it is necessary and proper for conducting
the moneyed operations of government. So great a change has taken place
on that subject within twenty years past, that it is supposed the question is
now settled. Not only the moneyed transactions of the United States, but,
it is believed, of all the state governments, are carried on through the
state banks, as well as commercial transactions, and other moneyed nego-
tiations.
Mr. TROUP said, gentlemen might pass the bill hut for the constitu-
tional question. If they did pass it, he hoped they would not permit
themselves to become the retailing hucksters of the community, for the
sale of bank charters. There is a power in the Constitution to sell the
public property ; but there is certainly no power to sell privileges of any
kind. I. therefore, move to strike out the bribe, the douceur, the bonus
as gentlemen, call it, of 1,250,000 dollars.
Mr. KEY said, to him it clearly appeared within the power and limit ot
the Constitution to establish a bank, if necessary, for the collection of the
revenue.
Mr. TROUP observed, that some gentlemen had said that the power to
incorporate a bank was derived from the power to lay and collect revenue;
and that the power ought to be exercised, because banks give a facility to
the collection of the revenue. If the power be exercised, it must be
necessary and proper. If it be necessary to the collection of the revenue,
the revenue cannot be collected without it. The gentleman from Mary-
land might say a bank institution was useful. He might say it would give
facility to the collection of the revenue; but facility and necessity are
wholly different, and the Constitution says that a power, to be incidental,
must be necesj»ary and proper.
Mr. ALSTON. In the 10th article, 1st section, of the Constitution, it
1811.] United Staies Bank Charier. — Crawpobd. 467
11 said, ** No state shall coin money, emit bills of credit, or make any
thiag but gold and silver com a legal tender in payment of debts." The
i iterpretation which I give to it is, that the United States possess powei
to make any thing, besides gold and silver, a legal tender. If what I con-
ceive to be a fair interpretation be admitted, it must follow that they have
a right to make bank paper a legal tender. Much more, then, sir, have
they the power of causing it to be received by themselves, in payment of
taxes.
January 16, 1811.
Mr. BURWELL. It is my most deliberate conviction, that the Con-
stitution of the country gives no authority to Congress to incorporate a
bank, and endow the stockholders with chartered immunities.
The power to establish a hank cannot be deduced from the general
phrases, ** to provide for the common defence and general welfare,*' be-
cause they merely announce the object for which the general government
was instituted. The only means hy which this object is to be attained
are specifically enumerated in the Constitution; and if they are not
ample, it is a defect which Congress are incompetent to supply.
P. B. PORTER. The Constitution is a specification of the powers,
or means, themselves, by which certain objects are to be accomplished.
The powers of the Constitution, carried into execution according to the
strict terms and import of them, are the appropriate means, and the only
means, within the reach of this government, for the attainment of its ends.
It is true, as the Constitution declares, — and it would be equally true if
the Constitution did not declare it, — that Congress have a right to pass
all laws necessary and proper for executing the delegated powers ; but this
gives no latitude of discretion in the selection of means or powers.
Mr. KEY. The end, or power given, is to lay and collect taxes, and
pay the public debt. The power to make laws necessary and proper to
effect that end is also given, and consists in devising and establishing the
means of accomplishing it. The means to accomplish the end are no-
where restricted.
If a bank is useful and necessary in the collection of taxes and .imposts,
and payment of the public debt, and is tlie best mode of effecting it, the
creation of a bank for such purposes is definitely within the power of
Congress ; and more, it is the bounden duty of Congress to establish it,
because they are bound to adopt the best practicable, or, in other words,
necessary and proper means to collect the tax and imposts.
Mr. EPPES. The Constitution of the United States has universally
been considered as a grant of particular, and not of general, powers.
Those powers are the primary or expressly delegated, and the derivative
or implied. The character of the instrument precluded the necessity of
a ** bill of rights," because the qjiestion never could arise, what was
reserved, but what was granted. The framers of the Constitution were
well aware of this, and so were the people who adopted it. It is, there-
fore, fairly to be inferred that, whenever there appears a limitation or
restriction, in the shape of a negative clause. Congress might have exer-
cised the power interdicted had such clause not been made part of the
instrument.
Mr. CRAWFORD. If the state governments are restrained from exercis-
ing this right to incorporate a bank, it would appear, ex necessitate rei^ tha*
Ibis right is rested in the government of the United States. The entire sove
VOL. IV. 68 39
458 Untied States Bank Charter. - Clay. [1811.
reignt) of.this nation is vested in the state governments, and in the federal
government, except that part of it which is restrained by the people, which
IS solely the right of electing their public functionaries.
The right to create a corporation is a right inherent in every sove-
reignty. The people of the United States cannot exercise this right. If,
then, the states are restrained from creating a bank with authority to emit
bills of credit, it appearH to be established that the federal government
does possess this right. If, however, it is still believed that the law by
which this bank has been created was the result of a forced construction,
yet I must contend that that construction is entitled to some weight in the
decision of this question. The time and state of the public mind, when
this construction was given, gives it a strong claim to consideration upon
this occasion. This construction was given shortly after the government
was organized, when first impressions had not been effaced by lapse of
time, or distorted by party feelings or individual animosity. The parties
which then existed were literally federal and anti-federal. Those who
were friendly to the Federal Constitution, and those who were inimical to
it, formed the only parties then known in this nation.
Mr. CLAY. What is the nature of this government? It is emphati-
cally federal ; vested with an aggregate of specified powers for general pur-
poses, conceded by existing sovereignties, who have themselves retained
what is not so conceded. It is said there are cases in which it must act
on implied powers. This is not controverted; but the implication must
be necessary, and obviously flow from the enumerated powers with which
it is allied. The power to charter companies is not specified in the grant,
and, I contend, is of a nature not transferable by mere implication. It is
one of the most exalted attributes of sovereignty.
Is it to be imagined^'that a power so vast would have been lefl by the
wisdom of the Constitution to doubtful inference? It has been alleged
that there are many instances, in the Constitution, where powers in their
nature incidental, and which would have necessarily been vested along
with the principal, are nevertheless expressly enumerated ; and the power
" to make rules and regulations for the government of the land and naval
forces,'' which, it is said, is incidental to the power to raise armies, and
provide a navy, is given as an example. What does this prove ? How
extremely cautious the Convention were to leave as little as possible to im-
plication ! In all cases where incidental powers are acted upon, the prin-
cipal and incidental ought to be congenial with each other, and partake
of a common nature. The incidental power ought to be strictly subordi-
nate, and limited to the end proposed to be attained by the specified
power. In other words, — under the name of accomplishing one object
which is specified, the power implied ought not to be made to embrace
other objects, which are not specified in the Constitution. If, then, you
could establish a bank to collect and distribute the revenue, it ought to be
expressly restricted to the purpose of such collection and distribution.
I contend that the states have the exclusive power to regulate contracts,
to declare the capacities and incapacities to contract, and to provide as to
the extent of responsibility of debtors to their creditors. If Congress have
the power to erect an artificial body, and say it shall be endowed with the
attributes of an individual, — if you can bestow on this object of your
own creation the ability to contract, — may you not, in contravention of state
rights, confei upon slaves, infants, and femes covert, the ability to con-
tract? And if you have the power to say that an association of indi^idualii
1612.] Voluntur Corps. — Clat. 469
ahall be responsible for their debts only in a certain 1 niited degree, whac
is to prevent an extension of a similar exemption to individuals? Where
is the limitation upon this power to set up corporations? You establish
one in the heart of a state, the basis of whose capital is money. You
may erect others, whose capital shall consist of land, slaves, and personal
estates ; and thus the whole property within the jurisdiction of a state might
be absorbed by these political bodies. The existing bank contends that
it is beyond the power of a state to tax it ; and if this pretension be well
founded, it is in the power of Congress, by chartering companies, to dry
up all the sources of state revenue.
On the Bill for raising a Volunteer Corps.
House of Representatives, January 12, 1812.
Mr. POINDEXTER. Can we constitutionally employ volunteer mili-
tia, without the jurisdiction of the United States, in the prosecution of
hostilities, in the enemy's country? lie was of opinion, that no legisla-
tive act of Congress could confer such a power on the President.
Mr. GRUNDY. If the Constitution forbids the President from send-
ing the militia out of the United States, how can we authorize him to do
so bylaw? We cannot: we should legislate to no purpose. Whether
he had the authority or not, would depend upon the construction the Presi-
dent himself shall give to the Constitution. Nor could he see how this
^proposition gets over the difficulty.
It provides that a militiaman may authorize the President to send him
beyond the limits of the United States. He had always understood that,
in framing the Constitution of this government, there was great jealousy
exhibited lest the general government should swallow up the powers of the
state governments; and when the po«'/er of making war and raising armies
was given to Congress, the militia was retained by the states, except in
cases mentioned by the Constitution. How, then, can you permit militia-
men to engage in the service of the United States, contrary to the provis-
ions of the Constitution, and by that means leave the state unprotected?
Mr. PORTER. He did not agree with the gentleman, (Mr. Poin-
dexter,) that the militia could in no case be employed without the limits
of the United States. He did not think their services were to be confined
by geographical limits. If it became necessary for the executive to call
out the militia to repel invasion, he thought they might pursue the enemy
beyond the limits, until the invaders were elTectually dispersed.
Mr. CHEVES. Though the gentleman from New York says the ser-
vice of the militia is not to be bounded by geographical limits, I cannot,
•aid Mr. C, discover the premises by which he comes to this conclusion,
ifthe general government has no other power over the militia than is given
to it in this clause of the Constitution. If they may cross the line, why
not go to the walls of Quebec ? The principle is trampled upon the in-
stant they pass beyond the territorial limits of the United States; nor, if
this be a correct construction, said he, can the consent of the individual
add any thing to the powers or the rights of the general government,
while he remains a member of the militia of the state.
Mr. CLAY. In one of the amendments, it is declared that a well-
regulated militia is necessary to the Security of a free state. But if you
limit the use of the militia to executing the laws, suppressing insurrec-
tions, and repelling invasions, — if you deny the use of the militia to make
4/bi) Seamen's BUL — Sbtbert. [I6ia
war, — can yoa say they are ** the security of a state " t He though!
QOt.
Mr. CHEVES. It is said that the powers of the general government
were not sovereign, but limited. This was to deny the existence of any
sovereignty which wad limited as to its objects, than which nothing is,
however, more common. But there is an authority on this point which
Mr. C. supposed would not be controverted. He meant Mr. Hamilton's
argument on the constitutionality of the Bank of the United States.
[Here Mr. C. read the following extract from that work : ** The circumstance that
the powers of the sovereignty are, in this country, between the national and statr
governments, does not afford the distinction required. It does not follow from this
fliat each of the portions of power, delegated to the one or the other, is not sovereign
with regard to its proper objects. It win only follow from it that each has sovereign
power with regard to certain things^ and not as to other things. To deny that the gov
ernment of the United States has sovereign power as to its declared purposes and
trusts, because its power does not extend to all laws, would be equally to deny that
stale governments have sovereign power in any case, because their power does not
extend to etery case.'*]
It was said, by the same gentleman, that the writers contemporaneous
with the adoption, and the debates of the several conventions on the
adoption of the Constitution, repelled the construction now contended for ;
but that gentleman had not produced, nor had any other gentleman pro-
duced, a sentence to that effect, except the gentleman from Tennessee,
(Mr. Grundy,) who read from the Virginia debates, in the argument of
Mr. Nicholas, a detached sentence, in which, 8|)eaking of that article of
the Constitution which gives power to Congress ** to provide for calling
forth the militia to execute the laws of the Union, suppress insurrections,
and repel invasions," he says they cannot call them forth for any other
purpose than to execute the laws, suppress insurrections, and repel inva-
sions. But Mr. Madison, in the same debate, says, *' The most effectual
way to render it unnecessary, is to give the general government full power
to call forth the militia, and exert the whole natural strength of the Union,
when necessary." He (Mr. C.) was opposed to the latitude of the bill.
Searnen^s Bill. — For the Regulation of Seamen on Board
the Public Vessels, and in the Merchant Service of the
United States.
HousR OF Represkntatives, Febmaryj 1813.
Mr. SEYBERT. The Constitution of the United States declares,
Congress shall have power '*to establish a uniform rule of naturalization,
and uniform laws on the subject of bankruptcies, throughout the United
States." Sir, the rulf only relates to the mode ; it is only operative during
the nascent state of the political conversion, and it ceases to have effect
the moment after the process has been completed. Your Constitution
only recognizes the highest grade of citizenship that can be conferred.
The alien is thus made a native^ as it were, and is fully vested with every
riaht and privilege attached to the native, with the exception impressed on
the Constitution. Your statutes cannot deprive any particular species of
citizens of the right of personal liberty, or the locomotive faculty, bes-
cause the Constitution does not characterize the citizens of the United
States as native and naturalized. Our great family is composed of a class
of men forming a s\ng\hgrnus^ who, to all intents and purposes, are equal,
except in the instance specified -- that of not being eligible to the presi*
dency of the United States. Tl i only exception to the rule is expressed
1815.] ItUemal Impt ovanent. — Mal ibon. 16 1
ia the Coastitution. If other exceptions had been contemplated bji the
framers of that instrument, they would also have been expressed. None
other having been expressed, he said, it followed that your legislative acti*
could not make individual exceptions touching the occupation of a citi-
zen. All freemen, citizens of the United States, may pursue their happi-
ness in any manner and in any situation they please, provided they do not
violate the rights of others. You i^annot deny to any portion of your citi-
zens, who desire to plough the deep, the right to do so, whilst you permit
another portion of them' the enjoyment of that right,
Mr. ARCHER. The framers of our Cont«titution did not intend to
confine Congress to the technical meaning of the word naturalization , in
the exercise of that power — the more especially when the comprehensive
word rule was made use of. The principle upon which the power was to
be exercised was left to the judicious exercise of Congress ; all that was
required was, that the rule should be uniform throughout the states. In
the grant there is no other specification, as to the exercise of it, than tliat
of its uniformity. The term naturalization was borrowed from England.
It must be understood here in the sense and meaning which was there
attached to it. Whether it was absolute or qualified, it was still a natu-
ralization. But the grant of a power in general terms necessarily im
plied the right to exercise that power in all its gradations. It was in the
political as it was in the natural world : the genus included the species.
Besides, the power to naturalize was an attribute to sovereignty. It was
either absolute or qualified; and if the grant to Congress only implied a
power of unlimited naturalization, the power to qualify existed in the
states or in the people, for what was not specifically granted was reserved.
In treating of the executive power, the Constitution defines the qualifi-
cations of the President. It declares that he should be a natural-born
citizen, or a citizen at the adoption of the Constitution. This article is
Unquestionably no limitation of the power of Congress upon the subject
of naturalization. It was impossible to abridge a specific grant of power
without a specific limitation, and the article alluded to could not be tor-
tured, by the most ingenious mind, to diminish, even by implication, the
authority of Congress upon a subject to which it was totally irrelevant
Jnternal Ifnprovement. — Extract from Mr, MadisoiVs Message
to Congress,
Decemher 5, 1815.
Among the means of advancing the public mterest, the occasion is a
proper one for recalling the attention of Congress to the great importance
of establishing throughout our country the roads and canals which can
best be executed under the national authority. No objects within the
circle of political economy so richly repay the expense bestowed on them ;
there are none the utility of which is more universally ascertained and ac-
Icnowledged ; none that do more honor to the government, whose wise and
enlarged patriotism duly appreciates them. Nor is there any country
iivhich presents a field where Nature invites more the art of man to com-
plete i>er own work for their accommodation and benefit. These consid-
erations are strengthened, moreover, by the political effect of these facili-
ties for intercommunication, in bringing and binding more closely together
the various parts of our extended confederacy.
Whilst the states, individually, with a laudable enterprise and emulation,
i62 Commercial Treaty. — Calhoun. [Janucry 8^
avail themselves of their local advantages, by new roads, by navigable ca-
nals, and by improving the streams susceptible of navigation, the general
government is the more urged to similar undertakings, requiring a national
jurisdiction, and national means, by the prospect of thus systematically
completing so inestimable a work. And it is a happy reflection, that any
defect of constitutional authority which may be encountered, can be sufv
olied in a mode which the Constitution itself has providently pointed out
On the Commercial Treaty with Great Britain.
House of Rkprksentatives, January 8, 1816.
Mr. IIOPKINSON. In the nature of things, there cannot exist, at the
same time, under the same authority, two contradictory, inconsistent laws,
and riiles of action. One or the other must give way ; both cannot be
obeyed ; and if, in this case, this [commercial] treaty has no constitution-
al supremacy over an ordinary act of legislation, it, at least, has the
admitted advantages of being earlier in point of time, of being the last
constitutional expression of the will of the nation on this subject. It is
worthy of remark, that the general power of legislation is given to Con-
gress in one part of the Constitution ; the special power of making trea-
ties, to the President and Senate, in another part; and then the acts of
both, if done constitutionally, are declared, in the same sentence, in
another part of the Constitution, to be the supreme law of the land, and
placed upon the same footing of authority.
Mr. CALHOUN. From the whole complexion of the case, said Mr.
C, the bill before the house was mere form, and not supposed to be
necessary to the validity of the treaty. It would be proper, however, he
observed, to reply to the arguments which have been urged on the general
nature of the treaty-making power ; and as it was a subject of great im-
portance, he solicited the attentive hearing of the house.
It is not denied, he believed, that the President, with the concurrence
of two thirds of the Senate, has a right to make commercial treaties; it
is not asserted that this treaty is couched in such greneral terms as to re-
quire a law to carry the details into execution. Why, then, is this bill
necessary ? Because, say gentlemen, that the treaty of itself, without the
aid of this bill, cannot exempt British tonnage, and goods imported in
their bottoms, from the operation of the law laying additional duties on
foreign tonnage and goods imported in foreign vessels; or, giving the
question a more general form, because a treaty cannot annul a law. The
gentleman from Virginia, (Mr. Barbour,) who argued this point very dis-
tinctly, though not satisfactorily, took as his general position, that to re-
peal a law is a legislative act, and can only be done by law; that, in the
distribution of the legislative and treaty-making power, the right to repeal
a law fell exclusivelv under the former.
How does this comport with the admission immediately made by hitn,
hat the treaty of peace repealed the act declaring war? If he admits the
fact in a single case, what becomes of his exclusive legislative right? He
mdeed felt that his rule failed him, and in explanation assumed a position
entirely new; for he admitted that, when the treaty did that which was
not authorized to be done by law, it did not require the sanction of Con-
gress, and might in its operation repeal a law inconsistent with it. He
said, Congress is not authorized to make peace; and for this renson a
treaty of peace repeals the act declaring war. In this position, he under-
IS16.] Commerciai Treaty, — Calhoun. 463
*
rtood his colleague substantially to concur. He hoped to make it appeal
that, in taking this ground, they have both yielded to the point in discuH-
sion. He would establish, he trusted, to the satisfaction of the house, that
the treaty-making power, when it was legitimately exercised, always did
that which could not be done by law ; and that the reasons advanced to
prove that the treaty of peace repealed the act making war, so far from
being peculiar to that case, apply to all treaties. They do not form an
exception, but in fact constitute the rule. Why, then, he asked, cannot
Congress gnake peace ? They have the power to declare war. All ac-
knowledge this power. Peace and war are opposite. They are the posi-
tive and negative terms of the same proposition ; and what rule of con-
struction more clear than that, when a power is given to do an act, the
power is also given to repeal it? By what right do you repeal taxes, re-
duce your army, lay up your navy, or repeal any law, but hy the force of
this plain rule of construction ? Why cannot Congress then repeal the act
declaring war? He acknowledged, with the gentleman, they cannot, con-
sistently with reason. The solution of this question explained the whole
difficulty. The reason is plain ; one power may make war ; it requires
two to makepeace. It is a state of mutual amity succeeding hostility ; it
is a state that cannot be created but with the consent of both parties. It
required a contract or a treaty between the nations at war. Is this peculiar
to a treaty of peace? No ; it is common to all treaties. It arises out of
their nature, and not from any incidental circumstance attaching itself to
a particular class. It is no more or less than that Congress cannot make
a contract with a foreign nation. Let us apply it to a treaty of com-
merce— to this very case. Can Congress do what this treaty has done ?
It has repealed the discriminating duties between this country and Eng-
land. Either could by law repeal its own. But by law they could go no
farther ; and for the same reason, that peace cannot be made by law.
Whenever, then, an ordinary subject of legislation can only be regulated
by contract, it passes from the sphere of the ordinary power of making
law, and attaches itself to that of making treaties, wherever it is lodged.
• • • • •
The treaty-making power has many and powerful limits; and it will be
found, when he came to discuss what those limits are, that it cannot de-
stroy the Constitution, or personal liberty ; involve us, without the assent
of this house, in war ; or grant away our money. The limits he proposed
to this power are not the same, it is true ; but they appeared to him much
more rational and powerful than those which were supposed to present
effectual guards fv>r its abuse. Let us now consider what they are.
The grant of the power to make treaties is couched in the most general
terms. The words of the Constitution are, that the President shall have
jwwer, by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the senators present concur.
In a subsequent part of* the Constitution, treaties are declared to be the
supreme law of the land. Whatever limits are imposed on these general
tTfns, on^rht to be the result of the sound construction of the instrument.
There appeared to him but two restrictions on its exercise — the one derived
froTi the nature of our government, and the other from that of the power
iMf. Most certainly all grants of power under the Constitution must be
controlled by the instrument ; for, hiving their existence from it, they
fniist of necessity assume that form which the Constitution has imposed,
i'liia jg acknowledged to be the true source of the legislative power, aad
164 Commercial Treaty. — Tucker. [January 10,
it is doubtless equally so of the power to make treaties. The limits of tht
former are exactly marked ; it was necessary to prevent collision with
similar coexisting state powers. This country within is divided into two
distinct sovereignties. Exact enumeration here is necessary to prevent
the most dangerous consequences. The enumeration of legislative powers
in the Constitution has relation, then, not to the treaty-making power, but
to the powers of the states. In our relation to the rest of the world, the
case is reversed. Here the states disappear. Divided within, we present,
without, the exterior of undivided sovereignty. The wisdom of the Con-
stitution appears conspicuous. When enumeration was needed, there we
find the powers enumerated and exactly defined ; when not, we do not
find what would be vain and pernicious to attempt. Whatever, then,
concern^ our foreign relations, whatever requires the consent of another
nation, belongs to the treaty power — can only be regulated by it ; and it
is competent to regulate all such subjects, provided — and here are its true
limits — such regulations are not inconsistent with the Constitution. If
so, they are void. No treaty can alter the fabric of our government ;
nor can it do that which the Constitution has expressly forbidden to be
done; nor can it do that differently which is directed to be done in a given
mode, and all other modes prohibited.
For instance, the Constitution says no money ** shall be drawn out of
the treasury, but by an appropriation made by law.'' Of course no subsidy
can be granted without an act of law ; and a treaty of alliance could not
involve the country in war without the consent of this house. Besides
these constitutional limits, the treaty power, like all others, has other limits,
derived from its object and nature. It has for its object contracts with
foreign nations, as the powers of Congress have for their object whatever
can Be done in relation to the powers delegated to it without the consent of
foreign nations. Each, in its proper sphere, operates with genial influence ;
but when they become erratic, then they are portentous and dangerous
A treaty never can legitimately do that which can be done by law ; and thi
converse is also true. Suppose the discriminating duties repealed ou both
sides by law ; yet what is effected by this treaty would not even then be
done : the plighted faith would be wanting ; either side might repeal its
law, without a breach of contract. It appeared to him that gentlemen are too
much influenced on this subject by the example of Great JBritain. Instead
of looking to the nature of our government, they have been swayed
in their opinion by the practice of that government, to which we are but
too much in the habit of looking for precedents.
January 10, 1816.
Mr. TUCKER. It is contended by the gentleman from South Carolina
(Mr. Calhoun) that a treaty is superior to the law, because it is a contract
between one nation and another power. I am ready to admit, Mr. Speaker,
the ingenuity of the gentleman in drawing this distinction. It is what
may well be expected from his ingenious and active mind. But I think it
will appear that it is more ingenious than solid, more true than applicablft
to the subject.
I admit that, where a contract has been entered into and completed bj
ill the necessary powers under our Constitution, it is binding upon the
nation. But the question still recurs, When is it complete ? In the ca.«e
of a treaty containing stipulations merely executive, it is complete when
the ratifications are exchanged. In the case of a treaty whiclf requires ■
ISIi5.] Commercial Treaty. — Pinckney. 4a5
legislatire act to give it operation, we contend that the legislattye sanction
must be given before it is complete. Until then it is not a binding contract,
and the rights of the third party (the foreign power) do not exist. Is it
not the petit io principii, or — if the gentleman will permit me to use the
vulgar translation — is it not begging the question, to contend that before
the legislative sanction the contract is binding, when the very question
before us is, whether that sanction be necessary to make it binding?
Mr. PINCKNEY. I lay it down as an incontrovertible truth, that the
Constitution has assumed, (and indeed how could it do otherwise?) that the
government of the United States might and would have occasion, like the
other governments of the civilized world, to e:iter into treaties with for-
eign |>owers, upon the various subjects involved in their mutual relations ;
and further, that it might be and was proper to designate the department of
the government in which the capacity to make such treaties should be
lodged. It has said, accordingly, that the President, with the concurrence
of the Senate, shall possess this part of the national sovereignty. It has,
furthermore, given to the s<ame magistrate, with the same concurrence, the
exclusive creation and control of the whole machinery of diplomacy. He
only, with the approbation of the Senate, can appoint a negotiator, or take
any step towards a negotiation. The Constitution does not, in any part of
it even intimate that any other department shall possess either a constant
or an occasional right to interpose in the preparation of any treaty, or in
the final perfection of it. The President and the Senate are explicitly
pointed out as the sole actors in that sort of transaction.
The prescribed concurrence of the Senate — and that, too, by a major-
ity greater than the ordinary legislative majority — plainly excludes the
necessity of congressional concurrence. If the consent of Congress to
any treaty had been intended, the Constitution would not have been
guilty of the absurdity of putting a treaty for ratification to the President
and Senate exclusively, and again to the same President and Senate as
portions of the legislature. It would have submitted the whole matter at
once to Congress ; and the more especially as the ratification of a treaty
by the Senate, as a branch of the legislature, may be by a smaller number
than a ratification of it by the same body as a branch of the executive
government. If the ratification of any treaty by the President, with the
consent of the Senate, must be followed by a legislative ratification, it is a
mere nonentity. It is good for all purposes, or for none. And if it be
nothing, in effect, it is a mockery by which nobody would be bound.
The President and Senate would not themselves be bound by it ; and the
ratification would at last depend, not upon the will of the President and
two thirds of the Senate, but upon the will of a bare majority of the two
branches of the legislature, subject to the qualified legislative control of
the President.
Upon the power of the President and Senate, therefore, there can be no
doubt. The only question is as to the extent of it ; or, in other words,
as to the subject upon which it maybe exerted. The effect of the power,
when exerted within its lawful sphere, is beyond the reach of controversy.
The Constitution has declared that whatsoever amounts to a treaty made
under the authority of the United States, shall immediately be supreme
law. It has contradistinguished a treatt/ as law, from an act of Conffress
as law. It has erected treaties, so contradistinguished, into a binding ju
dicial rule. It has given them to our courts of justice, in defining the
JQrisdictiony as a portion of the lex terra, which they are to interpret and
VOL. IV. 69
466 Commerciai Treaty, — Pincknbt. . [1810.
enibrci;. In a word, it has communicated to them, if ratified by the d»-
partmenl which it has specially provided for the making of them, the rank
of law — or it has spoken without meaning. And if it has elevated them
to that rank, it is idle to attempt to raise them to it by ordinary legis-
lation.
It is clear that the power of Congress, as to foreign commerce, is only
what it professes to be in the Constitution, a legislative power — to be ex-
erted municipally, without consultation or agreement with those with whom
we have an intercourse of trade. It is undeniable that the Constitution
meant to provide for the exercise of another power, relatively to commerce,
which should exert itself in concert with the analogous power in other
countries, and should bring about its results, not by statute enacted by
itself, but by an international compact called a trtaty ; that it is mani-
fest that this other power is vested by the Constitution in the President
and Senate, the only department of the government which it authorizes
to make any treaty, and which it enables to make all treaties; that, if it
be so vested, its regular exercise must result in that which, as far as
it reaches, is hw in itself, and, consequently, repeals such municipal regu-
lations as stand in its way ; since it is expressly declared by the Constitu-
tion, that treaties regularly made shall have, as they ought to have, the
force of law.
Mr. PICKERING. To a just understanding of the question before the
bouse, a distinction should be taken ; that is, between the validity and the
execution of a treaty. While gentlemen on the other side (with a single
exception) admit that some treaties made by the President and Senate are
valid without any act to be done on the part of this house, such as simple
treaties of peace, and even of alliance, — seeing no special power is
granted to Congress, by the Constitution, to make peace and form alli-
ances,— yet it is said that, when the intervention of this house is nece»-
sary, as in providing and making appropriations of money to carry treaties
into execution, then the sanction of this house is requisite, to give them a
binding force.
But shall treaties operate a repeal of a law of the United States? Yes;
because treaties being, equally with acts of Congress, the law of the land,
they must repeal all the provisions of prior laws contravening their stipu-
lations— according to the well-known maxim, that the latter laws repeal
all antecedent laws containing contrary provisions; and so long as treaties
exist, so long the government and nation are bound to observe them, and
the decision of the judges must conform to their stipulations. But as
treaties may thus annul the laws of Congress, so may these laws annul
treaties; and when Congress shall, by a formal act, declare a treaty no
longer obligatory on the United States, the judges must abandon the
treaty, and obey the law. And why? Because the whole authority^ on
our part, which gave existence and force to the treaty, is withdrctwn by the
annulling; act.
Mr. PINCKNEY. Such is the effect of a law of Congress <leclanng
war against a nation between whom and the United States any treatiea
had been made. Take, fo. t;xamp]e, the case of France, with whom we
had a treaty of amity and commerce, a treaty of alliance, and consular
convention. These treaties having been repeatedly violated on the part
of the French government, and the just claims of the United States for
repairing the injuries so committed having been refused, and their at-
li;mpts t^ negotiate an amicable adjustment of all complaints between the
i6l7.] Internal Tmprotemeni, — ionics J3tl/. — Pickering. 467
(wo nations havii^g been repelled with indignity, — and as the French
persisted in their system of predatory violence, infracting those treaties,
and hostile to the rights of a free and independent nation, — for these
causes, explicitly, Congress, in July, 179S, passed a law, enacting that
those treaties should not, thenceforth, be regarded as legally obligatory on
the government or citizens of the United States. And two days af'ler-
wards, Congress passed another law, authorizing the capture of all French
armed vessels, to which the commerce of the United States long had been,
and continued to be, n prey. And as in this, so in every other case, in
which Congress shall judge there existed good and sufficient cause for
declaring a treaty void, they will so pronounce ; either because they intend
to declare war, or bec;mse they are willing the United Ptntes should m^et
a war, to be declared on the other side, as less injurious to the country
than an adherence to the treaty. But should Congress, without adequate
cause, declare a treaty no longer obligatory, they must be prepared to
meet the reproach of perfidy, besides exposing the United States to the
evils of war, should the offended nation think fit to avenge the wrong bj
making war upon them.
Internal Improvement. — Bonus Bill.
HousK OF RsPRKSEitTATivKf, February^ 1817.
Mr. PICKERING. He remembered that the supposition that Con*
gress might, under that clause, exercise the power of making roads in any
state, and where they pleased, was offered as a serious objection to the
adoption of the Constitution, in the Convention of Pennsylvania, of which
Mr. P. (then living in that state) was a member. And his recollection
was probably the more perfect because he answered the objection, observ-
ing, that the power '* to establish post-offices and post-roads" could intend
no more than the power to direct where post-offices should be kept, and on
what roads the mails should be carried and this answer appeared, then, \o
be entirely satisfactory.
Mr. CLAY. As to the constitutional point which had been made, he
had not a doubt on his mind. It was a sufficient answer to say, that the
power was not now to be exercised. It was proposed merely to designate
the fund, and, from time to time, as the proceeds of it came in, to invest
them in the funded debt of the United Stales. It would thus be accumu-
lating, and Congress could, at some future day, examine into tne constitu-
tionality of the question; and if it has the power, it would exercise it ; if
it h%i not, the Constitution, there could be very little doubt, would be so
amended as to confer it. It was quite obvious, however, that Congress
mirrht so direct the application of the fund, as not to interfere with the
jurisdiction of the several states, and thus avoid the difficulty which had
been sl'^rted. It mi^ht distribute it among those objects of private enter-
prise which called for national patrona^re, in the form of subscriptions to
the cap tal stock of incorporated companies, such as that of the Delaware
and Chesapeake Canal, and other similar institutions. Perhips that might
be the best way to employ the fund ; but he repeated that this was not the
cime to cro into thit inquiry.
Mr. PICKERING. It has been said that the last clause but one, in
the 8ih section of the 1st article, expressly mentions ** the erection of forts«
arsenals, dock-yards, magazines, and other needful buildings;" but who-
ever will examine that clause, will perceive that it does not give Congress
4G8 Madison's Veto on the Bonus BUL [181')
any power to erect those works, but simply to exercise exclusive legislation
over the places where they are erected, such place having been previously
purchased with the consent of the states in which the same shall be. The
power to erect such works and buildings is nowhere expressed in the
Constitution. It is, then, an implied power, whose existence is recog-
nized by the Constitution itself. But where can it be found, unless it is
involved in the express powers to regulate commerce, and provide for the
common defence ? Without navigation, without commerce by sea, we
should need no lighthouses, beacons, or piers.
If, then, it was constitutional to erect the works which have been men-
tioned, to give facility, safety, and expedition to commerce by sea, will any
one deny the constitutional power of Congress to erect similar works on
our interior waters on the great lakes ?
Internal Improvements,
Senate, Febryary 27, 1817.
/I BUI to set apart and pledge, as a permanent Fund for Internal Improvements^ ths
Bonus of the J^ational Bank, and the 'United States' Share of its Dividends.
Be it enacted, ^., That the bonus secured to the United States by the " act to incor
porate the subscribers to the Bank of the United States," and the dividends which
shall arise from their shares in its capital stock, during the present term of twenty
years, for which the proprietors thereof have been incorporated, be, and the same ii «
nereby, set apart and pledged, as a fund for constructing roads and canals, and im«
proving the navigation of watercourses, in order to facilitate, promote, and give secu-
rity to mtemal commerce amon^ the several states, and to render more easy and less
expensive the means and provisions necessary for their common defence.
Sect. 2. ^nd be it further enacted. That the moneys constituting the said fund shall,
from time to time, be applied in constructing such roads or canals, or in improving the
navigation of such watercourses, or both, in each state, as Congress, with the assent
of such state, shall by law direct, and in tlie manner most conducive to the genera]
welfare ; and the proportion of the said money toJ>e expended on the objects aforesaid,
in each state, shall be in the tatio of its representation, at the time of such expendi-
ture, in the most numerous blanch of the national legislature.
Sect. 3. And he it further enacted. That the said fund be put under the care of the
secretary of the treasury for the time being ; and that it shall be his duty, unless
otherwise directed, to vest the said dividend, if not specifically appropriated by Con-
gress, in the stock of the United States, which stock shall accrue to, and is hereby
constituted a part of, the said fund.
Sect. 4. And he it further enacted. That it shall also be the duty of the said secre-
tary, unless otherwise directed, to vest the bonus for the charter of said bank, as it may
fall due, in the stock of the United States, and also to lay before Congress, at their
usual session, the condition of the said fund.
Message of the President^ transmitting to the House of Repre*
sentatives his Objections to the [above] Bank Bonus Bill,
To the House of Representatives of the United States :
Having considered the bill this day presented to me, entitled " Aa Act
to set apart and pledge certain funds for internal improvements ; '' and
which sets and pledges funds ** for constructing roads and canals, and in)-
proving the navigation of watercourses, in order to facilitate, promote,
and give security to, internal commerce among the several states, and to
render more easy and less expensive the means and provisions for the
common defence," I am constrained, by the insuperable difficulty I feel in
reconciling the bill with the Constitution of the United States, to return it,
with that objection, to the House of Representatives, in which it orijrin^
aied.
Ml.] Madison's Veto on the Bonus Bill. 469
The legist atiye powers vested in Congress are specified and enumerated
in the 8th section of the Ist article of the Constitution ; and it does nol
appear that the power, proposed to be exercised by the bilJ, is among the
enumerated powers ; or that it falls, by any just interpretation, within the
power to make laws necessary and proper for carrying into execution
those or other powers vested by the Constitution in the government of the
United States.
The power to regulate commerce among the several states cannot
include a power to construct roads and canals, and to improve the naviga-
tion of watercourses, in order to facilitate, promote, and secure, such a
commerce, without a latitude of construction departing from the ordinary
import of the terms, strengthened by the known inconveniences which
doubtless led tti the grant of this remedial power to Congress. To refer
the power in question to the clause ** to provide for the common defence
and general welfare," would be contrary to the established and consistent
rules of interpretation, as rendering the special and careful enumeration
of powers which follow the clause nugatory and improper. Such a
view of the Constitution would have the effect of giving to Congress a
general power or legislation, instead of the defined and limited one
hitherto understood to belong to them — the terms, ** the common defence
and general welfire," embracing every object and act within the purview
of the Ic^gislative trust. It would have the effect of subjecting both the
Constitution and laws of the several states, in all cases not specifically
exempted, to be superseded by laws of Congress ; it being expressly
decla''ed, " that the Constitution of the United States, and laws made in
pursuance thereof, shall be the supreme law of the land; and the judges
of every state shall be bound thereby, any thing in the Constitution or
laws of any state to the contrary notwithstanding.'' Such a view of the
Constitution, finally, would have the effect of excluding the judicial
authority of the United States from its participation in guarding the bound-
ary between the legislative powers of the general and the state govern-
ments ; inasmuch as questions relating to the general welfare, being ques-
tions of policy and expediency, are unsusceptible of judicial cognizance
tnd decision.
A restriction of the power ** to provide for the common defence and
general welHire" to cases which are to be provided for by the expenditure
of money, would s»till leave within the legislative power of Congress all
the great and most important measures of government ; money being the
ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, to improve the navi-
gation of watercourses, with the train of powers incident thereto, be not
posses^^ed by Congress, the assent of the stales, in the mode provided in
the bill, cannot confer the power. The only cases in which the consent
and cession of particiil ir states can extend the power of Congress, are
those specified and provided for in the Constitution.
I am not luiaware of the grent importance of roads and canals, and the
improved navigation of watercourses, nnd that a power in the national
legislature to provide for them might be exercised with signal advantage
to the general prosperity ; but, seeing that such a power is not expressly
given to the Constitution, and believing that it cannot be deduced from
iny pari of it without an inadmissible latitude of construction, and a
reliance on insufficient precedents; believing, also, that the permanent
Buccesa of the Constitution depends on a definitive partition of powem
40
^^^0 Bankrupt Bill. — T yuer. [ Fehruity 1 7.
between the general and state governments, and that no adequate land-
marks would be lefl by the constructive extension of the powers of Con*
gre^s, as proposed in the bill, — I have no option but to withhold my
signature from it ; cherishing the hope that its beneficial objectii may be
obtained by a resort, for the necessary powers, to the same wisdom and
virtue in the nation which established the Constitution in its actual form,
and providently marked out, in the instrument itself, a safe and practicable
mode of improving it, as experience might suggest.
JAMES MADISON.
March 3, 1S17.
(It is underatood that Mr. Calhoun, who reported the Bokum bill, did not touch the
ponatitutional question involved in it, aj he did not propose to make an appropriation,
but simply to set aside the bonus as a fund for internal improvement, leaving it to a
future Congress to determine the extent of its powers ; or, if it should be determined
that it did not possess power over the subject, to obtain an amendment of the Consti-
lutjon, as recommended by Mr. Madii«on in his message at the opening of the aesaioo.
Under these impressions, Mr. C. declined arguing the constitutional question tn his
speech on the bill, and limited his objections to me question of expediency.]
Bankrupt Bill,
House of Represehtativks, February 16, 1818.
Mr. HOPKINSON. The subject seems to have been considered in
this light by the framers of the Constitution, who have, therefore, among
the enumerated powers of Congress, expressly granted the power ** tu
establish uniform laws on the subject of bankruptcies."
Mr. H. said he considered this as a declaration of the will of the
people, that Congress should act on this subject — at least, so far as to
establish a uniform rule. It binds us to no particular system, it is true ;
but it does enjoin on us most impressively to provide some one which shall
be uniform in its operations on the different states, giving a certain known
rule, and preventing those numerous and obvious evils that must arise
from various and conflicting systems in the different states, by which the
relation between debtor and creditor, so interesting to all classes of our
citizens, must forever be changing, be imperfectly understood, and be daily
producing inequality and injustice between the creditors and debtors re-
aiding in the different states. Mr. H. insisted that, when the several states
parted with this power, it was only to attain that uniformity of system
which could be established only by the general government ; and that the
states, having surrendered the power for this purpose, had a fair claim on
the general government not to disappoint this expectation, but to apply
the power to the uses intended by the grant of it.
Februnry 17, 1818.
Mr. TYLER, (of Virginia ) The honorable gentleman yesterday de-
manded of this house to carry all the powers of the government ; and rep-
resented it as our bounden duty, in every instance, in which the Consti-
tution gave power, to exercise it. The gentleman^s position leaves us no
alternative. Our discretion is taken from us — our volition is gone. If
the gentleman be correct, we are stopped at the threshold of this inquiry ;
for inasmuch as the Constitution confers on Congress the power to adopt
■ uniform system of bankruptcy, — according to his doctrine, we are not
to inquire into the expediency of adopting such system, but must yield it
our support Here, sir, I join issue with that gentleman. What, sir, if
mS.] Bankrupt Bill. — Mills. 47
(he end of all legislation ? Is it not the public good? Do we come here
to legislate away the rights and happiness of our constituents, or to ad-
ranee and secure them? Suppose, then, by carrying into effect a speci-
fied power in the Constitution, we inflict serious injury upon the politica
body; will gentlemen contend that we are bound by a blind fatality, ana
compelled to act ? Sir, such a doctrine cannot be supported even by the
distinguished talents of that gentleman. The powers of this Constitution
are all addressed to the sound discretion of Congress. You are not imper-
atively commanded, but authorized to act, if by so acting the good of the
country will be promoted.
Mr. SERGEANT, (of Pennsylvania.) Why, it is said, why not extend
the provisions to all classes of the community? Why confine them to a
single class ? The answer is a very plain one. The design of the Con-
stitution was to vest in the government of the United States such powers
ai were necessary for national purposes, and to leave to the states all
other powers. Trade, commercial credit, smd public or national credit,
which is intimately allied to it, were deemed, and rightly deemed, to be
national concerns of the highest importance. In the adjustment of our
government, at once national and federal, they were intended to be confi-
ded, and were confided, to the care of the public authority of the nation.
It does not appear to me that we need inquire, whether the term •* bank-
ruptcy " had a definite meaning, to which we are limited, nor whether we
are bound to follow the model of the statutes of England, or any state
bmkrupt laws th it may have existed here before the Constitution was
formed. For the present purpose, the general spirit and scope of the
Constitution furnish a sufficient guide. The design of that instrument
was to occupy national ground, and leave the rest to the states.
F^kruary 19, 1818.
Mr. MILLS, (of Massachusetts.) Once establish the principle that the
situation of the country is such as to require the exercise of that power
with which the Constitution has vested you upon this subject, — and whether
the prominent features of your system shall be drawn from the commercial
code of Napoleon, or the acts of the British Parliament, will be a mere
qjestion of expediency, to be determined by their relative merits, and
thmr anilogy to your habits and institutions. Sir, I shall not stop here to
inquire into the extent of the obligation imposed on you by the Constitu-
tion. It is enough for me to find the power " to establish uniform laws on
the subject of bankruptcies throughout the United States" expressly del-
edited to Congress by that instrument, and to satisfy myself that the exi-
gencies of the country require its exercise, to appreciate the weight of
this obligation. Too long already has this delegation of authority re-
mained a mere dead letter in that compact; and too long have those, for
whose benefit it was introduced, called upon you to give it life, and ener-
gy, and action.
Are you sure that, since the adoption of the Federal Constitution, the
stite legislatures have any legitimate authority to pass those laws? By
that instrument, it is contended, Congress alone have power to establish a
uniform system of bankruptcy, and the states are expressly prohibited
from passing " any laws impairing the obligation of contracts.*^ So far,
tl*nr^*''^re, as the^e laws impus^n cither of those provisions, so far they tran-
f-c»*nd the powers retained by the states. Upon this subject, however, I wish
iaoI to be understood as giving an opinion, or attempting to sustain an
argument
172 Seminole War, — JoiiKSOS. [1810.
Mr. HOPKINSON. I have never contended that there is an hbsolute,
indisputable, constitutional obligation on Congress to pass a bankrupt law;
but I do contend that it comes so recommended by the Constitution, and
by the people who speak in and by that Constitution, that we may not
disregard it; that it is our duty to exercise that power, to execute the
trust, — unless, on a full and fair investigation of the subject, it shall be un-
wise, and injurious to the nation, to do so. I do contend that this high and
general duty ought not to be dispensed with on doubtful reasons, on hypo-
thetical arguments, drawn altogether from a presumed abuse of the law ;
much less from an indulgence of old prejudices or local views and iiiterei»ts.
[t is a great national object of legislation ; it should be decided on national
principles ; it is deeply interesting to a vast and valuable portion of the
people of this country ; it should, therefore, be considered in relation to
those interests, and determined on a fair comparison between the good it
will certainly produce to this class, and the evil it may inflict, if any, on
the rest of the community. This government is founded on a compro-
mise of interests, and every one has a fair claim to attention and regard.
Military Appropriation Bill,
House of Represent AT17ES, January 4, 1819.
Mr. LOWNDES. He thought there was no inconsistency in denying
the general power of constructing internal improvements, and yet voting
an appropriation for making any road where there should be a temporary
encampment, &c. There was, he conceived, no inconsistency between
the expressed opinion of the executive respecting the general power, and
the conduct of the executive on this subject. The propriety of making
specific appropriations for all objects, where it could well be done, he did
not deny ; but he was also apprehensive that it might be pushed to an
improper extent. All appropriations could not be specific; but, aAer
making them as minute as possible, and limiting the executive to a cer-
tain extent, there would be always some discretion led him. It was prof>»
er, also, he admitted, where it could be done, to designate and fix the
place where the public money is to be applied ; but this could not in all
cases be done, and he mentioned instances in which this was lefl by law
to the discretion of the executive ; and the present was one of those cases
in which this must necessarily be done.
Seminole War,
House of Representatives, January 21, 1819.
Mr. R. M. JOHNSON, (of Kentucky.) As early as 1767. and farther
back, if it were necessary to trace, provisions of the same nature as those
now existing were enacted by the venerable Congress of the Confedera-
tion. By various statutes, the same provisions had been continued to the
present day. The statute gave to the President a discretionary power to
employ the forces of the United States, and to call forth the militia to
repress Indian hostility ; and gave it to him properly on the principles of
ihe Constitution. By the Constitution, the President is made commander-
in-chief of the army ; and it is made his duly to take care that the laws
are executed, to suppress insurrections, and repel invasions; and by the
same instrument it is made our duty to provide for calling forth the mi-
.itia, to be emp 3yed in these objects. That power has been exerc sec?
IM.] Tarif. — Clay. «73
•
in the manner which will be shown by the laws of the li tried States.
[Mr. J. here requested the clerk to read the statute to which he alluded
and it was read accordingly.] Now, Mr. J. said, he thought this was a
declaration of war of at least equal dignity to the mariner in which the
sarages make war against us, and to the light in which we view them.
We treat them, it is true, and we ought to treat them, with humanity;
we have given them privileges beyond all other nations ; but we reserve
the right to repel their invasions, and to put to death murderers and vio-
lators of our peace, whether Indians or white men.
Tariff.
H0U8K or Representatives, ^pril 26, 1820.
Mr. CLAY. Sir, friendly as I am to the existence of domestic manu-
factures, I would not give them unreasonable encouragement by protect-
ing duties. Their growth ought to be gradual, but sure. I beliejve all
the circumstances of the present period highly favorable to their success.
But they are the youngest and the weakest interest of the state. Agri-
culture wants but little or no protection against the regulations of foreign
powers. The advantages of our position, and the cheapness, and abun-
dance, and fertility of our land, afford to that greatest interest of the state
almost all the protection it wants. As it should be, it is strong and flour-
ishing; or, if it be not at this moment prosperous, it is not because its
produce is not ample, but because, depending, as we do, altogether upon
a foreign market for the sale of the surplus of that produce, the foreign
market is glutted. Our foreign trade, having almost exclusively engrossed
the protecting care of government, wants no further legislative aid ; and
whatever depression it may now experience, it is attributable to causes
beyond the control of this government. The abundance of capital, indi-
cated by the avidity with which loans are sought, at the reduced rate of
five per centum ; the reduction in the wages of labor ; and the decline in
the price of property of every kind, as well as that of agricultural prod-
uce, — all concur favorably for domestic manufactures. Now, as when
we arranged the existing tariff, is the auspicious moment for government
to step in and cheer and countenance them. We did too little then, and
I endeavored to warn this house of the effects of inadequate protection.
We were called upon, at that time, by the previous pledges we had given,
by the inundation of foreign fabrics, which was to be anticipated from
their free admission afler the termination of the war, and by the lasting
interests of this country, to give them efficient support. We did not do
it ; but let us not now repeat the error. Our great mistake has been in
the irregularity of the action of the measures of this government upon
manufacturing industry. At one period it is stimulated too high, and
then, by an opposite course of policy, it is precipitated into a condition
of depression too low. First, there came th(i embargo ; then non-inter-
course, and other restrictive measures followed ; and finally, that greatest
of all stimuli ti domestic fabrication, war. During all that long period,
we were adding to the positive effect of the measures of government all
the moral encouragement which results from popular resolves, legislative
resolves, and other manifestations of the public will, and the public wish
to ibster our home manufactures, and to render our confederacy independ-
ent of foreign powers. The peace ensued, and the country was flooded
with the fabric 1 of other countries ; and we, forgetting all our promisAs,
Toi IV 60
474' Missouri Quesiion, — Lowndkm. [ISil
coolly and philosophically talk of leaving things to thi mselvet ; making
up our deficiency of practical good sense by the stores of learning which
we collect from theoretical writers. I, too, sometimes amuse myself with
the visions of these writers; and, if I do not forget^ cme of the best among
them enjoins it upon a country to protect its industry against the influence
of the prohibitions and restrictions of foreign countries, which operate
upon it.
Let us manifest, by the passage of this bill, that Congress does not de-
serve the reproache:;, which have been cast on it, of insensibility to the
wants and the sufferings of the people.
The Petition of Mattheic Lyon,
Senate, Marrh^ 1821.
Mr. SMITH, (of South Carolina.) The Constitution of the United
States is not the production of Congress ; it is not the property of Con-
gress. It is the production of the people, and the property of the people.
It is their shield against the abuse of powers, as well as against the usur-
pation of powers, both by Congress and the judges. Your powers are
limited. AH legislative powers are granted to Congress, and all judicial
powers are granted to the judges. You have, therefore, the power to enact
laws, but no power to sit in judgment upon those laws. It is expressly
and exclusively given to the judges to construe the laws, and to decide
upon their constitutionality. The judges are an independent and coordi-
nate branch of the government, deriving their authority from the Consti-
tution, and not from Congress. They are accountable to the sovereign
people; and if guilty of malpractice in administering the laws, they can
and ought to be impeached ; and you are the tribunal before which they
are to answer, but there your powers cease. You have powers to punish
judges for corruption, but none to revise or correct their decisions.
Mr. S. added, within three years after the adoption of the Federal Con-
stitution, Mr. President Madison, in debate upon a proposition to incorpo-
rate the former Bank of the United States, opposed it, on the ground of its
being unconstitutional. He said, —
*< In making these remarks on the merits of the bill, he had reserved to himself the
rij^ht to deny the authority of Congress to pass it. He had entertained this opijiioi]
from the date of the Constitution. His impression might, perhaps, be the stronger,
because he well recollected that a power to grant charters to incorporations had been
proposed in the General Convention, and rejected."
But when a bill to incorporate the present United States' Bank was sub-
mitted for his approval, and when he could have put it down forever, he
found means to get over all his constitutional scruples, and approved
the act.
Missouri Question.
House or Rbpresertatives, Deeemher 13, liSil.
Mr. LOWNDES. The Constitution gives to Congress the power to
admit states in the broadest terms. The high privile^res which it is au-
tnorized to impart may commence instantly, and extend through all future
time. When the convenience of a territory reqniretl that it should become
a member of the Union at a future day, what principle of the Constitution
was opposed to this prospective admission ? Congress may raise armies :
has any man ever suspected that this power could not be executed by giv-
ing a prospective, and even a contingent authority ? Congress may lay
1822, 1824.] Tariff. — Ha\ w«. 47d
Uxes : may they not be limited to take eflfiict some time aAcr the passage
of the law? Congress may institute infeiior courts: would such an act
be void, because its operation was to commence from a future day ? void
because it was not inconvenient and absurd \ Run your eye along the
wbde list of powers which are given to the federal legislature, and you will
find no countenance for the doctrine which would require that, at the very
moment when their will is pronounced, the object which they are empow-
ered to eflfect should be instantly executed. The power of making treaties,
too, although given to another depository, is supposed to be pursued,
although the convention with a foreign state may take effect from a future
day. There is nothing plausible in the assertiim which denies to Congress
the power of admitting states by an act which shall not go into operation
for some time after its passage. The house would see, in his subsequent
observations, the importance of determining whether Congress had the
consttitutional right of admitting states by a prospective law. He need
not say that this question of right was distinct from that of expediency.
Bankrupt Bill,
House or Represcntativcs, March 12, 1822.
Mr. BUCHANAN, (of Pennsylvania.) It has been urged that, as the
powers^ of the Constitution jgave to Congress the power of passing a bank-
rupt law, we are bound to put that power into practical operation, and not
to suffer it to remain dormant.
In answer to this argument I would reply, that power and duty are very
different in their nature. Power is optional ; duty is imperative. The
language of power is, that you may ; that of duty, you must. The Consti-
tution has, in the same section and in the same terms, given to Congress
the povrer to declare war, to borrow money, to raise and support armies,
&c. Will any gentleman, however, undertake to say we are under an
obligation to give life and energy to these powers, by bringing them into
action t Will it be contended, because we possess the power of declaring
war and of borrowing money, that we are under a moraJ obligation to em-
broil ourselves with foreign powers, or load the country with a national
debt? Should any individual act upon the principle, that it is his duty to
do every thing which he has the legal power of doing, he would soon make
himself a fit citizen for a madhouse.
Power, whether vested in Congress or in an individual, necessarily im-
plies the power of exercising the right of a sound discretion. The Consti-
tution was intended not only for us, and for those who have gone before us,
but for generations yet to come. It has vested in Congress ample powers,
to l>e, called into action whenever, in their sound discretion, they believe
the interest or the happiness of the people require their exertion. We
are, therefore, left to exercise our judgment on this subject, entirely
untrammelled by any constitutional mjunction.
On the Constitutionality of the Tariff.
Sehate, April, 1834
Mr. HAYNE. Will gentlemen suffer me to ask them to point out to
Be, if they can, the power which this government possesses to adopt a
fjntem for the avowed purpose of encouraging particular branches of in-
Anstry? The power to declare war may involve the right of bringing into
•SMieBee the means of national defence. But to tell us we have a righ
476 TortJ. — Haynk. L13^
to rt-sort to theoretical speculations, as to the most convenient or profit*
able employments of industry, and that you can, by law, encourage certain
pursuits and prohibit others, is to make this not merely a consolidated, but
an unlimited government. If you can control and direct any, why not all
the pursuits of your citizens? And if all, where is the limitation to your
authority? Gentlemen surely forget that the supreme power is not in the
government of the United States. They do not remember that the several
states are free and independent sovereignties, and that all power not ex-
pressly granted to the federal government is reserved to the people of
those sovereignties. When I say expressly delegated, I wish to be under-
stood that no power can be exercised by Congress which is not expressly
granted, or which is not clearly incident to such a grant. Now, when we
call upon gentlemen to show their authority, they tell us it is derived from
the authority to ** regulate commerce." But are regulation and annihila*
Hon synonymous terms ? Does one include the other t Or are they not
rather opposites, and does not the very idea of regulation exclude that of
destruction ? I rejoice, sir, to find that gentlemen refer us to commerce;
for the very clause which expressly confers the right to regulate com-
merce, by saying nothing of the regulation of manufactures, or of agricul-
ture, or home industry, seems to demonstrate that they were intended to
be put beyond our control, and to be reserved to the people of the states
respectively.
But our opponents gravely inform us that this is a bill to levy imposts,
and that it is, therefore, within the very letter of the Constitution. True
sir, if imposts were the end and aim of the bill. But, surely, gentlemen
will not attempt to justify a departure from the spirit, by an adherence to
the letter y of the Constitution. Will they contend that we could, by law,
adopt and enforce the Chinese policy^ and, by virtue of our authority to
regulate commerce, interdict all intercourse with foreign nations? And
if you could not do that directly, can you accomplish the same thing in-
tlirectly, by levying such imposts as will produce the same result ? It
may be difiBcult to draw the exact line which divides the lawful exercise
from the abuse of authority — where regulation ceases, and unconstitu-
tional prohibition begins. But it is certain, if you have a right to prohibit
the importation of cottons, and woollens, and cotton bagging, for the
encouragement of domCvStic manufactures, you may, whenever you please,
p/ohibit importations, and shut up your ports entirely. An embargo can
only be justified as a branch of the war power, and I think no one will
contend, at this day, that a general and perpetual embargo could be law-
fully laid. If it be sufficient to adhere to the letter without regard to the
spirit and intent of the Constitution, if we may use a power granted for
one purpose for the accomplishment of another and very diffbrent purpose,
it is easy to show that a constitution on parchment is worth nothing.
OnVrs of nobility, and a church establishment, might be created even
under the power to raise armies. We are informed that in Russia military
titles alone confer civil rank, and all the departments of the government
are filled with generals and colonels, entitled to rank, and to pay» without
actual command or liability to service. Now, suppose we were to follow
the example of Russia, and should give rank and pay to a certain number
of generals and chaplains, with total or qualified exemption from ser-
vice: might we not easily build up orders of nobility, and a church
establishment ? Sir, this g »vernment was never established for the purpose
of divpstiiig the states of their sovereignty; and I fea* »t cannot long
1824.] Internal Improvement. — Van Buren. 477
exiat, if the system, of which this bill is the foundatioD, shall be steatlilj
pursued to the total destruction of foreign commerce, and the ruin of all
who are connected with it. Sir, it is my most sober and deliberate opinion,
that the Congress of the United States have no more power to pass laws,
for the purpose of directly or indirectly compelling any |K)rtion of the peo*
pie to engage in manufactures, than they have to abolish trial by jury, or
to establish the inquisition. I will invoke gentlemen on the other side,
while we yet pause on the brink of this mighty danger, in the name of
Liberty and the Constitution, to examine this question, carefully and can-
didly; and if they shall search in vain, in our great charter, for power to
pass this bill, they must surely suffer it to perish.
I must be permitted, while on this topic, to declare that, however this
bill may bo modified, still the system is one against which we feel our-
selves constrained, in behalf of those we represent, to enter our most
solemn protest. Considering this scheme of promoting certain employ-
ments, at the expense of others, as unequal, oppres^sive, and unjust, —
viewing prohibition as the means, and the destruction of all foreign com-
merce the end of this policy, — I take this occasion to declare, that we
shall feel ourselves fully justified in embracing the very first opportunity
of repealing all such laws as may be passed for the promotion of these
objects. Whatever interests mny grow tip under this bill, and whatever
capita] may be invested, I wish it to be distinctly understood, that we will
not hold ourselves bound to maintain the system ; and if capitalists will,
in the face of our protests, and in defiance of our solemn warnings, invest
their fortunes in pursuits made profitable at our expense, on their own heads
be the consequences of their folly. This system is in its very nature pro-
GRessivE. Grant what you may now, the manufacturers will never be
satisfied ; do what you may for them, the advocates of home industry will
never be content, until every article imported from abroad, which comes
into competition with any thing made at home, shall be prohibited — un-
til, in short, foreign commerce shall be entirely cut off.
Internal Improvement. — Dismal Swamp CanaL
SsifATK, May^ 1824.
Mr. VAN BUREN. He would not vote for the bill, for he did not be-
lieve that this government possessed the constitutional power to make
these canals, or to grant money to make them. * * * If he believed
in the power of the government to grant money for this purpose, the present
mode would be the last one he should think of adopting. If there was
any. grant of money, at all, for this purpose, it should be direct. Where
aid was granted in the mode now proposed, abuses would creep in, and, in
nine cases out of ten, deception would be practised. In the state of
New York, Mr. Van Buren said, they had had full experience of this, in
the application for charters for banks. Plausible pretences were set up,
that the state would be thereby benefited, till these practices became so
numerous, that, in the end, public opinion was decidedly against them ;
and the last legislature, to their honor, had refused all applications of this
description. • • • As to the question (of constitutionality) being set-
tled, he should pi'otest against the admission of such a doctrine : and
he should resist, to ail intents and purposes, the idea that the acts of
thia Congress were to bind him and his constituents hereafter.
Naie. — Mr. Van Buren is by no means certain that, in this respect, he
478 Jtt(ftciary. -» Webster. [1825.
himself has been altogether without fault. At the very first session after
he came into the Senate, the knowledge of the perpetual drain that the
Cumberland road w:is destined to prove upon the public treasury unless
some means were taken to prevent it, and a sincere desire to go, at ail
tiroes, as far as he could consistently with the Constitution, to aid in the
improvement, and promote the prosperity, of the western country, had in-
duced him, without full examination, to vote for a provision authorizing
the collection of toll on this road. The affair of the Cumberland road, in
respect to its reference to the constitutional powers of this government, is
a matter entirely sui generis. It was authorized during the administration
of Mr. Jefferson, and grew out of the disposition of the territory of the
United States through which it passed. He has never heard an explanation
of the subject (although it has been a matter of constant reference) that
has been satisfactory to his mind. All that he can say is, that, if the
question were again presented to him, he would vote against it, and thai
his regret for having done otherwise would be greater, had not Mr. Mon-
roe— much to his credit — put his veto upon the bill, and were it not the
only vote, in the course of a seven years* service, which the most fastidi
ous critic can torture into an inconsistency with the principles which Mt
Van Buren professed to maintain, and in the justice of which he is every
day more and more confirmed.
Judiciary.
House of Reprksentativks, January 10, 1825.
Mr. WEBSTER. In defining the power of Congress, the Constitution
says, it shall extend to the defining and punishing of piracies and felonies
upon the high seas, and offences against the law of nations. Whether the
Constitution uses the term ** high seas" in its strictly technical sense, or
in a sense more enlarged, is not material. The Constitution throughout,
in distributing legislative power, has reference to its judicial exercise, and
so, in distributing judicial power, has respect to the legislature. Congress
may provide by law for the punishment, but it cannot punish. Now, it
says that the judicial power shall extend to all cases of maritime jurisdic-
tion ; and it has lately been argued that, as soon as a judicial system
is organized, it had maritime jurisdiction at once, by the Constitution,
without any law to that effect ; but I do not agree to this doctrine, and I
am very sure that such has not been the practice of our government, from
its origin, in 1789, till now.
The Constitution defines what shall be the objects of judicial power,
and it establishes only a Supreme Court ; but in the subordinate courts,
the jurisdiction they shall exercise must be defined by Congress : the de-
fining of it is essential to the creation of those courts. The judicial
power is indeed grantal by the Constitution ; but it is not, and cannot be,
exercised till Conrrress establishes the courts by which it is to be so exer
cised. And I hold there is still a residuum of judicial power, which
has been granted by the Constitution, and is not yet exercised, viz., for the
punishment of crimes committed within the admiralty jurisdiction of the
United States' courts, and yet not without the jurisdiction of the particular
states. So the Constitution says that the federal courts shall have juris-
diction of all civil cases between citizens of different states; and yet
the law restricts this jurisdiction in many respects — as to the amount sued
for, ^c. There is a mans of power intrusted to Congress ; but Cong^iesf
iffl5, 1826.] Bankruptcy,— y AS Buren. 471'
hn not granted it all to specific courts, and therefore the courts do not
exercise it. The Constitution gives to Congress legit^lative power in all
Cites of admiralty jurisdiction, from whence has occurred one of the most
extraordinary of all circumstances — that causes of revenue have becoro<»
cases of admiralty jurisdiction. * * *
Many things are directed to be punished, in the act of 1800, on the high
seas, which are neither piracies nor felonies, although the Constitution,
speaking of the judicidl power, restricts it to piracies and felonies, which
would infer that the Constitution was then held to grant larger power by
the other clause.
Internal Improvement
January 18, 1825.
Mr. CAMBRELENG said he had hitherto uniformly, but silently, op-
posed measures of this character, only from a doubt of the constitutional
power of the federal government. He had, however, devoted much atten-
tion to the question; and, after mature deliberation, he h;id been led to the
conclusion that, if a government, enjoying the entire post-road and mili-
tary powers of this Union, could not constitutionally construct a road or a
canal, then it had no incidental power whatever. He had, accordingly,
(or the first time, given his vote inYavor of a subscription to the Chesa-
peake and Delaware Canal.
February 13, 182b.
Mr. BERRIEN said, as to the general right, asserted for the Union, to
make roads through all the Indian countries, against such a doctrine he
should desire to protest. He would draw a distinction between those
lands of Indians living within limits of the .states which came into the con-
federation, with certain chartered limits, and those living within states
who, at the time of the formation of the Constitution, had no limits, and
whose limits were only defined by the laws regulating their admission into
the Union.
Bankruptcy.
Senate, January, 1826.
Mr. VAN BUREN. At the time of the adoption of the Constitution,
they [bankruptcy and insolvent iawsl were known and distinguished, both
in Cn^land and in this country, as distinct systems — the one having for
its object to afford a summary and speedy remedy for creditors asjainst
fraudulent or failing traders; the other affording relief to insolvent debtors
of all denominations. The Constitution of the United States, he snid,
had clothed the national legislature with power to establish the former,
and had lefl the right to pass, .ind the duty of establishinir, the latter,
upon the state governments. The O.'Jd section of this bill, he said, was,
upon any definition that might be given of the different terms, an insol-
vent law. If it passed, — that is, if Congress had the constitutional pow-
er t<» pass it, — the states had no right to pass any law upon the subject
of insolvency ; not even to authorize the discharge of debtors imprisoned
upon a process issuing out of their own courts, otherwise th;ui as it niighi
suit the pleasure or convenience of Congress to permit. There was, he
said, no middle ground. If the partition wall between bankruptcy and
insolvency was once broken down, all state legislation was subjected to
the absolute and arbitrary supervision of Congress. He did not believe
that snch waa the design of the framers of the Constitution. He did not
480 foreign Ministers. — Berrikn. [Marck,
believe that such was the Constitution. He therefore objected to the
constitutional power of Congress to pass the section referred to. He had
before said that he rose to explain, not to discuss, and he would not de-
part from the course he had marked out for himself. He would there-
fore only add, that, in his judgment, the provision contained in the 93d
Rection was not within the reas<ms which induced the framers of the Con-
stitution to vest this power of establishing uniform laws on the subject
of bankruptcies in Congress ; that it was a power which never ought to
be, or to have been, vested in Congress ; that it could only be well and
successfully executed by the states, where those who made the Constitu-
tion had lefl it ; that its exercise would operate most injuriously upon the
system which governed the Union and the states separately : those mis
chiefs would, among other things, consist in an injurious extension of the
patronage of the federal government, and an insupportable enlargement
of the range of its judicial power.
Florida Canal.
Fehruary 14, 1826.
Mr. BRANCH perfectly coincided with the gentleman from Tennessee,
(Mr. White.) Doubting of the constitutional right of the United Statea
to cut roads and canals through he states, he had hitherto abstained from
exercising it; but as retjarded the territory, the objection did not seem
to exist ; for not only had Congress the right to make this appropriation
for a road through the Indian country, acquired by treaty before it came
into the Union, but it was an obligation on the general government to
complete the work it had commenced, and he had therefore voted for it.
Mr. ROWAN. In the general government, they were, Mr. R. said,
to look into the Constitution for all the power they possessed. There was
no such power given in the Constitution ; and he believed, with deference
to the opinion entertained, that to convey the exercise of such a power
was iiiconipatible with what was the acknowledged power of the states.
There was no power given to expend money in roads and canals in the
slates ; there was no such power specifically given to the United States ;
and when once it was settled in this house that power could be derived
to this government by construction, you have discovered the means by
which llie whole power of a state might be frittered down and annihilated.
On the Constitutional Power of the President to originate the
Appointment of a Foreign Minister.
Senate, March, iy!lft>.
Mr. BERRIEN. By the Constitution, the President is authorized to
nominate, and, by and with the advice and consent of the Senate, to ap-
point, ambassadors, and other public ministers and consuls, judges of the
supreme courts, and all other officers of the United States, whose appoint-
ments are not therein otherwise provided for, and which shall be estab-
lished by law. Now, it is plain that the appointing power does not in-
clude the power to create the office; in other words, that the office to
which the appointee is nominated must be previously created by law. If
an appointment be to an office to be exercised within the limits of tht
United States or its territories, it must be to one which exists, and ha?*
been created by the municipal laws of the United States. Tf to an offic*»
1826.] Foreign Ministers, — Berrien. 48 1
which is to be exercised without the limits of the United States, within
the dominions of a foreign sovereign, it must be to one which exists, and
is recognized by the general principles of international law, or which is
^)eciaJly created by positive and particular pacts and conventions. The
limitation in the latter case results not only from the fundamental law of
this government, but from the exclusive dominion, within his own territo-
ries, of the sovereign within whose territories this minister is to exercise
his functions. That sovereign is bound, as a member of the great family
of nations, to recognize as legitimate an appointment which is consonant
to the code of international law, and of course to acknowledge one which,
by express convention, he has stipulated ; but this is the extent of his ob-
ligation, and consequently the limit of the appointing power under our
Constitution.
Let us look to the first of these propositions. Is it within the ** consti-
tutional competency " of the President to appoint to an office the functions
of which are to be exercised within the limits of the United States, which
office has not been created by the laws of the United States ? Take an
example. The President deems it expedient to establish a home depart-
ment. Is there any one sufficiently absurd to assert that he has a right,
ez mero motu, or even with the assent of a majority of the Senate, to ap-
point a secretary for that department — to assign to him certain specific
duties, and then to call on Congress for the requisite appropriation, to
compensate his services ? — to imagine that the acts of such an officer
would be valid, or that his attestations would be respected by our judi-
cial tribunals ?
Before the passing of an act of Congress for the organization of a newly-
acquired territory, and the creation, by that act, of the legislative, ex-
ecutive, and judicial officers deemed necessary for its government, is it
within the " constitutional competency " of the President, aided even, as
before, by a majority of th'' Senate, to appoint an officer or officers to ex-
ercise all or either of these function^ 1 The proposition is believed to be
too clear for argument.
Within the United States, the office must be created by law before the
appointing power can be called into action. Why should a different rule
prevail without ? The law of nations operates on this government, in its
intercourse with other sovereignties, as the municipal law does in its ac-
tion on its own citizens. In this case, then, the law of nations, as in the
other the municipal law, must have created the office, before the power
of appointment can exist. Now, the law of nations does recognize am-
bassadors and other ministers, in the intercourse between sovereigns. But
this law does no where recognize the right of a congress of ministers to
receive an embassy. The right to receive, and the right to send, a min-
ister, are co-relative. The one does not exist without the other. A con-
gress of ministers is not authorized to receive an ambassador, unless it is
authorized to send one. Who will assert, for the congress of Panama, the
right to exercise the latter power?
A sovereign cannot, then, be represented in a congress of ministers,
otherwise than by a deputy, who becomes a member of that congress
He is not an ambassador to that congress, but is himself a constituent part
of it. He is not accredited to any particular power, but is commissioned
ar one of a number of deputies who are collectively to compose the con-
gre8s. How are these deputies created ? The answer is obvious. From
ihe necessity of the thing, it must be by conventions or treaties between
VOL. IV. 61 41
182 Foreign Ministers — Berrien. [Metrck^
the respective powers who are to be represented bj those deputies. Ifl
this manner the congress at Veronn was created by the treaty of Paris.
The deputies who appeared there were called into existence by the express
htipulations of that treaty. So, too, in the congress of Panahia, the office
of deputy to that congress is created by the special provisions of the trea*
Mes between the several powers who are to be represented there.
The result of what has been said is this : The office of a deputy to an
international congress does not exist permanently under the taw of nations,
but is the ofispring of particular convention — and this of necessity, because
the congress itself is not preexisting, but is the creature of treaty ; and
the treaty which creates the congress stipulates also for the appointment
of the deputies of whom it is to be composed. Then the clause of the
Constitution which authorizes the appointment of ambassadors, or other
ministers, cannot be invoked to sustain this nomination, because a deputy
to a congress is not a minister existing by force of the law of nationi», but
created by particular conventions between the powers represented in that
congress ; and we have no such conventions with the powers represented
in the congress of Panama. Consequently, as to us, the office of minister
or deputy to that congress does not exist, not being derived from the law
of nations, nor provided for by any convention. A very simple view of
the subject seems to be decisive. Could the President have sent ministers
to the congress of Panama uninvited by the powers represented there?
Could he, without such invitation, have required such ministers to be ac-
credited by that congress? Would a refusal to receive them have fur-
nished just ground of complaint? If these questions are answered in the
negative, as I presume they must be, the conclusion is obvious : the office
exists only by force of the invitation.
Unless, then, the mere invitation of a foreign nation is competent to
create an office, and thus to call into action the appointing power of the
President, — unless this appointing power includes the power to create
the office, which we have seen that it* does not, — the appointment by the
President of ministers to the congress of Panama cannot be valid, nor can
it be rendered so by the advice and consent of a majority of the Senate,
nor by any power short of that which is competent to create the office ;
and that, we have seen, is the treaty-making power. The President can
appoint a minister to the republic of Colonibia, becnuse such an office
•sxisis under the law of nations, and is, therefore, a legitimate object of
he appointing power ; and he may instruct such minister to communicate
ivith the congress of Panama ; but he cannot appoint a minister to take a
seat in that congress, because we have no conventions with the powerd
represented there, by which, as to us, the office is created ; nor can he
send a minister, as an ambassador or legate, to that congress, because the
congress, as such, has not the rights of embassy If it be said that this is
mere form, the answer is obvious : form becomes substance in this case,
by force of the constitutional provision which requires the assent of two
thirds of the Senate to the ratification of a treaty, while a bare majority is
sufficient to give effi^ct to an exercise of the appointing power.
Let us consider this question, for a moment, freed from the prejudices
which operate in favor of the Spanish American republics If the states
represented in the congress of Vienna or Verona, or the Holy Alliance
had given us an invitation to be represented there, apart from the expedi-
ency of the measure, could it have been within the ** constitutional cotn*
pef^ncy " of the President to have sent ministers to take thei^ seats m
1826.] On Slavery. — H a yne 483
either of those assemblies ? If the nations of Europe should, hy treatiea^
provide for a congress to devise the means of abolishing the slave trade,
of resisting the extortions of the Barbary powers, or of suppressing liie
piracies of the West Indian seas, could the President, the United States
not being parties to those treaties, of his own mere will, make us members
of that congress, by sending deputies to represent us there ? The question
is proposed in this form, because our ministers would, of necessity, if re-
ceived at all, be members, and not ambassadors, since such a congress is
neither competent to send or to receive an embassy.
Why, then, in the creation of this office of deputy or minister to the
congress of Panama, was not the constitutional organ, the treaty-making
power, resorted to? What would have been the result of such a course is
obvious, I think, in the recorded votes of the Senate, on the preliminary
questions which have arisen. The object could not have been effected.
Two thirds of the Senate could not have been obtained. Thex)ffice would
not have had existence ; or the Senate, in the exercise of their legitimate
powers, would have so modified the treaty, as to have limited the functions
of the ministers to those objects of which they would have approved.
Mr. ROBBINS. The theory of our Constitution charges the executive
with the care of our foreijrn relations, and of the public interest connected
therewith : it supposes him intin^ately acquainted with all those interests,
and therefore possessed of the means of forminjr a correct opinion of the
measures conducive to their advancement. This opinion, though not
binding as authority, is yet, I think, entitled to much weight, as well as to
much respect, in our deliberations. We have the executive opinion in this
case, under circumstances that entitle it to peculiar consideration. The
credit of the government, in the estimation of all those nations, is in a
degree connected with the adoption of this measure ; and that estimation
OQght not, in my opinion, lightly to be forfeited, nor unnecessarily im-
paired.
On Slavery, [Panama Mission.]
SEffAfK, Marehj \9il6.
Mr. HAYNE. The question of slavery is one, in all its bearings, of
extreme delicacy ; and concerning which I know of but a single wise and
safe rale, cither for the states in which it exists or for the Union. It must
be considered and treated entirely as a domestic question. With
respect to foreign nations, the language of the United States ought to be,
that it concerns the peace of our own political family, and therefore we
cannot permit it to be touched ; and in respect to the slave-holdin? states,
the only safe and constitutional ground on which they can stand, is, that
they will not permit it to be brought into question, either by their sister
states or by the federnl government. It is a matter for ourselves. To
touch it at all, is lo violate our most sacred rights — to put in jeopardy our
dearest interests — the peace of our country — the safety of our families,
our altars, and our firesides. Sir, on the question of our slave institutions,
so often incidentally mentioned, I will take this opportunity, once for all,
to declare, in a few words, my own feelings and opinions. It is a subject
to which I always advert with extreme reluctance, and never except when
it is forced upon me. On the present occasion, the subject has been
forced upon our consideration ; and when called upon to give my sanction
'o the discussion, by our ministers, (in connection with a foreign con-
1'34 On Slavery. — Hayne. [March,
fresi,) of questions so intimately connected with the welfare of these whom
represent, 1 cannot consent to be silent. On the slave question, my
opinion is this : I consider our rights in that species of property as not
e?en open to discussion, either here or elsewhere; and in respect to our
duties, (imposed by our situation,) we are not to be taught them by fanat-
ics, religious or political. To call into question our rights, is grossly to
violate them ; to attempt to instruct us on this subject, is to insult us ; to
dare to assail our institutions, is wantonly to invade our peace. Let me
solemnly declare, once for all, that the Southern States never will permit,
and never can permit, any interference whatever rti their domestic con-
cerns ; and that the very day on which the unhallowed attempt shall be
made by the authorities of the federal government, we will consider our-
selves as driven from the Union. Let the consequences be what they
may, they never can be worse than such as must inevitably result from suffer-
ing a rash and ignorant interference with our domestic peace and tranquil-
lity. But while i make these declarations, I must be permitted to add, that
I apprehend no such violation of our constitutional rights. I believe that
this house is not disposed, and that the great body of our intelligent and
patriotic fellow-citizens in the other states have no inclination whatever, to
interfere with us. There are parties, indeed, composed, some of them, of
fanatics, and others of political aspirants, who are attempting, vainly I
hope, to turn the current of popular opinion against us. These men have
done us much harm 'already, and seem still fatally bent upon mischief.
But if we are true to ourselves, we shall have nothing to fear. Now, sir,
if it is the policy of the states not to suffer this great question to be touched
by the federal government, surely it must be the policy of this government,
exercising a paternal care over every member of the political family, not
to suffer foreign nations to interfere with it. It is their imperative duty to
shun discussion with them, and to avoid all treaty stipulations whatever,
on any point connected, directly or remotely, with this grent question. It
is a subject of too delicate a nature — too vitally interesting to us — to be
discussed abroad. On this subject, we committed an error when we
entered into treaties with Great Britain and Colombia for the suppression
of the slave trade. That error has been happily corrected.
The first treaty has failed, and the second was nearly unanimously
rejected by this body. Our policy, then, is now firmly fixed — our course
is marked out. With nothing connected with slavery, can we consent to
treat with other nations? — and, least of all, ought we to touch the ques
tion of the independence of Hayti, in conjunction with revolutionary gov
ernments, whose own history affords an example scarcely less fatal to our
repose. Those governments have proclaimed the principles of ** liberty
and equality," and have marched to victory under the banner of " univer-
sal emancipation." You find men of color at the head of their armies, in
their halls, and in their executive departments. They are looking to Hayti
even now with feelings of the strongest confraternity ; and show, by the
very documents before us, that they acknowledge her to be independent,
at the very moment when it is manifest to all the world beside, that she
has resumed her colonial subjection to France. Sir, it is altogether hope-
less that we could, if we would, prevent the acknowledgment of Haytien
independence by the Spanish American states; and I am constrained to
add, ihat I must doubt, from the instruments to be employed by our gov-
ernment, whether they mean to attempt to do so. We are to send, it
teems, an honest and respectable man, but a distinguished advocate of the
1826.] /iiiftcia/iS[y5/m. — Van fiuREif. 48b
Missouri restriction — an acknowledged abolitionist — to plead the cause
of the south at the congress ofPanainri. Our policy with regard toHayti
is plain. We never can acknowledge her independence. Other states
will do as they please ; but let us take the high ground, that these ques-
tions belong to a class which the peace and safety of a large portion of our
Union forbid ua even to di^ouss. Let our government direct all our in in- .
isters in South America and Mexico to protest against the independence
of Hayti. But let us not go into council on the slave trade and Hayti.
These are subjects not to be discussed any where. There is not a nation
on the globe with whom I would consult on that subject ; and least of all,
the new republics.
Judicial System.
Senatx, jfpri/ 7, 1826.
Mr. VAN BUREN. It has been justly observed that ** there exists not
upon this earth, and there never did exist, a judicial tribunal clothed with
powers so various and so important " as the Supreme Court.
By it, treaties and laws made pursuant to the Constitution are declared
to be the supreme law of the land. So far, at least, as the acts of Con-
gress depend upon the courts for their execution, the Supreme Court is
the judge whether or no such acts are pursuant to the Constitution, and .
from its judgment there is no appeal. Its veto, therefore, may absolutely
suspend nine tenths of the acts of the national legislature. Although this
branch of its jurisdiction is not that which has been most exercised, still
instances are not wanting in which it has disregarded acts of Congress, in
passing upon the rights of others, and in refusing to perform duties re-
quired of it by the legislature, on the ground that the legislature had no
right to impose them.
Not only are the acts of the national legislature subject to its review,
but it stands as the umpire 4>etween the conflicting powers of the general
and state governments. That wide field of debatable ground between
those rival powers is claimed to be subject to the exclusive and absolute
dominion of the Supreme Court. The discharge of this solemn duty has
not been unfrequent, and certainly not uninteresting. In virtue of this
power, we have seen it holding for nought the statutes of powerful states,
which had received the deliberate sanction, not only of their legislatures,
but of their highest judicatories, composed of men venerable in years, of
unsullied purity, and unrivalled talents — statutes, on the faith of which
immense estates had been invested, and the inheritance of the widow and
the orphan were suspended. You have seen such statutes abrogated by
the decision of this court, and those who had confided in the wisdom and
power of the state authorities plunged in irremediable ruin — decisions
final in their effect, and ruinous in their consequences. I speak of the
power of the court, not of the correctness or incorrectness of its decisions.
With that we have here nothing to do.
But this is not all. It not only sits in final judgment upon our acts, as
the highest legislative body known to the country, — it not only claims to
be the absolute arbiter between the federal and state governments, — but
it exercises the same great power between the respective states forming
this great confederacy, and their own citizens. By the Constitution of the
United States, the states are prohibited from passing " any law impairing
^ke obligation of contracts.'* This brief provision has given to the juris
diction of the Supreme Court a tremendous sweep. Before I proceed to
\g&(j Judicial System, — Van fiuRBN. [Apr J 7
delineaic its tendency and character, I will take leave to remark upon some
extraordinary circumstances in relation to it. We all know the severe
scrutiny to which the Constitution was exposed — some from their own
knowledge, others from different sources. We know with what jealousy,
with what watchfulness, with what scrupulous care, its minutest provisions
were examined, discussed, resisted, and supported, by those who opposed
and those who advocated its ratification. But of this highly consequential
provision, this provision which carries so great a portion of all that is val*
uable in state legislation to the feet of the federul judiciary, no complaints
'were heard, no explanation asked, no remonstrances made. If they were,
they have escaped my researches. It is most mysterious, if the Constitu-
tion was then understood as it now is, that this was so. An explanation
of it has been given — how correct 1 know not.
The difficulties which existed between us and Great Britain, relative to
the execution of the treaty of peace, are known to all. Upon the avowed
ground of retaliation for the refusal of Englaud to comply with the stipu-
lation on her part, laws were passed, between the years 1783 and 1788,
by the states of Virginia, South Carolina, Rhode Island, New Jersey, and
Georgia, delaying execution, liberating the body from imprisonment on
the delivery of property, and admitting executions to be discharged iu
paper money. Although those laws were general in their terms, applica-
ble as well to natives as to foreigners, their chief operation was upon the
British creditors ; and such was the leading design of their enactment.
England remonstrated against them as infractions of the stipulations in the
treaty, that creditors, on either side, should meet with no impediments to
the recovery of the full value, in sterling money, of all debts previously
contracted, and attempted to justify the glaring violations of the treaty, on
her part, on that ground. An animated discussion took place between
the federal government and Great Britain, and between the former and the
states in question, upon the subject of the law^ referred to, their character
and effect. It was during this time that the Constitution was formed and
ratified. It is supposed that the difficulties, thus thrown in the way of ad-
justment with England, through the acts of the state governments, sug-
gested the insertion in the Constitution of the provision in question, and
that it was under a belief that its chief application would be to the evil
then felt, that so little notice was taken of the subject.
If it be true that such was its object, and such its supposed effect, it
adds another and a solemn proof to that which all experience has testified,
of the danger of adapting general provisions for the redress of particular
and partial evils. But whatever the motive that led to its insertion, or the
cause that induced so little observation on its tendency, the fact of its
extensive operation is known and acknowledged. The prohibition is not
confined to express contracts, but includes such as are implied by law,
from the nature of the transaction. Any one conversant with the usual
range of state legislation, will at once see how small a portion of it is
exempt, under this provision, from the supervision of the seven judges of
the Supreme Court. The practice under it has been in accordance with
tirhat should have been anticipated.
There are few states in the Union, upon whose acts the seal of condem-
nation has not, from time to time, been placed by the Supreme CourL
The sovereign authorities of Vermont, New Hampshire, New York, New
Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Missouri, Ken*
lucky, and Ohio, have, in turn, been rebuked and silenced, by the over*
l^ttSL] Judicial System, — > Wooobui^y. 487
ruJio^ authority of this court. I must not be und4;rstood, si. , as com
plaioing of the exercise of this jurisdiction by the Supreme Court, or to
pass upou the correctness of their decisions. The authority lias beeQ
gi?en to them, and this is not the place to question its exercise. But this
I will say — that, if the question of conferring it was now presented for the
first time, I should unhesitatingly say, that the people of the states migat
«ith safety be left to their own legislatures, and the protection of their
own courts.
Add to the immense powers of which I have spoken those of expound-
ing treaties, so far, at least, as they bear upon individuals, citizens or aliens,
— of deciding controversies between the states of the confederacy them-
selves, and between the citizens of the different states; and the justice of
the remark will not be questioned, that there is no known judicial power
80 tranacendently omnipotent as that of the Supreme Court of the United
States.
Let us now consider the influence which this ought to have upon our
legislation. It would not be in accordance with the common course of
nature, to expect that such mighty powers can l(^g continue to be exer-
cised, without accumulating a weight of prejudice that may, one day, be-
come dangerous to an institution which all admit to be of inestimable
value. It is true, as has elsewhere been said, with apparent triumph, that
the states whose legislative acts have successively fallen under the inter-
diction of the court have excited little or no sympathy on the part of
their sister states, and, afler struggling with the giant strength of the court,
have submitted to their fate. But, sir, it is feared that this will not always
be the case. Those who are most ardent in their devotion to this branch
of the government, knowing the feelings produced by these decisions in
those states affected by them, — sensible that those feelings are rather smoth-
ered, than abandoned upon conviction of their injustice, — fear that, by
adding another and another state to the ranks of those who think they
hare reason to complain, an accumulation of prejudice may be produced
that will threaten, if not endanger, the safety of the institution.
AprU 11, 1826.
Mr. WOODBURY. The proposed bill not only alters the system for
local purposes, by requiring the attendance of an additional judge at the
Circuit Court in regions of country not so populous as those where the
judges of the Supreme Court now attend, but it alters the system for gen-
eral purposes, by enlarging the Supreme Court itself one half its whole
original number ; by leaving its quorum so that contradictory decisions
may constantly be made without any change in the court itself; and by
increasing it to as great an extent as a majority of its present quorum, —
so that new results may possibly be produced in all its grand supervising
powers over each state, and over the whole confederation.
It is thus that a principle lurks in the last effect of this great alteration,
which, in the opinion of many, should carry anxiety and dismay into every
heart; because, among other objections, it places at the mercy of legisla-
tive breath, in any moment of overheated excitement, all that is valuable
ill any constitutional judgment on its records. We have only, as in this
case, to add a number to any court sufficient to balance a majority of its
quorum, and, by a union of feeling with the appointing power, secure
judges of certain desirable opinions ; and any political or constitutional
deciflioo can, in the next case which arises, be overturned. Every security
188 Presidential Election, — Van fiuREif . [18a&
18 thus prostrated. The system is not extended, but is, in principle, de-
stroyed; for thus does this increase open an avenue to a radical change in
the highest functions of one great department of our goverinnent, and a
department, too, of all others the most endangered by any change, because,
in its very nature, designed for permanency, independence, and firmness,
amidst those tempests which at times convulse most of the elements of
society.
Gentlemen must perceive that I speak only of the general tendency and
alarming character of such an increase, without reference to the motives
which have now recommended It. They are doubtless pure. But it.'^
propriety is to be tried by the reasons for it, and not by motives. ♦ • •
If this system is to be extended to the six new states, because most
excellent, without regard to the effect of such an extension on the Su-
preme Court itself, and without regard to population or expense, then why
not extend it to every part of the Union now destitute of it ? When gen-
tlemen talk of equality and broad American grounds, — when they, with
indignation and justice, disdain sectional views and favoritism, — why
create new circuits for Ihe people in these new states, and not, at the same
time, create them for more than three times as many people, now destitute
of such circuits, in Western New York, Pennsylvania, and Virginia?
For, if the circuit system of itself be superior, and therefore, without re-
gard to other circumstances, is to be extended to the west and south-west,
for the safety and advantage of about half a million of people now destitute,
then, surely, a million and a half of people, in the three great Atlantic
ftates, are equally entitled to its security and blessings.
Disposal of the Public Lands,
Senate, May^ 1626.
Mr. VAN BUREN said, the subject of the public lands was becoming .
daily more and more interesting, and would occupy much time in legisla-
tion. It extended the patronage of the government over the states in
which they were situated to a great extent ; it subjected them to an un-
wise and unprofitable dependence on the federal government. ♦ • •
No man could render the country a greater service than he who should
devise some plan by which the United States might be relieved from the
ownership of this property, by some equitable mode. He would vote for
a proposition to vest the lands in the states in which they stood, on some
just and equitable terms, as related to the other states in the confederacy.
He hoped that, after having full information on the subject, they would
be able to effect that great object. He believed that, if those lands were
disposed of at once to the several states, it would be satisfactory to all.
Presidential Election.
Senate, 1826
Mr. VAN BUREN. Under the Articles of Confederation, the repre-
sentation of each state in the general government was equal. The Union
was in all respects purely federal, a league of sovereign states upon equal
terms. To remedy certain defects, by supplying certain powers, the Coiv*
vention which framed the present Constitution was called. That Conven-
tion, it is now well known, was immediately divided into parties, on the
interesting question of the extent of power to be given to the new govero*
am.] Presideniiai Election, — Van Burbn. 4iii9
ment — whether it should be federal or national; whether depcndtni up-
on or indepmdent of the state governments. It is equally well known that
that point, after having several times arrested the proceedings of the Con-
vention, and threatened a dissolution of the Confederation, subsequently
divided the people of the states on the question of ratification. He might
add that, with the superadded question of what powers have been given
by the Constitution to the federal government, to the agitation of which
the feelings which sprang out in the Convention greatly contributed, it
nad continued to divide the people of this country down to the present
period. The p iriy in the Convention in favor of a more energetic govern-
ment, being unable to carry, or, if able, unwilling to hazard the success
of the plan with the states, a middle course was agreed upon. That was,
that the government should be neither federal nor national, but a mixture
of both ; that of the legislative department, one branch — the power of
representation — should be wholly national, and the other — the Senate
— wholly federal ; that, in the choice of the executive, both interests
should be regarded, and that the judicial should be organized by the
other two. But, to quiet effectually the apprehensions of the advocates
fur the rights and interest of the states, it was provided that the general
^vernment should be made entirety dependent, for its continuance, on
the will and pleasure of the state governments. Hence it was decided
that the House of Representatives should be apportioned among the states,
with reference to their population, and chosen oy the people ; and power
was given to Congress to regulate and secure their choice, independent of
and beyond the control of the state governments. That the'Senate should
be chosen exclusively by the state legislatures ; and that the choice of the
electors of President and Vice-President, although the principle of their
apportionment was established by the Constitution, should, in all respects,
except the time of their appointment and of their meeting, be under the
exclu'iive control of the lecrislatures of the several states.
On reference to the proceedings of the state conventions, it will be
seen that, in several of the states, the control by Congress over the choice
of representatives merely, w.is strongly remonstrated against; that amend-
ments were proposed for its qualificntion by the states of South Carolina,
North Carolina, Virginia, Massachusetts, New Hampshire, Rhode Island,
and New York ; that most of them resolved that it should be a standing
instruction to their delegates in Congress, to endeavor to effect that and
other amendments proposed. The proposition of the gentleman from
New Jersey, to which Mr. Van Buren had alluded, would, if adopted,
bre^k an important link in the chain of dependency of the general upon
the state governments. It would surrender to the general government all
control over the election of President and Vice-President, by placing the
choice of electors on the same footing with that of representatives. It
would at this time be premature to go into a minute examination of the
provisions of the resolution alluded to, to show that such would be its ef-
fects. Upon examination, jt will be found that such would be its con-
struction : that it does in substance what another proposition upon their
fable, originating in the other house, does in words. But even were there
doubt upon that subject, that doubt should be removed by an express pro-
ri!«ion, reserving to the states their present control over the election, ex-
C4»pt as to what is particularly provided for in the resolution now proposed
If it is fit to take from the states their control over the choice of electors
of President and Vice President, and give it to the federal government^
VOL. IV. 62
IdO Bankrupt Low. — £Utnb* [Jfajr 1.
it would he equal y proper, under the popular idea of giving their election
to the people, to divide the states into districts lor the choice of senators,
as was proposed in the Convention, and give to Congress the control over
their election also^ If the system be once broken in upon in this respect,
ihe other measure will naturally follow, and we shuU then have what was
so much dreaded by those who have gone before us, and what he feared
would be so much regretted by those who come after, — a completely con-
solidated government, a government in which the state governments would
be no otherwise known or felt than as it became necessary to control
them. To all this Mr. Van Bui en was opposed.
At the time of the adoption of the Federal Constitution, it was a ques-
tion of much speculation and discussion, which of the two governments
would be most in danger from the accumulation of influence by the opera-
tion of the powers distributed by the Constitution. That discussion was
founded on the assumption that they were, in several respects, rival pow-
ers, and that such |>ower8 would always be found in collision. The best
lights which could be thrown upon the subject were derived from the
examples afforded by the fates of several of the governments of the old
world, which were deemed to be, in some respects, similar to ours. But
the governments in question having operated upon, and been administered
by, people whose habits, characters, tempers, and conditions, were es-
sentially different from ours, the inferences to be derived from that source
were, at best, unsatisfactory. Mr. Van Buren thought that experience —
the only unerring criterion by which matters of this description could be
tested — had settled for us the general point of the operation of the pow-
ers conferred by the Constitution upon the relative strength and influence
of the respective governments. It was, in his judgment, susceptible of
entire demonstration, that the Federal Constitution had worked a gradual,
if not an undue, increase of the strength and control of the genera] gov-
ernment, and a correspondent reduction of the influence, and, cons^
quently, of the respectability, of the state governments.
On the Bankrupt Law.
Skrate, May 1, I82b.
Mr. HAYNE. The first question which presents itself for considera-
tion is, the necessity of a bankrupt law. It is asked ** whether the laws
of the states, on this subject, are not adequate to the object." I answer,
decidedly and unequivocally, that there exists the most pressing necessity
for now establishinf^ '' uniform laws on the subject of bankruptcy through
out the United States; " and that the laws of the states, on this subject,
are inefUcient, unjust, and ruinous in their operation. In the remarks I
am about to make on this branch of the subject, I wish to be distinctly
understood as confining my observations to the effect of the state insol-
vent laws on persons concerned in trade. It is from the operation of these
laws on the commerce of the country that those evils flow which demand
a speedy and effectual remedy.
There now exist, in the several states of this Union, upwards of twenty
distinct systems of bankruptcy ^ or insolvency, each differing from all the
rest in almost every provision intended to give security to the creditor or
relief to the debtor ; differing in every thing which touches the rights
and remedies of the one, or the duties and liabilities of the other.
B} the laws of some of the states, debtors cannot be arrested either op
1826.] Bankrupt Law, — Haynk. 491
•
mesne or final process; bv others, persona] property may be held in
defiance of creditors; while, by others, real estate cannot be touched
In some instmces, executions are suspended; in others, the courts of
justice are closed, or, which is the same thing, delays are sanctioned
which amount to a denial of justice. In some states, a few creditors in
the immediate neighborhood are suffered, by attachment, or other legal
proceedings, (oflen the result of collusion with the debtor,) to secure to
themselves the whole estate of an insolvent In several states, persons
arrested for debt are permitted to *' swear out/' as it is called, after a
notice of a few days; while in other states, they are required to lie m jail
for three or four months. In some instances, the relief extended is con-
fined to the discharge of the debtor from arrest in the particular suit; in
others, from arrest in all suits ; and in some few cases, the attempt has
been made to release him from all future liability on existing contracts.
These various systems, unequal and inconsistent as they must be admitted
to be, are rendered still more objectionable by being perpetually fluctu*
ating. It was the opinion of one of the ablest judges that ever sat on the
English bench, or any other bench, that it was better for the community
'* that a rule should be certain than that it should be just ; " for the obvi-
ous reason, that we can shape our conduct, or our contracts, in reference
to any known and settled rule, so as to avoid its injurious effects; but when
the rule is uncertain, we cannot avoid falling under its operation.
We are told that it was felt as a grievance by the Roman people, that
the tyrant should write his laws *^ in a small character, and hang them up
on high pillars," so that it was difficult to read them ; but that grievance
would have been rendered still more intolerable, if the inscriptions had
been varied with the rising and setting of the sun.
Not a year, hardly a month passes by, which does not witness numer
ous, and, in many instances, radical changes in the insolvent systems of
the several states. It is found utterly impracticable to conform to them
or to guard against them. It defies the wisdom of the bench, or the
learning of the bar, to give certainty or consistency to a system of laws,
upon which twenty-four different legislatures are constantly acting, and
almost daily innovating — a systerii which changes with a rapidity that
deceives the mental vision, and leaves us in the grossest ignorance.
It is manifest, Mr. President, that the states are now reduced to the
necessity of entering into a competition with each other, in restricting the
rights of creditors, and impairing the liabilities of debtors; and this, too,
in a matter in which, as it is impossible to mark the exact line of equality,
there must be great danger of their advancing, step by step, until every
^Hjng is unsettled. I am persuaded that nothing but the constitutional
pronibition on the states, against *' impairing the obligation of contracts,"
and the general — I might almost say the universal — belief that they have
no right to pass an efficient bankrupt law, have hitherto prevented such an
interference between debtor and creditor, as would have given a fatal blow
to commercial credit and enterprise.
Sir, this whole country is filled with unfortunate debtors, who owe their
failure to such causes. I have no hesitation in declaring it to be my firm
belief, and settled conviction, founded on some personal knowledge, and
information derived from those well acquainted with the subject, and wor-
thy of entire confidence, that^ fro:.", these '•ausej*, there is a mass of talent,
industry — ay, sir, and virtue too — in our country, idle and useless; and
that their number is daily and rapidly increasing. Thousands of indifid-
492 Bankrupt Low.^IIayse. [1826
uals, who, in the commercial vicissitudes of the last twenty years, have
become bankrupt, — sometimes from fraud, oftener from imprudence, but
most frequently from misfortune, — are now struggling out a miserable
existence, a burden to their friends and to their country. They live with-
out hope, and will die without regret.
If we look into the proceedings of the Convention, or examine the com-
mentaries on the Constitution by the great men who framed it, we shall
find abundant reason to believe that the article which gives to Congress
power over this subject, was designed to prevent /rands. The Journals
of the Convention show that, on the 29th August, 1787, it was moved to
commit the following proposition, to wit, ** to establish uniform laws on
the subject of bankruptcy, and respecting the damages arising from the
protest of foreign bills of exchange;" which passed in the affirmative by
a vote of nine states against two — Connecticut, New Jersey, Pennsyl-
vania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and
Georgia, voting in the affirmative, and New Hampshire and Massachusetts
in the negative. On the 1st of September following, Mr. Rutledge, of
South Carolina, (from the committee,) reported and recommended the
insertion of the following words, viz. : *' to establish uniform laws on the
subject of bankruptcies; " which, on the 3d of September, was agreed to
by yeas and nays, every state voting in the affirmative, except Connecticut.
I confess I felt my confidence in the wisdcmi of this provision of the
Constitution strengthened and confirmed, when I discovered that it had
been introduced by John Rutledge, and had received the unequivocal
sanction of James Madison. In a number of the Federalist, written by
that distinguished statesman, speaking of this particular provision of the
Constitution, he says, ** Uniform laws on the subject of bankruptcy tcill
prevent so many frauds^ that the expediency of it seems not likely to be
called in question." Sir, we are wiser than our ancestors; that which
they designed to ** prevent frauds " we pronounce to be the most fruitful
source of frauds. A proposition which seemed to them so clear that it
was *• not likely to be called in question," we have for twenty years rejected
as unworthy even of a trial. It may be, Mr. President, that I am bigoted
in my reverence for the authors of this Constitution ; but I am free to con-
fess that 1 distrust my own judgment when 1 find it leading me to discard
their precepts, or to reject their injunctions.
In relation to bankruptcy, it is the federal government only that ever
will enact a wise and judicious system, and no power but Congre.ss ran
establish uniformity. This is the great desideratum. This is the true,
the only remedy for the evils which I have pointed out. The wise man
now at the head of the Supreme Court of the United States (whose char-
acter has been drawn with a master's hand by the gentleman from Virginia,
in a finished picture that 1 cannot venture to touch, lest I should impair
its beauty) has ii^iven us his opinion on this clause of the Constitution in
terms worthy of consideration : —
" The peculiar terras of the errant (savs Chief Justice Marshall) certainly deserve
notice. Congress is not authorized merely to pass laws, the operation of which shall be
uniform, but to establish uniform laws on the subject throughout the United Stutes.
This establishment of uniformity is, perhaps, incom|»atible wiUi state legislation on that
part of the subject to which tlu' acts of Congress may extend."
Now, let it be remembered, that while, on the one hand, the power is
expressly conferred on the federal government of actinsr efficiently on this
subject, the right has been taken away from the states. This the Supreme
1S27.J Bankrupt Law. — Woodbury. 493
Court of the United States have decided in the cases of Sturges anc
Crowninshield, and M'Millan and M'Neili, (4 Wheat. 122, 209.) A
discharge under the bankrupt or insolvent law of a state is, in these cases,
declared to be invalid, in consequence of the constitutional prohiSition on
the states of passing any law ** impairing the obligation of contracts "
Now, prior to the adoption of the Constitution, the states possessed thi»
rightt and, in some instances, exercised it to the most unlimited extent
It is a right essential to commercial credit and prosperity. It has been
taken from the states, and vested in us; and if proper to be exercised at
ill, can only be exerted by us. I am aware, sir, that there are cases still
pending before the Supreme Court, in which the question is involved,
whether a state bankrupt law may not be enforced, in such state, on parties
residing there, and contricting in reference to that law. This question
has remained for several years undecided ; but, whatever may be the final
decision, it is obvious that it will not restore to the states the power of
acting on the subject matter in t(ie only way at all adequate to the exigen-
cies of the country. The application of the lex loci contractus would be
but a miserable substitute or a general bankrupt law. And even if it
were possible that the case of Sturges and Crowninshield could be re-
versed, and the power be restored to the states of passing bankrupt laws,
without restriction or limitation, 1 should consider twenty-four different
bankrupt laws as infinitely worse than none.
In this bill the committee have framed a system of bankruptcy, which
will, in their opinion, greatly contribute to give security to creditors, and
relief to debtors, within the sphere of its operation. It is believed that
it ofiers the strongest inducements to debtors for honest dealing; that it
holds out a temptation to insolvent traders to make a timely surrender of
their effects to their creditors ; and that, thus, it will have a powerful tend-
ency to prevent over-trading and desperate adventures. This bill gives
power to creditors to arre.st the fraudulent career of their debtors, furnishes
a prompt remedy for the recovery of debts, and time and means for
thorough investigations ; it prevents all unjust preferences, and secures an
impartial distribution of insolvent estates : it puts citizens of different
states on an equal footing, and gives a certain, a just rule for commercial
contracts; it puts our own citizens on a footinor with foreigners; and,
lastly, it will restore to society, to honor, and usefulness, a mass of indus-
try and talent which, under the present system, is irretrievably lost —
thus '* paying a just tribute to the rights of humanity, by depriving the
creditor of the power he now has over the whole life of his debtor."
January 24, 18*27.
Mr. WOODBURY. The gentleman on his right (Mr. Berrien) had
said that Congress might legislate without limitation as to the objects or
manner of a bankrupt system, because no limitation as to them had been
expressed in the Constitution. But the limitation exii^ted in the subject
matter of the grant. The grant was not to legislate on the subject of
contracts generally, oT descents, of suits at law, but on the subject of bank-
ruptcy. To bankruptcies, and to bankruptcies alone, then, was the power
confined. And the word bankruptcies^ as used in the Constitution, was
never, in his apprehension, intended to extend beyond embarrassments and
failures among mercantile men.
"^he bankrupt system had been limited essentially to persons more or
engaged in trade. The word itself, as remarked last year by the gen
42
494 Presidency. — Dickerson. [Marcn
tieman from South Carolina, had been derived from the circumstance that
the person coming within its operation had his bench ruptured or broken
up. The bench of whom ? Not of the farmer — not of the mechanic
— but the bench of the money-dealer, and the bench, or counter, of the
merchant. Grant that some persons, not strictly traders, may, at times,
have been included in the provisions of some laws on the subject of bank-
ruptcies; yet this was where the power of legislation was unlimited —
where all legislation, as to all creditors and debtors, was invested in one
body. It has but seldom occurred any where, and existed nowhere at
the time of this grunt of power to Congress.
That laws on the subject of bankruptcies were then deemed commercial
only, is further manifest from the fact that when, late in the session of the
Convention which framed the Constitution, this clause was introduced, it
was coupled with a clause regulating the rtde of damages, d^c, on bills of
exchange. It was well known to our fathers, that, in thirteen distinc*
sovereignties, the laws as to debtors and creditors were, and must always
be, in many respects, very various, to meet their different usag'^s, pursuit^,
prejudices, and educations ; but that the merchants, throughout the con-
federacy, must carry on their business in other and remote states from those
where they resided ; and hence, as to their debts, their failures, and their
adjustment of their affairs, it might be highly convenient and salutary to
have similar rules and laws. In a Constitution, therefore, created, in a
great degree, throughout, to benefit commerce, it was natural to confer
power to make uniformity, or uniform laws, on a commercial subject.
It was impossible that Congress could, constitutionally, bring farmers
and mechanics, by their individual consent, within the provisions of this
act, where they would not be compelled to come without consent. It was
no question between Congress and those individuals; it was solely a qnes-
ti<m between the general government and the individual states. He was
opposed to this feature of the act; because to ptss it would be to bring
subjects and citizens within the scope of the general government, never
contemplated by our fathers.
The question lay in a very narrow compass. It was, whether Congress
had been clothed with power to pass laws regulating the insolvencies of
persons not traders, and making their operation upon such persons de-
pendent on their consent. The solution of this question rested mainly on
the meaning of the word bankruptcies, as used in the grant of power on
this subject, by the states, to the general government, in the 8th section
of the 1st article of the Constitution. It thus became a momentous ques-
tion of state rights, and hence deserved most deliberate consideration
Amendment to the Constitution.
Senate, Marchj 1826.
Mr. DICKERSON. If, by our Constitution, the President of the
United States was elected to hold his office during good behavior, our
government would be, by whatever name it might be called, an elective
monarchy, limited in its powers, but with sufficient inherent energy to
break down, in time, any barriers that a written constitution could present
aorainst the encroachment of arbitrary power. If, under our Constitution,
we adopt the practice of electing our Presidents from period to period
imtil the infirmities of age admonish them to retire, our system will soon
become that of an elective monarchy. That the want of the limitat'tou
1826.] Presidency, — Dickerson. 495
•
now proposed has not been practically felt, must be attributed, not to any
corrective principle in our Constitution, nor to any rigid adherence to the
jealous maxims of democracy on the part of the people, but to the motives
of action which have governed our chief magistrates. As yet, there has
been nothing to excite alarm upon this subject.
The limitation proposed has not yet been wanted, and probably Will
not be for many years to come ; but it is the dictate of prudence to pro-
vide for the danger while it is yet remote.
Although this question excites but little feeling at present, it once ere*
ated more agitation than any other subject that came before them, as will
appear by a few extracts from the Journal of that Convention : —
On the Ist of June, 1787, in the Federal Convention, Mr. Randolph introduced a
re^iolution, that the national executive should not be eligible a second time, (p. 101 ;)
and tlie next day it was agreed to, eight states being for the resolution, one against it,
and one divided, (p. 191.) Seven years was the terra then ia contemplation.
On the 15th of June, Mr. Patterson submitted a proposition, that the United States
in Congress be authorized to eject a federal executive for years, to be ineligible
a second time. (p. 208.) The term in contemplation then was also seven years.
On the 18th of June, Colonel Hamilton submitted resolutions, that the Presidentand
Senate should be elected to serve during ^od behavior ; that is, for life, with powers
nearly as extensive as those of the Kmg and House of Lords of Great Britain.
(p. 212.)
Colonel Hamilton was one of the greatest men in this country, and, without doubt,
believed that his plan was well calculated to promote the happiness and prosperity of
the Union. Many of our distinguished citizens thought with him then, who after-
nrards changed their opinions, on witnessing the success of our present system.
On the I'Jth of June, tlie resolutions of Mr. Randolph, as altered and agreed to in
the committee of the whole, were submitted, of which the 0th resolution ^was, "that
a national executive be instituted, to consist of a single person, to be chosen by the
national legislature, for the term of seven years, to be ineligible a second time." (pp. 75^
214.) July 17th, it was moved to strike out the words ** to be ineligible a second
lime," which passed in the affirmative, — yeas, Massachusetts, Connecticut, New
Jersey, Pennsylvania, Maryland, and Georgia ; nays, Delaware, Virginia, North
Carolina, and South Carolina, (p. 215.) On this occasion, Massachusetts, Maryland,
and Georgia, changed their votes, which were first in favor of the limitation. Penn-
rylvania, which was divided before, now voted against the limitation. Delaware,
Virginia, North Carolina, and South Carolina, maintained their ground. New Jersey
did not vote on the first question.
It was moved to strike out "seven years," and insert "good behavior ;" which
parsed in the negative — yeas, 4 ; nays, 6. It would seem that four states, at this
time, preferred an executive for life.
A motion was made to reconsider, and passed in the affirmative.
On the 19th July, a motion was made to restore the words " to be ineligible a second
time." It passed in the negative, (p. 242.)
July 25th, it was moved that no person should be capable of holding the office of
President more than six years in any twelve ; which passed in the negative — yeas, 5 *,
nays, G.
'The next day, it was moved to amend the resolution, so as to read, " for the term
of seven years, to be ineligible a second time." It passed in the affirmative, — yeas,
New Hampshire, New Jersey, Maryland, Virginia, North Carolina, South Carolina ;
nays, Connecticut and Delaware, (rt. 243 )
The same day, it was reported to tne Convention as one of the resolutions agreed to
This resolution, together with those offered by Mr. Pinckney, and those offered by
Mr. Patterson, were referred to a committee, who, on the Gth of August, reported a
draft of a constitution, the Ist section of the 10th article of which was, " The Presi-
dent shall be elected by the legislature. He shall hold his office during seven years,
but shall not be elected a second time." (p. 255.)
The friends of this limitation now considered the question at rest ; but thev were
deceived : it was too important in the eyes of the friends to an executive for life to be
given up yet.
On the 24th August, a motion was made to postpone the consideration of the two
last elsuses of the Ist section of article 10, to wit, tlie term of years and the limitation.
It pajne'* in the /legative. It was moved to refer them to a committee of a member
(rom each state. It passed in tlie negative.
'196 State Rights. — WzBSTER. [1830.
August 31, it w&s agreed to refer such parts of the plan of a constitution as had
been postponed, and such reports as had been acted on, to a committee of one member
from each state, (p. 307.)
On the 4th of September, Mr. firearly reported certain alterations, &c , the fourth
of which was, " The President shall hold his office for four years." in this the limit-
ation was omitted, (p. 312.)
On the 5th of September, it was moved to postpone the report, and take up the
followins; : ** The President shall be elected by joint ballot of the legislature. He
shall hold his office during seven years, but shall not be elected a second time." This
was decided in the negative, and seems to have been the last effort in the Convention
in favor of limitation.
On the ratification of the Constitution, several states proposed amendments.
Virginia proposed that no person should be capable of being President more than
eight years m sixteen ; North Carolina, the same.
?few York proposed, that no person should be elected President a tliird time
exactly what is now proposed.
Although the principle of hereditary succession has gained no force in our presi-
dential elections, the principle of a different succession has already become almost
irresistible. It is, that the President shall designate his successor, by placing him in
the most important office in his gift, and clothing him with such a degree of patronage
and power, as to make him an overmatch for any competitor in the walks of private
life, whatever may be his merits or his services. I'he Federal Convention could not
have foreseen the operation of this principle as we now see it, or they would have
adopted some rule analogous to that most important provision of the Roman law, that
no one could be a candidate for the consulship, unless he presented himstlf in a private
station. As no President has j'et discovered a disposition to hold the office more than
eight years, it may be considered by some as having grown into a law, that no one
dmll hold the office for a longer period.
State Rights. — Footers Resolutions.
Se.nate, January^ 1830.
Mr. WEBSTER. There remains to be performed by far the most
grave and important duty, which I feel to be devolved on me by this oo
casion. It is to state, and to defend, what I conceive to be the true
principles of the Con.stitution under which we are here assembled.
/ understand the honorable gentleman from South Carolina [Mr.
Hayne] to maintain that it is a right of the state legislatures to inter-
fere, wnenever, in their judgment, this government transcends its consti-
tutional limits, and to arrest the operations of its laws.
I understand him to maintain this right, as a right existing under the
Constitution ; not as a right to overthrow it, on the ground of extreme
necessity, such ns would justify violent revolution.
I understand him to maintain an authority, on the part of the states*,
thus to interfere, for the purpose of correcting the exercise of power by
the general government, of checking it, and of compelling it to conform
to their opinion of the extent of its powers.
/ understand him to maintain that the ultimate power of judging of
the constitutional extent of its own authority is not lodged exclusively in
the general government, or any branch of it ; but that, on the contrary,
the states may lawfully decide for themselves, and each state for itself,
whether, in a given case, the act of the general government transcends
its power.
I understand him to insist that, if the exigency of the case, in the opin-
ion of any state government, require it, such state government may, by its
own sovereign authority, annul an act of the general government, which
it deems plainly and palpably unconstitutional.
This is the sum of what I understand from him to be the South Caro-
lina doctrine, and the doctrine which he maintains. I prbpose to consider
1830.] State Rights. — Webster. 497
it, and to compare it with the Constitution. Allow me to say, as a pre
liminary remark, that I call this the South Carolina doctrine only because
the gentleman himself has so denominated it. I do not feel at liberty \o
say that South Carolina, as a state, has ever advanced these sentiments.
I hope she has not, and never may. That a great majority of her people
are opposed to the tariff laws is doubtless true. That a majority, some-
what leas than that just mentioned, conscientiously believe those laws un-
constitutional, may probably also be true. But that any majority holds to
the right of direct state interference, at state discretion, — the right of
nullifying acts of Congress by acts of state legislation, — is more than I
know, and what I shall be slow to believe.
That theie are individuals, besides the honorable gentleman, who do
maintain these opinions, is quite certain. I recollect the recent expres-
sion of a sentiment which circumstances attending its utterance and puh-
lication justify us in supposing was not unpremeditated — *' The sove-
reignty of the state — never to be controlled, construed, or decided on,
but by her own feelings of honorable justice."
[Mr. HAYNE here rose, and said that, for the purpoae of bein^ clearly underttoody
he would state that his proposition was in the words of the Virginia resolution, as
follows : " That this Assembly doth explicitly and peremptorily declare, that it views
the powers of the federal government, as resultins^ from the compact to which the
states are parties, as limited by the plain sense and intention of the instrument con-
stituting that compact; as no further valid than they are authorized by the graatf
enumerated in that compact; and that, in case of a deliberate, palpable, and danger-
ous exercise of other powers, not granted by the said compact, tne states who are
parties thereto have the right, and are in duty bound, to inierpose, for arresting the
progress of the evil, and \ox maintaining, within their respective limits, the authori*
ties, rights, and liberties, appertaining to them."]
Mr. WEBSTER resumed : I am quite aware of the existence of the
resolution which the gentleman read, and has now repeated, and that he
relies on it as his authority. I know the source, too, from which it ia
understood to have proceeded. I need not say that I have much respect
for the constitutional opinions of Mr. Madison ; they would weigh greatly
with me, always. But, before the authority of his opinion be vouched for
the gentleman's proposition, it will be proper to consider what is the fair
interpretation of thut resolution, to which Mr. Madison is understood to
have given his sanction. As the gentleman construes it, it is an authority
for him. Possibly he may not have adopted the right construction. That
resolution declares that, in the case of the dangerous exercise of powers
not granted by the general government, the states may interpose to arrest
the progress of the evil. But kow interpose ? and what does this decla-
ration purport ? Does it mean no more than that there may be extreme
cases, in which the people, in any mode of assembling, may resist usur-
pation, and relieve themselves from a tyrannical government ? No one will
deny this. Such resistance is not only acknowledged to be just in Amer-
ica, but in England, also. Blackstone admits as much, in the theory, and
practice, too, of the English constitution. We, sir, who oppose the Caro-
lina doctrine, do not deny that the people may, if they choose, throw off any
government, when it becomes oppressive and intolerable, and erect a bet-
ter in its stead. We all know that civil institutions are established for the
public benefit, and that when they cease to answer the ends of their ex-
istence, they may be changed. But I do not understand the doctrine now
contended for to be that which, for the sake of distinctness, we may calt
the right of revolution. I understand the gentleman to maintain that,
#ithout reTolutiony without civil commotion, without rebellion* a remedy
VOL. IV. 63
498 Stale Rights, — Webster. [Januar^^
for supposed abuse and transgression of the powers of the genera] govern-
ment lies in a direct appeal to the interference of the state government.
[Mr. Hayne here rose. He did not contend, he snid, for the mere right
of revolution, but for the right of constitutional resistance. What he
maintained was, that, in case of plain, palpable violation of the Constitu-
tion, by the general government, a state may interpose ; and that this in-
terposition is constitutional.] Mr. Webster resumed: So, sir, I under-
stood the gentleman, and am happy to (ind that I did not misunderstand
him. What he contends for is, that it is constitutional to interrupt the
administration of the Constitution itdielf, in the hands of those who are
chosen and sworn to administer it, by the direct interference, in form of
law, of the states, in virtue of their sovereign capacity. The inherent
right in the people to reform their government, I do not deny ; and they
have another right, and that is, to resist unconstitutional laws, without
overturning the government. It is no doctrine of mine, that unconstitu-
tional laws bind the people. The great question is. Whose prerogative
is it to decide on the constitutionality or unconstitutionality of the laws?
On that the main debate hinges. The proposition, that, in case of a
supposed violation of the Constitution by Congress, the states have a
constitutional right to interfere, and annul the law of Congress, is the
proposition of the gentleman. I do not admit it If the gentleman had
intended no more than to assert the right of revolution, for justifiable
cause, he would have said only what all Rgree to. But I cannot con-
ceive that there can be a middle course between submission to the laws,
when regularly pronounced constitutional, on the one hand, and open re-
sistance, which is revolution, or rebellion, on the other. I say, the right
of a state to annul a law of Congress cannot be maintained but on the
ground of the unalienable right of man to resist oppression ; that is to
say, upon the ground of revolution. I admit that there is an ultimate
violent remedy, above the Constitution, and in defiance of the Constitu*
lion, which may be resorted to, when a revolution is to be justified. But
[ do not admit that, under the Constitution, and in conformity with it,
there is any mode in which a state government, as a member of the Union,
can interfere and stop the progress of the general government, by force
of her own laws, under any circumstances whatever.
This leads us to inquire into the origin of this government, and the
source of its power. Whose agent is iti Is it the creature of the state
legislatures, or the creature of the people ? If the government of the
United Siutes be the agent of the state governments, then they may con-
trol it, provided they can agree in the manner of controlling it ; if it be
the agent of the people, then the people alone can control it, restrain it,
nrKxlify, or reform it. It is observable enough, that the doctrine for which
the honorable gentleman contends leads him to the necessity of maintain*
ing, not only that this general government is the creature of the states, but
that it is the creature of each of the states severally ; so that each may
assert the power, for itself, of determining whether if acts within the limits
of its authority. It is the servant of four-and-twenty masters, of diflfercnt
wills and different purposes, and yet bound to obey all. This absurdity
(for it seems no less) arises from a misconception as to the origin of this
government, and its true character. It is, sir, the people's Constitution,
the people's government — made for the people, made by the people, and
answerable to the people. The people of the United States have declared
chat this Constitution shall be the supreme law. We mi)st eith«tr admit
1830.] State Rights. — Webster. 499
the proposition, or dispute their authority The states are, unquestion-
ably, sovereign, so far as their sovereignty is not affected by this supreme
law. But the state legislatures, as political bodies, however sovereign, are
yet not sovereign over the people. So far as the people have given power
to the general government^ so far the grants are unquestionably good, and
the government holds of the people, and not of the state governments.
We are all agents of the same supreme power, the people. The general
government and the state governments derive their authority from the
same source. Neither can, in relation to the other, be called primary,
though one is definite and restricted, and the other general and residuary.
The national government possesses those powers which it can be shown
the people have conferred on it, and no more. All the rest belongs to the
state ffovernments or to the people themselves. So far as the people have
restrained state sovereignty, by the expression of their will, in the Consti-
tution of the United States, so far, it must be admitted, state sovereignty
is effectually controlled. I do not contend that it is, or ought to be, con-
trolled further. The sentiment to which I have referred propounds that
state sovereignty is only to be controlled by its own ** feeling of justice; '*
that is to say, it is not to be controlled at all ; for one who is to follow his
own feelings is under no legal control. Now, however men may think this
ought to be, the fact is, that the people of the United States have chosen
to impose control on state sovereignties. There are those, doubtless, who
wish they had been lefl without restraint ; but the Constitution has ordered
the matter differently. To make war, for instance, is an exercise of sove-
reignty ; but the Constitution declares that no state shall make war. To
coin money is another exercise of sovereign power ; but no state is at
liberty to coin money. Again, the Constitution says that no sovereign
state shall be so sovereign as to make a treaty. These prohibitions, it
must be confessed, are a control on the state sovereignty of South Carolina,
IS well as of the other states, which does not arise ** from her own feelings
of honorable jusUce." Such an opinion, therefore, is in defiance of the
plainest provisions of the Constitution.
There are other proceedings of public bodies, which have already been
alluded to, and to which I refer again, for the purpose of ascertaining
more fully what is the lenorth and breadth of that doctrine, denominated
the Carolina dortrine, which the honorable member has now stood up on
this floor to maintain. In one of them I find it resolved, that " the tariff
of 182S, and every other tariff designed to promote one branch of indus-
try at the expense of others, is contrary to the meaning and intention of
the federal c6mpact, and such a dangerous, palpable, and deliberate usur-
pation of power, by a determined majority, wielding the general govern-
ment beyond the limits of its deles^ated powers, as calls upon the states
which compose the suffering minority, in their sovereign capacity, to exer-
cise the powers which, as sovereigns, necessarily devolve upon them, when
their compact is violated."
Observe, sir, that this resolution holds the tariff of 1828, and every
other tariff designed to promote one branch of industry at the expense of
another, to be such a dangerous, palpable, and deliberate usurpation of
power, as calls upon the states, in their sovereign capacity, to interfere by
tlieir own authority. This denunciation, Mr. President, you will please
to observe, includes our old tariff of 1816, as well as all others ; because
that was established to promote the interest of the manufacturers of cot*
tc% to the maoifest and admitted injury of the Calcutta cotton trade
OlH ^ State Rights, — Webster. [Jcmuarp^
Observe, again, that all the qualifications are here rehearsed and charged
upon the tariff, which are necessary to bring the case within the gentle-
.man's proposition. The tariff is a usurpation ; it is a dangerous usurpation ;
it is a palpable usurpation; it is a deliberate usurpation. It is such a
usurpation, therefore, as calls upon the states to exercise their right of
interference. Here is a case, then, within the gentleman's principles, and
all his qualifications of his principles. It is a case for action. The Con-
stitution is plainly, dangerously, palpably, and deliberately violated; and
the states must interpose their own authority to arrest the law. Let us
suppose the state of South Carolina to express this same opinion, by the voice
of her legislature. That would be very imposing. But what then ? Is
the voice of one state conclusive ? It so happens, at the very moment
when South Carolina resolves that the tariff laws are unconstitutional,
Pennsylvania and Kentucky resolve exactly the reverse. They hold those
laws to be both highly proper and strictly constitutional. And now, sir,
bow does the honorable member propose to deal with this case ? How
does he relieve us from this difficulty, upon any principle of his? His
construction gets us into it ; how does he propose to get us out ?
In Carolina, the tariff is a palpable, deliberate usurpation ; Carolina,
therefore, may nullify it, and refuse to pay the duties. In Pennsylvania,
It is both clearly constitutional and highly expedient ; and there the duties
are to be paid. And yet we live under a government of uniform laws,
and under a Constitution, too, which contains an express provision, as it
happens, that all duties shall be equal in all the states ! Does not this
approach absurdity?
If there be no power to settle such questions, independent of either of
the states, is not the whole Union a rope of sand ? Are we not thrown
again, precisely, upon the old Confederation ?
It is too plain to be argued. Four-and-twenty interpreters of constitu*
tional law, each with a power to decide for itself, and none with authority
to bind any body else, and this constitutional law the only bond of their
union ! What is such a state of things but a mere connection during
pleasure, or, to use the phraseology of the times, during feeling? — and
that feeling, too, not the feeling of the people, who established the Consti-
tution, but the feeling of the state governments.
In another of the South Carolina addresses, having premised that the
crisis requires ** all the concentrated energy of passion,'' an attitude of
open resistance to the laws of the Union is advised. Open resistance to
the laws, then, is the constitutional remedy, the conservative power of the
state, which the South Carolina doctrine teaches for the redress of political
evils, real or imaginary. And its authors further say, that, appealing with
confidence to the Constitution itself to justify their opinions, they cannot
consent to try their accuracy by the courts of justice. In one sense,
indeed, sir, this is assuming an attitude of open resistance in favor of lib-
erty. But what sort of liberty 1 The liberty of establishing their own
opinions, in defiance of the opinions of all others ; the liberty of judging
and of deciding exclusively themselves, in a matter in which others nave
as much right to judge and decide as they ; the liberty of placing their
own opinions above the judgment of "all others, above the laws, and above
the Constitution. This is their liberty, and this is the fair result of the
proposition contended for by the honorable gentleman. Or it may be more
I properly said, it is identical with it. rather than a result from it.
la the same publication, w^ find the following : '* Previously to our
I63d.] Siate Rights.— VfKBSTEK. 501
rcTolution, when the arm of oppression was stretched over New England,
where did our northern brethren meet with a braver sympathy than that
which sprang from the bosoms of Carolinians? We had no extortion, no
oppression, no collision wiih the king^s ministers, no navigation interesti" *
springing up in envious rivalry of England/'
This seems extraordinary language. South Carolina no collision with
the king's ministers in 1775! No extortion! No oppression! But, sir,
it is most significant language. Does any man doubt the purpose for
which it was penned ? Can any one fail to see that it was designed to
raise in the reader's mind the question, whether, at this time, — that is to
say, in 1828, — South Carolina has any collision with the king's ministers,
any oppression, or extortion, to fear from England? — whether, in short,
England is not as naturally the friend of South Carolina, as New England,
with her navigation interests springing up in envious rivalry of England ?
Is it not strange, sir, that an intelligent man in South Carolina, in 1828,
should thus labor to prove, that, in 1775, there was no hostility, no cause
of war, between South Carolina and England? — that she had no occasion,
in reference to her own interest, or from a regard to her own welfare, to
take up arms in the revolutionary contest? Can any one account for the
expression of such strange sentiments, and their circulation through the
state, otherwise than by supposing the object to be. what I have already
intimated, to raise the question, if they had no ** collision*^ (mark the ex-
pression) with the ministers of King George III., in 1775, what collision
have they, in 1828, with the ministers of King George IV. ? What is there
DOW, in the existing state of things, to separate Carolina from Old, more,
or rather, than from New England?
Resolutions, sir, have been recently passed by the legislature of South
Carolina. I need not refer to them ; they go no farther than the honor-
able gentleman himself has gone; and, I hope, not- so far. I content my-
self, therefore, with debating the matter with him.
And now, sir, what I have first to say on this subject is, that at no time,
and under no circumstances, has New England, or any state in New Eng*
land, or any respectable body of persons in New England, or any public
man of standing in New England, put forth such a doctrine as this Caro-
lina doctrine.
The. gentleman has found no case — he can find none — to support his
own opinions by New England authority. New England has studied the
Constitution in other schools, and under other teachers. She looks upon
it with other regards, and deems more highly and reverently both of its
just authority and its utility and excellence. The history of her legis-
lative proceedings may be traced ; the ephemeral effusions of temporary
bodies, called together by the excitement of the occasion, may behunted
up; they have been hunted up. The opinions and votes of her public
men, in and out of Congress, may be explored. It will all be vain. The
Carolina doctrine can derive from her neither countenance nor support
She rejects it now : she always did reject it; and till she loses her senses,
she always will reject it. The honorable member has referred to expres-
sions on the subject of the embargo law, made In this place by an honora-
ble and venerable gentleman (Mr. Hillhouse) now favoring us with his
presence. He quotes that distinguished senator as saying, that, in his
judgment, the embargo law was unconstitutional, and that, therefore
m his opinion, the people were not bound to obey it. That, sir, is per-
fectly constitutional language. An unconstitutional law is not binding
but, then, it does not rest with a resolution, or a law of a state legislature*
502 State Rights. — Webster. [Jantuay,
to decide whether an act of Congress be, or be not, constitutionaJ. An
unconstitutional act of Congress would not bind the people of this district,
although they have no legislature to interfere in their behalf; and, on the
•other hand, a constitutional law of Congress does bind the citizens of
every state, although all their legislatures should undertake to annul it. by
act or resolution. The venerable Connecticut senator is a constitutional
lawyer, of sound principles and enlarged knowledge — a statesman, prac-
tised and experienced, bred in the company of Washington, and holding
just views upon the na ure of our governments. He believed the embar-
go unconstitutional, and so did others. But what then? Who did he
suppose was to decide that question? The state legislatures? Certainly
not. No such sentiment ever escaped his lips. Let us follow up, sir, this
New England opposition to the embargo laws; let us trace it till we dis-
cern the principle which controlled and governed New England, through-
out the whole course of that opposition. We shall then see what similari-
ty there is between the New England school of constitutional opinions and
this modern Carolina school. The gentleman, I think, read a petition
from some single individual, addressed to the legislature of Massachusetts,
asserting the Carolina doctrine; that is, the right of state interference
to arrest the laws of the Union. The fate of that petition shows the
sentiment of the legislature. It met no favor. The opinions of Massa-
chusetts were otherwise. They had been expressed in 1798, in answer to
the resolutions of Virginia; and she did not depart from them, nor bend
them to the times. Misgoverned, wronged, oppressed, as she felt herself
to be, she still held fast her integrity to the Union. The gentleman may
find in her proceedings much evidence of dissatisfaction with the measures
of the government, and great and deep dislike to the embargo: all this
makes the case so much the stronger for her ; for, notwithstanding all this
dissatisfaction and dislike, she claimed no right, still, to sever asunder
the bonds of union. There was heat, and there was anger, in her politir
cal feeling. Be it so. Her heat or her anger did not, nevertheless, betray
her into infidelity to the government. The gentleman labors to prove
that she disliked the embargo as much as South Carolina dislikes the
tariff, and expressed her dislike as strongly. Be it so. But did she pro-
pose the Carolina remedy ? Did she threaten to interfere, by state author-
ity, to annul the laws of the Union ? That is the question for the gentle-
man's consideration.
No doubt, sir, a great majority of the people of New England conscien-
tiously believe the embargo law of 1807 unconstitutional; as conscien-
tiously, certainly, as the people of South Carolina hold that opinion of the
tariff. They reasoned thus : *• Congress has power to regula'te commerce ;
but here is a law,^' they said, ** stopping all commerce, and stopping it in-
definitely. The law is perpetual ; that is, it is not limited in point of time,
and must, of course, continue until it shall be repealed by some other law.
It is as perpetual, therefore, as the law against treason or murder. Now,
is this regulating commerce, or destroying it? Is it guiding, controlling,
giving the rule to commerce, as a subsisting thing, or is it putting an end
to it A. together ? " Nothing is more certain, than that a majority in New
England deemed this law a violation of the Constitution. The very case
required by the ijentleman to justify state interference, had then arisen.
Massacnusetts believed this law to be " a deliberate, palpable, nnd danger-
ous exsTcise of a power not granted by the Constitution.'' Deliberate it
was, for it was long continued; palpable she thought it, as no *irords in
1330.] State iJi^/ii5. — Webster. o(J6
the Constitution ga?e the power, and only a construction, in her opinion
most violent, raised it; dangerous it was, since it threatened utter ruin to
her most important interests. Here, then, was a Carolina case. How
did Massachusetts deal with it! It was, as she thought, a plain, manifest,
palpable violation of the Constitution ; and it brought ruin to her doors.
Thousands of families, and hundreds of thousands of individuals were
beggared by it. While she saw and felt all this, she saw and felt, also,
that, as a measure of national policy, it was perfectly futile ; that the coun*
try was no way benefited by that which caused so much individual dis-
tress; that it was efficient only for the production of evil, and all that evil
inflicted upon ourselves. In such a case, under such circumstances,
how did Massachusetts demean herself! Sir, she remonstrated, she me-
morialized, she addressed herself to the general government, not exactly
*' with the concentrated energy of passion," but with her own strong
sense, and the energy of sober conviction. But she did not interpose the
arm of her own power to arrest the law, and break the embargo. Far
from it. Her principles bound her to two things ; and she followed her
principles, lead where they might. First, to submit to every constitutional
law of Congress ; and, secondly, if the constitutional validity of the law
be doubted, to refer that question to the decision of the proper tribunals.
The first principle is vain and ineffectual without the second. A majority
of U9 in New England believed the embargo law unconstitutional ; but
the great question was, and always will be, in such cases, who is to decide
this? Who is to judge between the people and the government? And,
sir, it is quite plain that the Constitution of the United States confers on
the government itself, to be exercised by its appropriate department, and
under its own responsibility to the people, this power of deciding, ulti«
mately and conclusively, upon the just extent of its own authority. If
this had not been done, we should not have advanced a single step beyond
the old Confederation.
Being fully of opinion that the embargo law was unc^onstitutional, the
people of New England were yet equally clear in the opinion — it was a
matter they did not doubt upon — that the question, afler all, must be de-
cided by the judicial tribunals of the United States. Before those tribunals,
therefore, they brought the question. Under the provisions of the law,
they had given bonds, to millions in amount, and which were alleged to
be forfeited. They suffered the bonds to be sued, and thus raised the
question. In the old-fashioned way of settling disputes, they went to law.
The case came to hearing, and solemn argument ; and he who espoused
their cnuse, and stood up for them against the validity of the embargo act,
was none other than that great man of whom the gentleman has made
honorable mention, Samuel Dexter. He was then, sir, in the fulness
of his knowledge, and the maturity of his strength. He had retired from
long and distinguished public service here, to the renewed pursuit of pro-
fessional duties ; carrying with him all that enlargement and expansion,
all the new strength and force, which an acquaintance with the more gen-
-^ral subjects discussed in the national councils is capable of adding to
professional attainment, in a mind of true greatness and comprehension.
He was a lawver, and he was also a statesman. He had studied the Con-
stitntion, when he filled a public station, that he might defend it; he had
examined its principles, that he might maintain them. More than all men,
or at least as much as any man, he was attached to the general govern*
meat, and to the union of the 8ta^e<«. His feelings and opinions all ran in
504 Siaie i?^A<5. — Webster. [January ^
that dir(cti4)ii. A question of constitational law, too, was, of all subjects,
that one which wits best suited to his talents and learning. Aloof from
technicality, and unfettered by artificial rules, such a question gare oppf>r-
tunity for that deep and clear analysis, that mighty grasp of principle,
which so much distinguished his higher efforts. His very statement was
argument; his inference seemed demonstration. The earnestness c»f his
own conviction wrought conviction in others. One was convinced, and
believed, and assented, because it was gratifying, delightful to think, and
feel, and believe, in uni«on with an intellect of such evident superiority.
Mr. Dexter, sir, such as I have described him, argued the New Eng-
land cause. He put into his effort his whole heart, as well as all the
powers of his understanding ; for he had avowed, in the most public man-
ner, his entire concurrence with his neighbors on the point in dispute.
He argued the cause ; it was lost, and New England submitted. The
established tribunals pronounced the law constitutional, and New England
acquiesced. Now, sir, is not this the exact opposite of the doctrine of the
gentleman from South Carolina? According to him, instead of referring
to the judicial tribunals, we should have broken up the embargo by laws
of our own : we should have repealed it, quoad New England ; for we had
a strong, palpable, and oppressive case. Sir, we believed the embargo
unconstitutional ; but still, that was matter of opinion, and who wo? to
decide it ? We thought it a clear case ; but, nevertheless, we did not
take the law into our own hands, because we did not wish to bring about
a revolution, nor to break up the Union ; for I maintain that, between sub-
mission to the decision of the constituted tribunals, and revolution or dis-
union, there is no middle ground — there is no ambiguous condition, half
allegiance and half rebellion. And, sir, how futile, how very futile, it is,
to admit the right of state interference, and then attempt to save it from
the character of unlawful resistance, by adding terms of qualification to
the causes and occasions, leaving all these qualifications, like the case
itself, in the discretion of the state governments ! It must be a clear case,
it is said ; a deliberate case, a palpable case, a dangerous case. But then
the state is still lefl at liberty to decide for herself what is clear, what is
deliberate, what is palpable, what is dangerous. Do adjectives and epi-
thets avail any thing ? Sir, the human mind is so constituted, that the
merits of both sides of a controversy appear very clear and very palpable
to those who respectively espouse them ; and both sides usually grow
clearer as the controversy advances. South Carolina sees unconstitution-
ality in the tariff; she sees oppression there, also ; and she sees danger.
Pennsylvania, with a vision not less sharp, looks at the same tariff, and
sees no such thing in it ; she sees it all constitutional, all useful, all safe.
The faith of South Carolina is strengthened by opposition, and she now
not only sees, but resolves^ that the tariff is palpably uticonstitutional,
oppressive, and dangerous ; but Pennsylvania, not to be behind her neigh-
bors, and equally willing to strengthen her own faith by a confident
asseveration, resolves, also, and gives to every warm affirmative of South
Carolina a plain, downright, Pennsylvania negative. South Carolina, to
show the strength and unity of her opinion, brings her Assembly to a
unanimity, within seven voices ; Pennsylvania, not to be outdone in this
respect more than others, reduces her dissentient fraction to a single vote.
Now, sir, again I ask the gentleman, what is to be done ? Are these
states both right ? Is he bound to consider them both right ? If noi,
which is in the wrong ? or, rather, which has the best right to decide ^
tf830.] »at€ Rights. — WsBdTBit. 506
And if he, and if I, are not to know what the Constitution means, and
what it is, till those two state legislatures, and the twenty-two others, shall
agree in its construction, what have we sworn to, when we have sworn to
maintain it f I was forcibly struck with one reflection, as the gentleman
(Mr. Hnyne) went on in his s|>eech. He quoted Mr. Madison's resolutions
to prove that a state may interfere, in a case of deliberate, palpable, and
dangerous exercise of a power not granted. The honorable gentleman
supposes the tariff law to be such an exercise of power ; and that, conse«
quentlj, a case has arisen in which the state may, if they see fit, interfere
by its own law. Now, it so happens, nevertheless, that Mr. Madison him-
self deems this same tariff law quite constitutional. Instead of a clear
and palpable viohtiou, it is, in his judgment, no violat'K>n at all. So that,
while they use his authority for a hypothetical case, they reject it in the
very case before them. All this, sir, shows the inherent — futility — I
had almost used a stronger word — of conceding this power of interference
to the states, and then attempting to secure it from abuse by impf>sing
qualifications, of which the states themselves are to judge. One of two
things is true — either the laws or the Union arc beyond the discretion,
and beyond the control, of the states; or else we have no constitation of
general government, and are thrust back again to the days of the con«
federacy.
Let me here say, sir, that if the gentleman's doctrine had been received
and acted upon in New England, in the times of the embargo and non-
intercourse, we should probably now not have been here. The' govern-
ment would, very likely, have gone to pieces, and crumbled into dust.
No stronger case can ever arise than existed under those laws ; no states
can ever entertain a clearer conviction than the New England States then
entertained; and if they had been under the influence of that heresy of
opinion, as I must call it, which the honorable member espouse.<t, this
Union would, in all probability, have been scattered to the ^ur winds. I
ask the gentleman, therefore, to apply his principles to that case. I a<<k
him to come forth and declare, whether, in his opinion, the New England
States would have been justified in interfering to break up the embargo
system, under the conscientious opinions which they held upon it. Had
they a right to annul that law? Does he admit, or deny? If that which
is thought palpably unconstitutional in South Carolina justifies that state
in arresting the progress of the law, tell me, whether that which was
thought palpably unconstitutional, also, in Massachusetts, would have justi-
fied her in doing the same thing ? Sir, I deny the whole doctrine. It has
not a foot of ground in the Constitution to stand on. No public man of
reputation ever advanced it in Massachusetts, in the warmest times, or
could maintain himself upon it there at any time.
1 wish now, sir, to make a remark upon the Virginia resolutions of 179$.
I cannot undertake to say how these resolutions were understood by those
who p issed'them. Their language is not a little indefinite. In the case
of the exercise, by Congress, of a dangerous power, not granted to them,
the resolutions assert the right, on the part of the state, to interfere and
arrest the progress of the evil. This is susceptible of more than one in-
*erpretation. It may mean no more than that the states may interfere by
complaint and remonstrance ; or by proposing to the people an alteration
'^f the Federal Constitution. This would be all quite unobjectionable; oi
it may be, that no more is meant than to assert the general right of re?o
lation, as against all governments, in cases of intolerable oppresaioa
V^L. IV. 64 43
o06 Siaie Rights. — Webster. [January
This lui one doubts; and this, in my opinion, is all that he who framed
the resolutions could have meant by it ; for I shall not readily believe, that
.16 was ever of opinion that a state, under the Constitution, and in conform-
ity with it, could, upon the ground of her own opinion of its unconstitu-
tionality, however clear and palpable she might. think the case, annul a
law of Congress, so far as it should operate on herself, by her own legis-
lative power.
1 must now beg to ask, sir, whence is this supposed right of the states
derived ? — where do fliey find the power to interfere with the laws of the
Union ? Sir, the opinion which the honorable gentleman maintains is a
notion founded in a total misapprehension, in my judgment, of the origin
of this government, and of the foundation on which it stands. I hold it
to be a popular government, erected by the people ; those who administer
it responsible to the people; and itself capable of being amended and mod-
ified, just as the people may choose it should be. It is as popular, just as
truly emanating from the people, as the state governments. It is created
for one purpose, the state governments for another. It has its own pow-
ers, they have theirs. There is no more authority with them to arrest the
operation of a law of Congress, than with Congress to arrest the operation
of their laws. We are here to administer a Constitution emanating imme-
diately from the people, and trusted by them to our administration. It
is not the creature of the state governments. It is of no moment to the
argument that certain acts of the state legislatures are necessary to fill our
seats in (his body. That is not one of their original state powers, a part
of the sovereignty of the state. It is a duly which the people, by the
Constitution itself, have imposed on the state legislatures, and which they
might have left to be performed elsewhere, if they had seen fit. So they
have left the choice of President with electors; but all this does not affect
the proposition, that this whole government — President, Senate, and
House of Representatives — is a popular government. It leaves it still all
its popular character. The governor of a state (in some of the states) is
chosen, not directly by the people, but by those who are chosen by the
people, for the purpose of performing, among other duties, that of electing
a governor. Is the government of a slate, on that account, not a popular
government? This government, sir, is the independent offspring of the
popular will. It is not the creature of state legislatures; nay, more, if the
whole truth must be told, the people brought it into exis^tence, established
it, and have hitherto supported it, for the very purpose, amongst others,
of imposing certain salutary restraints on state sovereignties. The
states cannot now make war; they cannot contract alliances; they cannot
make, each for itself, separate regulations of commerce; they cannot lay
imposts; they cannot coin money. If this Constitution, sir, be the crea-
ture of state legislatures, it must be admitted that it has obtained a strange
control over the volition of its creators.
The people, then, sir, erected this government. They gave it a Consti
tution, and in that Constitution they have enumerated the powers which
they bestow on it. They have made it a limited government. They
have defined its authority. They have restrained it to the exercise of
such Dowers as are granted; and all others, they declare, are reserved to
the states or the people. But, sir, they have not stopped here. If they
had, they would have accomplished bat half their work. No definition
can be so clear as to avoid possibility of doubt ; no limitation so precise
■B to exclude all uncertainty. Who, then, shall construe thif grant of the
1 30.] State iJ^A/5. — Webster. ?07
people ? Who shall interpret their will, where it may be supposed they
have left it doubtful? With whom do they repose this ultimate right of
deciding on the powers of the government ? Sir, they have settled all this
in the fullest manner. They have led it, with the government itself, in
its appropriate branches. Sir, the very chief end, the main design for
which the whole Constitution was framed and adopted, was to establish a
government that should not be obliged to act through state agency, depend
on state opinion and state discretion.
But who shall decide on the question of interference ? To whom lies
the last appeal 1 This, sir, the Constitution itself decides, also, by declar-
ing, ** that the judicial power shall extend to all cases arising under the
Constitution and laws of the United States.*' These two provisions, sir,
cover the whole ground. They are, in truth, the keystone of the arch.
With these, it is a constitution ; without them, it is a confederacy. In
pursuance df these clear and express provisions, Congress establi^^hed, at
its very first session, in the judicial act, a mode for carrying them into full
effect, and for bringing all questions of constitutional power to the final
decision of the Supreme Court. It then, sir, became a government. If
then had the means of self-protection ; and, but for this, it would in all
probability have been now among things which are past. Having consti-
tuted the government, and declared its powers, the people have further
Slid, that, since somebody must decide on the extent of these powers,
the government shall itself decide — subject, always, like other popul:ir
govern'inents, to its responsibility to the people. And now, sir, I repeat,
how is it that a state legislature acquires any power to interfere? Who,
or what, gives them the right to say to the people, " We, who are your
agents and servants for one purpose, will undertake to decide that your
other agents and servants, appointed by you for another purpose, have
transcended the authority you gave them? '' The reply would be, I think,
not impertinent — ** Who made you a judge over another's servants? To
their own masters they stand or fall."
Sir, I deny this power of state legislatures altogether. It cannot stand
the test of examination. Gentlemen may say, that, in an extreme case, a
state government might protect the people from intolerable oppression.
Sir, in such a case, the people might protect themselves, without the aid
of the state governments. Such a case warrants revolution. It must
make, when it comes, a law for itself. A nullifying act of a state legisla-
ture cannot alter the case, nor make resistance any more lawful. In
maintaining these sentiments, sir, I am but asserting the rights of the peo<
pie. I ^tate what they have declared, and insist on their right to declare
it. They have chosen to repose this power in the general government,
and I think it my duty to support it, like other constitutional powers.
For myself, sir, I do not admit the jurisdiction of South Carolina, or
any other state, to prescribe my constitutional duty, or to settle, between
Tie and the people, the validity of laws of Congress for which I have voted.
( decline her umpirage. I have not sworn to support the Constitution
iccordingto her construction of its clauses. I have not stipulated, by my
oath of office, or otherwise, to come under any responsibility, except to
the people, and those whom they have appointed to pass upon the question,
whether laws, supported by my votes, conform to the Constitution of the
country. And, sir, if we look to the general nature of the case, could any
thing have been more preposterous than to make a government for the
whole Union, and yet leave its powers subjeot, not to one interpretation
608 8iaie Rights. — Webster. [Januiry,
but to thirteen, or twenty-four, interpretations? Instead of one tribunal,
established by all, responsible to all, with power to decide for all, — ^halJ
constitutional questions be lefl to four-and-twenty popular bodies, eacb at
liberty to decide for itself, and none bound to respect the decisions of
others ; and each at liberty, too, to give a new construction on svery new
election of its own members ? Would any thing, with such a principle in
it, or rather with such a destitution of all principle, be fit to be called
a government? No, sir, it should not be denominated a constitution. It
should be called, rather, a collection of topics for everlasting controversy
— heads of debate for a disputatious people. It would not be a govern-
ment. It would not be adequate to any practical good, nor Rt for any
country to live under. To avoid all possibility of being misunderstood,
allow me to repeat again, in the fullest manner, that I claim no powers for
the government by forced or unfair construction. I admit tha( it is a gov-
ernment of strictly limited powers, — of enumerated, specified, and partic-
ularized powers, — and that whatsoever is not granted is withheld. But
notwithstanding all this, and however the grant of powers may be expressed,
its limits and extent may yet, in some cases, admit of doubt ; and the
general government would be good for nothing — it would be incapable
of long existing — if some mode had not been provided, in which these
doubts, as they should arise, might be peaceably, but authoritatively,
solved.
Let it be remembered that the Constitution of the United States is not
unalterable. It is to continue in its present form no longer than the
people, who established it, shall choose to continue it. If they shall be-
come convinced that they have made an injudicious or inexpedient par-
tition and distribution of power between the state governments and the
general government, they can alter that distribution at will.
If any thing be found in the national Constitution, either by original
provisions, or su'bsequent interpretation, which ought not to be in it, the
people know how to get rid of it. If any construction be established, un-
acceptable to them, so as to become practically a part of the Constitution,
they will amend it at their own sovereign pleasure. But while the people
choose to maintain it as it is — while they are satisfied with it, and refuse
to change it — who has given, or who can give, to the state legislatures
a right to alter • it, either by interference, construction, or otherwise?
Gentlemen do not seem to recollect that the people have any power to do
any thing for themselves : they imagine there is no safety for them, any
longer than they are under the close guardianship of the state legislatures.
Sir, the people have not trusted their safety, in regard to the general
Constitution, to these hands. They have required other security, and
taken other bonds. They have chosen to trust themselves, first, to the
plain words of the instrument, and to such construction as the govern-
ment itself, in doubtful cases, should put on its own powers, under their
oiths of office, and subject to their responsibility to them, just as the peo-
ple of a state trusts their own state governments with a similar power.
Secondly, they have reposed their trust in the efficacy of frequent elec-
tions, and in their own power to remove their own servants and agents,
ii'henever they see cause. Thirdly, they have reposed trust in the judicial
power, which, in order that it might be trustworthy, they have made as
respectable, as disinterested, and as independent, as was practicable.
Fourthly, they have seen fit to rely, in case of necessity, or high expedi*
ency, on their known and admitted power to alter or amend the Consiitu-
] 830.] State Rights. — Hayne. iJOd
tion, peaceably and quietly, whenever experience shitll palui out defects
or imperfections. And, finally, the people of the United States have at no
time, in no way, directly or indirectly, authorized any state legislatures to
construe or interpret their high rnstrument of government, much less to
interfere, by their own power, to arrest its course and operation.
Mr, Hayne's RepVy to Mr. Webster^ abridged by himself.
Sknate, January 27, lb30.
Mr. HAYNE. The proposition whic)) I laid down, and from which
the gentleman dissents, is taken from the Virginia resolutions of '98, and
is in these words — '* that, in case of a deliberate, palpable, and danger-
ous exercise, by the federal government, of powers not granted by the
compact, (the Constitution,) the states who are parties thereto have a
right to interpose, for arresting the progress of the evil, and for maintain-
ing, within their respective limits, the authorities, rights, and liberties,
appertaining to them." The gentleman insists that the states have no
right to decide whether the Constitution has been violated by acts of
Congress or not; but that the federal government is the exclusive judge
of the extent of its own powers; and that, in case of a violation of the
Constitution, however " deliberate, palpable, and dangerous," a state has
no constitutional redress, except where the matter can be brought before
the Supreme Court, whose decision must be hnal and conclusive on the
subject. Having thus distinctly stated the points in dispute between the
gentleman and myself, I proceed to examine them. And here it will be
necessary t > go back to the origin of the federal government. It cannot
be doubted, and is not denied, that before the Constitution, each state was
an independent sovereignty, possessing all the rights and powers apper-
taining to independent nations; nor can it be denied, that, after the Con-
stitution was formed, they remained equally sovereign and independent,
as to all powers not expressly delegated to the federal government. This
would have been the case even if no positive provisions to that effect had
been inserted in that instrument. But to remove all doubt, it is expressly
declared, by the 10th article of the amendment of the Constitution, "that
the powers not delegated to the states, by the Constitution, nor prohibited
b? it to the states, are reserved to the states respectively, or to the people."
l^he true nature of the Federal Constitution, therefore, is (in the language
of Mr. Madison) " a compact to which the states are parties," — a com-
pact by which each state, acting in its sovereign capacity, has entered
Mito an agreement with the other states, by which they have consented
that certain designated powers shall be exercised by the United States, in
the manner prescribed in the instrument. Nothing can be clearer than
chat, under such a system, the federal government, exercising strictly dele-
gated powers, can have no right to act beyond the pale of its authority,
and that all such acts are void. A state, on the contrary, retaining all
powers not expressly given away, may lawfully act in all cases where ^ie
has not voluntarily imposed restrictions on herself. Here, then, is a cnse
of a compact between sovereigns; and the question arises, what is the
remedy for a clear violation of its express terms by one of the parties 1
And here the plain, obvious dictate of common sense is in strict conform
ity with the understanding of mankind and the practice of nations m all
tnalogous cases — "that, where resort can be had to no common superior
the parties to the compact must themselves be the rightful judges whether
v) 1 U State Rights. — H ayne. [/oAiiory 37«
the bargain has been pursued or violated." (Madison's Report ^ p. 20.)
Wlien it is insisted by the gentleman that one of the parties ** has the
power of deciding ultimately and conclusively upon the extent of its own
authoriiy," I ask for the grant of such a power. I call upon the gentle-
man to show it to me in the Constitution. It is not to be found there.
But if there be no common superior, it results, from the very nature of
things, that the parties must be their oton judges. This is i^dmitted to be
the case where treaties are formed between independent nations ; and if
the same rule does not apply tu the federal compact, it must be because
the federal is superior to the state government, or because the states have
surrendered their sovereignty. Neither branch of this proposition can
be maintained for a moment.
Here, however, we are met by the argument that the Constitution was
not formed by the states in their sovereign capacity, but by the people ;
and it is therefore inferred that the federal government, being created by
all the people, must be supreme ; and though it is not contended that the
Constitution may be rightfully violated, yet it is insisted that from the
decision of the federal government there can be no appeal.
I deny that the Constitution was framed by the people in the sense in which
that word is used on the other side, and insist that it was framed bv the
states, acting in their sovereign capacity*. When, in the preamble of the
Constitution, we find the words, " We, the people of the United States,"
it is clear they can only relate to the people as citizens of the several
'states, because the federal government was not then in existence.
We accordingly find, in every part of that instrument, that the people
are always spoken of in that sense. Thus, in the 2d section of the Isl
article, it is declared, " that the House of Representatives shall be composed
of members chosen every second year by the people of the several states."
To show that, in entering into this compact, the states acted in their sove-
reign capacity, and not merely as parts of one great community, what
can be more conclusive than the historical fact, that when every state had
consented to it except one, she was not held to be bound* A majority of
the people in any state bound that state; but nine tenths of all the peo-
ple of the United States could not bind the people of Rhode Island, until
Rhode Island, as a state, had consented to the compact.
•I am not disposed to dwell longer on this point, which does appear to my
mind to be too clear to admit of controversy. But I will quote from Mr.
Madison's Report, which goes the whole length in support of the doctrines
for which I have contended.
Having now established the position that the Constitution was a com-
pact between sovereign and independent states, having no common supe-
rior, " it follows of necessity " (to borrow the language of Mr. Madison)
•'that there can be no tribunal above their authority, to decide, in the last
resort, whether the compact made by them be violated ; and consequently
that, as the parties to it, they mu-t themselves decide, in the last resort,
such questions as may be of sufficient magnitude to require their in-
terposition."
But the gentleman insists that the tribunal provided by the Constitution,
fur the decisions of controversies between the states and the federal govern-
ment, is the Supreme Court.
It is clear that questions of sovereignly are not the proper subjects of
judicial investigation. They are much too large, and of too delicate a
nature, to be brought within the jurisdiction of a court of justice. Coartt,
1830.] State Rights. — Ha yne. 511
whether supreme or subordinate, are the mere creitures of the sovereign
power, designed to expound and carry into effect its sovereign will. No
independent state ever yet submitted to a judge on the bench the true
construction of a compact between itself and another sovereign. All courts
may incidentally take cognizance of treaties, where rights are claimed
under them ; but who ever heard of a court making an inquiry into the au-
thority of the agents of the high contracting parties to make the treaty —
whether its terms had been ful tilled, or whether it had become void on
account of a breach of its conditions on either side 1 All these are polit-
ical and not judicial questions. Some reliance has been placed on those
provisions of the Constitution which constitute ** one Supreme Court,"
which provide ** that the judicial power shall extend to all cases in law and
equity arising under this Constitution, the laws of the United States,
and treaties," and which declare ** that the Constitution, and the laws of
the United States which shall be made in pursuance thereof, and nil treaties,
&c., shall be the supreme law of the land," &c. Now, as to the name of
the Supreme Court, it is clear that the term has relation only to its suprem-
acy over the inferior courts provided for by the Constitution, and has no
reference whatever to any supremacy over the sovereign states. The
words are. ** The judici il power of the United States shall be vested in
one Supreme Court, and such inferior courts as Congress may, from time
to time, establish," &c. Though jurisdiction i^ given **in cases arising
under the Constitution," yet it is expressly limited to ** cases in law and
equity," showing conclusively that this jurisdiction w is incident:il merely
to the ordinary administration of justice, and not intended to touch high
questions of conflicting sovereignly. When it is declared that the ** Consti-
tution, and the laws of the United Stales made in pursuance thereof,
fthall be the supreme law of the land," it is manifest that no indication is
given, either as to the power of the Supreme Court to bind the states by
its decisions, or as to the course to be pursued in the event of laws being
passed not in pursuance to the Constitution. And I beg leave to call
gentlemen's attention to the striking fact, that the powers of the Supreme
Court, in relation to questions arising under *' the laws and the Constitu-
tion," are coextensive with those arising under treaties. In all of these
cases, the power is limited to questions arising in law and equity ; that is
to say, to cases where jurisdiction is incidentally acquired in the ordinary
administration of justice. But as, with regard to treaties, the Supreme
Court has never assumed jurisdiction over questions arising between the
sovereigns who are parties to them, so, under the Constitution, they cannot
assume jurisdiction over questions arising between individual states and
the United States.
But to prove, as I think conclusively, that the judiciary were not de-
signed to act as umpires, it is only necessary to observe that, in a jjreat
majority of cases, that court could manifestly not take jurisdiction of the
matters in dispute. Whenever it may be designed by the federal gov-
ernment to commit a violation of the Constitution, it can be done, and
always will be done, in such a manner as to deprive the court of all juris-
diction over the subject. Take the case of the tariff and internal improve-
ments; whether constitutional or unconstitutional, it is admitted that the
Supreme Court have no jurisdiction. Suppose Congress should, for the
acknowledged purpose of making an equal distribution of the property of
thft C4>untry among states or individuals, proceed to lay taxes to the amount
of f5t),000,000 a year. Could the Supreme Court take cognizance of
the act laving the tax, or making the distribution ? Certainly not
512 State Rights, — H atnb. [January 27,
Take another case, which is very likely to occur. Congress have the
unlimited power of taxation. Suppose them also to assume an unlimited
power of appropriation. Appropriations of money are made lo establish
presses, promote education, build and support churches, create an order
of nobility, or for any other unconstitutional object ; it is manifest that in
none of these cases could the constitutionality of the laws making thorc
grants be tested before, the Supreme Court.
It would be in vain that a state should come beftfre the judges with an
act appropriating money to any of these objects, and ask of the court to
decide whether these grants were constitutional. They could not even be
heard ; the court would say they had nothing to do with it ; and they
would say rightly. It is idle, therefore, to talk of the Supreme Court
affording any security to the states, in cases where their rights may be vio-
lated by the exercise of unconstitutional powers on the part of the federal
government On this subject Mr. Madison, in his Report, says : ^* But it
is objected that the judicial authority irt to be regarded as the sole exposi-
tor of the Constitution in the last resort ; and it may be asked, for what
reason the declaration by the General Assembly, supposing it to be theo-
retically true, could be required at the present day, and in so solemn a
manner.
" On this objection it might be observed, first, that there may be in-
stances of usurped power which the forms of the Constitution would
never draw within the contrbl of the judicial department.''
'* But the proper answer to the objection is, that the resolution of the
General Assembly relates to those great and extraordinary cases in which
all the forms of the Constitution may prove ineffectual against infractions
dangerous to the essential rights of the parties to it.
** However true, therefore, it may be, that the judicial department is, in
all questions submitted to it by the form.s of the Constitution, to decide in
the last resort, this resort must necessarily be deemed the last in relation
to the authorities of the other departments of the government; not in re-
lation to the rights of the parties to the constitutional compact, from which
the judicial, as well as the other departments, hold their delegated trusts.
On any other hypothesis, the delegation of judicial power would annul the
authority delegating it ; and the concurrence of this department with the
others in usuiped powers might subvert forever, and beyond the pos>sible
reach of any rightful remedy, the very Constitution which all were insti-
tuted to preserve."
Uy then, the Supreme Court are not, and, from their organization, can-
not be, the umpires in questions of conflicting sovereignty, the next point
to be considered is, whether Congress themselves possess the right of de-
ciding conclusively on the extent of their own powers. This, I know, is
a popular notion, and it is founded on the idea that, as all the states are
represented here, nothing can prevail which is not in conformity with the
will of the majority ; and it is supposed to be a republican maxim, '* that
the majority must govern.'*
Now, will any one contend that it is the true spirit of this government,
that the will of a majority of Congress should, in all cases, be the supreme
law ? If no security was intended to be provided for the rights of the
states, and the liberty of the citizens, beyond the mere organization of the
federal government, we should have had no written constitution, hut Con-
gress would have been authorized to legislate for us in all cases whatso-
ever, and the acts of our state legislatures, like those of the present legis-
1830.] StateRights.—UAYVE. 513
lative councils in the territories, would have been subjected to the revision
ind control of Congress. If the will of a majority of Congress is to be the
supreme law of the land, it is clear the Constitution is a dead letter, and
has) utterly failed of the very object for which it was designed — the pro-
tection of the rights of the minority. But when, by the very terms of
the compact, strict limitations are imposed on every branch of the federal
government, and it is, moreover, expressly declared that all powers not
granted to them " are reserved to the states or the people," with what show
of reason can it be contended that the federal government is to be the ex-
clusive judge of the extent of its own powers ? A written constitution
was resorted to in this country, as a great experiment, for the purpose of
ascertaining how far the rights of a minority could be secured against the
encroachments of majorities — often acting under party excitement, and
not unfrequently unde/ the influence of strong interests. The moment
that Constitution was formed, the will of the majority ceased to be the
law, except in cases that should be acknowledged by the pirties to bo
within the Constitution, and to have been thereby submitted to their will
But when Congress (exercising a delegated and strictly limited authority)
pass beyond these limits, their acts become null and void, and must be de-
clared to be so by the courts, in cases within their jurisdiction ; and may
be pronounced to be so by the states themselves, in cases not within the
jurisdiction of the courts, of sufiicient importance to justify such ao
interference.
But what then? asks the gentleman. A state is brought into collision
with the United States, in relation to the exercise of unconstitutional
powers ; who is to decide between them ? Sir, it is the common case of
difference of opinion between sovereigns, as to the true construction of a
compact. Does such a difference of opinion necessarily produce war ?
No. And if not among rival nations, why should it do so among friendly
states? In all such cases, some mode must be devised, by mutual agree-
ment, for settling the difficulty ; and, most happily for us, that mode is
clearly indicated in the Constitution itself, and results, indeed, from the
very form and structure of the government. The creating power is three
fourths of the states. By their decision, the parties to the compact have
agreed to be bound, even to the extent of changing the entire form of the
government itself; and it follows of necessity, that, in case of a deliberate
and settled difference of opinion between the parties to the compact, as to
the extent of the powers of either, resort must be had to their common
superior, (that power which may give any character to the Constitution
they may think proper,) viz., three fourths of the states.
But, it has been asked, why not compel a state objecting to the consti-
tutionality of a law to appeal to her sister states by a proposition to amend
the Constitution ? I answer, because such a course would, in the first in-
stance, admit the exercise of an unconstitutional authority, which the
states are not bound to submit to, even for a day ; and because it would be
absurd to suppose that any redress would ever be obtained by such an ap-
iiea], even if a state were at liberty to make it. If a majority of both
houses of Congress should, from any motive, be induced deliberately to
exercise " powers not granted," what prospect would there be of ** arrest-
mg the pro;rress of the evil," by a vote of three fourths ? But the Con-
stiution does not permit a minority to submit to the people a proposition
for an amendment of the Constitution. Such a proposition can only come
from " two thirds of the two houses of Congress, or the legislatures of tw«t
VOL. IV. 66
514 SttUe Rights,— HAYtfE. [Janvaiy 27,
thirds of the stai^is." It will be seen, therefore, at once, that a minor-
ity, whose constitutional rights are violated, can have no redress by an
amendment of the Constitution. When any state is brought into direct
collision with the federal government, in the case of an attempt, by the
latter, to exercise unconstitutional powers, the appeal must be made by
Congress, (the party proposing to exert the disputed powers,) in order to
have it expressly conferred ; and until so conferred, the exercise of such
authority must be suspended. Even in case of doubt, such an appeal is
due to the peace and harmony of the government. On this 6u(>ject our
present chief magistrate, in his opening message to Congress, says, *' I
regard an appeal to the source of power, in cases of real doubt, and where
its exercise is deemed indispensable to the general welfare, as among tlic
most sacred of all our obligations. Upon this country, more than any other,
has, in the providence ofGod, been cast the special guardianship of the great
principle of adherence to written constitutions. If it fail here, all hope
in regard to it will be extinguished. That this was intended to be a
government of limited and specific, and not general powers, must be ad-
mitted by all ; and it is our duty to preserve for it the character intended
by its frainers. The scheme has worked well. It has exceeded the hopes
of those who devised it, and become an object of admiration to the world.
Nothing is clearer, in my view, than that we are chiefly indebted for the
Buccfiss of the Constitution, under which we are now acting, to the watch-
ful and auxiliary operation of the state authorities. This is not the reflec-
tion of a day, but belongs to the most deeply-rooted convictions of my
mind. I cannot, therefore, too strongly or too earnestly, for my own sen^
of its importance, warn you against all encroachments upon the legitimate
sphere of state sovereignty. Sustained by its healthful and invigorating
influence, the federal system can never fail."
I have already shown, that it has been fully recognized by the Virginia
resolutions of '98, and by Mr. Madison's report on these resolutions, that
it is not only *' the right but the duty of the states" to '* judge of infrac-
tions of the Constitution," and to interpose for maintaining within their
Jimits the authorities, rights, and liberties, appertaining to tliem.
Mr. Jeflerson, on various occasions, expressed himself in language
equally strong. In the Kentucky resolutions of '98, prepared by him, it
is declared thit the federal government ** was not made the exclusive and
final judge of the extent of the powers delegated to itself, since that
would have made its discretion, and not the Constitution, the measure of
its powers; but that, as in all other cases of compact among parties having
no common judge, each party has an equal right to judge for itself, as well
of infractions as the mode and measure of redress."
In the Kentucky resolutions of *99, it is even more explicitly declared
* that the several states which formed the Constitution, being sovereign
and independent, have the unquestionable right to judge of its infraction,
and that nulliflcation by those sovereignties of all unauthorized acts done
under color of that instrument is the risrhtful remedy."
But the gentleman says, this right will be dangerous. Sir, I insist that,
of all the checks that have been provided by the Constitution, this is by
far the safest, and the least liable to abuse.
But there is one point of view in which this matter presents itself to my
mind with irresistible force. The Supreme Court, it is admitted, may
nullify an act of Congress, by declaring it to be nncon^'titutifmal. Can
Congress, af\er such a nullification, proceed to enforce the law, even if
1830.] 8iate Rights Hatns. 516
they should differ in opinion from the court? What, then, would be the
effect of such a decision ? And what would be the remedy in sueh q
saaef Congress would be arrested in the exercise of the disputed power,
umI the only remedy would be, an appeal to the creating power — three
fourth&of the states — for an amendment to the Constitution. And by whom
must sucK an appeal be made ? It must be made by the party proposing
to exercise the disputed power. Now, I will ask whether a sovereign state
may not be safeK intrusted with the exercise of a power, opjBrating merely
as a check, which m admitted to belong to the Supreme Court, and whicii
may be exercised every day by any three of its members. Sir, no idee
that can be formed of arbitrary power on the one hand, and abject de-
pendence on the other, caR be carried farther than to suppose th it three
individuals, mere men, " subject to like passions with ourselves,'* may be
safely intrusted with the power to nullify an act of Congress, because they
conceive it to be unconstitutional ; but that a sovereign and independent
state — even the great state of New York — is bound, implicitly, to sub»
mit to its operation, even where it violates, in the grossest manner, her own
rights, or the liberties of her citizens. But we do not contend that a com-
moil case would justify the interposition.
This is the " extreme medicine of the state," and cannot become our
daily bread.
Mr. Madison, in his Report, says, " It does not follow, however, that
because the states, as sovereign parties to their constitutional compact,
must ultimately decide whether it has been violated, that such a decisiofi
ought to be interposed, either in a hasty manner, or on doubtful and ia«
ierior occasions.
*' The resolution has, accordingly, guarded against any misappreheiio
sions of iu« object, by expressly requiring, for such an interposition, ' the
case of a deliberate, palpable, and dangerous breach of the Constitution,
by the exercise of powers not granted by it.'
" But the resolution has done more than guard against misconftructian,
by expressly referring to cases of a deliberate, palpable, and dangeroue
nature. It specifies the object of the interposition, which it contemplates
to be solely that of arresting the progress of the evil of usurpation, and of
maintaining the authorities, riirhts, and liberties, appertaining to the stales,
as pirties to the Constitution."
No one can read this without perceiving that Mr. Madison goes the
whole length, in support of the principles ibr which I have been con-
tending.
The gentleman has called upon us to carry out our scheme prnrtiraiiy.
Now, sir, if I am correct in my view of this matter, then it follows, oS
course, that, the right of a state being established, the federal government
is bound to acquiesce in a solemn decision of a state, acting in its sovereign
cipicity, at lei^t so far as to make an appeal to the people for an amend-
ment of the Constitution. This solemn decision of a state (made either
through its legislature or a convention, as may be supposed to be the
proper organ of its sovereign will — a point I do not propose now to dii*-
»*uss) binds the federal government, under the highest constitutional ob»
hzUion, not to resort to any means of coercion against the citizens of the
dissenting state. How, then, can any collision ensue between the federal
ind state governments — unless, indeed, the former should determine te
enffKce the law bv unconstitutional means?
Sir, I will Det the case home to the gentleman. Is there any violatioa
516 State Rights. — Webster. [Janueiry 27 ^
•
ot the constitutional rights of the states, and the liberties of the citizen,
(sanctioned by Congress and the Supreme Court,) which he would believe
it to be the right and duty of a state to resist ? Does he contend for the
doctrine *' of passive obedience and non-resistance 1 '' Would iie justify
an open resistance to an act of Congress, sanctioned by the courts, which
should abolish the trial by jury, or destroy the freedom of religion, or the
freedom of the press 7 Yes, sir, he would advocate resistance in such
cases ; and so would I, and so would all of us. But such resistance would,
according to this doctrine, be revolution : it would be rebellion. Accord
ing to my opinion, it would be just, legal, and constitutional resistance
The whole difference between us, then, consists in this : the gentleman
would make force the only arbiter in all cases of collision between the
states and the federal government ; I would resort to a peaceful remedy —
the interposition of the state to *' arrest the progress of the evil," until
such times as ** a convention (assembled at the call of Congress or two
thirds of the states) shall decide to which they mean to give an authority
claimed by two of their organs.'' Sir, I say, with Mr. Jefferson, (whose
words I have here borrowed,) that " it is the peculiar wisdom and felicity
of our Constitution to have provided this peaceable appeal, where thai
of other nations'' (and I may add that of the gentleman) ** is at once to
force."
Mr. WEBSTER, in some closing remarks, said a few words on the
constitutional argument, which the honorable gentleman (Mr. Hayne)
labored to reconstruct.
His argument consists of two propositions, and an inference. Hit
propositions are —
1. That the Constitution is a compact between the states.
2. That a compact between two, with authority reserved to one to in*
terpret its terms, would be a surrender, to that one, of all power whatever
3. Therefore (such is his inference) the general government does not
possess the authority to construe its own powers.
Now, sir, who does not see, without the aid of exposition or detection,
the utter confusion of ideas involved in this so elaborate and systematic
argument ?
The CotiStitution, it is said, is a compact between states: the states,
then, and the states only, are parties to the compact. How comes the
general government itself a parly? Upon the honorable gentleman's
hypothesis, the general government is the result of the compact, the
creature of the compact, not one of the parties to it. Yet the argument,
as the gentleman has now stated it, makes the government itself one of its
Ofi'n creators. It makes it a party to that compact to which it owes its
own existence.
For the purpose of erecting the Constitution on the basis of a compact,
the gentleman considers the states as parties to that compact ; but as soon
as his compact is made, then he chooses to consider the general govern-
ment, which IS the offspring of that compact, not its offspring, but one of
Its parties ; and so, being a party, has not the power of judging on the
terms of compact.
• If the whole of the gentleman's main proposition were conceded to
him — that is to say, if I admit, for the sake of the argument, tl at the
Constitution is a compact between states, — the inferences which he draws
firom that proposition are warranted by no just reason ; because, .f the
1830.] State Rights. — Webbtbb. o 1 7
CoDstitution be a compact between states, still that Constitution, or that
compact, has established a government with certain )>owers; and whether
it be one of those powers, that it shall construe and interpret for itself the
terms of the compact in doubtful cases, can only be decided by looking
to the compact, and inquiring what provisions it contains on this point.
Without any inconsistency with natural reason, the government, even thur
created, might be trusted with this power of construction. The extent ot
its powers, therefore, must still be sought for. in the instrument itself.
If the old Confederation had contained a clause, declaring that resolu*
tions of the Congress should be the supreme law of the land, any state law
or constitution to the contrary notwithstanding, and that a committee of
Congress, or any other body created by it, should possess judicial powers,
extending to all cases arising under resolutions of Congress, then the
power of ultimate decision would have been vested in Congress under the
Confederation, although that Confederation was a compact between states;
and for this plain reason — that it would have been competent to the
states, who alone were parties to the compact, to agree who should decide
in cases of dispute arising on the construction of the compact.
For the same reason, sir, if I were now to concede to the gentleman hisf
principal proposition, viz., that the Constitution is a compact between
states, the question would still be, what provision is made, in this compact,
to settle points of disputed construction, or contested power, that shall
come into controversy; and this question would still be answered, and
conclusively answered, by the Constitution itself. While the gentleman
is contending against construction, he himself is setting up the most loose
and dangerous construction. The Constitution declares that the laws of
Congress shall be the supreme law of the land. No construction is neces-
sary here. It declares, also, with equal plainness and precision, that the
judicial power of the United States shall extend to every case arising under
the laws of Congress. This needs no construction. Here is a law, then,
which is declared to be supreme ; and here is a power established which
is to interpret that law. Now, sir, how has the gentleman met this ? Sup-
pose the Constitution to be a compact ; yet here are its terms ; and how
does the gentleman get rid of them? He cannot argue the seal off the
bond, nor the words out of the instrument. Here they are. What answer
does he give to them ? None in the world, sir, except that the effect of
this would be to place the states in a condition of inferiority ; and because
It results, from the very nature of thins^s, there being no superior, that the
parties must be their own judges ! Thus closely and cogently does the
honorable gentleman reason on the words of the Constitution. The gen-
tleman says, if there be such a power of final decisions in the general gov-
ernment, he asks for the grant of that power. Well, sir, I show him the
^]int — I turn him to the very words — I show him that the laws of Con-
gress are made supreme, and that the judicial power extends, by express
words, to the interpretation of these laws. Instead of answering this, he
retreats into the sfeneral reflection, that it must result from the nature of
things that the states, beinsf the parties, must judge for themselves.
I have admitted, that, if the Constitution were to be considered as the
creature of the state governments, it mi&fht be modified, interpreted, or
construed, according to their pleasure. But, even in that case, it would
be necessary that they should agree. One, alone, could not interpret it
conclusively; one, alone, could not construe it; one, alone, could not
Aodify it. Yet the gentleman's doctrine is, that Carolina, alone, mav
44
518 ikaie RigUs, — WsBsfeft. [January 97,
construe and interpret that compact which equally hinds all, and gvif^
equal rights to all.
So then, sir, eren supposing the Constitution to he a compact hetween
the states, the gentleman's doctrine, nevertheless, is not maintainable ,
because, first, the general government is not a partj to that compact, but
a government established by it, and vested by it with the powers of trying
and deciding doubtful questions ; and, secondly, because, if the Constitu-
tion be regarded as a compact, not one state only, but all the states, arc
parties to that compact, and one can have no right to fix upon it her own
peculiar construction.
So much, sir, for the argument, even if the premises of the gentleman
were granted, or could be proved. But, sir, the gentleman has failed to
maintain his leading proposition. He has not shown — it cannot be
shown — that the Constitution is a compact between state governments.
The C<mstitution itself, in its very front, refutes that proposition ; it de-
clnres that it is ordained and established by the people of the United States.
60 far from saying that it is established by the governments of the several
states, it does not even say that it is established by the people of the several
states ; but it pronounces that it is established by the people of the United
States, in the aggregate. The gentleman says, it must mean no more
than that the people of the several states, taken collectively, constitute the
people of the United States^ Be it so ; but it is in this their collective
capacity, it is as all the people of the United States, that they establish
the Constitution. So they declare ; and words cannot be plainer than the
words used.
When the gentleman says, the Constitution is a compact between the
states, he uses language exactly applicable to the old Confederation. He
speaks as if he were in Congress before 1789. He describes fully that
old state of things then existing. The Confederation was, in strictness, a
compact ; the states, as states, were parties to it. We had no other gen-
eral government. But that was found insufficient, and inadequate to the
public exigencies. The people were not satisfied with it, and undertook
to establish a better. They undertook to form a general government
which should stand on a new basis — not a confederacy, not a league, not
a compact between states, but a constitution; a popular government,
founded in popular election, directly responsible to the people themselves,
end divided into branches, with prescribed limits of power, and prescribed
duties. They ordained such a government ; they gave it the name of a
constitution; and therein they established a distribution of powers be-
tween this, their general government, and their several state governments.
When they shall become dissatisfied with this distribution, they can alter
it. Their own power over their own instrument remains. But until they
s^ll alter it, it must stand as their will, and is equally binding on the gen
eral government and on the states.
The gentleman, sir, finds analogy where I see none. He likens it to
the case of a treaty, in which, there being no common superior, each
party must interpret for itself, under its own obligation of good faith.
But this is not a treaty, but a constitution of government, with powers to
execute itself, and fulfil its duties.
I admit, sir, that this government is a government of checks and bal-
ances ; that is, the House of Representatives is a check on the Seftate, and
the Senate is a check on the House, and the President is a check on both.
But I cannot comprehend him — or if I do, I totally differ from him — wbes
183a] State Eighis. — lAfiMowTOM. jlU
he applied the notion of checks and balances to the interfereneu of diflereiit
gofcrnments. He argues that, if we transgress, each state, as a state, has
a right to check us. Does he admit the converse of the proposition —
that we have a right to check the states ? The gentleman's doctrines
would give us a strange jumble of authorities and powers, instead of gov-
ernments of separate and defined powers. It is the part of wisdom, ^
think, to avoid this ; and to keep the general government and the state
governments each in its proper sphere— avoiding, as carefully as possible,
every kind of interference.
Finally, sir, the honorable gentleman says that the states will only mter-
fere, by their power, to preserve the Constitution. They will not destroy
it, they will not impair it — they will only save, they will only preserve,
they will only strengthen it 1 All regulated governments, all free govern-
ments, have been broken up by similar disinterested and well-disposed
interference !
' Mr. EDWARD LIVINGSTON. I think that the Constitution is the
result of a compact entered into by the several states, by which they sur-
rendered a part of their sovereignty to the Union, and vested the part so
surrendered in a general government.
That this government is partly popular, acting directly on the citizens
of the several states ; partly federative, depending for its existence and
action on the existence and action of the several states.
That, by the institution of this government, the states have unequivocally
surrendered every constitutional right of impeding or resisting the execu-
tion of any decree or judgment of the Supreme Court, in any case of law
or equity between persons or on matters, of whom or on which that court
has jurisdiction, even If such decree or judgment should, in the opinion of
the states, be unconstitutional.
That, in cases in which a law of the United States may infringe the
constitutional right of a state, but which, in its operation, cannot be
brought before the Supreme Court, under the terms of the jurisdiction ex-
pressly given to it over particular persons or matters, that court is not
created the umpire between a state that may deem itself aggrieved and the
general government.
Thnt, among the attributes of sovereignty retained by the states, is that
of watching over the operations of the general government, and protecting
its citizens against their unconstitutional abuse ; and that this can be
legally done —^
First, in the case of an act, in the opinion of the state palpably uncon-
Ktitutional, but affirmed in the Supreme Court in the legal exercise of its
functions ;
By remonstrating against it to Congress ;
By an address to the people, in their elective functions, to change or
instruct their representatives ;
By a similar address to the other states, in which they will have a right
to declare that they consider the act as unconstitutional, and therefore
void ;
By proposing amendments to the Constitution in the manner pointea
out by that instrument ;
And, finally, if the act be intolerably oppressive, and they find the gen-
eral government persevere in enforcing it, by a resort to the natural right
trhich every people have to resivSt extreme oppression.
Secondly, if the act be one of the few which, in its operation, cannot be
620 State Rights. — Woodbury. [January 27,
submitted to the Supreme Court, and be one that will, in the opinion of
the state, justify the risk of a withdrawal from the Union, that this last ex-
treme remedy may at once be resorted to.
That the right of resistance to the operation of an act of Congress, in
the extreme cases above alluded to, is not a right derived from the Consti*
tution, but can be justified only on the supposition that the Constitution
has been broken, and the state absolved from its obligation ; and that,
whenever resorted to, it must be at the risk of all the penalties attached to
an unsuccessful resistance to established authority.
That the alleged right of a state to put a veto on the execution of a law
of the United States, which such state may declare to be unconstitutional,
attended (as, if it exist, it must be) with a correlative obligation, on the
part of the general government, to refrain from executing it ; and the fur-
ther alleged obligation, on the part of that government, to submit the
question to the states, by proposing amendments, are not given by the
Constitution, nor do they grow out of any of the reserved powers.
That the exercise of the powers last mentioned would introduce a fea-
ture in our government not expressed in the Constitution ; not implied
from any right of sovereignty reserved to the states ; not suspected to exist,
by the friends or enemies of the Constitution, when it was framed or
adopted ; not warranted by practice or contemporaneous exposition, nor
implied by the true construction of the Virginia resolutions in *98.
That the introduction of (his feature in our government would totally
change its nature, make it inefficient, invite to dissension, and end, at no
distant period, in separation ; and that, if it had been proposed in the form
of an explicit provision in the Constitution, it would have been unani*
mously rejected, both in the Convention which framed that instrument
and in those which adopted it.
That the theory of the federal government being the result of the gen-
eral will of the people of the United States in their aggregate capacity, and
founded in no degree on compact between the states, would tend to the
most disastrous practical results ; that it would place three fourths of the
states at the mercy of one fourth, and lead inevitably to a consolidated
government, and finally to monarchy, if the doctrine were generally admit-
ted ; and if partially so, and opposed, to civil dissensions.
Mr. WOODBURY. From the very fact of there being two parties in
the federal government, it would seem a necessary inference that the
agents of each party, on proper occasions, must be allowed, and are re-
quired by an official oath, to conform to the Constitution, and to decide
on the extent of its provisions, so far as is necessary for the expression of
their own views, and for the performance of their own duties. This being,
to my mind, the rationale of the case, I look on the express words of the
Constitution as conforming to it, by limiting the grant of judicial jurisdic-
tion to the Supreme Court, both by the Constitution and by the acts of
Congress, to specify enumerated objects. In the same way, there are
limited grants of judicial jurisdiction to state courts, under most of the
state constitutions. When cases present themselves within these grants,
the judges, whether of the state or United States, must decide, and enforce
their decision with such means as are confided to them by the laws and the
constitutions. But, when questions arise, not confided to the judiciary o^
the states, or United States, the officers concerned in those questions must
themselvf's decide them ; and, in the end, must pursue such course im
1S30.] Powers of the State and Federal Oovernments. 521
their views of the Constitution dictate. In such instances, they have the
same authority to make this decision as the Supreme Court itself has iu
other instances.
On Powers of the State and Federal Governments,
February 2^,
Mr. GRUNDY. I will proceed to an examination of a subject upon
which a great diversity of opinion seems to prevail. I mean the powers
of the state and federal governments. As to the true division or distribu-
tion of their powers, no difficulty exi:$ts so long as we speak in general
terms; differences of opinion arise when we come to an act on particular
cases. At present, we have no case before the Senate, and are only dis-
cussing the subject for the purpose of ascertaining the true rule by which
to test cases as they arise ; and in the event Congress should transcend
the limits or boundaries of its constitutional powers, to ascertain where
we are to look for the ultimate corrective tribunal.
The states existed prior to this government Each of them possessed
all the rights and powers which appertain to sovereign and independent
nations. For all the purposes of self-government, no want of power, or
the means of using it, was felt by any of these communities. Life, liber-
ty, reputation, and property, all found an ample protection in the state
governments. If any internal improvement were necessary, within its
limits, the sovereign power of the state, having entire and uncontrolled
jurisdiction, could cause it to be undertaken and effected. For none
of these purposes or objects was there a defect of competency in the state
governments. There were objects, however, of high importance, to which
the states, separately, were not equal or adequate to provide. These are
specified in the recommendatory letter by the Convention, and signed by
General Washington, which accompanied the Constitution, when present-
ed to the old Congress for its consideration. The language is, ** The
friends of our country have long seen and desired, that the power of ma-,
king war, peace, and treaties ; that of levying money and regulating com-
merce ; and the correspondent executive and judicial authorities, should
be fully and effectually vested in the general government of the Union.*'
Here is an enumeration of the objects which made it necessary to establish
this government; and when we are called on to decide whether a subject
be within our powers, we ought not to lose sight of the purposes for which
the government was created. When it is recollected that all the powers
now possessed by the general and state governments belonged originally
lo the latter, and that the former is constructed from grants of power
yielded up by the state governments, the fair and just conclusion would be,
that no other power was conferred except what was plainly and expressly
given. But if doubt could exist, the 10th article in the amendments to
the Constitution settles this question. It declares that ** the powers not
delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states, respectively, or to the people.'* The
conclusion hence arises, that this government is one of limited, delegated
powers, and can only act on subjects expressly placed under its control by
he Constitution, and upon such other matters as may be necessarily and
properly within the sphere of its action, to enable it to carry the enumer-
ated and specified powers into execution, and without which the powers
graoted would he inoperative.
VOL. IV. 66
b\£l PubUe Land$. — Woodbk.ry [IS^UK
Public Lands.
Senatx, Febrvary 23, 1830.
•
Mr. WOODBURY. Not examining the parti^'iJar kind of sales the
government can make for the common benefit, such as grants to the new
states for such schools, receiving virtual compensation therefor, by having
the rest of the land freed from taxation, I merely lay down what I suppose
to be the general principle.
On that principle, no reasoning has beeo offered which convinces me
that lands can be legally appropriated to aoy object for which we might
not legally appropriate money. The lands are as much the property of
the Union as its money in the treasury. The cessions and purchases of
them were as much for the benefit of all as the collection of the money.
The Constitution, as well as common sense, seems to recognize no differ-
ence; and if the money can only be appropriated to specified objects, it
follows that the land can only be so appropriated. Within those specified
objects I have ever been, and ever shall be, as ready to give lands or mon-
ey to the west as to the east ; but beyond them, I never have been ready
to give either to either. Towards certain enumerated objects. Congress
have authority to devote the common funds — the land or the money ; be-
cause those objects were supposed to be better managed under their con-
trol than under that of the states; but the care of the other objects is
reserved to the states themselves, and can only be promoted by the com-
mon funds, in a return or division of these funds to proprietors, to be ex-
pended as they may deem judicious.
The whole debate on these points goes to satisfy my mind of the cor-
rectness of that construction of the Constitution, which holds no grants of
money or lands valid, unless to advance some of the enumerated objects
intrusted to Congress. When we once depart from that great landmark
on the appropriation of lands or money, and wander into indefinite notions
of '* common good '* or of the " general welfare," we are, in my opinion, at
sea without compass or rudder ; and in a government of acknowledged
limitations, we put every thing at the caprice of a fluctuating majority
here; pronouncing that to be for the general welfare to-day, which to-
morrow may be denounced as a general curse. Were the government not
limited, this broad discretion would, of course, be necessary and right
But here every grant of power is defined. Many powers are not ceded to
the general government, but are expressly withheld to the stales and pecv
pie; and right is, in my opinion, given to promote the '* general welfare,''
by granting money or lands, but in the exercise of specific powers
granted, and in the modes prescribed, by the Constitution.
In fine, if the government, and the principles of strict construction of
the Constitution, cannot be prosperously administered, it requires no spirit
of prophecy to foresee, that, in a few brief years, in a new crisis approach-
ing, and before indicated, it must, as a confederation, probably cease to be
administered at all. It will, in ray judgment, become a government of
usurped, alarming, undefined powers; and the sacred rights of the states
will become overshadowed in total eclipse. When that catastrophi; more
nearly approaches, unless the great parties to the government shall arouse,
and in some way interfere and rescue it from consolidation, it will follow
as darkness does the day, that the government ends, like all republics of
•Iden times, either in anarchy or despotism.
J Indium TrtatUf. — Spbaoub. 52A
NulltficcUion,
Mr. JOHNSTON. The right of a slate t* annul a law of Congresa
must depend on their showing that this is a mere confederation of states;
which has not been done, and cannot be said to be true, although it should
not appear to be absolutely a government of the people. It is by no
means necessary to push the argument, as to the character of the govern-
ment, to its utmost limit; the ground has been taken, and maintained with
great force of reasoning, that this government is the agent of the supreme
power, the people. It is sufficient 7br the argument, that this is not a conn
pact of states. It may be assumed that it is neither strictly a confedera-
tion nor a national government : it is compounded of both ; it is an
anomaly in the political world ; an experiment growing out of our peculiar
circumstances ; a compromise of principles and opinions : it is partly fed-
eral, partly national.
*^ The prop-Tsed Constitution is, in BtrtctnesB, neither national nor federal ; it in a
composition of both ; in its foundation it is federal, not national ; in the sources from
which the ordinary powers of the |j[overnment are drawn, it is partly federal, partly
national ; in the operation of these powers, it is national, not federal ; in the mode for
ainendment, it is neither wholly federal nor wholly national." — Federalist.
The following list will exhibit the nature and number of the causes decided, [in the
Supreme Court.] The same case is sometimes counted under different heads :
1 . Declaring acts of Congress uncon-
stitutional, 2
8. Acquiescing in appeal jurisdiction, 21
9. States parties, really and nominal-
ly 6
' 10. States parties, incidentally, 4
11. Opinions against the President,... 2
12. Opinions in favor of the President, 3
13. Opinions against the Secretary of
State, 2
2. Constitutional,
3. Declaring state laws constitutional, 9
4. Declaring state laws unconstitu-
tional, 26
5. Affirmingjudgments of state courts, 14
6. Annulling judgments of state courts 14
7. Assenting to appeal jurisdiction,... 7
They have decided twenty-six state laws to be unconstitutional ; that is,
interfering with the rights of the general government ; which, considering
these as twenty-four states, are not equal to the number of decisions
against the acts of Congress. ♦ ♦ ♦
The [Supreme] Court has annulled the judgments of state courts in
fourteen cases, which drew in question the Constitution, laws, or treaties
of the United States ; but has affirmed as many ; which shows they have
no bearing against the rights of states, and which, if it has had no other
effect, has preserved the uniformity so essential to the administration of
iQstice under them. • ♦ ♦
Indian " Treaties. ^^
Sbivatb, May, 1830.
Mr. SPRAGUE. These contracts with aboriginal communities have
been ilenominated treaties from the first settlement of this country. It
has been their peculiar and appropriate nnme without even an alias dictus.
Great Britain made treaties with the Indians ; the several colonies formed
many, and gave them the same appellation. The Continental Congress,
from the time it first assembled until it was merged in the present na-
tional government, uniformly called them treaties. They did so in 1775,
1776, 177e, 1783, 1784, 1785, 1786, 1787. 1788, and even to the day of
. the formation and adoption of the Constitution. We find them repeatedly
and particularly mentioned in July, August, and October, 1787, the Con-
MitiitioD being formed in September of the same year.
b24 United States Bank. — M'Duffib. [1880
United States Bank.
H0U8K OF Rkpresentatives, ,^prU 13, 1830.
Mr. M'DUFFIE. It remains for the committee to show that the Back
of the United States is a ** necessary and proper/' or, in other words, a
natural and appropriate, means of executing the powers vested in the fed
eral t/overnment. In the discussion of 1791, and also in that before the
Suprenie Court, the powers of raising, collecting, and disbursing, the pub-
lic revenue, of borrowing money on the credit of the United States, and
paying tne public debt, were those which were supposed most clearly to
carry with them the incidental right of incorporating a bank, to facilitate
these operations. There can be no doubt that these fiscal operations are
greatly facilitated by a bank, and it is confidently believed that no persoa
has presided twelve months over the treasury, from its first organization
to the present time, without coming to the conclusion that such an insti-
tution is exceedingly useful to the public finances in time of peace, but
indispensable in time of war. But as this view of the question has been
fully unfolded in former discussions familiar to the house, the committee
will proceed to examine the relation which the Bank of the United States
bears to another of the powers of the federal government, but slightly
adverted to in former discussions of the subject.
The power to " coin money and fix the value thereof" is expreFsly and
exclusively vested in Congress. This grant was evidently intended to in-
vest Congress with the power of regulating the circulating medium.
'* Coin " was regarded, at the period of framing the Constitution, as sy-
nonymous with ** currency," as it was then generally believed that bank
notes could only be maintained in circulation by being the true represent-
ative of the precious metals. The word ** coin," therefore, must be re-
garded as a particular term, standing as the representative of a general
idea. No principle of sound construction will justify a rigid adherence
to the letter, in opposition to the plain intention of the clause. If, for ex-
ample, the gold bars of Ricardo should be substituted for our present
coins, by the general consent of the commercial world, could it be main-
tained that Congress would not have the power to make such money, and
fix its value, because it is not "coined"? This would be sacrificing
sense to sound, and substance to mere form. This clause of the Consti-
tution is! analogous to that which gives Congress the power '* to establish
post-roads." Giving to the word ** establish " its restricted interpretation,
as being equivalent to ** fix " or ** prescribe," can it be doubted that Con-
gress has the power to establish a canal, or a river, as a post-route, as well
as a road ? Roads were the ordinary channels of conveyance, and the
term was, therefore, used as synonymous with ** routes," whatever might
be the channel of transportation ; and, in like manner, *' coin '* being the
ordinary and most known form of a circulating medium, that term was
used as synonymous with currency.
An argument in favor of the view just taken may be fairly deduced
from the fact, that the states are expressly prohibited from •* coining
money, or emitting bills of credit," and from " making any thing but
gold and silver a lawful tender in payment of debts." This strongly
confirms the idea, that the subject of regulating the circulating medium,
whether consisting of coin or paper, was, at the same time that it was
taken from the control of the states, vested in the only depository m
which it could be placed, consistently with the obvious design o^ hairing
a common measure of value throughout the Union.
\9StL] Veto. — MaysviUe Road. — jAC&ftoM. 52i»
MR. MONROE'S OBJECTIONS
TO
'AN ACT FOR THE PRESERVATION AND REPAIR OF THE Cl MBEK
LAND ROAD."
Haying duly considered the bill, entitled ** An Act for the Presenration and Repaij
of the Cumberland Road," it is with deep regret, approving as I do tl)^ policy, that 1
am compelled to object to its passage, and to return it to the House of Representatives,
in which it originated, under a conviction that Congress do not possess the power,
under the Constitution, to pass such a law.
A power to establish turnpikes with ffates and tolls, and to enforce the collection of
tolls oy penalties, implies a power to adopt and execute a system of internal improve
meat. A right to impose duties, to be paid by all persons passing a certain road, and
on horses and carriages, as is done by this bill, involves the ri^t to take land from
the proprietor, on a valuation, and to pass laws for the protection of the road from
injuries ; and if it exist as to one road, it exists as to any other, and to vla many roadf
as Congress may think proper to establish. A right to legislate for one of these pur-
poses, is a right to legislate for the others. It is a complete right of jurisdiction and
sovereignty, for all the purposes of internal improvement, and not merely the right o^
appropriating money, under the power vested in Congress to make appropriations,-
under which power, with the consent of the states tlirough which the road passes, the
work was originally commenced, and has been so far executed. I am of opinion that
Congress do not possess this power; that the states, individually, cannot grant it ; for
although they may assent to the appropriation of money within their limits for sucl
purposes, they can grant no power of jurisdiction or sovereignty by special companU
with the United States. This power can be granted only by an amendment to tho
Constitution, and in the mode prescribed by it.
If the power exist, it must, either because it has been specifically granted to the
United States, or that which is incidental to some power which has been specifically
granted. If we examine the specific grants of power, we do not find it among them
nor is it incidental to any power whicn has been specifically granted.
It never has been contended tiiat the power was specifically granted. It is claimed
only as being incidental to one or more of the powers which are specifically granted.
The following are the powers from which it is said to be derived : —
1st, from the right to establish post-offices and post-roads ; 2d, from the right to
declare war *, '.^, to regulate commerce ; 4tb, to pay the debts and provide for the com
mon defence and general welfare ; 5th, from the power to make all laws necessary
and proper for carrying into execution all the powers vested by the Constitution in
the government of the United States, or in any department or ofiicer thereof; 6th, and
lastly, from the power to dispose of, and make all needful rules and regulations respect-
ing, tlie territory and other property of the United States.
According to my judgment, it cannot be derived from either of those powers, nur
from all of them unitecf; and, in consequence, does not exist. * * *
JAMES MONROE.
Washihgtozt, May 4, 1822.
On the evening of the 24th, President Monroe also transmitted his " views^** in sup-
port of his veto, in an elaborate argument, which is the exposition quoted in President
Jackson's objections.
OBJECTIONS OF THE PRESIDENT OF THE UNITED
STATES
09 RXTVRNINO TO TBI HOUSE OF REPRKSENTATIVXS THE ENROLLED BILL, ENTITLCU
" AN ACT AUTHORIZING A SUBSCRIPTION OF STOCK IN THE MAYS-
VILLE, WASHINGTON, PARIS, AND LEXINGTON
TURNPIKE ROAD COMPANY."
The eonstituUonal power of the federal government to construct oi promote works
of internal improvement presents itself in two points of view — the hrst, as bearing
■poo the sorereignty of the states within whose limits their execution is ooniemjiUtea«
526 Veto. — MajfsviUt Road, — Jackson. [1690.
if jurisdiction of the territory which they may occupy be claimed as necessary to Uieu
preservation and use } the second, as aBsertinijr the simple right to appropriate money
from tlie national treasury in aid of such works when undertaken by state authority
surrendering the claim of jurisdiction. In the first view, the question of power is an
open one, and can be decided without the embarrassment attending the other, arising
IVom the practice of the government.
Aitliough frequently and strenuously attempted, the power, to this extent, has never
been exercised by the government in a single instance. It does not, in my opinion,
possess it, and no bill, therefore, which admits it, can receive my official sanction.
But, in the other view of the power, the question is differently situated. The
ground taken at an early period of the government was. " that, whenever money has
been raised by the general authority, and is to be applied to a particular measure, a
question arises whether the particular measure be within the enumerated authoritieii
vested in Congress. If it be, the money requisite for it mav be applied to it; if not,
no such Application can b < made." The document in which this principle was first
advanced is of deservedly high authority, and should be held in fateful remembrance
for its immediate a^ncy in rescuing the country from much existing abuse, and for
its conservative efl?ct upon some of the most raluable principles of uie C?onstitution.
The symmetry and purity of the government would, doubtless, have been better pie-
served, if this restriction of the power of appropriation could have been maintained
without weakening its ability to fulfil the general objects of its mstitution — an efiecl
so likely to attend its admission, notwithstanding its apparent fitness, that every sub-
sequent administration of the government, embracing a period of thirty out of the
forty-two years of its existence, has adopted a more enlarged construction of the power.
In the administration of Mr. Jeflerson, we have two examples of the exercise of the
right of appropriation, which, in the consideration that led to their adoption, and in their
em*cts upon the public mind, have had a greater agency in marking tlie character of
the power, than any subsequent events. 1 allude to the payment of fifteen millions
of dollars for the purchase of Louisiana, and to the original appropriation for the con-
struction of tlie Cumberland Road ; the latter act derivinj^ much weight from the
acquiescence and approbation of three of the most powerfuiof the original members
of the confederacy, expressed through their respective legislatures. Although the
circumstances of the latter case may oe such as to deprive so much of it as relates to
the actual construction of the road of the force of an obligatory exposition of the Con-
stitution, it must, nevertheless, be admitted that, so far as the mere appropriation of
money is concerned, they present the principle in its most imposing aspect. No less
thin twenty-three difftrent laws have oeen passed through all the forms of the Con-
stitution, appropriating upwards of two millions of dollars out of the national treasury
in support of that improvement, with the approbation of every President of the United
States, including my predecessor, since its commencement.
Independently of tne sanction given to appropriations for the Cumberland and
other road*« and objects, under this power, tne administration of Mr. Madison was
characterised by an act which furnishes the strongest evidence of his opinion extant.
A bill was passed throuch both hou^s of Congress, and presented for his approval,
" setting apart and pledging certain funds for constructing roads and canals, and
improving the navigation of watercourses, in order to facilitate, promote, and give
wcurity to internal commerce among the several states ; and to render more easy,
and loss expensive, the means and provision for the common defence." Regarding
the hill as asserting a power in the federal government to construct roads and caoals
within the limits of tlie staU^s in which they were made, he objected to its pa8.*«a|rey
on the ground of its unconititutionalily, declaring that the assent of the respective
staU^s, in the mode provided by the bill, could not confer the powers in question ; that
the only cases in which the consent and cession of particular states can extend the
power of Congress are those specified and provided for in the Constitution ; and
supf ndding to this avowal his opinion, tlwit '' a restriction of the power ' to provide
for the common defence and gen<»ral welfare,' to cases which are to be provideil ibr by
the expenditure of money, would still leave within the legislative power of Cnngress
all the great and most important measures of government, money being the ordinary
and necessary means of carrying them into execution." I have not been able to
consider these declarations in any o»her point of view than as a r.oncrssion that the
rinrht of appropriation is nnl limited by the power to carry into effect the measure for
whch the money is asked, as was formerly contended.
The views of Mr. Monroe upon this subject were not left to inference. Durir g
his administration, a bill was passed through both houses of Congress, conferring tlie
jurisdiction, and prescribinff the mode by which the federal government should
exercise it in the case of the Cumberland road. He returned it. with objections to its
pusage, and, in assigning tliem, took occasion to ^a^ tliat, in the early stages of the
fowrnment. be liad mdmed to t le construction that it had no right to expend money
1830.] Veto. — MaysvilU Road. — Jackson. 527
except in the performance of acts authorized by the other specific grants of power,
according to a strict construction of them ; but that, on further reflection and observa-
tion, his mind had undergone a change ; that his opinion then was, ^* that Congress
hnve unlimited power to raise money, and that, in its appropriation, they have a
discretionary power, restricted only by the duty to appropriate it to purposes of com-
nion defence, and of general, national, not local, or state, benefit;" and this was
avowed to b« tlie governing principle through the residue of his administration. The
views of the last admiuistrution are of such recent date as t^* render a particular
reference to them unnecessary. It is well known that the appropriating power, to
the utmost extent which had been claimed for it, in relation to internal improvements,
was fully recognized and exercised by it.
This brief reference to known facts will be sufHcient to show the difficulty, if not
impracticability, of bringing back the operation of the government to Uie construction
of the Constitution set up m 17Ud, assuming that to be its true reading, in relation to
the power under consideration ; ttuis giving an admonitory proof of the force of
implication, &nd the necessity of guarding the Constitution, with sleepless vigilance,
against U e authority of precedents which ^ve not the sanction of its most plainly-
deBned p'^wers ; for, although it is the duty of all to look to that sacred instrument,
instead of the statute-book, — to repudiate, at all times, encroachments upon its spirit,
which are too apt to be effected by the conjuncture of peculiar and facilitating circum-
stanccrs,— it is not less true that the public ffood and the nature of our political insti-
tutions require that individual differences should yield to a well-settled acquiescence
of the people and confederated authorities, in particular constructions of the Constitu-
tion, on doubtful points. Not to concede this much to the spirit of our institutions
would impair their stability, and defeat the objects of the Constitution itself.
The only remaining view which it is my intention to present at this time, in-
volves the expediency of embarking in a system of internal iinprtivement, without a
previous amendment of the Constitution, explaining and defining the precise powers
of the federal government over it. Assuming the right to appropriate money, to aid in
the construction of national works, to be warranted by the contemporaneous and con-
tinued exposition of the Constitution, its insufficiency for the successful prosecotioa
of them must be admitted by all candid minds. IT we look to usage to define the
extent of the right, that will be found so variant, and embracing so much that has
been overruled, as to involve the whole subject in great uncertainty, and to render the
execution of our respective duties in relation to it replete with difficulty and em-
barrassment. It is in regard to such works, and the acquisition of additional territory,
that the practice obtained its first footing. In most, if not all, other dispuU*d questions
of appropriation, the construction of the Constitution may be regarded as unsettled, if
the right to apply money, in the enumerated cases, is placed on the ground of usage.
If it be the desire of the people that the agency of the federal ffovernment should be
confined to the appropriation of money, in aid of such undertakings, in virtue of the
stale authorities, then the occasion, the manner, and the extent of the appropriations,
should be made the subject of constitutional regulation. This is the more necessary,
rn order that they may be equitable among the several states ; promote hanntmy
between sections of the Union and tlieir representatives ; preserve other parts of the
Constitution from being undermined by the exercise of doubtful powers, or the too
Sreat extension of those which are not so ; and protect the whole subject against the
eleteriousJ influence of combinations to carry, by concert, measures which, considered
by themselves, might meet but little countenance.
That a constitutional adjustment of this power, upon equitable principles, is, in the
highest degree, desirable, can scarcely be doubted ; nor can it fail to be promoted by
every sincere friend to the successor our political institutions. In no government nre
appeals to the source of power, in cases of real doubt, more suitable than in ours. No
good motive can be assigned for the exercise of power by the constituted authorities ;
while those, for whose ^nefit it is to be exercised, have not conferred it, and may not
be willing to confer it. It would seem to me that an honest application of tlie coo-
ceded powers of the general government to the advancement of the common weal
presents a sufficient scope to shtisfy a reasonable ambition. The difficulty and sup-
posed impracticability of obtaining an amendment of the Constitution, in tliis respect,
», I fiimly believe, in a great degree, unfounded.
In presenting these opinions, I have spoken with the freedom and candor which I
thoQvht the occasion for their expression called for ; and now respectfully return the
bill which has been under consideration, for your further deliberation and iiidirment.
ANDREW JACKSON.
rfrenem.1 Jackson, in addition to the abore, has exercised the veto power on several
Mm. — Sec ArpEWDix.]
628 Virginia Resolutions, 1796.
VIRGINIA RESOLUTIONS OF 1798,
PRONOUNCING THE ALIEN AND SEDITION LAWS TO BE UNCONSTITU-
TIONAL, AND DEFINING THE RIGHTS OF THE STATES.
DRAWN BY MR, MADISON.
[if THE ViRGIiriA HuUSK OF Df.LKGATES,
Friday, December 21^ ITIW?.
Resolved, That the General Assembly of Virginia doth unequivocally
express a firm resolution to maintain and defend the Constitution of the
United States, and the Constitution ^)f this state, against every aggression,
either foreign or domestic ; and that they will support the government of
the United States in all measures warranted by the former.
That this Assembly most solemnly declares a warm attachment to the
union of the states, to maintain which it pledges its powers ; and that, for
this end, it is their duty fo watch over and oppose every infraction of those
principles which constitute the only basis of that union, becaurce a faithful
observance of them can alone secure its existence and the public happiness.
That this Assembly doth explicitly and peremptorily declare, that it
views the powers of the federal government as resulting from the compact
to which the states are parties, as limited by the plain sense and intention
of the instrument constituting that compact, as no further valid than they
are authorized by the grants enumerated in that compact ; and that, in
case of a deliberate, palpable, and dangerous exercise of other powers,
not granted by the said compact, the states, who are parties thereto, have
the right, and are in duly bound, to interpose, for arresting the progress
of the evil, and for maintaining, within their respective limits, the author-
ities, rights, and liberties, appertaining to them.
That the General Assembly doth also express its deep regret, that a spirit
has, in sundry instances, been manifested by the federal government to
enlarge its powers by forced constructions of the constitutional charter
which defines them ; and that indications have appeared of a design to ex-
pound certain general phrases (which, having been copied from the very lim
ited grant of powers in the former Articles of Confederation, were the less
liable to be misconstrued) so as to destroy the meaning and effect of the partic-
ular enumeration which necessarily explains and limits the general phrases,
and so as to consolidate the states, by degrees, into one sovereignly, the
obvious tendency and inevitable result of which would be, to transform
the present republican system of the United States into an absolute, or, at
oest, a mixed monarchy.
That the General Assembly doth partieularly PROTEST against
the palpable and alarming infraetions of the Constitution, in the two late
cases of the ** Alien and Sedition Acts" passed at the last session of
Conjs^ress ; the frst of which exercises a power nowhere delegated to the
federal government, and which , by uniting legislative and judicial powers
to those of executire, subverts the general principles of free government,
as wrll as the particular organization and positive provisions of the JFed^
eral Constitution ; and the other of which acts exercises, in like manner, a
power not delegated by the Constitution, but, on the contrary, expressly
and positively forbidden by one of the amendments thereto^ — a power whick^
Virginia Resolutions, 1796. 529
more than any other ^ ought to product universal alarm^ because it is levelUa
against the right of freely examining public characters and measures , ana
of free communication among the people thereon; which has ever been justly
itemed the only effectual guardian of every other rigftt.
Tb.it this state having, by its Convention, which ratified the Federal
Constitution, expressly declared that, among other essential rights, *' the
liberty of conscience and the press cannot be cancelled, abridged, re-
strained, or modified, by any authority of the United States," and from its
extreme anxiety to guard these rights from every possible attack of soph-
istry and ambition, having, with other states, recommended an amend-
ment for that purpose, which amendment was, in due time, annexed to
the Constitution,-^ it would mark a reproachful inconsistency, and criini-
oa] degeneracy, if an indiflference were now shown to the most palpable
violation of one of the rights thus declared and secured, and to the estab-
lishment of a precedent which may be fatal to the other.
That the good people of this commonwealth, having ever felt, and con
tinning to feel, the moitt sincere affection for their brethren of the other
states; the truest anxiety for establishing and perpetuating the union ol
all ; and the most scrupulous fidelity to that Constitution, which is the '
pledge of mutual friendship, and the instrument of mutual happiness,-^
the General Assembly doth solemnly appeal to the like dispositions in th«
other states, in confidence that they will concur with this commonwealth
in declaring, as it does hereby declare, that the acts aforesaid are uncon-
stitutional ; and that the necessary and proper measures will be taken by
each for cooperating with this state, in maintaining unimpaired the author*
ities, rights, and liberties, reserved to the states respectively, or to the
people.
That the governor be desired to transmit a copy of the foreging resolu*
tions to the executive authority of each of the other states, with a request
that the same may be communicated to the legislature thereof, and that a
copy be furnished to each of the senators and representatives representing
this state in the Congress of the United States.
Attest, JOHN STEWART
1799, December 24. Agreed to by the Senate.
H. BROOKE.
A true copy from the original deposited in the ofRce of the Genera]
Assembly. JOHN STEWART, Kuptr qf RoUs
HXTRACTS PROM THE ADDRESS TO THE PEOPLE,
WHICH ACCOMPANIED THE FOREGOING RESOLUTIONS.
Fellow-citizens : Unwilling to shrink from our representative responsi-
•tlities, conscious of the purity of our motives, but acknowledging your
•ighl to supervise our conduct, we invite your serious attention to the
emergency which dictated the subjoined resolutions. Whilst we disdain
CO alarm you by ill-founded jealousies, we recommend an investigation
guided by the coolness of wisdom, and a decision bottomed on firmness,
bot tempered with moderation.
VOL. IV. 67 45
5J0 Virginia Resolutions, 179a
It would be perfidious in those intrusted with the GUARDIANSHIP
OF THE STATE SOVEREIGNTY, and acting under the solemn
obligttion of the following oath, — *' I do swear that I will support the
Constitution of the United States," — not to warn you of encroachments,
which, though clothed with the pretext of necessity, or disguised by argu-
ments of expediency, may yet establish precedents which may ultimately
devote a generous and unsuspicious people to all the consequences of
usurped power.
Encroachments springing from a government WHOSE ORGANI-
ZATION CANNOT BE MAINTAINED WITHOUT THE CO-
OPERATION. OF THE STATES, furnish the strongest exciie-
ments upon the state legislatures to watchfulness, and impose upon them
the strongest obligation TO PRESERVE UNIMPAIRED THE
LINE OF PARTITION.
The acquiescence of the states, under infractions of the federal com-
pact, would either beget a speedy consolidation, by precipitating the state
governments into impotency and contempt, or prepare the way for a revo-
lution, by a repetition of these infractions until the people are aroused to
appear in the majesty of their strength. It is to avoid these calamities
that we exhibit to the people the momentous question, whether the Con-
stitution of the United States shall yield to a construction which defies
every restraint, and overwhelms the best hopes of republicanism.
Exhortations to disregard domestic usurpation, until foreign danger
shall have passed, is an artifice which may be forever used; because the
possessors of power, who are the advocates for its extension, can ever
create national embarrassments, to be successively employed to soothe the
people into sleep, whilst that power is swelling, silently, secretly, and
fatally. Of the same character are insinuations of a forei^m influence,
which seize upon a laudable enthusiasm against danger from abroad, and
distort it by an unnatural application, so as to blind your eyes against
danger at home.
The Sedition Act presents a scene which was never expected b^ ihc
early friends of the Constitution. It was then admitted that the state
sovereignties were only diminished by powers specifically enumerated, or
necessary to carry the specified powers into effect. Now, federal authority
is deduced from implication; and from the existence of state law, it is in-
ferred that Concrress possess a similar power of legislation ; whence Con-
gress will be endowed with a power of legislation in all cases whatsoever,
and the states will be stripped of every right reserved, by the concurrent
claims of a paramount legislature.
The Sedition Act is the offspring of these tremendous pretensions,
which inflict a death-wound on the sovereignty of the states.
For the honor of American understanding, we will not believe that the
people have been allured into the adoption of the Constitution by an
: ffectation of defming powers, whilst the preamble would admit a construc-
tion which would erect the will of Congress into a power paramount in
rll cases, and therefore limited in none. On the contrary, it is evident
that the objects for which the Constitution was formed were deemed
attainable only by a particular enumeration and specification of each
power granted to the federal government; reserving all others to the peo-
ple, or to the slates. And yet it is in vain we search for any specified
power embracing the right of legislation against the freedom of the press
Had the states been despoiled of their sovereignty by the \5eneralitj oi
Virgimia Resobitiims, 1796. 631
the preamble, and had the federal government been endowed with what-
ever they should judge to be instrumental towards the union, justice.
tr;inquillity, common defence, general welfare, and the preservation of lib
erty, nothing could have been more frivoious than an enumeration of
powers.
All the preceding arguments, arising from a deficiency of constitutiona.
power in Congress, apply to the Alien Act; and this act is liable to other
objections peculiar to itself. If a suspicion that aliens are dangerous, con
slitutes the justification of that power exercised over them by Congress,
then a similar suspicion will justify the exercise of a similar power over
natives ; because there is nothing in the Constitution distinguishing be*
tween the power of a state to permit tlie residence of natives and aliens.
It is, therefore, a right originally possessed, and never surrendered, by the
respective states, and which is rendered dear and valuable to Virginia, be-
cause it is assailed through the bosom of the Con'^titution, and because
her peculiar situation renders the easy admission of artisans and laborers
an interest of vast importance.
But this bill contains other features, still more alarming and dangerous.
It dispenses with the trial by jury ; it violates the judicial system ; it con-
founds legislative, executive, and judicial powers; it punishes without
trial ; an«l it bestows upon the President despotic power over a numerous
class of men. Are such measures consistent with our constitutiona] prin-
ciples? And will an accumulation of power so extensive in the hands of
the executive, over aliens, secure to natives the bles^^ings of republican
liberty?
If measures can mould governments, and if an uncontrolled power of
construction is surrendered to those who administer them, their progress
may be easily foreseen, and their end easily foretold. A lover of monarchy,
who opens the treasures of corruption by distributing emolument among
devoted partisans, may at the same time be approaching his object and de-
luding the people with professions of republicanism. He may confound
monarchy and republicanism, by the art of definition. He may varnish
over the dexterity which ambition never fails to display, with the pliancy
of language, the seduction of expediency, or the prejudices of the times;
add he may come at length to avow, that so extensive a territory as that
of the United States can only be governed by the energies of monarchy ;
that it cannot be defctidec', except by standing armies ; and that it cannot
be united, except by consolidation.
Measures have already been adopted which may lead to these conse-
quences. They consist —
In fiscal systems and arrangements, which keep a host of commercial
and wealthy individuals imbodied, and obedient to the mandates of the
treasury ; —
In armies and navies, which will, on the one hand, enlist the tendency
of man to pay homage to his fellow-creature who can feed or honor him ;
and on the other, employ tke principle of fear, by punishing imaginary
insurrections, under the pretext of preventive justice ; —
In swarms of officers, civil and military, who can inculcate political
tenet-* tending to consolidation and monarchy, both by indulgences and
severities, anHf can act as spies over the free exercise of human reason ; —
In restraining the freedom of the press, and investing the executive
with lcgi<tlative. executive, and judicial powers, over a numerous body of
meu —
532 Answers of the States. — Delaware. [ 1 799.
And, Uai we may shorten the catalogue, in establishing, by successive
precedenta. such a mode of construing the Constitution as wrll rapidly
remove every restraint upon federal power.
uet history be consulted ; let the man of experience reflect ; nay, let
the artificers of monarchy be asked what further materials they can need
for building up their favorite system.
These are solemn but painful truths ; and yet we recommend it to you
not to forget the possibility of danger from without, although danger
threatens us from within. Usurpation is indeed dreadful ; but against
foreign invasion, if that should happen, let us rise with hearts and hands
united, and repel the attack with the zeal of freemen who will strengthen
Iheir title to examine and correct>loQiestic measures, by having defended
their country against foreign aggression.
Pledged as we are, fellow-citizens, to these sacred engagements, we yet
humbly, fervently implore the Almighty Disposer of events to avert from
our land war and usurpation, the scourges of mankind ; to permit out
fields to be cultivated in peace ; to instil into nations the love of friendly
intercourse ; to suffer our youth to be educated in virtue, and to preserve
our morality from the pollution invariably incident to habits of war ; to
prevent the laborer and husbandman from being harassed by taxes and im*
posts ; to remove from ambition the means of disturbing the common-
wealth ; to annihilate all pretexts for power afforded by war ; to maintain
the Constitution ; and to bless our nation with tranquillity, under whose
benign influence we may reach the summit of happiness and glory, to
which we are destined by nature and naiure^s God.
Attest, JOHN STEWART, C. H. D.
1799, January 23d. Agreed to by the Senate. H. BROOKE, C. &
A true copy from the original deposited in the office of the Genera
Assembly. JOHN STEWART, Ktqter of BoUe.
ANSWERS
OP THE SEVERAL STATE LEGISLATURES.
STATE OF DELAWARE.
In thk House of REPREsurrATiTES, Fehrvary 1, 1799.
Resolved^ By the Senate and House of Representatives of the state of
Delaware, in General Assembly met, that they consider the resolutions
from the state of Virginia as a very unjustifiable interference with the
general government and constituted authorities of the United States, and
of dangerous tendency, and therefore not flt subject for the further consid-
eration of the Genersil Assembly.
ISAAC DAVIS, Speaker oj tkt SenaU.
STEPHEN LEWIS, Speaker of the Houee of Repreeeniiitwea,
Test, JOHN FISHER, C. &— JOHN CALDWELL, C. K R.
1 799.] Answers of the States. — Rhode Island, Massachusetts. 653
STATE OF RHODE ISLAND AND PROVIDENCE PLANTA-
TIONS.
Ik Gxkxral Asskmblt, Febmaryj A. D, 1799.
Certain resolutions of the legislature of Virginia, passed on 21st of
December last, being communicated to this Assembly, —
1. Resohedf That, in the opinion of this legislature, the second section
of third article of the Constitution of the United States, in these words, to
wit, — " The judicial power shall extend to all cases arising under the laws
of the United States/' — vests in the federal courts, exclusively, and in the
Supreme Court of the United States, ultimately, the authority of deciding
on the constitutionality of any act or law of the Congress of the United
Sutes.
2. Resolved, That for any state legislature to assume that authority
would be —
1st. Blending together legislative and judicial powers ;
2d. Hazarding an interruption of the peace of the states by civil dis*
cord, in case of a diversity of opinions among the state legislatures ; each
state having, in that case, no resort, for vindicating its own opinions, but
the strength of its own arm ; —
3d. Submitting most important questions of law to less competent tri*
bunals; and,
4th. An infraction of the Constitution of the United States, expressed
in plain terms.
3. Resolved, That, although, for the above reasons, this legislature, in
their public capacity, do not feel themselves authorized to consider and
decide on the constitutionality of the Sedition and Alien laws, (so called,)
yet they are called upon, by the exigency of this occasion, to declare that,
in their private opinions, these laws are within the powers delegated to
Congress, and promotive of the welfare of the United States.
4. Resolved, That the governor communicate these resolutions to the
supreme executive of the state of Virginia, and at the same time express
to him that this legislature cannot contemplate, without extreme concern
and regret, the many evil and fatal consequences which may flow from
the very unwarrantable resolutions aforesaid of the legislature of Virginia,
passed on the twenty-first day of December last.
A true copy, SAMUEL EDDY, Secretary,
COMMONWEALTH OF MASSACHUSETTS.
In Seztate, February 9, 1799
The legislature of Massachusetts, having taken into serious considei
ation the resolutions of the state of Virginia, passed the 2l8t day of
December last, and communicated by his excellency the governor, relative
to certain supposed infractions of the Constitution of the United States,
by the government thereof ; and being convinced that the Federal Con*
■titution is calculated to promote the hippiness, prosperity, and safety, of
the people of these United States, and to maintain that union of the sev*
eral states so essential to the welfare of the whole ; and being bound by
solemn oath to support and defend that Constitution, — feel it unnece^
jary to make any professions of their attachment to it, or of their firm
Jetennication to support it against every aggression, foreign or domestio
634 A fuwers of tie States. — MassachusetiM. [1790.
But thr^y deem it their duty solemnly to declare that, while they hold
sacred the principle, that consent of the people is the only pure source
of just and legitimate power, they cannot admit the right of the st.ite
legislatures to denounce the administration of that government to which
the people themselves, by a solemn compact, have exclusively committed
their national concerns. That, although a liberal and enlightened vigil-
ance among the people is always to be cherished, yet an unreasonable
lealousy of the men of their choice, and a recurrence to measures of ex-
tremity upon groundless or trivial pretexts, have a strong tendency to de-
iitroy all rational liberty at home, and to deprive the United Stales of the
most essential advantages in relations abroad. That this legislature are
persuaded that the decision of all cases in law and equity arising under
the Constitution of the United States, and the construction of all laws
made in pursuance thereof, are exclusively vested by the people in the
judicial courts of the United States.
That the people, in that solemn compact which is declared to be the
supreme law of the land, have not constituted the state legislatures the
judges of the acts or measures of the federal government, but have confi-
ded to them the power of proposing such amendments of the Constitution
as shall appear to them nece^»sary to the interests, or conformable to the
wishes, of the people whom they represent.
That, by this construction of the Constitution, an amicable and dispas-
sionate remedy is pointed out for any evil which experience may prove to
exist, and the peace and prosperity of the United States may be preserved
without interruption.
But, should the respectable state of Virginia persist in the assumption
of the right to declare the acts of the national government unconstitu-
tional, and should she oppose successfully her force and will to those of
the nation, the Constitution would be reduced to a mere cipher, to the
form and pageantry of authority, without the energy of power ; every act
of the federal government which thwarted the views or checked the am-
bitious projects of a particular state, or of its leading and influential mem-
bers, would be the object of opposition and of remonstrance ; while the
people, convulsed and confused by the conflict between two hostile juris-
dictions, enjoying the protection of neither, would be wearied into a
submission to some bold leader, who would establish himself on the rains
of both.
The legislature of Massachusetts, although they do not themselves claim
the right, nor admit the authority of any of the state governments, to de-
cide upon the constitutionality of the acts of the federal government, still,
lest their silence should be construed into disapprobation, or at best into
a doubt as to the constitutionality of the acts referred to by the slate oi
Virginia ; and as the General Assembly of Virginia has called for an ex-
pression of their sentiments, — do explicitly declare, that they consider the
acts of Congress, commonly called ** the Alien and Sedition Acts," not
only constitutional, but expedient and necessary : That the former act
respects a description of persons whose rights were not particularly con-
templated in the Constitution of the United States, who are entitled only
to a temporary protection while they yield a temporary allegiance — a pro-
tection which ought to be withdrawn whenever they become ** dangerous
to the public safety," or are found guilty of " treasonable machination "
against the government : That Congress, having been especially intrusted
by the people with the general defence of the nation, had no* only the
1199,] Antwers 9f the States. ~ MassachmeiiM. i3n
right, but were bound, to protect it against internal as well as external
foes: That the United States, at the time o( passing the Act concerning
Aliens^ were threatened with actual infasion ; had been driven, by the
aajust and ambitious conduct of the French government, into warlikr-
preparations, expensive and burdensome ; and had then, within the bosom
of the country, thousands of aliens, who, we doubt not, were ready to
cooperate in any external attack.
It cannot be seriously believed that the United States should have
waited till the poniard had in fact been plunged. The removal of aliens
if tlie usual preliminary of hostility, and is justified by the invariable
usages of nations. Actual hostility had unhappily long been experienced,
and a formal declaration of it the government had reason daily to expect.
The law, therefore, was just and salutary ; and no officer could with so
much propriety be intrusted with the execution of it, as the one in whom
the Constitution has reposed the executive power of the United States.
The Sfdition Act, so called, is, in the opinion of this legislature, equally
defensible. The General Assembly of Virginia, in their resolve under
consideration, observe, that when that state, by its Convention, ratified the
Federal Constitution, it expressly declared, **thot, among other essential
rights, the liberty of conscience and of the press cannot be cancelled,
abridged, restrained, or modified, by any authority of the United Stales,"
and, from its extreme anxiety to guard these rights from every possible
attack of sophistry or ambition, with other states, recommended an
amendment for that purpose; which amendment was, in due time, annexed
to the Constitution ; but they did not surely expect that the proceedings
of their state Convention were to explain the amendment adopted by the
Union. The words of that amendment, on this subject, are, *' Congress
shall make no Uw abridging the freedom of speech or of the press."
The act complained of is no abridgment of the freedom of either. The
genuine liberty of speech and the press is the liberty to utter and publish
the truth; but the constitutional right of the citizen to utter and publish
ilie truth is not to be confounded with the licentiousness, in speaking and
writing, that is only employed in propagating falsehood and slander. This
freedom of the press has been explicitly secured by most, if not all the state
constitutions ; and of this provision there has been generally but one con-
structiou among enlightened men — that it is a security for the rational use,
and not the abuse of the press ; of which the courts of law, the juries and
people will judge : this right is not infringed, but confirmed and estab-
lished, by the late act of Congress.
By the Cons itution, the legislative, executive, and judicial departments
of government are ordained and established; and general enumerated
powers vested in them respectively, including those which are prohilnted
to the several states. Certain powers are granted, in general terms, by
the people, to their general government, for the purposes of their safety
aod protection. The government is not only empowered, but it is made
their duty, to rc^pel loyaj^ions and suppress insurrections ; to guaranty to the
jeveral states a republican form of government; to protect each state
against invasion, and, when applied to, against domestic violence ; to hear
and decide all cases in law and equity arising under the Constitution, and
under any treaty or law made in pursuance thereof; and all eases of admi-'
ra]ty and maritime jurisdiction, and relating to the law of nations. When-
Cf er, therefore, it becomes necessary to effect any of the objects designateo,
it is perfectly consonant to all just rules of construction to infer that th
z3L Answers of ike States. — Massachusetts, [ ITW.
jusuul rncan-u and powers necessary to the attainment of that object are
« also granted. But the Constitution has left no occasion to resort to im-
plication lor these powers ; it has made an express grant of them, in the
bih section of the 1st article, which ordains, ** that Congress shall have
power to make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by the Con-
btitution in the government of the United States, or in any department
or officer thereof"
This Constitution has established a Supreme Court of the United Staters,
but has made no provision for its protection, even against such improper
conduct ill its presence, as might disturb its proceedings, unless expressed
in the section before recited. But as no statute has been passed on this
subject, this protection is, and has been for nine years past, uniformly
found in the application of the principles and usages of the common law.
The same protection may unquestionably be afforded by a statute passed
in virtue of the before-mentioned section, as necessary and proper for
carrying into execution the powers vested in that department. A con-
struction of the different parts of the Constitution, perfectly ju^t and fair,
will, on analogous principles, extend protection and security, against the
nflfences in question, to the other departments of government, in discharge
of their respective trusts.
The President of the United States is bound by his oath ** to preserve,
f protect, and defend, the Constitution;'' and it is expressly made his duty
' to take care that the laws be faithfully executed." But this would be
impracticable by any created being, if there could be no legal restraint of
those scandalous misrepresentations of his measures and motives* which
directly tend to rob him of the public confidence ; and equally impotent
would be every other public officer, if thus lefl to the mercy of the
seditious.
It is holden to be a truth most clear, that the important trusts before
enumerated cannot be discharged by the government to which they are
committed, without the power to restrain seditious practices and unlawful
combinatiuns against itself, and to protect the officers thereof from abusive
(misrepresentations. Had the Constitution withheld this power, it would
have made the government responsible for the effects, without any control
|over the causes which naturally produce them, and would have essentially
failed of answering the great ends for which the people of the United States
declare, in the first clause of that instrument, that they establish the same
I— viz., *' to form a more perfect union, establish justice, insure domestic
Itranquillity, provide for the common defence, promote the general welfare,
land secure the blessings of liberty to ourselves and posterity."
Seditious practices and unlawful combinations against the federal gov-
ernment, or any officer thereof, in the performance of his duty, as well as
licentiousness of speech and of the press, were punishable, on the princi-
ples of common law, in the courts of the United States, before the act in
question was passed. This act, then, is an amelioration of that law in
favor of the party accused, as it mitigates the punishment which that
authorizes, and admits of any investigation of public men and measures
which is regulated by truth. It is not intended to protect men in office,
only as they are agents of the people. Its object is to afford legal security
to public offices and trusts created for the safety and happiness of the
|)eople, and therefore the security derived from it is for the benef^*. of *•«
people, and is their right.
1799.] Answers of the States, — New York. 531
This construction of the Constitution, and of the existing law of the
land, as well as the act complained of, the legislature of Massachusettii
most deliberately and firmly believe, results from a just and full view of
the several parts of the Constitution ; and they consider that act to be wisp
and necessary, as an audacious and unprincipled spirit of falsehood ano
abuse had been top long unremittingly exerted for the purpose of perverting
public opinion, and threatened to undermine and destroy the whole fabric
of government.
The legislature further declare, that in the foregoing sentiments they
have expressed the general opinion of their constituents, who have not
only acquiesced without complaint in those particular measures of the
federal government, but have given their explicit approbation by reelecting
those men who voted for the adoption of them. Nor is it apprehended
that the citizens of this state will be accused of supineness, or of an in-
difference to their constitutional rights ; for while, on the one hand, they
regard with due vigilance the conduct of the government, on the other,
their freedom, safety, and happiness require that they should defend that
government and its constitutional measures against the open or insidious
attacks of any foe, whether foreign or domestic.
And, lastly, that the legislature of Massachusetts feel a strong con-
viction, that the several United States are connected by a common inter-
est, which ought to render their union indissoluble; and that this state will
always cooperate with its confederate states in rendering that union pro-
ductive of mutual security, freedom, and happiness.
Sent down for concurrence. SAMUEL PHILLIPS, PretidenL
In the House of Representatives, February 13, 1799.
Read and concurred. EDWARD H. ROBBINS, Speaker.
A true copy. Attest, JOHN AVERY, Secretanf.
STATE OF NEW YORK.
Ih Sknatk, March 5, 1799.
Whereas the people of the United States have established for themselves
t free and independent national government : And whereas it is essential
to the existence of every government, that it have authority to defend and
preserve its constitutional powers inviolate, inasmuch as every infringe-
ment thereof tends to its subversion : And whereas the judicial power
extends expressly to all cases of law and equity arising under the Consti-
tution and the laws of the United States, whereby the interference of the
legislatures of the particular states in those cases is manifestly excluded :
And whereas our peace, prosperity, and happiness, eminently depend on
the preservation of the Union, in order to which a reasonable confidence
in the constituted authorities and chosen representatives of the people is
indispensnhle : And whereas every measure calculated to weaken that
conBdence has a tendency to destroy the usefulness of our public function-
aries, and to excite jealousies equally hostile to rational liberty, and the
principles of a good republican government : And whereas the Senate, not
perceiving that the rights of the particular states have been violated, nor
jny unconstitutional powers assumed by the general government, cannot
ibrbear to express the 'anxiety and regret with which they observe the m-
flammatory and pernicious sentiments and doct^^ine^ which are contained
VOL. IV. 68
538 AjstDirs of the States, — Connecticut ^ Niw Hampshirt, [J 700.
in th^ resolutions of the legislatures of Virginia and Kentucky — senti-
ments and doctrines no less repugnant to the Constitution of the United
States, and the principles of their union, than destructive to the federal
government, and unjust to those whom the people have elected to ad-
minister it ; — wherefore
Resolved, That while the Senate feel themselves constrained to bear
unequivocal testimony against such sentiments and doctrines, they deem it
a duty no less indispensable explicitly to declare their incompetency, as a
branch of the legislature of this state, to supenrise the acts of the gen-
eral government.
Resolved, That his excellency, the governor, be, and he is hereby, re-
quested to transmit a copy of the foregoing resolution to the executiyes oi
the states of Virginia and Kentucky, to the end that the same may be
communicated to the legislatures thereof.
A true copy. ABM. B. BAUCKER, CML
STATE OF CX)NNECTICUT.
At a General Assembly of the state of Connecticut, holden at Hart-
ford, in the said state, on thesecond Thursday of May, Anno Domini 1799,
his excellency, the governor, having communicated to this Assembly sun-
dry resolutions of the legislature of Virginia, adopted in December, 1798,
which relate to the measures of the general government, and the said reso-
utions having been considered, it is
Resolved^ That this Assembly views with deep regret, and explickly dis-
avows,the principles contained in the aforesaid resolutions, and particularly
the opposition to the ** Alien and Sedition Acts *' — acts which the Coiisii-
tution authorized, which the exigency of the country rendered necessary,
which the constituted authorities have enacted, and which merit the entire
approbation of this Assembly. They, therefore, decidedly refuse to concur
with the legislature of Virginia in promoting any of the objects attempted
in the aforesaid resolutions.
And it is further resolved. That his excellency, the governor, be re-
quested to transmit a copy of the foregoing resolution to the governor of
Virginia, that it may be communicated to the legislature of that state.
Passed in the House of Representatives unanimously.
Attest, JOHN C. SMITH, CUrk.
Concurred, unanimously, in the Upper House.
Teste, SAMUEL WYLLYS, Secrtiary.
STATE OF NEW HAMPSHIRE.
In thx House op Reprxsentatitks, Junt 14, 1799.
Tlie committee to take into consideration the resolutions of the Grenerai
Assembly of Virginia, dated December 21, 1798 ; also certain resolution!
of the legislature of Kentucky, of the 10th November, 1798, report a«
follows : —
The legislature of New Hampshire, having taken into consideration cer
tain resolutions of the General Assembly of Virginia, daled D«cembar
.] Answers of the States, — New Hampskirt, Vermont. 53M
21, 179^; also certain resolutions of the legislature of Kentucky, of the
1 Jih of November, 179S : —
Hesolvfd, That the legislature of New Hampshire unequivocally ex-
pre-i^ a firm resolution to maintain and defend the Constitution of the United
States, and the Constitution of this state, against every aggression, either
foreign or domestic, and that they will support the government of the
United States in all measures warranted by the former.
That the state legislatures are not the proper tribunals to determine the
constitutionality of the laws of the general government ; that the duty of
such decision is properly and exclusively confided to the judicial depart-
ment.
Xh:it, if the legislature of New Hampshire, for mere speculative pur-
poses, were to express an opinion on the acts of the general government,
commonly called ** the Alien and Sedition Bills,*' that opinion would un-
reservedly be, that those acts are constitutional, and, in the present critical
situation of our country, highly expedient.
That the constitutionality and expediency of the acts aforesaid have
been very ably advocated and clearly demonstrated by many citizens of
the United States, more especially by the minority of the General Assem-
bly of Virginia. The legislature of New Hampshire, therefore, deem it
unnecessary, by any train of arguments, to attempt further illustration of
the propositions, the truth of which, it is confidently believed, at this day,
is very generally seen and acknowledged.
Which report, being read and coilsidered, was unanimously received
and accepted, one hundred and thirty-seven members being present.
SenI up for concurrence. JOHN PRENTICE, Speaker.
In Senate, same day, read and concurred unanimously.
AMOS SHEPARD, President
Approved, June 15, 1799. J. T. OILMAN, Governor.
A true copy. Attest, JOSEPH PEARSON, Secretary.
STATE OF VERMONT.
In thx House of Rxprxsektatiyes, Octaher 30, A. D. 1799.
The house proceeded to take under their consideration the resolutions
of the General Assembly of Virginia, relative to certain measures of the
general government, transmitted to the legislature of this state, for their
consideration: Whereupon, —
Resolved^ That the General Assembly of the state of Vermont do high-
ly disapprove of the resolutions of the General Assembly of Virginia, as
being unconstitutional in their nature, and dangerous in their tendency
It belonj^s not to state legislatures to decide on the constitutionality of
'aws made by the general government; this power being exclusively vest-
ed in the judiciary courts of the Union. That his exceljeticy, the gover-
nor, be requested to transmit a copy of this resolution to the executive of
V^irgioia, to be communicated to the General Assembly of that state : And
that the same be sent to the governor and council for their concurrence.
SAMUEL C. CRAFTS, CUrk.
In Councilf October 30, 1799. Read and concurred unanimously.
RICHARD WHITNEY Seerdam.
640 Kentucky Resolutions of 1798. 1799.
KENTUCKY RESOLUTIONS OF 1798 AND 1799.
[THE ORIGINAL DRAFT PREPARED BY THOMAS JEFFERSON.]
[The follow ag ReBoluttoni paraed the House of Repreientativei of Kentacky, Nov
10, 17^)8. On the passagre of the Ist Resolatioiij one dissentient; 2d, 3d, 4th, Sth,
6tli, 7Ui, 8th, two dissentients ; 9th, three dissentients.]
1. Resolved^ Thoi the several states composing the United States of
America are not united on the principle of unlimited submission to their
general government ; but that, by compact, under the style and title of a
Constitution for the United States, and of amendments thereto, they con-
stituted a general government for special purposes, delegated to that
government certain definite powers, reserving, each state to itself, the re-
siduary mass of right to their own self-government ; and that whensoever
^. the general government assumes undelegated powers, its acts are unau-
thoritative, void, and of no force ; that to this compact each state acceded
as a state, and is an integral party ; that this government, created by this
compact, was not made the exclusive or final judge of the extent of the
powers delegated to itself, since that would have made its discretion, and
not the Constitution, the measure of its powers ; but that, as in all other
cases of compact among parties having no common judge, each party has
an equal right to judge for itself, as well of infractions as of t lie mode and
measure of redress,
2. Resolved, That the Constitution of the United States having delega-
ted to Congress a power to punish treason, counterfeiting the securities and
current coin of the United States, piracies and felonies committed on the
high seas, and offences against the laws of nations, and no other crimes what-
ever; and it being true, as a general principle, and one of the amendments
to the Constitution hiving also declared ** that the powers not delegated to
the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people," — therefore, also, the
same act of Congress, passed on the 14th day of July, 1798, and entitled
•* An Act in Addition to the Act entitled * An Act for the Punishment of
certain Crimes against the United States ; ' " as also the act passed by them
on the 27th day of June, 1798, entitled " An Act to punish Frauds com-
mitted on the Bank of the United States," (and all other their acts which
assume to create, de6ne, or punish crimes other than those enumerated in
the Constitution,) are altogether void, and of no force; and that the power
to create, define, and punish, such other crimes is reserved, and of right
appertains, solely and exclusively, to the respective states, each within its
own territory.
3. Rf solved, .Thni it is true, as a general principle, and is also expressly
declared by one of the amendments to the Constitution, tlfat **the powers
not delegated to the United States by the Constitution, nor prohibited by it
to the states, are reserved to the states respectively, or to the people ; " and
that, no power over the freedom of religion, freedom of speech, or freedom
of the press, being delegated to the United States by the Constitution, noi
prohibited by it to the states, all lawful powers respecting the same did of
right remain, and were reserved to the states, or to the people; that thus
was manifested their determination to retain to themselves the right ot
Kentucky Resolutions of 1798, 1799. d4i
judging how far the licentiousness of speech, and of the prt.jd, may be
abridged without lessening their useful freedom, and how far those abuses
^rhich cannot be separated from their use, should be tolerated rather than
the use be destroyed ; and thus also they guarded against all abridgment,
l>y the United States, of the freedom of religious principles and exercises,
and retained to themselves the right of protecting the same, as this, stated
l>y a law passed on the general demand of its citizens, had already pro-
tected them from all human restraint or interference; and that, in addition
to this general principle and express declaration, another and more special
provision has been made by one of the amendments to the Constitution,
which expressly declares, that '' Congress shall make no laws respecting
an establishment of religion, or prohibiting the free exercise thereof, or
abridging the freedom of speech, or of the press," thereby guarding, in the
same sentence, and under the same words, the freedom of religion, of
speech, and of the press, insomuch that whatever violates either thrown
down the sanctuary which covers the others, — and that libels, falsehood,
and defamation, equally with heresy and false religion, are withheld from
the cognizance of federal tribunals. That therefore the act of the Con*
grass of the United States, passed on the 14th of July, 1798, entitled " An
Act in Addition to the Act entitled * An Act for the Punishment of cer*
tain Crimes against the United States,' '' which does abridge the freedom
of the press, is not law, but is altogether void, and of no force.
4. Resolvedf That alien friends are under the jurisdiction and protec-
tion of the laws of the state wherein they are ; thnt no power over them
h^8 been delegated to the United States, nor prohibited to the individual
states, distinct from their power over citizens ; and it being true, as a
general principle, and one of the amendments to the Constitution having
also declared, that '* the powers not delegated to the United States by the
Constitution, nor prohibited to the states, are reserved to the states, re-
spectively, or to the people,'' the act of the Congress of the United States,
passed the 22d day of June, 179S, entitled ** An Act concerning Aliens,"
which assumes power over alien friends not delegated by the Constitution,
is not law, but is altogether void and of no force.
5. Resolved, That, in addition to the general principle, as well as the
express declaration, that powers not delegated are reserved, another and
more special provision inserted in the Constitution from abundant caution,
has declared, '* that the migration or importation of such persons as any
of the states now existing shall think proper to admit, shall not be pro-
hibited by the Congress prior to the year 1808." I'hat this common-
wealth does admit the migration of alien friends described as the subject
of the said act concerning aliens; that a provision against prohibiting
their migration is a provision against all acts equivalent thereto, or it
would be nugatory ; that to remove them, when migrated, is equivalent to
a prohibition of their migration, and is, therefore, contrary to the said
proTision of the Constitution, and void.
6. Resolved, That the imprisonment of a person under the protection
of the laws of this commonwealth, on his failure to obey the simple order
of the President to depart out of the United States, as is undertaken by
the said act, entitled, " An Act concerning Aliens," is contrary to the
Constitution, one amendment in which has provided, that ** no person
shall be deprived of liberty without due process of law ; " and that another
haTing provided, '''that, in all criminal prosecutions, the accused shall
eujoy the right of a public trial by an impartial jury, to be informed as to
46
i>42 Kaitucky Resolutious of 1793, 1799.
the nature and cause of ihe accus.'tion, to be confronted with the wiU
nei$se) against him, to have compulsory process for obtaining witnesses io
his fdvor, and to have assistance of counsel for his defence," t!ie same act
unlertaknig to authorize the President to remove a person out of the
United States who is under the protection of the law, on his own sus-
picion, without jury, without public trial, without confrontation of the witp
nesses against him, without having witnesses in his favor, without defence,
without counsel — contrary to these provisions also of the Constitution —
b tlierefure not law, but utterly void, and of no force.
Thut transferring the power of judging any person who is under the
protection of the laws, from the courts to the President of the United
States, as is undertaken by the same act concerning aliens, is against the
article of the Constitution which provides, that *' the judicial power of tht-
United States shall be vested in the courts, the judges of which shall hold
their office during s^ood behavior," and that the said act is void for that
reason also; and it is further to be noted that this transfer of judiciary
power is to that magistrate of the genera] government who already pos-
sesses all the executive, and a qualified negative in all the legislative
powers.
7. Rt solved. That the construction applied by the general g< vernment
(as is evident by sundry of their proceedings) to those parts of the Coo*
stitution of the United States which delegate to Congress power to lay
and collect taxes, duties, imposts, excises ; to pay the debts, and provide
for the common defence and general welfare, of the United States, and to
make all laws which shall be necessary and proper for carrying into exe-
cution the powers vested by the Constitution in the government of the
United States, or any department thereof, goes to the destruction of all
the limits prescribed to their power by the Constitution ; that words meant
by that instrument to be subsidiary only to the execution of the limited
powers, ought not to be so C(mstrued as themselves to give unlimited
powers, nor a part so to be taken as to destroy the whole residue of the
instrument; that the proceedings of the general government, under color
of those articles, will be a fit .ind necessary subject for revisal and cor-
rection at a time of greater tranquillity, while those specified in the pre-
ceding resolutions call for immediate redress.
8. Rtsolvcdy That the preceding resolutions be transmitted to the sen-
ators and representatives in Congress from this commonwealth, who are
enjoined to present the same to their respective houses, and to use their
best endeivors to procure, at the next session of Congress, a repeal of the
aforesaid unconstitutional and obnoxious acts.
9. Resolved y lastly, That the governor of this commonwealth he, and
is, authorized and requested to communicate the preceding resolutions to
the legislatures of the several states, to assure them that this common-
wealth considers union for special national purposes, and particularly for
those specified in their late federal compact, to be friendly to the peace,
happiness, and prosperity, of all the states; that, faithful to that compact,
according to the plain intent and meaning in which it was understood and
acceded to by the several parties, it is sincerely anxious for its preserva-
tion ; that it does also believe, that, to take irom the states all the powers
of sclf-grovernment, and transfer them to a general and consolidated gov-
ernment, without regard to the special government, and reservaiions
solemnly agreed to in that compact, is not for the peace, happiness, or
Vrosi>erity of these states; and that, therefore, this commonwealth '»
Kentucky ResoluOons of 179S, 1709. 54d
determined, as it doubts not its co-states are, to submit to undelegated and
consequently unlimited powers in no man, or body of men, on earth; that.
if the acts before specified should stand, these conclusions would flow
from them — tliat the general government may place any act they think
proper on the list of crimes, and punish it themselves, whether enumerated
or not enumerated by the Constitution as cognizable by them ; that they
may transfer its cognizance to the President, or any other person, who
may himself be the accuser, counsel, judge, and jury, whose suspicions
may be the evidence, his order the sentence, his ofRcer the executioner,
and his breast the sole record of the transaction ; that a very numerous
and valuable description of the inhabitants of these states, being, by this
precedent, reduced, as outlaws, to absolute dominion of one man, and the
barriers of the Constitution thus swept from us all, no rampart now re-
mains against the passions and the power of a majority of Congress, to
protect from a like exportation, or other grievous punishment, the minority
of the same body, the legislatures, judges, governors, and counsellors of
the states, nor their other peaceable inhabitants, who may venture to re-
claim the constitutional rights and liberties of the states and people, or
who, for other causes, good or bad, may be obnoxious to the view, or
marked by the suspicions, of the President, or be thought dangerous to
bis or their elections, or other interests, public or personal ; that the
friendless alien has been selected as the safest subject of a first experi-
ment; but the citizen will soon follow, or rather has already followed;
for already has a Sedition Act marked him as a prey : That these and
successive acts of the same character, unless arrested on the threshold,
may tend to drive these states into revolution and blood, and will furnish
new calumnies against republican governments, and new pretexts for those
who wish it to be' believed that man cannot be governed but by a rod of
iron; that it would be a dangerous delusion were a confidence in the men
of our choice to silence our fears for the safety of our rights; thnt confi-
dence is every where the parent of despotism ; free government is founded
in jealousy, and not in confidence ; it is jealousy, and not confidence,
which prescribes limited constitutions to bind down those whom we are
obliged to trust with power ; that our Constitution has accordingly fixed
the limits to which, and no farther, our confidence may go ; and let the
honest advocate of confidence read the Alien and Sediti<m Acts, an<l say
if the Constitution has not been wise in fixina limits to the government it
created, and whether we should be wise in destroying those limits: let him
say what the government is, if it be not a tyranny, which the men of our
choice hive conferred on the President, and the President of our choice
has assented to and accepted, over the friendly strangers, to whom the
mild spirit of our country and its laws had pledged hospitality and pro-
tection ; that the men of our choice have more respected the bare sui*-
picions of the President than the solid rights of innocence, the claims of
justification, the sacred force of truth, and the forms and substance of law
aod justice.
In questions of power, then, let no more be said of confidence in man,
but bind him down from mischief by the chains of the Constitution. That
this commonwealth does therefore call on its co-stales for nn expression
of their sentiments on the acts concerning aliens, and for tlie punishment
of certain crimes herein before specified, plainly declaring whether these
acts are or are not authorized by the federal compact. And it doubts not
that their fleas'? will be so announced as to prove their attachment to lim
644 Kentucky Resolutions of 1798, 1799.
ited government, whether general or particular, nnd that the rights anc
liherties of their co-states will be exposed to no dangers by remaining ern-
oarked on a common bottom with their own ; but they will concur with
this commonwealth in considering the said acts as so palpably against the
Constitution as to amount to an undisguised declaration, that the compact
is not meant to be the measure of the powers of the general government,
but that it will proceed in the exercise over these states of all powers
whatsoever. That they will view this as seizing the rights of the states,
and consolidating them in the hands of the general government, with a
power assumed to bind the states, not merely in cases made federal, but in
all CRses whitsoever, by laws made, not with their consent, but by others
against their consent ; that this would be to surrender the form of gov-
ernment we have chosen, and live under one deriving its powers from its
own will, and not from our authority; and that the co-states, recurring to
their natural rights not made federal, will concur in declaring these void
and of no force, and will each unite with this commonwealth in requesting
their repeal at the next session of Congress.
EDMUND BULLOCK, S. H. R.
JOHN CAMPBELL, 5. & P. T.
Passed the House of Representatives, Nov. 10, 17P8.
Attest, THO'S. TODD, C. H, R
In Senate, Nov. 13, 1798 — Unanimously concurred in.
Attest, R THURSTON, C. &
Approved, November 19, 1798.
JAMES GARRARD, Governor of Kentucky.
By the Governor, HARRY TOULMIN, Secretary of SiaU.
HoDss OF Reprsssntatives, Thursday, J{ov. 14, 1799.
The house, according to the standing order of the day, resolved itsell
into a committee of the whole house, on the state of the commonwealth,
(Mr. Desha in the chair,) and, afler some time spent therein, the speaker
resumed the chair, and Mr. Desha reported, that the committee had taken
under consideration sundry resolutions passed by several state legishitures,
on the subject of the Alien and Sedition Laws, and had come to a resolu-
tion thereupon, which he delivered in at the clerk's table, where it was
read and unanimmisly agreed to by the house, as follows : —
The representatives of the good people of this commonwealth, in (General
Assembly convened, having maturely considered the answers of sundry
states in the Union to their resolutions, passed the last session, respecting
certain unconstitutional laws of Congress, commonly called the Alien and
Sedition Laws, would be faithless, indeed, to themselves, and to those they
represent, were they silently to acquiesce in the principles and doctrines
attempted to be maintained in all those answers, that of Virginia only ex-
cepted. To again enter the field of argument, and attempt more fully or
forcibly to expose the unconstitutionality of those obnoxious laws, would,
it is apprehended, be as unnecessary as unavailing. We cannot, however,
but lament that, in the discussion of those interesting subjects by sundry
of the le^rislatures of our sister states, unfounded suggestions and uncandid
insinuations, derogatory to the true character and principles of this com-
monwealth, have been substituted in place of fair reasoning and sound
argument. Our opinions of these alarming measures of the general gov-
ernment, together with our reasons for those opinions. Were detailed with
decency and with temper, and submitted to the discussion and judgment
Kentucky Resolutions of 1793, 1799. • 546
€>(^ our fellow-citizens throughout the Union. Whether the like doccncy
and temper have been observed in the answers of most of those states wlm
h ive denied, or attempted to obviate, the great truths contained in those
resolutions, we hive now only to submit to a candid world. Faithful to
the true principles of the federal Union, unconscious of any designs to dis-
turb the harmony of that Union, and anxious only to escape the fangs of
d>.*eipotism, the good people of this commonwealth are regardless of censure
or calumniation. Lest, however, the silence of this commonwealth should
be construed into an acquiescence in the doctrines and principles advanced,
and attempted to be maintained, by the said answers; or at least those
of our fellow-citizens, throughout the Union, who so widely differ from us
on those important subjects, should be deluded by the expectation that we
shall be deterred from what we conceive our duty, or shrink from the prin-
ciples contained in those resolutions, — therefore.
Resolved f That this common wi^alth considers the federal Union, upon
the terms and for the purposes specified in the late compact, conducive to
the liberty and happiness of the several states: That it does now unequiv-
ocally declare its attaciiment to the Union, and to that compact, agreeably
to its obvious and real intention, and will be among the last to seek its
dissolution : That, if those who administer the general government be per-
mitted to transgress the limits hxed by that compact, by a total disregard
to the special delegations of power therein contained, an annihilation of
the stite governments, and the creation, upon their ruins, of a general
consolidated government, will be the inevitable consequence : That the
principle and construction, contended for by sundry of the state legisla*
tures, that the general government is the exclusive judge of the extent of
the powers delegated to it, stop not short of despotism — since the discre-
tion of those who administer the government, and not the Constitution^
would be the measure of their powers : That the several states who formed
that instrument, being sovereign and independent, have the unquestionable
right to judge of the infraction : and. That a nullijicationj by those sooe*
reigaiies, of all unauthorized acts done under color of thnt instrumrnt^ is
the rightful remedy : Thit this commonwealth does, under the most de-
liberate reconsideration, declare, that the said Alien and Sedition Laws
are, in their opinion, palpable violations of the said Constitution; and,
howercr cheerfully it miy be disposed to surrender its opinion to a major-
ity of its sister states, in matters of ordinary or doubtful policy, yet, in
momentous regulations like the present, which so vitally wound the best
rights of tht* citizen, it would consider a silent acquiescence as highly
criminal : That, although this commonwealth, as a party to the federal
compact, will bow to the laws of the Union, yet it does, at the same
time, declare, that it will not now, or ever hereafter, cease to oppose, in a
constitutional manner, every attempt, at what quarter soever offered, to
violate that compact : And finally, in order that no pretext or arguments
may be drawn from a supposed acquiescence, on the part of this common-
wealth, in the constitutionality of those laws, and be thereby used as
precedents for similar future violaticms of the federal compact, this com-
monwealth does now enter against them its solemn PROTEST.
Extract, dtc. Attest, THOMAS TODD, C. H. R
In Senate, Nov. 22, 1799. — Read and concurred in.
Attest, B. THURSTON, C &
VOL. IV. 69
6<UJ MtuUson's Report on tit Virginia RtsohUiont. [1600.
MADISON'S REPORT on the VIRGINIA RESOLUTIONS.
House OF DELEGikTES, Scssion of 1799 — ISOO.
Report of the Committee to whom were referred the Comntumcations of
various States ^ relative to the Resolutions of the last General Assemblw
of this State, concerning the Alien and Sedition Laws.
Whatever room might be found in the proceedings of some of the states,
who have disapproved of the resolutions of the General Assembly of this
commonwealth, passed on the 21st day of December, 1798, f^r painful
remarks on the spirit and manner of those proceedings, it appears to the
committee most consistent with the duty, as well as dignity, of the General
Assembly, to hasten an oblivion of every circumstance which might be
construed into a diminution of mutual respect, confidence, and affection,
among the members of the Union.
The committee have deemed it a more useful task to revise, with a crit-
ical eye, the resolutions which have met with their disapprobation ; to
( xamine fully the several objections and arguments which have appeared
s'gainst them ; and to inquire whether there can be any errors of fact, of
principle, or of reasoning, which the candor of the General Assembly
ought to acknowledge and correct
Vhe frst of the resolutions is in the words following : —
" Hesolred, That the General Assembly of Virginia doth unequivocally express a
firm resolution to maintain and defend the Constitution of the United States, and the
i'onstitutiun of this state, against every aggression, either foreign or domestic ; and
tiiat thtMT will support the government of the United States in all measures warranted
liy the iormer."
No unfavorable comment can have been made on the sentiments here
expressed. To maintain and defend the Cf»nstitution of the United States,
iiiid of their own state, against every aggression, both foreign and domes-
tic, and to support the government of the United States in all measures
warranted by their Constitution, are duties which the General Assembly
ought always to feel, and to which, on such an occasion, it was evidently
proper to express their sincere and firm adherence.
In their next resolution —
" The General Assembly most solemnly declares a warm attachment to the unicm
of the states, to maintain which it pledges all its powers ; and that, for this end, it is
iheir duty to watch over and oppose every infraction of those principles which con-
stitute the only basis of that Union, because a faithful observance of them con alone
s(>cure its existence and the public happiness "
Tl e observation just made is equally applicable to this solemn declara-
tion of warm attachment to the Union, and this solemn pledrre to maintain
it ; nor can any question arise among enlightened friends of the Union, as
to the duty of watching over and opposing every infraction of these prin-
ciples which constitute its basis, and a faithful observance of which can
alone secure its existence, and the public happiness thereon depending.
The third resolution is in the words following : —
"Tliatlhia Assembly doth explicitly and peremptorily declare, thnt it views the
po>vers of the federal government, as resulting from the compact to witich the states
are parties, as limited by the plain sense and intention of the instrument constitutinff
tliat compact — as no further valid than they are authorized by the grants enumemted
1600.] Madison's Report on the Virginia Resolutions, 547
rn that compact; and that, in caae of a deliberate, palpable, and dangerous exercise of
other powers, not ^pranted by the said compact, the states who are parties thereto haY9
the right, and are in duty bound, to interpose, for arresting the progress of the evil
and for maintaining, within their respective limits, the authorities, rights, and liberties
appertaining to them."
On this resolution the committee have bestowed all the attention which
its importance merits. They have scanned it not merely with a strict,
hut with a severe eye ; and they feel confidence in pronouncing that, in
its just and fair construction, it is unexceptionably true in its several po-
sitions, as well as constitutional and conclusive in its inferences.
The resolution declares, Jirst^ that ** it views the powers of the federal
government as resulting from the compact to which the states are parties ;'*
in other words, that the federal powers are derived from the Constitution ;
and that the Constitution is a compact to which the states are parties.
Clear as the position must seem, that the federal powers are derived
from the Constitution, and from that alone, the committee are not unap-
prized of a late doctrine which opens another source of federal powers,
not less extensive and important than it is new and unexpected. The
examination of this doctrine will be most conveniently connected with a
review of a succeeding resolution. The committee satisfy themselves here
with briefly remarking that, in all the contemporary discussions and com-
ments which the Constitution underwent, it was const.intly justified and
recommended on the ground that the powers not given to the government
were withheld from it; and that, if any doubt could have existed on this
subject, under the original text of the Constitution, it is removed, as far
as words could remove it, by the 12th amendment, now a part of the Con-
stitution, which expressly declares, ** that the powers not delegated to the
United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people."
The other position involved in this branch of the resolution, namely,
"thit the states are pnrties to the Constitution," or compact, is, in the
ludTment of the committee, equally {ree from objection. It is indeed true
that the term ** states" is sometimes used in a vague sense, and sometimes
in different senses, according to the subject to which it is applied. Thus
It S'lnietimes means the separate sections of territory occupied by the po-
litical societies within each ; sonvetirnes the particular governments estab-
lished by those societies ; sometimes those societies as org?mized into
those particular governments; and lastly, it means the people composing
those political societies, in their highest sovereign capacity. Although it
miiiht be wished that the perfection of language admitted less diversity
in the siajnification of the same words, yet little inconvenience is produced
by it. where the true sense can be collected with certainty from the differ-
ent applications. In the present instance, whatever different construction
of the term " stites," in the resolution, may hive been entertained, all
will at least concur in that la.st mentioned ; because in that sense the
Constitution was submitted to the " states ; " in that sense the "states"
ratifie:! it ; and in that sense of the term ** states," they are consequently
parties to the compact from which the powers of the federal government
result.
The next position is, that the General Assembly views the powers of
the federal government " as limited by the plaiti sense and intention of
the instrument constituting that compact," and " as no further valid than
•hey are authorized by the grants therein enumerated." It does not seen*
poeisible that any just objection can lie against either of these clauses
548 Mculison^s Report on tlu Virginia Resolutions, [1800
The first amounts merely to a declaration that the compact ought to have
the inter]iretation plainly intended by the parties to it ; the other, to a
declaration that it ought to have the execution and efTect intended by
them. If the powers granted be valid, it is solely because they are grant-
ed; and if the granted powers are valid because granted, all other pow-
ers not granted must not be valid.
The resoluticn, having taken this view of the federal compact, proceeds
to infer, " That, in case of a deliberate, palpable, and dangerous exercise
of other powers, not granted by the said compact, the states, who are par-
ties thereto, have the right, and are in duty bound, to interpose for arrest-
ing the progress of the evil, and for maintaining, within their respective
limits, the authorities, rights, and liberties, appertaining to them."
It appears to your committee to be a plain principle, founded in com-
mon sense, illustrated by common practice, and essential to the nature
of compacts, that, where resort can be had to no tribunal superior to the
authority of the parties, the parties themselves must be the rightful judges,
in the last resort, whether the bargain made has been pursued or violated.
The Constitution of the United States was formed by the sanction of the
states, given by each in its sovereign capacity. It adds to the stability
and dignity, as well as to the authority, of the Constitution, that it rests
on this legitimate and solid foundation. The stales, then, being the par-
ties to the constitutional compact, and in their sovereign capacity, it fol-
lows of necessity that there can be no tribunal, above their authority, to
decide, in the last resort, whether the compact made by them be violated;
and consequently, that, as the parties to it, they must themselves decide,
in the last resort, such questions as may be of sufficient magnitude to re-
quire their interposition.
It does not follow, however, because the states, as sovereign parties to
their constitutional compact, must ultimately decide whether it has been
violated, that such a decision ought to be interposed either in a hasty
manner or on doubtful and inferior occasions. Even in the case of ordi-
nary conventions between different nations, where, by the strict rule of
interpretation, a breach of a part may be deemed a breach of the whole,
— every part being deemed a condition of every other part, and of the
whole, — it is always laid down that the breach must be both wilful and
material, to justify an application of the rule. But in the case of an in-
timate and constitutional union, like that of the United States, it is evi-
dent that the interposition of the parties, in their sovereign capacity, can
be called for by occasions only *^3eply and essentially affecting the vital
principles of their political system.
The resolution has, accordingly, guarded against any misapprehension
of its object, by expressly requiring, for such an interposition, ** the case
of a deliberate, palpable, and dangerous breach of the Constitution,
by the exercise of powers not granted by it." It must be a case not of
a light and transient nature, but of a nature dangerous to the great pur-
poses for which the Constitution was established. It must be a case, more-
over, not obscure or doubtful in its construction, but plain and palpable. •
Lastly, it must be a case not resulting from a partial consideration or hasty
determination, hut a case stamped with a final consideration and deliberate
adherence. It is not necessary, because the resolution does not require,
that the question should be discussed, how far the exercise of any partic-
ular power, ungranted by the Constitution, would justify the interposition
of the parlies to it. As cases might easily be stated, which none would
1800.] Madison's Report on the Virginia Resolutions, 649
contend ouglit to fall within that description, — cases, on the other hand,
might, with cqu il ease, be stated, so flagrant and so fatal as to unite every
opinion in placing them within the description.
But the resolution has done more than guard against misconstruction^
by expressly referring to cases of a deliberate, palpable, and dangerous
nature. It specifies the object of the interposition, which it contemplates
to be solely that of arresting the progress of the evil of usurpation, and of
maintaining the authorities, rights, and liberties, appertaining to the states
as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it
can incur any just disapprobation from those who, laying aside all moment-
ary impres^sions, and recollecting the genuine source and object of the
Federal Constitution, shall candidly and accurately interpret the meaning
of the General Assembly. If the deliberate exercise of dangerous powers,
palpably withheld by the Constitution, could not justify the parties to it in
interposing even so fir as to arrest the progress of the evil, and thereby to
pre,serve the Constitution itself, as well as to provide for the safety of the
parties to it, there would be an end to all relief from usurped power, and
a direct subversion of the rights specified or recognized under all the state
constitutions, as well as a plain denial of the fundamental principle on
which our independence itself was declared.
But it is objected, that the judicial authority is to be regarded as the
sole expositor of the Constitution in the last resort ; and it may be asked
for what reason the declaration by the General Assembly, supposing it to
be theoretically true, could be required at the present day, and in so solemn
a manner.
On this objection it might be observed, first, that there may be instances
of usurped power, which the forms of the Constitution would never draw
within the control of the judicial department; secondly, that, if the decis-
ion of the judiciary be raised above the authority of the sovereign parties
to the Constitution, the decisions of the other departments, not carried by
the forms of the Constitution before the judiciary, must be equally author-
itative and final with the decisions of that department. But the proper
answer to the objection is, that the resolution of the General Assembly
relates to those great and extraordinary cases, in which all the forms of
the Constitution may prove ineflfectual against infractions dangerous to the
essential rights of the parties to it. The resolution supposes that danger-
ous powers, not delegated, may not only be usurped and executed by the
other depaitments, but that the judicial department, also, may exercise or
snnction dangerous powers beyond the grant of the Constitution ; and,
consequently, that the ultimate right of the parties to the Constitution, to
judge whether the compact has been dangerously violated, must extend to
violations by one delegated authority as well as by another — by the judi-
ciary as well as by the executive, or the legislature.
However true, therefore, it maybe, that the judicial department is, in all
questions submitted to it by the forms of the Constitution, to decide in
the last resort, this resort must necessarily be deemed the last in relation
to the authorities of the other departments of the government ; not in re-
lation to the rights of the parties to the constitutional compact, from which
the jadicial, as well as the other departments, hold their delegated trusts.
On any oth^r hypothesis, the delegation of judicial power would annul the
authority delegating it; and the concurrence of this department with the
I thers ir usurped powers, might 91'ibvert forever, and beyond the possible
350 Madison' $ Report on the Virginia Resolutions, [1800.
reach of any rightful remedy, the very Constitution which all were insti-
tuted to preserve.
The truth declared in the resolution being established, the expediency
of making the declaration at the present day may safely be left to the tem-
perate consideration and candid judgment of the American public. It
will be remembered, that a frequent recurrence to fundamental principles
is solemnly enjoined by most of the state constitutions, and particularly
by our own, as a necessary safeguard against the danger of degeneracy, to
which republics are liable, as well as other governments, though in a less
degree than others. And a fair comparison of the political doctrines not
unfrequent at the present day, with those which characterized the epoch
of our revolution, and which form the basis of our republican constitu-
tions, will best determine whether the declaratory recurrence here made
to those principles ought to be viewed as unseasonable and improper, or
as a vigilant discharge of an important duty. The authority of constitu-
tions over governments, and of the sovereignty of the people over consti-
tutions, are truths which are at all times necessary to be kept in mind ;
and at no time, perhaps, more necessary than at present.
The fourth resolution stands as follows : —
** That the General Assembly doth also express its deep regret, that a spirit has, in
sundry instances, been manifested by the federal government, to enlarge its powers by
forced constructions of the constitutional charter which defines them ; and that indi-
cations have appeared of a design to expound certain general phrases (which having
been copied from the very limited grant of powers in tlie former Articles of Confeder-
ation, were the less liable to be misconstrued) so as to destroy the meaning and effect
of the particular enumeration which necessarily explains and limits the general
phrases, and so as to consolidate the states, by degrees, into one sovereignty, the obvi-
ous tendency and inevitable result of which would be to transform the present repub-
lican system of the United States into an absolute, or at best a mixed monarchy.'
The first question here to be considered is, whether a spirit has, in sun-
dry instances, been manifested by the federal government to enlarge its
powers by forced constructions of the constitutional charter.
The General Assembly having declared their opinion, merely, by regret-
ting, in general terms, that forced constructions for enlarging the federal
powers have taken place, it does not appear to the committee necessary to
go into a specification of every instance to which the resolution may allude.
The Alien and Sedition Acts, being particularly named in a succeeding
resolution, are of course to be understood as included in the allusion.
Omitting others which have less occupied public attention, or been less
extensively regarded as unconstitutional, the resolution may be presumed
to refer particularly to the bank law, which, from the circumstances of its
passage, as well as the latitude of construction on which it is founded,
strikes the attention with singular force, and the carriage tax, distinguished
also by circumstances in its history having a similar tendency. Thos^
instances alone, if resulting from forced construction, and calculated to
enlarge the powers of the federal government, — as the committee cannot
but conceive to be the case, — sufficiently warrant this part of the resolu-
tion. The committee have not thought it incumbent on them to extend
their attention to laws which have been objected to rather as varying the
constitutional distribution of powers in the federal government, than as an
aosolute enlargement of them; because instances of this sort, however
important in their principles and tendencies, do not appear to fall strictly
within the text under view.
The other questions presenting themselves are, ^ Whether indication^
i800.] Madison* $ Report on the Virginia Resoluiiatu. 551
have nppeared of a design to expound certain general phrases, copiird
from the ** Articles of Confederation," so as to destroy the effect of thn
particular enumeration explaining and limiting their meaning ; 2. Whether
this exposition would, by degrees, consolidate the states into one so»
ereignty ; 3. Whether the tendency and result of this consolidation
would be to transform the republican system of the United States into
a monarchy.
1. The general phrases here meant mast be those *' of providing for the
common defence and general welfare."
In the *' Articles of Confederation/' the phrases are used as follows, in
Art. VIII. : ** All charges of war, and all other expenses that :»hairbe in-
curreJ for the common defence and general welfare, and allowed by the
United States in Congress assembled, shall be defrayed out of a common
treasury, which shall be supplied by the several states, in proportion to
the value of all land within each state, granted to or surveyed for any
person, as such land, and the buildings and improvements thereon, shall be
estimated, according to such mode as the United States in Congress
aitsembled sh ill, from time to time, direct and appoint."
In the existing Constitution, they make the following part of sect. 8 :
"The Congress shall have power to lay and collect taxes, duties, imposts,
and excises ; to pay the debts, and provide for the common defence and
genera] welfare, of the United States."
This similarity in the use of these phrases, in the two great federal
charters, might well be considered as rendering their meaning less liable to
be misconstrued in the latter ; because it will scarcely be said, that in the
former they were ever understood to be either a general grant of power,
or to authorize the requisition or application of money, by the old Congress,
to the common defence and general welfare, except in cases aAerwards
enumerated, which explained and limited their meaning; and if such was
the limited meaning attached to these phrases in the very instrument
revised and remodelled by the present Constitution, it can never be sup-
posed that, when copied into this Constitution, a different meaning ought
to be attached to them.
That, notwithstanding this remarkable security against misconstruction,
a design has been indicated to expound these phrases, in the Constitution,
so as to destroy the effect of the particular enumeration of powers by
which it explains and limits them, must have fallen under the observa-
tion of those who have attended to the course of public transactions.
Not to multiply proofs on this subject, it will suffice to refer to the debates
of the federal legislature, in which arguments have, on different occasions,
been drawn, with app-irent effect, from these phrases, in their indefinite
meaning.
To these indications might be added, without looking farther, the officia
report on manufacutures by the fate secretary of the treasury, made on the
5th of December, 1791, and the report of a committee of Congress, in
January, 1797, on the promotion of agriculture. In the first of these it is
expressly contended to belong ** to the discretion of the national legis-
ature to pronounce upon the objects which concern the general welfare,
and for which, under that description, an appropriation of money is requi-
site and proper. And there seems to be no room for a doubt, that what-
ever concerns the general interests of learning, of agriculture, of manu-
Mctures, and of commerce, is within the sphere of national councils as far
MB regards an application of money." The latter report assumes the same
562 Madison^ s Report on the Virginia Resolution. [1800.
latitude of power in the national councils, and applies it to the encourage-
ment of agriculture, by means of a society to be established at the scat of
government. Although neither of these reports may have received the
sanction of a law carrying it into effect, yet, on the other hand, the
extraordinary doctrine contained in both has passed without the slightest
positive mark of disapprobation from the authority to which it was
addressed.
Now, whether the phrases in question be construed to authorize every
measure relating to the common defence and general welfare, as con-
tended by some, or every measure only in which there might be an appli-
cation 'of money, as suggested by the caution of others, — the effect must
substantially be the same, in destroying the import and force of the par-
ticular enumeration of powers which follows these general phrases in the
Constitution; for it is evident that there is not a single power whatever
which may not have some reference to the common defence or the gen-
eral welfare; nor a power of any magnitude which, in its exercise, does
not involve, or admit, an application of money. The government, therefore,
which possesses power in either one or other of these extents, is a govern-
ment without the limitations formed by a particular enumeration of powers;
and, consequently, the meaning and effect of this particular enumeration is
destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power
over the ** general welfare," by referring it to cases where the general
welfare is beyond the reach of the separate provisions by the individual
states, and leaving to these their jurisdiction in cases to which their sep-
arate provisions may be competent; for, as the authority of the individual
states must in all cases be incompetent to general regulations operating
through the whole, the authority of^the United States would be extended to
every object relating to the general welfare, which might, by any possi-
bility, be provided for by the general authority. This qualifying cc»n-
struction, therefore, would have little, if any, tendency to circumscribe
the power claimed under the latitude of the term •* general welfare."
The true and fair construction of this expression, both in the original
and existing federal compacts, appears to the committee too obvious to be
mistaken. In both, the Congress is authorized to provide money for the
common defence and general welfare. In both is subjoined to this author-
ity an enumeration of the cases to which their powers shall extend. Money
cannot be applied to the general welfare, otherwise than by an application
of it to some particular measure, conducive to the general welfare. When-
ever, therefore, money has been raised by the general authority, and is to
be applied to a particular measure, a question arises whether the particular
measure be within the enumerated authorities vested in Congress. If it
be, the money requisite for it may be applied to it. If it be not, no such
application can be made. This t'air and obvious interpretation coincides
with, and is enforced by, the clause in the Constitution which declare.**
♦hat " no money shall be drawn from the treasury but in consequence of
appropriations made by law." An appropriation of money to the general
A^elfare would be deemed rather a mockery than an observance of this
constitutional injunction.
2. Whether the exposition of the general phrases here combated would
not, by degrees, consolidate the states into one sovereignty, is a question
concern ine which the committee can perceive little room for difference of
opinion. To consolidate the states into one sovereign**' nothmg more
1800.] Madison's Report on the Virginia Resolutions. 563
can tie wanted than to supersede their respective sovereignties, in tlie
cases reserved to them, by extending the sovereignty of the United States
to all cases of the *' general welfare" — that is to say, to all cases what-
ever.
3. That the obvious tendency, and inevitable result, of a consolidation ot
the states into one sovereignty, would be to transform the republican sys-
tem of the United States into a monarchy, is a point which seems to have
been sufficiently decided by the general sentiment of America. In al-
most every instance of discussion relating to the consolidation in question,
its certain tendency to pave the way to monarchy seems not to have been
contested. The prospect of such a consolidation has formed the only
topic of controversy. It would be unnecessary, therefore, for ihe commit-
tee to dwell long on the reasons which support the position of the General
Assembly. It may not be improper, however, to remark two consequences,
evidendy flowing from an extension of the federal power to every subject
falling within the idea of the '* general welfare."
One consequence must be, to enlarge the sphere of discretion allotted to
the executive magistrate. Even within the legislative limits properly de-
fined by the Constitution, the difficulty of accommodating legal regulations
to a country so great in extent, and so various in its circumstances, had
been much felt, and has led to occasional investments of power in the ex-
ecutive, which involve perhaps as large a portion of discretion as can be
deemed consistent with the nature of the executive trust. In proportion
as the objects of legislative care might be multiplied, would the time al-
lowed for each be diminished, and the difficulty of providing uniform and
particular regulations for all be increased. From these sources would
necessarily ensue a greater latitude to the agency of that department which
is always in existence, and which could best mould regulations of a gen-
era] nature, so as to suit them to the diversity of particular situations.
And it is in this latitude, as a supplement to the deficiency of the laws,
that the degree of executive prerogative materially consists.
The other consequence would be, that of an excessive augmentation of
tlie offices, honors, and emoluments, depending on the executive will.
Add to the present legitimate stock all those, of every description, which a
consolidation of the states would take from them, and turn over to the fed-
eral government, and the patronage of the executive would necessarily be
as much swelled, in this case, as its prerogative would be in the other.
This disproportionate increase of prernaative and patronage must evi-
dently either enable the chief magistrate of the Union, by quiet means, to
secure his reelection from time to time, and finally to regulate the succes-
sion as he might please; or, by giving so transcendent an importance to
the office, would render the election to it so violent and corrupt, that the
public voice itself misjht call for an hereditarv in place of an elective suc-
cession. Whichever of these events niicrht follow, the tratisformation of
the republican system of the United Stitps into a mrfinrchy. anticipited
by the General Assenihlv frotn a consr>lid ition r>f the stntes into one sov-
ereignty, would be equally accomplished ; niid whether it would be into a
mixed or an absolute monirchv, miirht depend on too many contingencies
to admit of any certain forosicrht.
The resolution next in order is contained in the following terms: —
**That the General As'^-nbly doth particularly prot»»8t nirainst the palpable and
Jiarmin^ infractions of ^he C'^nstitulion, in the two late cases of the ' Allen and Se«
dftkm Aetfl,' psssed at the last session of Congress ; the first of which ejtereiwfl i
VOL. IV. 70 47
ri64 Madison's R^ort an the Virginia Resokiimu. [180IK.
power nowhere delegated to the federal gor^rnment ; and which, by uniting legislative
and judicial powers to those of the executive, subverts the general principles of free
govern iiient, as well as the particular organization and pOHilive provisions of the Feder-
al Constitution ; and the other of which acts exercises, in like manner, a power not
dclt'giited by the Constitution, but, on the contrary, expressly and positively forbidden
by one of tJie amendments thereto — a power which, more than any other, onght to
produce universal alarm, because it is levelled against the right of freely examining
public characters and measures, and of free communication among the people thereon,
which has ever been justly deemed tlie only effectual guardian ot every other right/'
The subject of tliis resolution having, it is presumed, more particularly
led the General Assembly into the proceedings which they communicated
to the other states, and being in itself of peculiar importance, it deserves
the most critical and faithful investigation; for the length of which uo
apology will be necessary.
The subject divides itself into, —
First, the " Alien Act."
Secondly, the " Sedition Act"
Of the ** Alien Act," it is afHrmed by the resolution — 1. That it exer-
cises a power nowhere delegated to the federal government; 2. That it
unites legislative and judicial powers to those of the executive; 3. That
this union of powers subverts the general principles of free government;
4. That it subverts the particular organization and positive provisions of
the Federal Constitution.
In order to clear the way for a correct view of the first position, severaJ
observations will be premised.
In the first place, it is to be borne in mind, that, it being a characteris-
tic feature of the Federal Constitution, as it was originally ratified, and an
amendment thereto having precisely declared, *' that the powers not dele-
gated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people," it is in-
cumbent in this, as in every other exercise of power by the federal govr
ernment, to prove, from the Constitution, that it grants the particular
power exercised.
The next observation to be made is, that much confusion and fallacy
have been thrown into the question, by blending the two cases of aliens^
members of a hostile nation; and aliens ^ members of friendly nations.
These two cases are so obviously and so essentially distinct, that it occasions
no little surprise that the distinction should have been 'disregarded - and the
surprise is so much the greater, as it appears that the two cases are .'actually
distinguished by two separate acts of Congress, passed at the same f^ossion,
and comprised in the same publication ; the one providing for the c;\ve of
"alien enemies;" the other " concerning aliens" indiscriminately and
consequently extending to aliens of every nation in peace and amity
with the United States. With respect to alien enemies, no doubt has been
intimated as to the federal authority over them ; the Constitution having
expressly delegated to Congress the power to declare war against any na-
tion, and of course to treat it anrl all its members as enemies. With
respect to aliens who are not enemies, but members of nations in peace
and amity with the United States, the power assumed by the act of
('Onjjress is denied to be constitutional ; and it is accordingly against this
act that the protest of the General Assembly is expressly and exclusively
directed.
A third observation is that, were it admitted, as is contended tha* the
" act concerning aliens" has for its object, not apena/, but a/r«.V5^.*tr^
tSQO.] Modium Report on tkt Virginia Resolutioas. 656
juiitice, it would still remain to be proved that it comes within the consti-
tutional power of the federal legislature ; and, if within its power, that the
legislature has exercised it in a constitutional manner.
In the administration of preventive justice, the following principles have
been held sacred: that some probable ground of suspicion be exhibited
bef ire same judicial authority ; that it be supported by oath or aihrmation ;
ttiai the party m ly avoid being thrown into confinement, by finding pledges
or sureties fur his legal conduct sufficient in the judgment of some judicial
authority ; that he may have the benefit of a writ of habeas corpus, and
tiius ikbtain his release if wrongfully confined ; and that he jnay at any time
be discharged from his recognizance, or his confinement, aud restored to
his former liberty and rights, on the order of the proper judicial authority,
if ii shall see sufficient cause.
All these principles of the only preventive justice known to American
jurisprudence are violated by the Alien Act. The ground of suspicion is
to be judged of, not by any judicial authority, but by the executive magis-
trate alone. No oath or affirmation is required. If the suspicion be held
reasonable by the President, he may order the suspected alien to depart
from the territory of the United States, without the opportunity of avoiding
the sentence by finding pledges for his future good conduct. As the Pres-
ident may limit the time of departure as he pleases, the benefit of the writ
of habeas corpus may be suspended with respect to the party, although the
Constitution ordains that it shall not be suspended unless when the pub-
lic safety may require it, in case of rebellion or invasion, — neither of which
existed at the passage of the act ; and the party being, under the sentence
of the President, either removed from the United States, or being pun-
ished by imprisonment, or disqualification ever to become a citizen, on
conviction of not obeying the order of removal, he cannot be discharged
from the proceedings against him, and restored to the benefits of his former
situation, although the highest judicial authority should see the most
sufficient cause for it.
But, in the last place, it can never be admitted that the removal of
aliens, authorized by the act, is to be considered, not as punishment for
an oflfence, but as a measure of precaution and prevention. If the banish-
ment of an alien from a country into which he has been invited as the
asylum most auspicious to his happiness, — a country where he may have
formed the most tender connections ; where he may have invested his entire
property, and acquired property of the real and permanent, as well as the
movable and temporary kind ; where he enjoys, under the laws, a greater
share of the blessings of personal security, and personal liberty, than he
can elsewhere hope for ; and where he may have nearly completed his
probationary title to citizenship; if, moreover, in the execution of the sen-
tence against him, he is to be exposed, not only to the ordinary dan-
(rers of the sea, but to the peculiar casualties incident to a crisis of war
and of unusual licentiousness on that element, and possibly to vindictive
nirposes, which his emigration itself may have provoked; — if a banish-
ment of this sort be not a punishment, and among the severest of punish-
ments, it will be difficult to imagine a doom to which the name can be
applied. And if it be a punishment, it will remain to be inquired, whether
It can be constitutionally inflicted, on mere suspicion, by the single will
of the executive macristrate, on persons convicted of no personal offence
against the laws of the land, nor involved in any offence against the
Uw of nations, charged on the foreign state of which they are members
556 Madison^ s Report on the Virginia Resolutions, [1@00.
One argument offered in justification of this power exercised over aliens
18, tliat the admission of them into the country being of favor, not of right,
ihe fa\«r is at alJ times revocable.
To fhis argument it might be answered, that, allowing the truth of the
inference, it would be no proof of what is required. A question woiild
still occur, whether the Constitution had vested the discretionary powei
of admitting aliens in the federal government or in the state govern-
ments.
But it cannot be a true inference, that, because the admission of an
alien is a favor, the favor may be revoked at pleasure. A grant of land
to an individual may be of favor, not of right ; but the moment the grant
is made, the favor becomes a right, and must be forfeited before it can bp
taken away. To pardon a malefactor may be a favor, but the pardon is
not, on that account, the less irrevocable. To admit an alien to natu-
ralization, is as much a favor as to admit him to reside in the country;
yet it cannot be pretended that a person naturalized can be deprived of
the benefits, any more than a native citizen can be disfranchised.
Again, it is said that, aliens not being parties to the Constitution,
the rights and privileges which it secures cannot be at all claimed by
them
To this reasoning, also, it might be answered that, although aliens
are not parties to the Constitution, it does not follow that the Constitution
has vested in Congress an absolute power over them. The parties to the
Constitution may have granted, or retained, or modified, the power over
aliens, without regard to that particular consideration.
But a more direct reply is, that it does not follow, because aliens are
not parties to the Constitution, as citizens are parties to it, that, whilst
they actually conform to it, they have no right to its protection. Aliens
are not more parties to the laws than they are parties to the Constitution ;
yet it will not be disputed that, as they owe, on one hand, a temporary
obedience, they are entitled, in return, to their protection and advantage.
If aliens had no rights under the Constitution, they might not only be
banished, but even capitally punished, without a jury or the other incidents
to a fair trial. But so far has a contrary principle been carried, in every
part of the United States, that, except on charges of treason, an alien has,
besides all the common privileges, the special one of being tried by a jury,
of which one half may be also aliens.
It is said, further, that, by the law and practice of nations, aliens may
be removed, at discretion, for offences against the law of nations ; that
Congress are authorized to define and punish such offences ; and that to
be dangerous to the peace of society is, in aliens, one of those offences.
The distinction between alien enemies and alien friends is a clear and
conclusive answer to this argument. Alien enemies are under the law of
nations, and liable to be punished for offences against it. Alien friends,
except in the single case of public ministers, are under the municipal law,
and must be tried and punished according to that law only.
This argument also, by referring the alien act to the power of Congress
to define and punish offences against the law of nations, yields the point
that the act is of a pcnaU not merely of a preventive operation. It must,
in truth, be so considered. And if it be a penal act, the punishment it
inflicts must be justified by some offence that deserves it.
Offences for which aliens, within the urisdiction of a country, are pun-
ishable, are — first, offences committed ly the nation of which they make
1800.] Madison! s Report on ike Virginia Resolutions. 557
a part, and in whose offences they are involved ; secondly, offences com-
raitted bj themselves alone, without any charge againstt the nation to
which they belong. The first is the case of alien enemies ; the second,
the case of alien friends. In the first case, the offending nation can no
otherwise be punished than by war, one of the laws of which authorizes
the expulsion of such of its members as may be found within the country
against which the offence has been committed. In the second case, —
the offence being committed by the individual, not by his nation, and
against the municipal law, not against the law of nations, — the individ-
ual only, and not the nation, is punishable; and the punishment must be
conducted according to the municipal law, not according to the law of na-
tions. Under this view of the subject, the act of Congress for the removal
of alien enemies, being conformable to the law of nations, is justified by
the Constitution ; and the " act" for the removal of alien friends, being
repugnant to the constitutional principles of municipal law, is unjustifiable.
Nor is the act of Congress for the removal of alien friends more agree-
able to the general practice of nations than it is within the purview of
the law of nations. The general practice of nations distinguishes between
alien friends and alien enemies. The latter it has proceeded ag^ainst, ac-
cording to the law of nations, by expelling them as enemies. The former
it has considered as under a local and temporary allegiance, and entitled
to a correspondent protection. If contrary instances are to be found in
barbarous countries, under undefined prerogatives, or amid revolutionary
dangers, they will not be deemed fit precedents for the government of the
United States, even if not beyond its constitutional authority.
It is said that Congress may grant letters of marque and reprisal ; that
reprisals may be made on persons as well as property ; and that the re-
moval of aliens may be considered as the exercise, in an inferior degree,
of the general power of reprisal on persons.
Without entering minutely into a question that does not seem to require
it, it may be remarked that reprisal is a seizure of foreign persons or prop-
erty, with a view to obtain that justice for injuries done by one state, or
its members, to another state, or its members, for which a refusal of the
aggressors requires such a resort to force, under the law of nations. It
must be considered as an abuse of words, to call the removal of persons
from a country^ a seizure, or a reprisal on them ; nor is the distinction to
be overlooked between reprisals on persons within the country, and under
the faith of its laws, and on persons out of the country. But, laying aside
these considerations, it is evidently impossible to bring the alien act with-
in the power of granting reprisals ; since it does not allege or imply any
injury received from any particular nation, for which this proceeding
against its members was intended as a reparation.
The proceeding is authorized against aliens of every nation; of nations
charged neither with any similar proceedings against American citizens,
nor with any injuries for which justice might be sought, in the mode pre-
set ibed by the act. Were it true, therefore, that good causes existed for
reprisals against one or more foreign nations, and that neither the persons
nor property of its members, under the faith of our laws, could plead an
exemption, the operation of the act ought to have been limited to the
aliens among us belonging to such nations. To license reprisals against
all nations, for aggressions charged on one only, would be a measure m
contrary to every principle of justice and public law, as to a wise policv
and the aniversal practice of nations.
558 Madisoji's Report on the Virginia Resolutions, [180(1
It is Hr id that the right of removing aliens is an incident to the power
of war, \osted in Congress by the Constitution.
This is a former argument in a new shape only, and is answered by
repeating, that the removal of alien enemies is an incident to the power
of war ; that the removal of alien friends is not an incident to the power
of war.
It is said that Congress are, by the Constitution, to protect each state
against invasion; and that the means o^ preventing invasion are included
m the power of protection against it.
The power of war, in general, having been before granted by the Con-
stitution, this clause must either be a mere specification for greater cau-
tion and certainty, of which there are other examples in the instrument,
or be the injunction of a duty, superadded to a grant of the power. Un-
der either explanation, it cannot enlarge the powers of Congress on the
subject. The power and the duty to protect each state against an inva-
ding enemy would be the same under the general power, if this regard to
the greater caution had been omitted.
Invasion is an operation of war. To protect against invasion is an
exercise of the power of war. A power, therefore, not incident to war,
cannot be incident to a particular modification of war ; and as the removal
of alien friends has appeared to be no incident to a general state of war,
it cannot be incident to a partial state, or a particular modification of war.
Nor can it ever be granted, that a power to act on a case, when it actu-
ally occurs, includes a power over all the means that may tend to prwent
the occurrence of the case. Such a latitude of construction would render
unavailing every practical definition of particular and limited powers.
Under the idea of preventing war in general, as well as invasion in particu-
lar, not only an indiscriminate removal of all aliens might be enforced,
but a thousand other things, still more remote from the operations and
proc'iulions appurtenant to war, might take place. A bigoted or tyran-
nical nation might threaten us with war, unless certain religious or
political regulations were adopted by us; yet it never could be inferred,
if the re^Tulations which would prevent war were such as Congress had
otherwise no power to make, that the power to make them would grow out
of the purpose they were to answer. Congress have power to suppress
insurrections; yet it would not be allowed to follow, that they might em-
ploy all the means tending to prevent them; of which a system of moral
instruction for the ignorant, and of provident support for the poor, might
be regarded as among the most efficacious.
One argument for the power of the general government to remove
aliens would have been passed in silence, if it had appeared under any
authority inferior to that of a report made, during the last session of Con-
gress, to the House of Representatives, by a committee, and approved by the
house. 'I'he doctrine on which this argument is founded is of so new and so
extraordinary a character, and strikes so radically at the political system
of America, that it is proper to state it in the very words of the report
** The act (concerninor aliens) is said to be unconstitutional, because to
remove aliens is a direct breach of the Constitution, which provides, by the
9th section of the 1st article, that the migration or importation of such
persons as any of the states shall think proper to admit, shall not be pro-
hibited by the Congress prior to the year 1808."
Among the answers given to this objection to the constitutionality of
the act, the following very remarkable ore is extracted : —
1830 ^ Madison^ 8 Report on the Virginia ResobUiams. 559
** Thirdly. That, as the Constitution has given to the states no power
o remove a tens, daring the period of the limitation under consideration,
in the mean time, on the construction assumed, there would be no author-
ity in the country empowered to send away dangerous aliens; which
cannot be admitted."
The reasoning here used would not, in any view, be conclusive; be-
cause there are powers exercised by most other governments, which, in
the United States, are withheld by the people both from the general gov-
ernment and from the state governments. Of this sort are many of the
P')wers prohibited by the declarations of rights prefixed to the constitu-
tions, or by the clauses, in the constitutions, in the nature of such decla-
rations. Nay, so far is the political system of the United States dis-
tinguishable from that of other countries, by the caution with which
powers are deleg?ited and defined, that, in one very important case, even
of commercial regulation and revenue, the power is absolutely locked up
against the hands of both governments. A tax on exports can be laid by
no constitutional authority whatever. Under a system thus peculiarly
guarded, there could surely be no absurdity in supposing that alien friends
— who, if guilty of treasonable machinations, may be punished, or, if*
suspected on probable grounds, may be secured by pledges or imprison*
ment, in like manner with permanent citizens — were never meant to be
flobjected to banishment by an arbitrary and unusual process, either under
the one government or the other.
But it is not the inconclusiveness of the general reasoning, in this
passage, which chiefly calls the attention to it. It is the principle assumed
by it, that the powers held by the states are given to them by the Ccmsti-
tution of the United States; and the inference frotn this principle, that
the powers supposed to be necessary, which are not so given to the state
governments, must reside in this government of the United States.
The respect which is felt for every portion of the constituted au-
thorities forbids some of the reflections which this sincjul ir paragraph
might excite; and they are the more readily suppressed, as it may be
presumed, with justice perhaps as well as candor, that inadvertence may
hive had its share in the error. It would be unjustifiable delicacy, never-
theless, to pass by so portentous a claim, proceeding from so high an au-
thority, without a monitory notice of the fatal tendencies with which it
would be pregnant.
Lastly, it is said thit a law on the same subject with the alien act,
passed by this state originally in 1785, and reenacted in 1792, is a proof
that a summary removal of suspected aliens was not heretofore regarded,
by the Virginia legislature, as liable to the objections now urged against
.<fach a measure.
This chirge against Virginia vanishes before the simple remark, that
the law of Virginia relates to ** suspicious persons, being the subjects of
any foreijjn power or state who shall h ive made a declaration of war, or
HCintiWy rommenced hostilities, or from whom the President shall apprehend
hostile dsi^ns; " whereas the act of Congress relates to aliens, being the
subjects of foreign powers and states, who have neither declared war, nor
ro'ttmenced hostilities, nor from whom hostile datiorrrs are apprehended.
2. It is next affirmed of the Alien Act, that it unites legislative, judicial,
and executive powers, in the hands of the President.
However difficult it may be to mark, in every case, with clearness and
certamty, the line which divides legislative power from the other dispart-
560 Madison' $ Report on the Virginia Resolutions, [1800.
vnents of power, all will agree that the powers referred to these departments
may be so general and undefined, as to be of a legislative, not of an execu-
tive or judicial nature, and may for that reason be unconstitutional.
Details to a certain degree, are essential to the nature and character of a
iaw; and on criminal subjects, it is proper that details should leave hs
little as possible to the discretion of those who are to apply and execute
the law. If nothing more were required, in exercising a legislative trust,
than a general conveyance of authority — without laying down any precise
rules by which the authority conveyed should be carried into effect — it
would follow that the whole power of legislation might be transferred by
the legi.slature from itself, and proclamations might become substitutes f«»r
law. A delegation of power in this latitude would not be denied to be a
union of the different powers.
To determine, then, whether the appropriate powers of the distinct
departments are united by the act authorizing the executive to remove
aliens, it must be inquired whether it contains such details, definitions, and
rules, as appertain to the true character of a law; especially a law by
which personal liberty is invaded, property deprived of its value to the
owner, and life itself indirectly exposed to danger.
The Alien Act declares *' that it shall be lawful for the President to
order all such aliens as he shall judge dangerous to the peace and safety
of the United States, or shall have reasonable ground to suspect are coi>>
cerned in any treasonable or secret machinations against the government
thereof, to depart," &,c.
Could a power be well given in terms less definite, less particular, and
less precise? To be dangerous to the public safety — to be suspected of
secret machination against the government ; these can never be mistaken
for legal rules or certain definitions. They leave every thing to the Pres-
ident. His will is the law.
But it is not a legislative power only that is given to the President. He
is to stand in the place of the judiciary also. His suspicion is the only
evidence which is to convict ; his order, the only judgment which is to
be executed.
Thus it is the President whose will is to daeisn ate the offensive conduct :
it is his will that is to ascertain the individuals on whom it is charged ; and
it is his will that is to cause the sentence to be executed. It is rightly
afiirmed, therefore, that the act unites legislative and judicial powers to
those of the executive.
3. It is affirmed that this union of power subverts the general prin-
ciple of free government.
It has bocome an axiom in the science of government, that a separation
of the leo^islative, executive, and judicial departments is necessary to the
preservation of public liberty. Nowhere has this axiom been better
understood in theory, or more carefully pursued in practice, than in the
United States.
4. It is affirmed that such a union of power subverts the particular
organization and positive provision of the Federal Constitution.
According to the particular organization of the Constitution, its legis-
lative powers are vesf'd in the Congress, its executive powers in the Pres-
ident, and it« judicial powers m a supreme and inferior tribunals. The
union of any of these powers, and still more of all three, in any one of
these departments, as has been shown to be done by the Alien Act, must,
consequently, subvert the constitutional organization of tbeuk
1800.] Madisan's Report on the Virginia Resolutions. 56 1
That positive provisions, in the Constitution, securing to individuals the
benefits of fair trial, are also violated by the union of powers in the Alien
Actt necessarily results from the two facts, that the act relates to alien
friends, and that alien friends, being under the municipal law only, are
entitled to its protection.
The second object, against which the resolution protests, is the Sedition
Act,
Of this act it is affirmed — I. That it exercises, in like manner, a power
not delegated by the Constitution ; 2. That the power, on the contrary,
IS expressly and positively forbidden by one of the amendments to the
Constitution ; 3. That this is a power which, more than any other, ought
to produce universal alarm^ because it is levelled against that right of
freely examining public characters and measures, and of free communication
thereon, which hris ever been justly deemed the only effectual guardian of
every other right
1. That it exercises a power not delegated by the Constitution.
Here, again, it will be proper to recollect that, the federal government
being composed of powers specifically granted, with reservation of all
others to the states or to the people, the positive authority under which
the Sedition Act could be passed must be produced by those who assert 'ixs
constitutionality. In what part of the Constitution, then, is this authority
to be found ?
Several attempts have been made to answer this question, which will be
examined in their order. The committee will begin with one which has
filled them with equal astonishment and apprehension ; and which, they
cannot but persuade themselves, must have the same effect on all who will
consider it with coolness and impartiality, and with a reverence for our
Constitution, in the true character in which it issued from the sovereign
authority of the people. The committee refer to the doctrine lately
advanced, as a sanction to the Sedition Act, *' that the common or unwritten
law'^ — a law of vast extent and complexity, and embracing almost every
possible subject of legislation, both civil and criminal — makes n part of the
law of these states, in their united and national capacity.
The novelty, and, in the judgment of the committee, the extravagance
of this pretension, would have consigned it to the silence in which they
have pissed by other arguments which an extraordinary zeal for the act
has drawn into the discussion ; but the auspices under which this innova-
tion presents itself have constrained the committee to bestow on it an
attention which other considerations might have forbidden.
In executing the task, it may be of use to look back to the colonial state
of this country prior to the revolution ; to trace the effect of the revolution
which converted the colonies into independent states; to inquire into the
import of the Articles of Confederation, the first instrument by which the
union of the states was regularly established; and, finally, to consult the
Constitution of 1787, which is the oracle that must decide the importiiit
question.
In the state prior to the revolution, it is certain that the common law,
under different limitations, made a part of the colonial codes. But, whether
it be understood that the original colonists brought the law with them, or
made it their law by adoption, it is equally certain that it was the separate
law of each colony within its respective limits, and was unknown to them
as a law pervading and operating through the whole, as one society.
It could not possibly be otherwise. The common law was not the same
VOL. IV. 71
1^62 Madison' i Report on the Virginia Resolutions. [ISUO
in any two of the colonies ; in some, the modifications were materially and
extensively different. There was no common legislature, by which a
common will could be expressed in the form of a law ; nor any common
ina^i!<tracy, by which such a law could be carried into practice. The
will of each colony, alone and separately, had its organs for these pur-
poses
This stage of our political history furnishes no foothold for the patroas
of this new doctrine.
Did, then, the principle or operation of the great event which made the
colonies independent states, imply or introduce the common law, as a law
of the Union ?
The fundamental principle of the revolution.was, that the colonies were
coordinate members with each other, and with Great Britain, of an empire
united by a common executive sovereign, but not united by any conimoa
legislative sovereign. The legislative power was maintained to be as
complete in each American Parliament, as in the British Parliament. And
the royal prerogative was in force, in each colony, by virtue of its ac-
knowledging the king for its executive magistrate, as it was in Great
Britain, by virtue of a like acknowledgment there. A denial of these
principles by Great Britain, and the assertion of them by America, pro-
duced the revolution.
There wis a time, indeed, when an exception to the legislative separa-
tion of the several component and coequal parts of the empire obtained a
degree of acquiescence. The British Parliament was allowed to regulate
the trade with foreign nations, and between the different parts of the em-
pire. This was, however, mere practice without right, and contrary to
the true theory of the Constitution. The convenience of some regula-
tions, in both cases, was apparent; and, as there was no legislature with
power over the whole, nor any constitutional preeminence among the
legislatures of the several parts, it was natural for the legislature of that
particular part which was the eldest and the largest, to assume this function,
and for the others to acquiesce in it. This tacit arrangement was the
less criticised, as the regulations established by the British Parliament
operated in favor of that part of the empire which seemed to bear the prin-
cipal share of the public burdens, and were regarded as an indemnifica-
tion of its advances for the other parts. As long as this regulating power
was confined to the two objects of conveniency and equity, it was not
complained of, nor much inquired into. But no sooner was it perverted
to the selfish views of the party assuming it, than the injured parties began
to feel and to reflect ; and the moment the claim to a direct and indefinite
power was ingrafted on the precedent of the regulating power, the whole
charm was dissolved, and every eye opened to the usurpation. The asser-
tion by Great Britain of a power to make laws for the other members of the
empire, in all cases whatsoever, ended in the discovery that she had a right
to make laws for them in no cases whatsoever.
Such being the groimd of our revolution, no support or color can be
drawn from it for the doctrine that the common law is binding on these
ptates as one society The doctrine, on the contrary, is evidently repug-
nant to the fundamental principle of the revolution.
The Articles of Confederation are the next source of information on
this subject.
In the interval between the commencement of the revolution and the
final ratification of these Articl<38, the nature and extent of the Union «v«s
f800.] Madison* s Report on the Virginia Resolutions 563
determined by the circumstances of the crisis, rather than by any accurate
delineation of the general authority. It will not be alleged that the
** common law*' could have any legitimate birth, as a law of the United
States, during that state of things. If it came, as such, into existence at
all, the charter of confederation must have been its parent.
Here, again, however, its pretensions are absolutely destitute of foundi-
tion. This instrument does not contain a sentence or a syllable that can
be tortured into a countenance of the idea that the parties to it were,
with respect to the objects of the common law, to form one community.
No such law is named, or implied, or alluded to, as being in force, or
as brought into force by that compact. No provision is made by which
*uch a liw could be carried into operation ; whilst, on the other hand,
every such inference or pretext is absolutely precluded by art. 2, which
declares *' th it each state retains its sovereignty, freedom, and independ-
ence, and every power, jurisdiction, and right, which is not by thiy
Confederation expressly delegated to the United States in Congress
assembled."
Thus far it appears that not a vestige of this extraordinary doctrine can
be found in the origin or progress of American institutions. The evidence
against it has, on the contrary, grown stronger at every step, till it has
amounted to a formal and positive exclusion, by written articles of com-
pact among the parties concerned.
\i this exclusion revoked, and the common law introduced as national
law, 'by the present Constitution of the United States? This is the final
question to be examined.
It is readily admitted that particular parts of the common law may have
a sinctifm from the Constitution, so far as they are necessarily compre-
hended in the technical phrases which express the powers delegated to the
fovernment ; and so far, also, as such other parts may be adopted by Con-
gress, as necessary and proper for carrying into execution the powers
expressly delegated. But the question does not relate to either of these
portions of the common law. It relates to the common law beyond these
limitations.
The only part of the Constitution which seems to have been relied on
in this case, is the 2d section of art. 3: — ** The judicial power shall extend
to all cases, in law and equity, arising under this Constitution, the Inws
of the United States, and treaties made, or which shall be made, under
their authority."
It has been asked what cases, distinct from those arisinor under the laws
and treities of the United States, can arise under the Constitution, other
thin those arising under the common law; and it is inferred that the com-
ro'in 1 iw is, accordingly, adopted or recognized by the Constitution.
Never, perh ips, was so broad a construction applied to a text so cleirly
unsusceptible of ii. If any color for the inference could be found, it must
b^ in the impossibility of finding any other cases, in law and equity,
within the provisions of the Constitution, to satisfy the expression ; and
rather than resort to a construction affecting so essentially the whole char-
icierof the government, it would perhips be more rational to consider the
expression as a mere pleonasm or inadvertence. But it is not necessary to
decide on such a dilemma. The expression is fully satisfied, and its ac-
•^uncy justified, by two descriptions of cases, to which the judicial author-
Ky is extended, and neither of^ which implies that the common law is the
law of the United States. One of these descriptions comprehends the
56 \ Madison* s Report on the Virginia Resolutions, [1800
cases growing out of the restrictions on the legislative power of the states.
For example, it is provided that ** no state shall emit bills of credit," or
*' make any thing but gold and silver coin a tender for the payment of
debts." Should this prohibition be violated, and a suit between citizens
of the same state be the consequence, this would be a case arising undei
the Constitution before the judicial power of the United States. A second
description comprehends suits between citizens and foreigners, of citizens
of different states, to be decided according to the state or foreign laws, but
submitted by the Constitution to the judicial power of the United States ;
the judicial power being, in several instances, extended beyond the legis-
lative power of the United States.
To this explanation of the text, the following observations may be
added : —
The expression ** cases in law and equity " is manifestly confined to
cases of a civil nature, and would exclude cases of criminal jurisdiction.
Criminal cases in law and equity would be a language unknown to the
law.
The succeeding paragraph in the same section is in harmony with this
construction. It is in these words : '* In ail cases affecting ambassadors,
or other public ministers, and consuls, and those in which a state shall be
a party, the Supreme Court shall have original jurisdiction. In all the
other cases, [including cases of law and equity arising under the Constitu*
tion,1 the Supreme Court shall have a^ipc/Za^e jurisdiction, both as to law
VLTidjactf with such exceptions, and under such regulations, as Congress
shall make."
This paragraph, by expressly giving an appellate jurisdiction, in cases
ot law and equity arising under the Constitution, Xofact^ as well as to law,
clearly excludes criminal cases, where the trial by jury is secured — l>ecause
the fact, in such cases, is not a subject of apped ; and, although the ap-
peal is liable to such exceptions and regulations as Congress may adopt,
yet it is not to be supposed that an exception o{ all criminal cases could be
contemplated, as well because a discretion in Congress to make or omit
the exception would be improper, as because it would have been unneces-
sary. The exception could as easily have been made by the Constitution
itself, as referred to the Congress.
Once more: The amendment last added to the Constitution deserves
attention as throwing light on this subject. '* The judicial power of the
United States shall not be construed to extend to any suit in laio or equity ,
commenced or prosecuted against one of the United States, by citizens of
another state, or by citizens or subjects of any foreign power." As it will
not be pretended that any criminal proceeding could take place against a
state, the terms law or equity must be understood as appropriate to civil,
in exclusion of criminal cases.
From these considerations, it is evident that this part of the Constitu-
tion, even if it could be applied at all to the purpose for which it has been
cited, would not include any cases whatever of a criminal nature, and con-
sequently would not authorize the inference from it, that the judicial
authority extends to offences against the common law, as offences arising
under the Constitution.
It is further to be considered that, even if this part of the Constitution
could be strained into an application to every common-law case, criminal
as well as civil, it could have no effect in justifying the Sedition Act,
which is an act of legislative, and not of judicial power : and it is the
1800.] Madison's Report on the Virginia Resolutions. 565
judicial power only of which the extent is defined in this part of the
Constitution.
There are two passages in the Constitution, in which a description ot*
the law of the United States is found. The first is contained in art. 3,
sect. 3, in the words following : '* This Constitution, the laws of the
United States, and treaties made, or which shall be made, under this
authority.'' The second is contained in the second paragraph of art. 6,
as follows : ** This Constitution, and the Jaws of the United States which
shall be made in pursuance thereof, and all treaties made, or which shall
1)6 made, under the authority of the United States, shall be the supreme
law of t^ie land." The first of these descriptions was meant as a guide to
the judges of the United States ; the second, as a guide to the judges of
the several states. Both of them consist of an enumeration, which was
evidently meant to be precise and complete. If the common law had
been understood to be a law of the United States, it is not possible
to assign a satisfactory reason why it was not expressed in the enumer-
ation.
In aid of these objections, the difficulties and confusion inseparable from
a constructive introduction of the common law would afford powerful
reasons against it.
Is it to be the common law with or without the British statutes?
If without the statutory amendments, the vices of the code would be
in8upp>ortable.
If with these amendments, what period is to be fixed for limiting the
British authority over our laws ?
Is it to be the date of the eldest, or the youngest, of the colonies?
Or are the dates to be thrown together, and a medium deduced ?
Or is our independence to be taken for the date ?
Is, again, regard to be had to the various changes in the common law
made by the local codes of America?
Is regard to be had to such changes subsequent as well as prior to the
establishment of the Constitution?
Is regard to be had to future as well as past changes ?
Is the law to be diflfercnt in every state, as differently modified by its
code ; or are the modifications of any particular state to be applied to all?
And on the latter supposition, which among the state codes forms the
standard ?
Questions of this sort might be multiplied with as much ease as there
would be difficulty in answering them.
These consequences, flowing from the proposed construction, furnish
other objections equally conclusive ; unless the text were peremptory in
its meaning, and consistent with other parts of the instrument.
These consequences may be in relation to the legislative authority of
the United States ; to the executive authority ; to the judicial authority ;
and to the governments of the several states.
If it be understood that the common law is established by the Constitu-
tion, it follows that no part of the law can be altered by the legislature.
Such of the .statutes already pa.ssed as may be repugnant thereto, would be
nullilied ; particularly the Sedition Act itself, which boasts of being
a melioration of the common law ; and the whole code, with all its incon-
gruities, barbarisms, and bloody maxims, would be inviolably saddled on
the good people of the United States.
Should this consequence be rejected, and the common law be held, like
48
56S Mad%*on*8 Report on the Virginia ResoUitimis [180G
Oth(M' laws, liable to revision and alteration by the authority of Congress,
it then follows that the authority of Congress is coextensive with the ob-
jects of common law ; that is to say, with every object of l^islatiou ; for
to every such object does some branch or other of the common law extend.
The authority of Congress would, therefore, be no longer under the limit-
ations marked out in the Constitution. They would be authorized to
legislate in all cases whatsoever.
In the next place, as the President possesses the executive powers of
the Constitution, and is to see that the laws be faithfully executed, his au-
thority also must be coextensive with every branch of the common law
The additions which this would make to his power, though not readily to
be estimated, claim the most serious attention.
This is not all : it will merit the most profound consideration, how far
an indefinite admission of the common law, with a latitude in construing
it equal to the construction by which it is deduced from the Constitution,
might draw afler it the various prerogatives, making part of the unwritten
law of England. The English constitution itself is nothing more than a
composition of unwritten laws and maxims.
In the third place, whether the common law be admitted as of legal or
of constitutional obligation, it would confer on the judicial department a
discretion little short of a legislative power.
On the supposition of its having a constitutional obligation, this power
in the judges would be permanent and irremediable by the legislature. On
the other supposition, the power would not expire until the legislature
should have introduced a full system of statutory provisions. Let it be
observed, too, that, besides all the uncertainties above enumerated, and
which present an immense field for judicial discretion, it would remain
with the same department to decide what parts of the common law would,
and what would not, be properly applicable to the circunibtances of the
^United States.
A discretion of this sort has always been lamented as incongruous and
dangerous, even in the colonial and state courts, although so much nar-
rowed by positive provisions in the local codes on all the principal subjects
embraced by the common law. Under the United States, where so few
laws exist on those subjects, and where so great a lapse of time must hap-
pen before the vast chasm could be supplied, it is manifest that the power
of the judges over the law would, in fact, erect them into legislators, and
that, for a long time, it would be impossible for the citizens to conjecture
either what was, or would be, law.
In the last place, the consequence of admitting the common law as the
law of the United States, on the authority of the individual states, is as
obvious as it would be fatal. As this law relates to every subject of legis-
lation, and would be paramount to the constitutions and laws of the states,
the admission of it would overwhelm the residuary sovereignty of the
states, and, by one constructive operation, new-model the whole political
fabric of the country.
From the review thus taken of the situation of the American colonies
prior to their independence ; of the effect of this event on their situation ;
of the nature and import of the Articles of Confederation ; of the true
meaning of the passage in the existins^ Constitution from which the com-
mon law has been deduced ; of the difficulties and uncertainties incident
to the doctrine ; and of its vast consequences in extending the powers of
the federal government, and in superseding the authorities of the state
1800 ] Madison's Report on the Virginia Resoluticns. 567
governments, — the committee feel the utmost confidence in concluding
that the common law never was, nor bj any fair construction ever can be,
deemed a law for the American people as one community ; and they in-
dulge the strongest expectation that the same conclusion will be finally
drawn by all candid and accurate inquirers into the subject. It is, indeed,
distressing to reflect that it ever should have been made a question, whether
the Constitution, on the whole face of which is seen so much labor to enu-
merate and define the several objects of federal power, could intend to in-
troduce in the lump, in an indirect manner, and by a forced construction
of a few phrases, the vast and multifarious jurisdiction involved in the
common law — a law filling so many ample volumes ; a law overspreading
the entire field of legislation ; and a law thnt would sap the foundation of
the Constitution as a system of limited and specified powers. A severer
reproach could not, in the opinion of the committee, be thrown on the
Constitution, on those who framed, or on those who established it, than
such a supposition would throw on them.
The argument, then, drawn from the common law, on the ground of its
being adopted or recognized by the Constitution, being inapplicable to the
Sedition Act, the committee will proceed to examine the other arguments
which have been founded on the Constitution.
They will waste but little time on the attempt to cover the act by the
preamble to the Constitution, it being contrary to every acknowledged
rule of construction to set up this part of an instrument in opposition to
the plain meaning expressed in the body of the instrument. A preamble
usually contains the general motives or reason for the particular regula-
tions or measures which follow it, and is always understood to be explained
and limited by them. In the present instance, a contrary interpretation
would have the inadmissible effect of rendering nugatory or improper
every part of the Constitution which succeeds the preamble.
The paragraph in art. 1, sect. 8, which contains the power to lay
and collect taxes, dutie.'^, imposts, and excises, to pay the debts, and pro
vide for the common defence and general welfare, having been already
examined, will also require no particular attention in this place. It will
have been seen that, in its fair and consistent meaning, it cannot enlarge
the enumerated powers vested in Congress.
The part of the Constitution which seems most to be recurred to, in
defence of the Sedition Act, is the last clause of the above section,
empowering Congress to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the government of the United States, or in
any department or ofhcer thereof"
The plain import of this clause is, that Congress shall have all the inci-
dental or instrumental powers necessary and proper for carrying into exe-
cution all the express powers, whether they be vested in the government
of the United States, more collectively, or in the several departments or
officers thereof
It is not a grant of new powers to Congress, but merely a declaration,
or the removal of all uncertainty, that the means of carrying into execu-
tion those otherwise granted are included in the grant.
Whenever, therefore, a question arises concerning the constitutionality
of a particular power, the first question is, whether the power be expressed
in the Constitution. If it be, the question is decided. If it be not ex-
pressed, the next inquiry must be, whether it is properly an incident to an
568 Madison^ s Report on the Virginia Resolutions. [1800.
expre»« power, and necessary to its execution. If it be, it may be exer-
cised jy Congress. If it be not, Congress cannot exercise it.
Let the question be asked, then, whether the power over the press, exer-
cised in the Sedition Act, be found among the powers expressly vested
in Congress. This is not pretended.
Is there any express power, for executing which it is a necessary and
proper power ?
The power which has been selected, a.s least remote, in answer to this
question, is that *' of suppressing insurrections ; " which is said to imply a
power to prevent insurrections, by puniithing whatever may lead or tend to
them. But it surely cannot, with the least plausibility, be said, that the
regulation of the press, and punishment of libels, are exercises of a power
to suppress insurrections. The most that could be said would be, that the
punishment of libels, if it had the tendency ascribed to it, might prevent
th^ occasion of passing or executing laws necessary and proper for the
suppression of insurrections.
Has the federal government no power, then, to prevent as well as to pun-
ish resistance to the laws 1
They have the power, which the Constitution deemed most proper, in
their hands for the purpose. The Congress has power, before it happens,
to pass laws for punishing it ; and the executive and judiciary have power
to enforce those laws when it does happen.
It must be recollected by many, and could be shown to the satisfaction
of all, that the construction here put on the terms " necessary and proper "
is precisely the construction which prevailed during the discussions and
ratifications of the Constitution. It may be added, and cannot too often
l>e repeated, that it is a construction absolutely necessary to maintain their
*x>nsistency with the peculiar character of the government, as possessed of
particular and definite powers only, not of the general and indefinite pow-
ers vested in ordinary governments; for, if the power to suppress insur-
rections includes the power to punish libels, or if the power to punish
mcludes a power to prevent, by all the means that may have that tendency,
such is the relation and iniiuence among the most remote subjects of legis-
lation, that a power over a very few would carry with it a power over all.
And it must be wholly immaterial whether' unlimited powers be exercised
under the name of unlimited powers, or be exercised under the name of
unlimited means of carrying into execution limited powers.
This branch of the subject will be closed with a reflection which must
have weight with all, but more especially with those who place peculiar
reliance on the judicial exposition of the C<mstitution, as the bulwark pro-
vided against an undue extension of the legislative power. If it be under-
stood that the powers implied in the specified powers have an immediate
and appropriate relation to them, as means necessary and proper for carry-
ing them into execution, questions on constitutionality of laws passed for
this purpose will be of a nature sufficiently precise and determinate for
judicial cognizance and control. If, on the other hand. Congress are
not limited, in the choice of means, by any such appropriate relation of them
to the specified powers, but may employ all such means as they may deem
fitted to prevent, as well as to punish, crimes subjected to their authority,
(such as may have a tendency only to promote an object for which they ar*
authorized to provide,) every one must perceive that questions relating to
means of this sort must be questions for mere policy and expediency ; iiw
which legislative discretion alone can decide, and from which the judicial
interposition and control are completely excluded.
1830.] Madison^s Report on the Virginia Resolutions, 56P
2. The next point which the resolution requires to be proved is, that
the power over the press, exercised by the Sedition Act, is positively for-
bidden by one of the amendments to the Constitution.
The amendment stands in these words : '* Conorress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech, or of the press, or of iherighf
of the people peiceably to assemble, and to petition the government for a
redress of grievances."
In the attempts to vindicate the Sedition Act, it has been con-
tended, I. That the ** freedom of the press" is to be determined by the
meaning of these terms in the common liw ; 2. That the article supposes
the power over the press to be in Conorress, and prohibits them only from
abridging the freedom allowed to it by the common law.
Although it will be shown, on examining the second of these posi-
tions, that the amendment is a denial to Congress of all power over the
press, it may not be useless to make the following observations on the first
of them : —
It is deemed to be a sound opinion that the Sedition Act, in its defi-
nition of some of the crimes created, is an abridgment of the freedom of
publication, recognized by principles of the common law in England.
The freedom of the press, under the common law, is, in the defences of
the Sedition Act, made to consist in an exemption from all previous
restraint on printed publications, by persons authorized to inspect or pro-
hibit them. It appears to the committee that this idea of the freedom of
the press can never be admitted to be the American idea of it; since a
law inflicting penalties on printed publications would have a similar
effect with a law authorizing a previous restraint on them. It would seem
a mockery to say that no laws should be passed preventing publications
from being made, but that laws might be passed for punishing ihem in case
they should be made.
The essential difference between the British government and the Ameri-
can constitutions will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights
of the people is understood to be confined to the executive magistrate.
The representatives of the people in the legislature are not only exempt
themselves from distrust, but are considered as sufficient guardians of the
rights of their constituents against the danger from the executive. Hence
it is a principle, that the Parliament is unlimited in its power ; or, in their
own language, is omnipotent. Hence, too, all the ramparts for protectmg
the rights of the people, — such as their Magna Charta, their bill of rights,
&.C., — are not reared against the Parliament, but against the royal preroga-
tive. They are merely legislative precautions against executive usurpa-
tion. Under such a government as this, an exemption of the press from
previous restraint by licensers appointed by the king, is all the freedom
that can be secured to it.
In the United States, the case is altogether different. The people, not
the government, possess the absolute sovereignly. The legislature, no less
than the executive, is under limitations of power. Encroachments are
regarded as possible from the one as well as from the other. Hence, in the
United States, the great and essential rights of the people are secured
•gainst legislative as well as executive ambition. They are secured, not
by la<^9 paramount to prerogative, but by constitutions paramount to laws.
Thi* security of the freedom of the press requires that it should be exempt,
VOL. IV. 72
670 MadUon^s Report on the Virginia Resolutions. [1800
not only from previous restraint of the executive, as in Great Britain,
but from logisiative restraint also; and this exemption, to be effectual,
must be an exemption, not only from the previous inspection of licensers,
but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot, in
this point of view, be the standard of its freedom in the United States.
f But there is another view under which it may be necetisary to conhider
this subject It may be alleged that, although the security for the freedom
of the press be different in Great Britain and in this country, — being a
legal security only in the former, and a constitutional security in the lat
ter, — and although there may be a further difference, in an extension of
the freedom of the press, here, beyond an exemption from previous re-
straint, to an exemption from subsequent penalties also, — yet the actual
legal freedom of the press, under the common law, must determine the
degree of freedom which is meant by the terms, and which is constitution-
ally secured against both previous and subsequent restraints.
The committee are not unaware of the difficulty of all general questions,
which may turn on the proper boundary between the liberty and licentious-
ness of the press. They will leave it, therefore, for consideration only,
how far the difference between the nature of the British government, and
the nature of the American government, and the practice under the latter,
may show the degree of rigor in the former to be inapplicable to, and not
obligatory in, the latter.
The nature of governments elective, limited, and responsible, in all
their branches, may well be supposed to require a greater freedom of
animadversion, than might be tolerated by the genius of such a govern-
ment as that of Great Britain. In the latter, it is a maxim, that the king —
an hereditary, not a responsible magistrate — can do no wrong ; and that
the legislature, which, in two thirds of its composition, is also hereditary,
not responsible, can do what it pleases. In the United States, the execu-
tive magistrates are not held to be infallible, nor the legislatures to be
omnipotent; and both, being elective, are both responsible. Is it not natu-
ral and necessary, under such different circumstances, that a different
degree of freedom in the use of the press should be contemplated?
Is not such an inference favored by what is observable in Great Britain
itself? Notwithstanding the general doctrine of the common law, on the
subject of the press, and the occasional punishment of those who use it
with a freedom offensive to the government, it is well known that, with
respect to the responsible measures of the government, where the reasons
operating here become applicable there, the freedom exercised by the
press, and protected by public opinion, far exceeds the limits proscribed
by the ordinary rules of law. The ministry, who are responsible to im-
peachment, are at all times animadverted on, by the press, with peculiar
freedom ; and during the elections for the House of Commons, the other
responsible part of the government, the press is employed with as little
reserve towards the candidates.
The practice in America must be entitled to much more respect. In
every state, probably, in the Union, the press has exerted a freedom in
canvassing the merits and measures of public men, of every description,
which has not been confined to the strict limits of the common law. Oit
this footing the freedom of the press has stood; on this foundation it yet
stands; and it will not be a breach, either of truth or of candor, to sai*
that no persons or presses are in the habit of more unrestrained animat^
1800.] Madison* s Ri^rt an the Virginia Resolutions. 571
fersions on the proceedings and functionaries of the st^te governments,
than the persons and presses most zealous in vindicating the act of Con*
gress for punishing similar animadversions on the government of thi*
United Stales.
The last remark will not be understood as claiming for the state gov-
ernments an immunity greater than they have heretofore enjoyed. Some
degree of abuse is inseparable from the proper use of every thing ; and in
no instance is this more true than in that of the press. It has accordingly
been decided, by the practice of the states, that it is better to leave a few
of its noxious branches to their luxuriant growth, than, by pruning them
away, to injure the vigor of those yielding the proper fruits. And can the
wisfiom of this policy be doubted by any one who reflects that to the press
alone, checkered as it is with abuses, the world is indebted for all the tri«
amphs which have been gained by reason and humanity over error and
oppression ; who reflects that to the same beneficent source the United
States owe much of the lights which conducted them to the rank of a
free and independent nation and which have improved their political sys-
tem into a shape so auspicious to their happiness ? Had Sedition Acts,
forbidding every publication that might bring the constituted agents into
contempt or disrepute, or that might excite the hatred of the people against
the authors of unjust or pernicious measures, been uniformly enforced
against the press, might not the United States have been languishing, at
this day, under the infirmities of a sickly Confederation ? Might they not.
possibly, be miserable colonies, groaning under a foreign yoke?
To these observations one fact will be added, which demonstrates that
the common law cannot be admitted as the universal expositor of Ameri-
can terms, which may be the same with those contained in that law. The
freedom of conscience, and of religion, is found in the same instrument
which asserts the freedom of the press. It will never be admitted that the
meaning of the former, in the common law of England, is to limit their
meaning in the United States.
Whatever weight may be allowed to these considerations, the cohd-
mittee do not, however, by any means intend to rest the question on them.
They contend that the article of the amendment, instead of supposing in
Congress a power that might be exercised over the press, provided its
freedom was not abridged, meant a positive denial to Congress of any
power whatever on the subject.
To demonstrate that this was the true object of the article, it will be
sufficient to recall the circumstances which led to it, and to refer to the
explanation accompanying the article.
When the Constitution was under the discussions which preceded its
ratification; it is well known that great apprehensions were expressed by
many, lest the omission of some positive exception, from the powers dele-
gated, of certain rights, and of the freedom of the press particularly, might
expose them to danger of being drawn, by construction, within some of the
powers vested in Congress; more especially of the power to make all laws
necessary and proper for carrying their other powers into execution. In
reply to this objection, it was invariably urged to be a fundamental and
characteristic principle of the Constitution, that all powers not given by
't were reserved ; that no powers were given beyond those enumerated in
the Constitution, and such as were fairly incident to them ; that the power
over the rights in question, and particularly over the press, was neither
imong the enumerated powers, nor incident to any of them : and conbe^
572 Madison* s Report on the Virginia Resolutions. [1800.
quenti) tliat (.n exercise of any such power would be manifest usurpation
It is painful to remark how much the arguments now employed in behalf
of the Sedition Act, are at variance with the reasoning which then justified
the Constitution, and invited its ratificntion.
From this posture of the subject resulted the interesting question, in so
many of the conventions, whether the doubts and dangers ascribed to the
Constitution should be removed by any amendments previous to the ratifi-
cation, or be postponed, in confidence that, as far as they might be proper,
they would be introduced in the form provided by the Constitution. The
latter course was adopted ; and in most of the states, ratifications were
followed by the propositions and instructions for rendering the Consti-
tution more explicit, and more safe to the rights not meant to be delegated
by it. Among those rights, the freedom of the press, in most instances,
is particularly and emphatically mentioned. The firm and very pointed
manner in which it is asserted in the proceedings of the Convention of
this state will hereafler be seen.
In pursuance of the wishes thus expressed, the first Congress that
assembled under the Constitution proposed certain amendments, which have
since, by the necessary ratifications, been made a part of it ; among which
amendments is the article containing, among other prohibitions on the
Congress, an express declaration that they should make no law abridging
the freedom of the press.
Without tracing farther the evidence on this subject, it would seem
scarcely possible to doubt that no power whatever over the press was sup-
posed to be delegated by the Constitution, as it originally stood, and that
the amendment was intended as a positive and absolute reservation of it.
But the evidence is still stronger. The proposition of amendments made
by Congress is introduced in the following terms: —
•* The conventions of a number of the states having, at the time of
their adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added ; and as extending the ground of pub-
lic confidence in the government will best insure the beneficent ends of
its institutions."
Here is the most satisfactory and authentic proof that the several amend-
ments proposed were to be considered as either declaratory or restrictive,
and, whether the one or the other, as corresponding with the desire ex-
pressed by a nufnber of the states, and as extending the ground of public
confidence in the government.
Under any other construction of the amendment relating to the press,
than that it declared the press to be wholly exempt from the power of
Confirress, the amendment could neither be said to correspond with the
desire expressed by a number of the states, nor be calculated to extend the
ground of public confidence in the government.
Nay, more; the construction employed to justify the Sedition Act
would exhibit a phenomenon without a parallel in the political world. It
would exhibit a number of respectable states, as denying, first, that any
power over int. press was delegated by the Constitution ; as proposing,
next, that an amendment to it should explicitly declare that no such power
was delegated ; and, finally, as concurring in an amendment actually
recognizing or delegating such a power.
Is, then, the federal government, it will be asked, destitute of every
authority for restraining the licentiousness of the press, and for shielding
1800.] Madison*s Report on the Virginia Resolutions 573
itaeir against the libellous attacks which may be made on those who
administer it?
The Constitution alone can answer this question. If no such power be
expressly delegated, and if it be not both necessary and proper to carry
into execution an express power ; above all, if it be expressly forbidden,
by a declaratory amendment to the Constitution, — the answer must be,
that the federal government is destitute of all such authority.
And might it not be asked, in turn, whether it is not more probable,
jnder all the circumstances which have been reviewed, that the authority
should be withheld by the Constitution, than that it should be led to a vague
and violent construction, whilst so much pains were bestowed in enumer-
ating other powers, and so many less important powers are included in the
enumeration ?
Might it not be likewise asked, whether the anxious circumspection
ivhich dictated so many peculiar limitations on the general authority would
be unlikely to exempt the press altogether from that authority? The
peculiar magnitude of some of the powers necessarily committed to the
federal government; the peculiar duration required for the functions of
some of its departments; the peculiar distance of the seat of its pro-
ceedings from the great body of its constituents ; and the peculiar difliculty
of circulating an adequate knowledge of them through any other chnnnel ;
will not these considerations, some or other of which produced other
exceptions from the powers of ordinary governments, altogether, account
for the policy of binding the hands of the federal government from touch-
ing the channel which alone can give efficacy to its responsibility to its
constituents, and of leaving those who administer it to a remedy, for their
injured reputations, under the same laws, and in the same tribunals, which
protect their lives, their liberties, and their properties ?
But the question does not turn either on the wisdom of the Constitution
GT oii the policy which gave rise to its particular organization. It turns on
the actual meaning of the instrument, by which it has appeared that a
power over the press is clearly excluded from the number of powers
delegated to the federal government.
3. And, in the opinion of the committee, well may it be said, as the
resolution concludes with saying, that the unconstitutional power exercised
over the press by the Sedition Act ought, '* more than any other, to
produce universal alarm ; because it is levelled against that right of freely
examining public characters and measures, and of free communication
among the people thereon, which has ever l>een justly deemed the only
effectual guardian of every other right."
Without scrutinizing minutely into all the provisions of the Sedition
Act, it will be sufficient to cite so much of section 2d as follows: —
'* And be it further enacted, that if any shall write, print, utter, or pub-
lish, or shall cause or procure to be written, printed, utt^^red, or published,
or shall knowingly and willingly assist or aid in writing, printing, uttering,
or publishing, any false, scandalous, and malicious writing or writings
against the government of the United States, or either house of the Con
gress of the United States, with an intent to defame the said government,
or either house of the said Congress, or the President, or to bring them
or either of them into contempt or disrepute, or to excite against them,
or either or any of them, the hatred of the good people of the United
States, &c., — then such persrms, beinor thereof convicted before any
court of the United States having jurisdiction thereof, shall be punished
SUA Madhan's Report on the Virginia Resolutions. [1800
by a fine not exceeding two thousan4 dollars, and by imprisonment not
exceeding two years."
On this part of the act, the following observations present themselves : —
1. The Cunstitation Bupposes that the President, the Confifress, and each oC its
Houses, may not discharge their trusts, either from defect of judgment or other causes.
Hence they are all made responsible to their constituents, at the returning periods of
elections ; and Uie President, who is singly intrusted with very great powers, is, a* a
further guard, subjected to an intermediate impeachment.
2. Should it happen, as the Constitution supposes it may happen, that either of these
branches of the government may not have duly discharged its trust, it is natural and
proper, that, according to the cause and degree of their faults, they should be brought
mto contempt or disrepute, and incur the hatred of the people.
3. Whether it has, in any case, h&pp^ned that the proceedings of either or all of
thoKe branches evince such a violation of duty as to justify a contempt, a disrepute,
or hatred among the people, can only be determined by a free examination thereof,
and a free communication among the people thereon.
4. Whenever it may have actually happened that proceedings of this sort are charge
able on all or eitlier of the branches of the government, it is the duty, as well as uie
right, of intelligent and faithful citizens to discuss and promulgate them freely — as
well to control them by the censorship of the public opinion, as to promote a remedy
according to the rules of the Constitution. And it cannot be avoided that those who
are to apply the remedy must feel, in some degree, a contempt or hatred against the
transgressing party.
5. As the act was passed on July 14, 1798, and is to be in force until March 3, 1801,
it was of course that, during its continuance, two elections of the entire House of
Representatives, an election of a part of the Senate, and an election of a President,
were to take place.
6. That, consequently, during all these elections, — intended, by the Constitution, to
preserve the purity or to purge the faults of the administration, — the great remedial
rights of the people were to be exercised, and the responsibility of their public agents
to be screened, under the penalties of this act.
May it not be asked of every intelligent friend to the liberties of his
country, whether the power exercised in such an act as this ought not
to produce great and universal alarm ? Whether a rigid execution of
such an act, in time past, would not have repressed that information and
communication among the people which is indispensable to the just ex-
ercise of their electoral rights? And whether such an act, if made per-
petual, and enforced with rigor, would not, in time to come, either destroy
our i^ree system of government, or prepare a convulsion that might prove
equally fatal to it 1
In answer to such questions, it has been pleaded that the writings and
publications forbidden by the act are those only which are false and ma-
licious, and intended to defame ; and merit is claimed for the privilege
allowed to authors to justify, by proving the truth of their publications,
and for the limitations to which the sentence of fine and imprisonment
is subjected.
To those who concurred in the act, under the extraordinary belief that
the option lay between the passing of such an act, and leaving in force
the common l.iw of libels, which punishes truth equally with falsehood,
and submits fine and imprisonment to the indefinite discretion of the
court, the merit of good intentions ought surely not to be refused. A
like merit may perhaps be due for the discontinuance of the corporal
punishment, which the common law also leaves to ihe discretion of the
court. This merit of intention, however, would have been greater, if ihe
several mitigations hid not been limited to s » short a period ; and the
apparent inconsistency would have been avoided, between justifying the
act, at one time, by contrasting it with the rigors of the common law
otherwise in force; and at another time, by appealing to the nature of the
crisis as requiring the temporary rigor exerted by the act
1830.] Madison's Report on the Virginia ResobUunu. blo
But, whatever may hive been the meritorious intentions of all or any
who contributed to the Sedition Act, a very few reflections will prove that
Its baleful tendency is little diminished by the privilege of giving in evi*
dence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question,
there is sufficient difficulty in some cases, and sufficient trouble and vex«
ation iu all, in meeting a prosecution from the government with the full
and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds, that
opinions and inferences, and conjectural observations, are not only in
many cases intneparable from the facts, but may oflen be more the objects
of the prosecution than the facts themselves; or may even be Hltogether
abstracted from particular facts; and that opinion, and inferences, and
conjectural observations, cannot be subjects of that kind of proof which
appertains to ficts, before a court of law.
Again : it is no less obvious that the intent lo defame, or brinjj into
contempt, or disrepute, or hatred, — which is made a condition of the of-
fence created by the act, — cannot prevent its pernicious influence on
the free.lom of the press. For, omitting the inquiry, how fur the malice
of the intent is an ififerencc of the law from the mere publication, it is
manifestly impossible to punish the intent to bring those who admin'ster
the government into disrepute or contempt, without striking at the right
of freely discussing public characters and measures; because those who
engage in such discussio:is must expect and intend to excite these unfa-
vorable sentiments, so far as they may be thought to be deserved. To
prohibit th^* intent to excite those unfavorable sentiments against those
who administer the government, is equivalent to a prohibition of the .actual
excitement of them ; and to prohibit the actual excitement of them is
equivalent to a prohibition of discussions hiving that tendency and ef-
fect ; which, again, is equivalent to a protection of those who administer
the government, if they should at any time deserve the contempt or Intred
of the people, against being exposed to it, by free animndversirms on their
characters and cimduct. Nor can there be a doubt, if those in public
tr»Ht be sliielded by penal laws from such strictures of the press as may
expose then to contempt, or disrepute, or hatred, where they may deserve
it, that, in exact proportion as they may deserve to be exposed, will be the
certainty and crnninality of the intent to expose them, and the vigilance
of prosecuting and punishing it ; nor a doubt that a government thus
intrenclied iu penal statutes aorainst the just and natural effects of a
culpable adMiinistration, will easily evade the responsibility which is essen-
tial to a fiithful discharge of its duty.
Let it l)e recollected, lastly, that the right of electing the members o{
the government constitutes more particularly the essence of a free and
respmsible (jnvernment. The value and efficacy of this right depends on
the knowledge of the comparative merits and demerits of the candidates
for public trust, and on the eq'nl freedom, consequently, of examining
and discussing these merits and demerits of the candidates respectively.
ft his been seen that a nunber of important elections will tnke place
while the act is in force, althourrh it should not be continued beyrmd
the term to which it is limited. Should th?re happen, lhf»n, as is extremely
probable in relation to some one or other of the branches of the goverr>-
ment, to be competitions between those who are, and those who are not,
aicmbers of the government, what will be the situations of the competi-
676 Madison* s Report on the Virginia Rr solutions, [1800
tors? Not equal ; because the characters of the former will be covered
by the Sedition Act from animadversions exposing them to disrepute
among the people, whilst the latter may be exposed to the contempt and
hatred of the people without a violation of the act. What will be the
situation of the people ? Not free ; because they will be compelled to
make their election between competitors whose pretensions they are not
permitted by the act equally to examine, to discuss, and to ascertain. And
from both these situations will not those in power derive an undue advan-
tage for continuing themselves in it ; which, by impairing the right of
election, endangers the blessings of the government founded on it ?
It is with justice, therefore, that the General Assembly have affirmed,
in the resolution, as well that the right of freely examining public chai
acters and measures, and of communication thereon, is the only effectual
guardian of every other right, as that this particular right is levelled at
by the power exercised in the Sedition Act.
The resolution next in order is as follows : —
^* That this state having, by its Convention, which ratified the Federal Constitution,
expressly declared that, amon^ other essential rights, * the liberty of conscience and
of the press cannot be cancelled, abridged, restrained, or modified, by any authority
of the United States ;' and, from its extreme anxiety to guard these rights from every
possible attack of sophistry and ambition, having, with other states, recommended an
amendment for that purpose, which amendment was in due time annexed to the Con-
stitution, it would mark a reproachful inconsistency, and criminal de^neracy, if an
indifT'reiice were now shown to the most palpable violation of one of Uie rights Uiua
declared and secured, and to the establishment of a precedent which may be fatal to
the other."
To place this resolution in its just light, it will be necessary to recur
to the act of ratification by Virginia, which stands in the ensuing form : —
" We, the delegates of the people of Virginia, duly elected in pursuance of a recom-
mendation from the General Assembly, ana now met in Convention, having fully and
freely investigated and discussed the proceedings of the Federal Convention, and being
prepared, as well as the most mature deliberation hath enabled us, to decide thereon, —
DO, in the name and in behalf of the people of Virginia, declare and make known,
that the powers granted under the Constitution, being derived from the people of the
United States, may be resumed by them whensoever the same shall be perverted to
their injury or oppression ; and that every power not granted thereby remains with
them, and at their will. That, therefore, no right of any denomination can be can-
celled, abridjrpd, restrained, or modified, by the Congress, by the Senate or the House
of Ropres'^ntatives, acting in any capacity, by the President, or any department or
officer of the United States, except in those instances in which power is given by the
Constitution for those purposes ; and that, among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained, or modified, by
any authority of the United Slates."
Here is an express and solemn declaration by the Convention of the
state, that they ratified the Constitution in the sensethat no right of any
denomination can be cancelled, abridged, restrained, or modified, by the
government of the United States, or any part of it, except in those in-
stances in which power is gi^en by the Constitution ; and in the sense,
particularly, ** that among other essential rights, the liberty of con.science
and freedom of the press cannot be cancelled, abridged, restrained, or
modified, by any authority of the United States."
Words could not well express, in a fuller or more forcible manner, the
understanding of the Convention, that the liberty of conscience and free-
dom of the press were equally and completely exempted from all authority
whatever of the United States.
Under an anxiety to guard more efTectually these rights against every
possible danger, the Convention, afler ratifying the Constitution, proceeded
18C0.] Madison's Report on the Virginia Resolutions. 577
to prefix to certain amendments propoi^ed by them, a dec] ar alien of
rights, in which are two articles providing, the one ibr the liberty of con-
science, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of othei
states ; and Congress, as has been seen, having, in consequence thereof,
aad with a view to extend the ground of public confidence, proposed,
among other declaratory and restrictive clauses, a clause expressly secur-
ing the liberty of conscience and of the press ; and Virginia having con*
curred in the ratifications which made them a part of the Constitution, —
it will remain with a candid public to decide whether it would not mark
an inconsistency and degeneracy, if an indifference were now shown to a
palpable violation of one of those rights — the freedom of the press ; and
lo a precedent, therein, which may be fatal to the other — the free exercise
of religion.
That the precedent established by the violation of the former of these
rights may, as is affirmed by the resolution, be fatal to the latter, appears
to be demonstrable by a comparison of the grounds on which they respec-
tively rest, and from the scope of reasoning by which the power of the
former has been vindicated.
Firtt^ Both of these rights, the liberty of conscience, and of the press, rest equally
oa the original ground oi not being delegated by the Constitution, and consequently
withheld from the goTemraent. Any construction, therefore, that would attack this
original security for the one, must have the like effect on the other.
Seeondlu^ They are both equally secured by the supplement to the Constitution ;
being both included in the same amendment, made at the same time and by the same
authority. Any construction or argument, then, which woald turn the amendment
into a ffrant or acknowledgment of power, with respect to the press, might be equally
applied to the freedom of religion.
Thirdly f If it be admitted that the extent of the freedom of the press, secured by
the amendment, is to be measured by the common law on this subject, the same au-
thority may be resorted to for the standard wliich is to fix the extent of the " free
exercise or religion.** It cannot be necessary to say what this standard would be —
whether tlie common law be taken solely as the unwritten, or as varied by the written
law of England.
Fonrtkly^ If the words and phrases in the amendment are to be considered as chn
sen with a studied discrimination, which yields an argument for a power over the
press, under the limitation that its freedom be not abrid^d, the same argument results
from the same consideration, for a power over the exercise of religion, under the limit
ation that its freedom be not prohibited.
For, if Congress may regulate the freedom of the press, provided they
do not abridge it, because it is said only, '* they shall not abridge it,'' and
is not said " they shall make no law respecting it,'' the analogy of reason-
ing is conclusive, that Congress may regulate, and even abridge^ the free
exercise of religion, provided they do not prohibit it ; because it is said
only, ** they shall not prohibit it ; " and is not said, " they shall make no
law respecting y or no law abridging it."
The General Assembly were governed by the clearest reason, then, in
considering the Sedition Act, which legislates on the freedom of the
press, as establishing a precedent that may be fatal to the liberty of con-
science ; and it will be the duty of all, in proportion as they value the
security of the latter, to take the alarm at every encroachment on the
former.
The two concluding resolutions only remain to be examined. They are
ill the words following: —
•* That the good people of this commonwealth, having ever felt, and continuing Uy
feel, the most sincere affection for their brethren of the other states, the truest anxiety
for establitthing and perpetuating the union of all, and the most scrupaloua fidelity U^
VOL. IV. 73 49
678 Madison's Report on tlu Virginia Resolutions, [ISOO.
that Constitution whicli is the pledge of mutual friendship and the instrument of
mutual happiness, — the General Assembly doth solemnly appeal to the like disposi-
tions in the other states, in confidence that they will concur with this commonwealth
in declaring, as it does hereby declare, that tlie acts aforesaid are unconstitutional ;
and that the necessary and proper measures will be taken, by each, for cooperating
With this state, in maintaining, unimpaired, the authorities, rights, and liberties, re-
FpfVfd to the states resuectively, or to the people.
*' Tliat the governor be desired to transmit a copy of the foregoing resolutions to the
*■ xecutive autiiority of each of the other states, with a request that the same may be
coiniaunicated to Uie legislature thereof; and tliat a copy be furnished to each oi the
sf nator:* and representatives representing this state in the Congress of the United
States."
The fairness and regularity of the course of proceeding here pursued,
have not protected it against objections even from sources too respectable
to be disregarded.
Ii has been said that it belongs to the judiciary of the United Stales,
and not the state legislatures, to declare the meaning of the Federal Con-
stitution.
But a declaration that proceedings of the federal government are noi
warranted by the Constitution, is a novelty neither among the citizens wn
among the legislatures of the states ; nor are the citizens or the legislature
of Virginia singular in the example of it.
Nor can the declarations of either, whether affirming or denying the
constitutionality of measures of the federal government, or whether made
before or after judicial decisions thereon, be deemed, in any point of view,
an assumption of the office of the judge. The declarations in such cases
are expressions of opinion, unaccompanied with any other effect than what
they miy produce on opinion, by exciting reflection. The expositions of
the judiciary, on the other hand, are carried into immediate effect by force.
The former may lead to a change in the legislative expression of the gen-
eral will — possibly to a change in the opinion of the judiciary ; the latter
enforces the general will, whilst that will and that opinion continue
unchanged.
And if there be no impropriety in declaring the unconstitutionality of
proceedings in the federal government, where can there be the impropriety
of communicatinor the declaration to other states, and invitint; their con-
ciirrence in a like declaration ? What is allowable for one, must be allow-
able for all ; and a free communication among the states, where the
Constitution imposes no restraint, is as allowable among the state govern-
ments as among other public bodies or private citizens. This considera-
tii)n derives a weight that cannot be denied to it, from the relation of the
state legislatures to the federal legislature as the immediate constituents
Df one of its branches.
The legislatures of the states have a right also to originate amendments
lo the Constitution, by a concurrence of two thirds of the whole number,
in applications to Congress for the purpose. When new states are to be
formed by a junction of two or more states, or parts of states, the legisla-
tures of the states concerned are, as well as Congress, to concur in the
measure. The states have a right also to enter into agreements or com-
pacts, with the consent of Congress. In all such cases a communication
among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the Consti-
tution, that the neressari/ and proprr measures would be taken by the other
states for cooperating with Virginia in maintaining the lights reserved to
he states, or to the people, be in any degree liable to the objections raised
■gainst it.
IdOO.] Madison's Report on the Virginia Resolutions. 579
If it be liable to objections, it must be because either the object or the
means are objectionable.
The object, being to maintain what the Constitution has ordamed, is iu
itself a laudable object.
The means are expressed in the terms ** the necessary and proper roeas-
nres." A proper object was to be pursued by the means both necessary
and proper.
To find an objection, then, it must be shown that some meaning waa
annexed to these general terms which was not proper ; and, for this pur-
pose, either that the means used by the General Assembly were an exampfe
of improper means, or that there were no proper means to which the terms
could refer.
In the example, given by the state, of declaring the Alien and Sedition
Acts to be unconstitutional, and of communicating the declaration to other
states, no trace of improper means has appeared. And if the other states
had concurred in making a like declaration, supported, too, by the numer-
ous applications flowing immediately from the people, it can scarcely be
doubted that these simple means would have been as suflicient as they are
unexceptionable.
It is no less certain that other means might have been employed which
are strictly within the limits of the Constitution. The legislatures of the
nates might have made a direct representation to Congress, with a view
to obtain a rescinding of the two offensive acts; or they might have repre-
sented to their respective senators in Congress their wish that two thirds
thereof would propose an explanatory amendment to the Constitution; or
two thirds of themselves, if such had been their opinion, might, by an ap-
plication to Congress, have obtained a convention for the same object.
These several means, though not equally eligible in themselves, nor
probably to the states, were all constitutionally open for consideration. And
if the General Assembly, after declaring the two acts to be unconstitu-
tional, (the first and most obvious proceeding on the subject,) did not un-
dertake to point out to the other states a choice among the further measures
that might become necessary and proper, the reserve will not be miscon-
strued by liberal minds into any culpable imputation.
These observations appear to form a satisfactory reply to every objec-
tion which is not founded on a misconception of the terms employed in
the resr^lutions. There is one other, however, which may be of too much
importance not to be added. It cannot be forgotten that, among the argu-
ments addressed to those who apprehended danger to liberty from the
establishment of the general government over so great a country, the ap-
peal was emphatically made to the intermediate existence of the state gov-
ernments between the people and that government, to the vigilance with
which they would descry the first symptoms of usurpation, and to the
promptitude with which they would sound the alarm to the public. This
ariTument was probibly not without its effect; and if it was a proper one
then to recommend the establishment of a constitution, it must be a proper
one now to assist in its interpretation.
The only part of the two concluding resolutions that remains to be no-
ticed, is the repetition, in the first, of that warm affection to the Union and
it'* members, and of that scrupulous fidelity to the Constitution, which
have been invariably felt by the people of this state. As the proceedings
were introduced with these sentiments, they could not be more properly
closed than in the same manner. Should there be any so far misled as tr.
680 TJk Tariff. — South Carolina. [lb3SI
oal] in question the sincerity of these professions, whatever regret may be
excited by the error, the General Assembly cannot descend into a discus^
sion of it. Those who have listened to the suggestion can only be left to
their own recollection of the part which this state has borne in the f^ab-
lishment of our national independence, or the establishment of our national
Constitution, and in maintaining under it the authority and laws of the
Union, without a single exception of internal resistance or commotion.
By recurring to the facts, they will be able to convince themselves that the «
representatives of the people of Virginia must be above the necessity of
opposing any other shield to attacks on their national patriotism, than their *
Qwn conscientiousness, and the justice of an enlightened public; who will
perceive in the resolutions themselves the strongest evidence of attach-
ment both to the Constitution and the Union, since it is only by maintain-
ing the different governments, and the departments within their respective
limits, that the blessings of either can be perpetuated.
The extensive view of the subject, thus taken by the committee, has
led them to report to the house, as the result of the whole^ the following
resolution : —
Resolved, That the General Assembly, having carefully and respectfully
attended to the proceedings of a number of the states, tit answer to the
resolutions of December SI, 1798, and having accurately and fully reexm
amined and reconsidered the latter, Jind it to he their indispensable duty
to adhere to the same, as founded in truth, as consonant with the Consti-
tution, and as conducive to its preservation ; and more especially to be
their duty to renew, as they do hereby renew, their Protest against Alien
and Sedition Acts, as palpable and alarming infractions of the Constitu-
tion.
THE TARIFF. SOUTH CAROLINA. PROTEST.
The Senate and House of Representatives of South Carolina, now met,
and sitting in General Assembly, through the Hon. William Smith and
the Hon. Robert Y. Hayne, their representatives in the Senate of the
United States, do, in the name and on behalf of the good people of th«^
said commonwealth, solemnly PROTEST against the system of pro-
tecting duties, lately adopted by the federal government, for the
followmg reasons : —
Ist. Because the good people of this commonwealth believe that the
powers of Congress were delegated to it in trust for the accomplishment
of certain specified objects which limit and control them, and that every
exercise of them for any other purposes, is a violation of the Constitution
as unwarrantable as the undi:»guised assumption of substantive, independ-
ent powers not granted or expressly withheld.
2d. Because the power to lay duties on imports is, and in its very
nature can be, only a means of effecting objects specified by the Constitu-
tion ; since no free government, and least of all a government of enumer-
ated powers, can of right impose any tax, any more than a penalty, which
1882.1 ^^^ ^^J* — ^^^^ Carolina, 681
lA not at once justified by public necessity, and clearly within the scope
ind purview of the social compact ; and since the right of confining ap-
propriations of the public money to such legitimate and constitutional
objects is as essential to the liberties of the people as their unquestionable
privilege to be taxed only by their own consent.
3d. Because they believe that the tariff law passed by Congress at its
last session, and all other acts of which the principal object is the protec-
tion of manufactures, or any other branch of domestic industry, if they
be considered as the exercise of a power in Congress to tax the people at
its own good will and pleasure, and to apply the money raised to objects
not specified in the Constitution, is a violation of these fundamental prin-
ciples, a breach of a well-defined trust, and a perversion of the high powers
vested in the federal government for federal purposes only.
4th. Because such acts, considered in the light of a regulation of com-
merce, are equally liable to objection ; since, although the power to regu-
late commerce m:iy, like other powers, be exercised so as to protect
domestic manufactures, yet it is clearly distinguishable from a power to do
so eo nomine^ both in the n tture of the thing and in the common accepta-
tion of the terms ; and because the confounding of them would lead to
the most extravagant results, since the encouragement of domestic in-
dustry implies an absolute control over all the interests, resources, and
pursuits of a people, and is inconsistent with the idea of any other than a
simple, consolidated government
5th. Because^fsom the contemporaneous exposition of the Constitution
in the numbers of the Federalist, (which is cited only because the Su-
preme Court has recognized its authority,) it is clear that the power to
regulate commerce was considered by the Convention as only incidentally
connected with the encouragement of agriculture and manufactures ; and
because the power of laying imposts and duties on imports was not under-
stood to justify, in any case, a prohibition of foreign commodities, except
as a means of extending commerce, by coercing foreign nations to a fair
reciprocity in their intercourse with us, or for some other bona fide com-
mercial purpose.
6th. Because y whilst the power to protect manufactures is nowhere
expressly granted to Congress, nor can be considered as necessary and
proper to carry into effect any specified power, it seems to be expressly
reserved to the states, by the 10th section of the 1st article of the Con-
stitution.
7th. Because^ even admitting Congress to have a constitutional right
to protect manufactures by the imposition of duties, or by regulations of
commerce, designed principally for that purpose, yet a tariff of which the
operation is grossly unequal and oppressive, is such an abuse of power as
is incompatible with the principles of a free government and the great
ends of civil society, justice, and equality of rights and protection.
8th. Finallyy because South Carolina, from her climate, situation, and
peculiar institutions, is, and must ever continue to be, wholly dependent
opon a^rricultiure and commerce, not only for her prosperity, but for her
very existence as a state; because the valuable products of her soil — the
blessings by which Divine Providence seems to have designed to com-
pensate for the great disadvantages under which she suffers in other
respects — are an>ong the very few that can be cultivated with any profit
by slave labor; and if, by the loss of her foreign commerce, these prodncts
should be confined to an inadequate market, the fate of this fertile state
632 The Tariff — NuUificQiion. [183J.
would b* poverty and utter desolation; her citizeuH, in despair, would
emigrate U> more fortunate regions, and the whole frame and constitution
of her civil polity be impaired and deranged, if not dissolved entirely.
Deeply impressed with these considerations, the representatives of the
good people of this commonwealth, anxiously desiring to live in peace
with their fellow-citizens, and to do all that in them lies to preserve and
perpetuate the union of the states, and liberties of which it is the surest
pledge, but feeling it to be their bouiiden duty to expose and resist ail
encroachments up<m the true spirit of the Constitution, lest an apparent
acquiescence in the system of protecting duties should be drawn into pre-
cedent— rdo, in the name of the commonwealth of South Carolina, claim
to enter upon the Journal of the Senate their protest against it as uncon-
stitutional, oppressive, and unjust.
PRESIDENT JACKSON'S PROCLAMATION,
Or THE 10th December, 1833,
CONCKRNIlfO
THE ORDINANCE OF SOUTH CAROLINA. ON THE SUBJECT OP
THE TARIFF,
Off THE 24th November, 1832.
Whereas a convention assembled in the state of South Carolina have
passed an ordinance, by which they declare " that the several acts, and
parts of acts, of the Congress of the United States, purporting to be laws
for the imposing duties and imposts on the importation of foreign com-
modities, and now having actual operation and effect within the United
States," and more especially, two acts for the same purposes, passed on the
29th of May, 1828, and on the 14th of July, 1832, ** are unauthorized
by the Constitution of the United States, and violate the true meaning and
intent thereof, and are null and void, and no law,'' not binding on the
citizens of that state or its officers; and by the said ordinance it is further
declnred to be unlawful for any of the constituted authorities of the state;
or of the United States, to enforce the payment of the duties imposed by
the said acts within the same state, and that it is the duty of the legis-
lature to pass such laws as may be necessary to give full effect to the said
ordinance: ^
And whereas, by the said ordinance, it is further ordained, that, in any
case of law or equity decided in the courts of said state, wherein shall be
drawn in question the validity of the said ordinance, or of the acts of the
legislature that may be passed to give it effect, or of the said laws of the
United States, no appeal shall be allowed to the Supreme Court of the
United States, nor shall any copy of the record be permitted or allowed
for that purpose, and that any person attempting to take such appeal shall
be punished as for a contempt of court :
And, finally, the said ordinance declares that the people of South Caro-
lina will maintain the said ordinance at every hazard ; and that they will
consider the passage of any act, by abolishing or closing tbe ports of the
1833.] The Tanff.^ Nullification. 685
said state, or otherwise obstructing the free ingress or egress of vessels to
and from the said ports, or any other act of the federal government to
eoerce the state, shut up her ports, destroy or harass her commerce, or to
enforce the said acta otherwise than through the civil tribunals of the
country, as inconsistent with the longer continuance of South Carolina in
ibe Union ; and that the people of the said state will thenceforth hold
themselves absolved from all further obligation to maintain or preserve
their political connection with the people of the other states, and will
forthwith proceed to organize a separate government, and do other acts
aad things which sovereign and independent states may of right do :
And whereas the said ordinance prescribes to the people of South Car*
ulina a course of conduct in direct violation of their duty as citizens of the
United States, contrary to the laws of their country, subversive of its Con-
stitution, and having for its object the destruction of the Union — that
Union which, coeval with our political existence, led our fathers, without
any other ties to unite them than those of patriotism and a common cause,
through a sanguinary struggle, to a glorious independence — that sacred
Union, hitherto inviolate, which, perfected by our happy Constitution, has
brought us, by the favor of Heaven, to a state of prosperity at home, and high
consideration abroad, rarely, if ever, equalled in the history of nations. To
preserve this bond of our political existence from destruction, to maintain
inviolate this state of national honor and prasperity, and to justify the con-
fidence my fellow-citizens have reposed in me, I, Andrew Jackson, Presi-
dent of the United States, have thought proper to issue this my Proclama-
tion, stating my views of the Constitution and laws applicable to the
measures adopted by the Convention of South Carolina, and to the reasons
they have put forth to sustain them, declaring the course which duty will
require me to pursue, and, appealing to the understanding and patriotism
of the people, warn them of the consequences that must inevitably result
from an observance of the dictites of the Convention.
Strict duty would require of me nothing more than the exercise of those
powers with which I am now, or may hereafter be, invested for preserving
the peace of the Union, and for the execution of the laws. But the im-
posing aspect which opposition has assumed in this case, by clothintr itself
with state authority, and the deep interest which the people of the United
States must all feel in preventing a resort to stronger measures, while thero
is a hope that any thing will be yielded to reasoning and remonstrance,
perhaps demand, and will certainly justify, a full exposition, to South
Carolina and the nation, of the views I entertain of this important question,
Hs well as a distinct enunciation of the course which my sense of duty will
require me to pursue.
The ordinance is founded, not on the indefeasible right of resisting acts
[which are plainly unconstitutional, and too oppressive to be endured, but
\yn the strange position that any one state may not only declare an act of
Congress void, but prohibit its execution ; that they may do this consistent-
ly with the Constitution; that the true construction of that instrument
permits a state to retain its place in the Union, and yet be bound by no
other of its laws than those it may choose to consider as constitutional.
It is true, they add that, to justify this abrogation of a law, it must be
pilpably contrary to the Constitution ; but it is evident that, to give the
nght of resisting laws of that description, coupled with the uncontrolled
right to decide what laws deserve that character, is to give the power of
resinting all Iaw» . for, as by the theory, there is no appeal : the reason^
c
584 The Tariff, — NuUificaiion, {1893
alle9e«l by the state, good or bad, must prevail. If it should be said that
public opinion is a sufficient check against the abuse of this )iower, it
may be asked why it is not deemed a sufficient guard against the passage
of an unconstitutional act by Congress. There is, however, a restraint,
in this last case, which makes the assumed power of a state more indefen-
sible, and which does not exist in the other. There are two appeals from
an unconstitutional act passed by Congress — one to the judiciary, the
other to the people and the states. There is no appeal from the state
decision in theory, and the practical illustration shows that the courts are
closed against an application to review it, both judges and jurors being
sworn to decide in its favor. But reasoning on this subject is superfluous
when our social compact, in express terms, declares that the laws of the
United States, its Constitution, and treaties made under it, are the supreme
law of the land; and, for greater caution, adds, ** that the judges in every
state shall be bound thereby, any thing in the Constitution or laws of any
state to the contrary notwithstanding.'' And it may be asserted, without
fear of refutation, that no federative government could exist without a
similar provision. Look, for a moment, to the consequence. If South
Carolina considers the revenue laws unconstitutional, and has a right to
prevent their execution in the port of Charleston, there would be a clear
constitutional objection to their collection in every other port, and no
revenue could be collected any where ; for ail imposts must be equal. It
is no answer to repeat, that an unconstitutional law is no law, so long as the
question of its legality is to be decided by the state itself; for every law
operating injuriously upon any local interest will be perhaps thought, and
certainly represented, as unconstitutional; and, as has been shown, there
is no appeal.
If this doctrine had been established at an earlier day, the Union would
have been dissolved in its infancy. The excise law in Pennsylvania, the
embargo and non-intercourse law in the Eastern States, the carriage tax
in Virginia, were all deemed unconstitutional, and were more unequal in
their operation than any of the laws now complained of; but, fortunately,
none of those states discovered that they had the right now claimed by South
Carolina. The war into which we were forced, to support the dignity of the
nation and the rights of our citizens, might have ended in defeat and 4i&-
grace, instead of victory and honor, if the states who supposed it a rotnous
and unconstitutional measure had thought they possessed the right of nul-
lifying the act by which it was declared, and denying supplies for its pros-
ecution. Hardly and unequally as those measures bore upon several mem-
bers of the Union, to the legislatures of none did this efficient and peace-
able remedy, as it is called, suggest itself. The discovery of this important
feature in our Constitution was reserved to the present day. To the states-
men of South Carolina belongs the invention, and upon the citizens of
that slate will unfortunately fall the evils of reducing it to practice.
If the doctrine of a state veto upon the laws of the Union carries with
it internal evidence of its impracticable absurdity, our constitutional his-
tory will also afford abundant proof that it would have been repudiated
with indignation, had it been proposed to form a feature in our gov-
ernrient.
In our colonial state, although dependent on another power, we very
early considered ourselves as connected by common interest witn each
other. Leagues were formed for common defence ; and, before the dec-
laration of independence, we were known in our aggregate character m
IfiSa] Tk€ Tanff. — Nullification. 585
the Uoiied Colonies of America. That decisive and important step wa?
taken jointly. We declared ourselves a nation by a joint, not by several
acts; and when the terms of our confederation were reduced to fortn, i*
was ill that of a solemn league of several states, by which they agreed
that they would collectively form one nation, for the purpose of conducting
some certain domestic concerns and all foreign relations. In the instru
rnent forming that Union is found an article which declares that '^ every
state shall abide by the determinations of Congress on all questionsi which
by that confederation, should be submitted to them.'' f
Under the Confederation, then, no state could legally annul a decision
of the Congress, or refuse to submit to its execution ; but no provision
was made to enforce these decisions. Congress made requisitions, but
they were not complied with. The government could not operate on in-
dividuals. They had no judiciary, no means of collecting revenue.
But the defects of the Confederation need not be detailed. Under its
operation we could scarcely be called a nation. We had neither prosper-
ity at home nor consideration abroad. This ^nate of things could not be
endured, and our present happy Constitution was formed — but formed in
vain, if this fatal doctrine prevails. It was formed for important objects,
that are announced in the preamble made in the name and by the author-
ity of the people of the United States, whose delegates framed, and whose
conventions approved it The most important among these objects —
that which is placed first in rank, on which all the others rest — is ** to
form a more perfect union." Now, is it possible that, even if there were
no express provision giving supremacy to the Constitution and laws of the
United States over those of the states, — can it be conceived, that an in-
strument made for the purpose of ^* forming a more perfect union " thai*
that of the Confederation, could be so constructed by the assembled wis-
dom of our country, as to substitute for that Confederation a form of gov-
ernment dependent for its existence on the local interest, the party spirit,
of a state, or the prevailing facti<m of a state ? Every man of plain, un-
sophisticated understanding, who hears the question, will give such an
answer as will preserve the Union. Metaphysical subtlety, in pursuit .of
an impracticable theory, could alone have devised one that is calculated
to destroy it.
I consider, then, the power to annul a law of the United States, assumed
by one state, incompatibU with the existence of the Union, contradicted fr-
pressfy by the letter of the Constitution, unauthorized by its spirit, incon-
sistent with every principle on which it was founded, and destructive of the
^eat object for which it was formed.
After this general view of the leading principle, we must examine the
particular application of it which is made in the ordinance.
The preamble rests its justification on these grounds : It assumes as a
fact that the obnoxious laws, although they purport to be laws for raising
revenue, were, in reality, intended for the protection of manufactures,
which purpose it asserts to be unconstitutional ; that the operation of these
laws is unequal ; that the amount raised by them is greater than is re-
quired by the wants of the government; and, finally, that the proceeds are
to be applied to objects unauthorized by the Constitution. These are the
only causes alleged to justify an open opposition to the laws of the conn-
try, and a threat of seceding from the Union, if any attempt should be
made to enforce them. The first virtually acknowledges that the law in
question was passed under a power expressly given by the Constitution to
VOL. IV. 74
586 The Tariff. -- Nullification. [1833.
lay and collect imposts ; but its constitutionality is drawn in question from
the motives of those who passed it. However apparent this purpose may
be in the present case, nothing can be more dangerous than to admit the
position that an unconstitutional purpose, entertained by the members who
assent to a law enacted under a constitutional power, shall make that law
void ; for how is that purpose to be ascertained ? Who is to make the
Acrutiny? How ol\en may bad purposes be falsely imputed — in how
many cases are they concealed by false professions — in how many is no
declaration of motive made ! Admit this doctrine, and you give to the
states an uncontrolled right to decide ; and every law may be annulled
under this pretext. If, therefore, the absurd and dangerous doctrine
should be admitted, that a state may annul an unconstitutional law, or one
that it deems such, it will not apply to the present one.
The next objection is, that the laws in question operate unequally.
This objection may be made with truth to every law that has been or can
be passed. The wisdom of man never yet contrived a system of taxation
that would operate with perfect equality. If the unequal operation of a
taw makes it unconstitutional, and if all laws of that description may be
abrogated by any state for that cause, then, indeed, is the Federal Consti-
tution unworthy of the slightest effort for its preservation. We have hith-
erto relied on it a^ the perpetual bond of our union. We have received
it as the work of the assembled wisdom of the nation. We have trusted
to it as to the sheet anchor of our safety in the stormy tiroes of conflict
with a foreign or domestic foe. We have looked to it with sacred awe rs
the palladium of our liberties ; and with all the solemnities of religion have
pledged to each other our lives and fortunes here, and our hopes of happi-
ness hereafter, in its defence and support. Were we mistaken, my coun-
trymen, in attaching this importance to the Constitution of our country?
Was our devotion paid to the wretched, inefRcient, clumsy contrivance
which this new doctrine would make it ? Did we pledge ourselves to the
support of an airy nothing — a bubble that must be blown away by the
first breath of disaffection ? Was this self-destroying, visionary theory the
work of the profound statesmen, the exalted patriots, to whom the task of
constitutional reform was intrusted ?
Did the name of Washington sanction, did the states deliberately ratify,
such an anomaly in the history of fundamental legislation? No. W^e
were not mistaken. The letter of this great instrument is free from this
radical fault. Its language directly contradicts the imputation ; its spirit,
its evident intent, contradicts it. No, we did not err! Our Constitution
does not contain the absurdity of giving power to make laws, and another
power to resist them. The sages, whose memory will always be rever-
enced, have given us a practical, and, as they hoped, a permanent consti-
tutional compact. The Father of his Country did not affix his revered
name to so palpable an absurdity. Nor did the states, when they severally
ratified it, do so, under the impression that a veto on the laws of the United
States was reserved to them, or that they could exercise it by implication.
Search the debates in all their conventions ; examine the speeches of the
most zealous opposers of federal authority ; look at the amendments that
were proposed: they are all silent — not a syllable uttered, not a vote
given, not a motion made, to correct the explicit supremacy given to the
laws of the Union over those of the states, or to show that implication, a^
is now contended, could defeat it. No, we have not erred I The Consti-
tution is still the object of our reverence, the bond of our union, our de
ISSa] The Tariff,— Nullification, 587
fence in daoger, the source of our prosperity in peace : it shall ilescend a>
we have received it, uncorrupted by sophistical construction, to our pos
terity; and the sacrifices of local interest, ot state prejudices, of persona*
aainiusities, that were made to bring it into existence, will again be patri
otically ofiered for its support.
The two remaining objections made by the ordinance to these laws
Are, that the sums intended to be raised by them are greater than are
required, and that the proceeds will be unconstitutionally employed.
The Constitution has given expressly to Congress the right of raising
revenue, and of determining the sum the public exigencies will require.
The state:) have no control over the exercise of this right, other than that
whiqh results from the power of chanj/ing the representatives who abuse
it, arid thus procuring redress. Congress may, undoubtedly, abuse this
discretionary power; but the same may be said of others with which they
are vested. Yet the discretion must exist somewhere. The Constitution
has given it to the representatives of all the people, checked by the repre-
sentatives of the states, and by the executive power. The. South Carolina
con:<truction gives it to the legislature, or the convention, of a single state,
where neither the people of the different states, nor the states in their sep-
arate capacity, nor the chief magistrate elected by the people, have any
representation. Which is the most discreet disposition of the power?
I do not ask you, fellow-citizens, which is the constitutional disposition :
that instrument speaks a language not to be misunderstood. But if you
were assembled in general convention, which would you think the safest
depository of this discretionary power, in the last resort? Would you add
a clause giving it to each of the states, or would you sanction the wise
provisions already made by your Constitution ? If this should be the
result of your deliberations, when providing for the future, are you, can
you be, ready to risk all that we hold dear, to establish, for a temporary
and a local purpose, that which you must acknowledge to be destructive,
and even absurd, as a general provision? Carry out the consequences of
this right vested in the different states, and you must perceive that the
crisis your conduct presents at this day would recur whenevei any law of
the United States displeased any of the states, and that we should soon
cease to be a nation.
The ordinance, with the same knowledge of the future that character-
izes a former objection, tells you that the proceeds of the tax will be un-
constitutionally applied. If thi^ could be ascertained with certainty, the
objection would, with more propriety, be reserved for the law so applying
the proceeds, but surely cannot be urged against the laws levying the duty.
These are the allegations contained in the ordinance. Examine them
seriously, my fellow-citizens — judge for yourselves. I appeal to you to
determine whether they are so clear, so convincing, as to leave no doubt
of their correctness; and even if you should come to this conclusion, how
far they justify the reckless, destructive course, which you are directed to
pursue. Review these objections, and the conclusions drawn from them,
once more. What are they ? Every law, then, for raising revenue accord-
ing to the South Carolina ordinance, may be rightfully annulled, unless it
be so framed as no law ever will or can be framed. Congress have a right
o pass laws for raising revenue, and each state has a right to oppose their
execution — two rights directly opposed to each other ; and yet is this
absurdity supposed to be contained in an instrument drawn, for the express
purpose of avoiding collisions between the states and the general govern-
588 The Tariff, -^NuUificaHm. [1833
ment, b) an assembly of the most enlightened statesmen and purest patriots
ever imbodied for a similar purpose !
In vain have these sages declared that Congress shall have power to
lay and collect taxes, duties, imposts, and excises; in vain have they
provided that they shall have power to pass laws which shall be neces-
sary and proper to carry those powers into execution ; that those laws and
that Constitution shall be the ''supreme law of the land, and that the
judges in every state shall be bound thereby, any thing in the constitution
or laws of any state to the contrary notwithstanding;" in vain have the
people of the several * states solemnly sanctioned these provisions, made
them their paramount law, and individually sworn to support them when-
ever they were called on to execute any office; — vain provisions! ineffec-
tual restrictions! vile profanation of oaths ! miserable mockery of legis-
lation ! — if a bare majority of the voters in any one state may, on a real or
supposed knowledge of the intent with which a law has been passed,
declare themselves free from its operation — say," Here it gives too little,
there too much,*and operates unequally — here it suffers articles to be free
that ought to be taxed — there it taxes those that ought to be fVee — in
this case the proceeds are intended to be applied to purposes which we do
not approve — in that, the amount raised is more than is wanted.
** Congress, it is true, are vested by the Constitution with the right of
deciding these questions according to their sound discretion. Congress is
composed of the representatives of all the states, and of all the people of all
the states ; but we, part of the people of one state, to whom the Consti-
tution has given no power on the subject, from whom it has expressly taken
it away, — we^ who have solemnly agreed that this Constitution shall be our
law, — tep, most of whom have sworn to support it, — we now abrogate
this law, and swear, and force others to swear, that it shall not be obeyed.
And we do this, not because Congress have no right to pass such laws, —
this we do not allege, — but because they have passed them with improper
views. They are unconstitutional from the motives of those who passed
them, which we can never with certainty know ; from their unequal oper-
ation, although it is impossible, from the nature of things, that they should
be equal ; and from the disposition which we presume may be made of
their proceeds, although that disposition has not been declared." This is
the plain meaning of the ordinance in relation to laws which it abrogates
for alleged unconstitutionality. But itMoes not stop there It repeals, in
express terms, an important part of the Constitution itself, and of laws
passed to give it effect, which have never been alleged to be unconstitu-
tional. The Constitution declares that the judicial powers of the United
States extend to cases arising under the laws of the United States, and
that such laws, the Constitution, and treaties, shall be paramount to the
state constitutions and laws. The judiciary act prescribes the mode by
which the case may be brought before a court of the United States, by
appeal, when a stale tribunal shall decide against this provision of the
Constitution. The ordinance declares there shall be no appeal ; makes
the state law paramount to the Constitution and laws of the United States;
forces judges and jurors to swear that they will disregard their provisions ;
and even makes it penal in a suitor to attempt relief by appeal. It further
declares that it shall not be lawful for the authorities of the United States,
or of that state, to enforce the payment of duties imposed by the revenue
laws within its limits.
Here is a law of the United States, not even pretended to be ULCoitsti-
1688] The Tariff. — NulUfication. 589
tmional, repealed by the authority of a small majority of the voters of a
uagie state. Here is a provision of the Constitution which is solemnly
ahrogated by the same authority.
On such expositions and reasonings, the ordinance grounds not only an
asKTtion of the right to annul the laws of which it complains, but to
enforce it by a threat of seceding from the Union if any attempt is made
to execute them.
This right to secede is deduced from the nature of the Constitution!
irbtchy they say, is a compact between sovereign states, who have pre-
served their whole sovereignty, and, therefore, are subject to no super. or;
chat, because they made the compact, they can break it when, in their
opinion, it has been departed from by the other states. Fallacious as this
coarse of reasoning is, it enlists state pride, and finds advocates in the
honest prejudices of those who have not studied the nature of our govern-
ment sufficiently to see the radical error on which it rests.
The people of the United States formed the Constitution, acting through
the state legislatures in miking the compact to meet and discuss its pro
Tisions, and acting in separate conventions when they ratified those pro-
vioions ; but the terms used in its con^itruction show it to be a government
in which the people of all the states collectively are represented. We aro
o?rE PBOPLB in the choice of the President and Vice-President. Here the
states hare no other agency than to direct the mode in which the votes
shall be given. The candidates having the majority of all the votes are
chosen. The electors of a majority of states may have given their votp^
for one candidate, and yet another may be chosen. The people, then,
and not the states, are represented in the executive branch.
In the House of Representatives there is this difference, that the people
of one state do not, as in the case of President and Vice-President, all
vote for the same officers. The people of all the states do not vote for all
the members, each state electing only its own representatives. But this
creates no material distinction. When chosen, they are all representatives
of the United States, not representatives of the particular state from whence
they come. They are paid by the United States, not by the state, nor are
they accountable to it for any act done in the performance of their legisla-
tive functions; and however they may, in practice, as it is their duty to
do, consult and prefer the interests of their particular constituents when
they come in conflict with any other partial or local interest, yet it is their
first and highest duty, as representatives of the United States, to promote
the general good.
The Constitution of the United States, then, forms a government ^ not a
league ; and whether it be formed by compact between the states, or in any
other manner, its character is the same. It is a government in which all
the people are represented, which operates directly on the people individ-
ually, not upon the states. They retained all the power they did not grant ;
but each state, having expressly parted with so many powers as to. consti-
tute, jointly with the other states, a single nation, cannot, from th.it period,
possess any right to secede, because such secession does not break a
league, but destroys the unity of a nation ; and any injury to that unity i<^
not only a breach which would result from the contravention of a compact,
but it is an offence against the whole Union. To say that any state may
at pleasure secede from the Union, is to say that the United States are not
a nation ; because it would be a solecism to contend that any part of a
natior might dissolve its connection with the other parts, to their
50
690 The Tariff. — NuUification. [1833
injury or ruin, without committing any offence. Secession, like any other
revolutionary act, may be morally justified by the extremity of oppression ;
but to call it a constitutional right, is confounding the meaning of terms,
and can only be done through gross error, or to deceive those who are
willing to assert a right, but would pause before they made a revolution,
or incur the penalties consequent on a failure.
Because the Union was formed by compact, it is said the parties to that
compact may, when they feel themselves aggrieved, depart from it; but it
is precisely because it is a compact that they cannot. A compact is an
agreement or binding obligation. It may, by its terms, have a sanction
or penalty for its breach, or it may not. If it contains no sanction, it may
be broken with no other consequence than moral guilt : if it have a sanc-
tion, then the breach insures the designated or implied penalty. A league
between independent nations, generally, has no sanction other than a
moral one ; or if it should contain a penalty, as there is no common supe-
rior, it cannot be enforced. A government, on the contrary, always has
a sanction, express or implied ; and, in our case, it is both necessarily im-
plied and expressly given. An attempt, by force of arms, to destroy a
government, is an offence, by whatever means the constitutional compact
may have been formed ; and such government has the right, by the law
of self-defence, to pass acts for punishing the offender, unless that right is
modified, restrained, or resumed, by the constitutional act. In our system,
although it is modified in the case of treason, yet authority is expressly
given to pass all laws necessary to carry its powers into effect, and,
under this grant, provision has been made for punishing acts which ob-
struct the due administration of the laws.
It would seem superfluous to add any thing to show the nature of that
union which connects us; but, as erroneous opinions on this subject are
the foundation of doctrines the most destructive to our peace, I must give
some further development to my views on this subject. No one, fellow-
citizens, has a higher reverence for the reserved rights of the states than
the magistrate who now addresses you. No one would make greater per-
sonal sacrifices, or official exertions, to defend them from violation ; but
equal care must be taken to prevent, on their part, an improper interfer-
ence with, or resumption of, the rights they have vested in the nation.
The line has not been so distinctly drawQ as to avoid doubts, in some
cases, of the exercise of power. Men of the best intentions and soundest
views may differ in their construction of some parts of the Constitution ;
but there are othefs on which dispassionate reflection can leave no doubt.
Of this nature appears to be the assumed right of secession.
It rests, as we have seen, on the alleged undivided sovereignty of the
states, and on their having formed, in this sovereign capacity, a compact
which is called the Constitution, from which, because they made it, they
have the right to secede. Both of these positions are erroneous, and some
^f the arguments to prove them so have been anticipated.
The states severally have not retained their entire sovereignty.
It has been shown that, in becoming parts of a nation, not members of
a league, they surrendered many of their essential parts of sovereignty.
The right to make treaties, declare war, levy taxes, exercise exclusive
judicial and legislative powers, were all of them functions of sovereign
power. The states, then, for all these purposes, were no longer sovereign.
The allegiance of their citizens was transferred, in the first instance, to
the government of the United States : they became American citizens, and
183a] Tht Tariff.— Nullification, 691
owed obedience to the Constitution of the United States, and to laws mmle
in conformity with the powers it vested in Congress. This last position
has not been, and cannot be, denied. How, then, can that state be saiu
to be sovereign and independent whose citizens owe obedience to laws not
mide by it, and whose magistrates are sworn to disregard those laws when
they come in conflict with those passed by another? Whvit shows conclu-
sively that the states cannot be said to have reserved an undivided sove-
reignty, is, that they expressly ceded the right to punish treason, — ^'not
treason against their separate power, but treason against the United States.
Treason is an offence against sovereignty, and sovereignty must reside
with the power to punish it But the reserved rights of the states are not
less sacred because they have, for their common interest, made the general
government the depository of these powers.
The unity of our political character (as has been shown for another
purpose) commenced with its very existence. Under the royal govern-
ment we had no separate character : our opposition to its oppressions
began as united colonies. We were the United States under the Confed-
eration; and the name was perpetuated, and the union rendered more per-
fect, by the Federal Constitution. In none of these stages did we consider
ourselves in any other light than as forming one nation. Treaties and
alliances were made in the name of all. Troops were raised for the joint
defence. How, then, with all these proofs that, under all changes of our
position, we had, for designated purposes and defined powers, created na-
tional governments — how is it that the most perfect of those several
modes of union should now be considered as a mere league that may be
dissolved at pleasure ? It is from an abuse of terms. Compact is used
as synonymous with league, although the true term is not employed, be-
cause it would at once show the fallacy of the reasoning. It would
not do to say that our Constitution was only a league, but it is labored to
prove it a compact, (which in one sense it is,) and then to argue that, as
a league is a compact, every compact between nations must of course be a
league, and that from such an engagement every sovereign power has a
riirht to recede. But it has been shown that, in this sense, the states are
not sovereign, and that, even if they were, and the national Constitution
had been formed by compact, there would be no right in any one state to
exonerate itself from its obligations.
So obvious are the reas/ms which forbid this secession, that it is neces-
sary only to allude to them. The union was formed for the benefit of all.
It was produced by mutual sacrifices of interests and opinions. Can those
sacrifices be recalled ? Can the states, who magnanimously surrendered
their title to the territories of the west, recall the grant ? Will the inhab-
itants of the inland states agree to pay the duties that may be imposed
without their assent by those on the Atlantic or the Gulf, for their own
benefit? Shall there be a free port in one state, and onerous duties in
another? No one believes that any right exists in a single state to in-
volve the other in these and countless other evils, contrary to the engage-
ments solemnly made. Every one must see that the other states, in selt-
lefence, must oppose it at all hazards.
These are the alternatives that are presented by the convention — a
repeal of all the acts for raising revenue, leaving the government without
the means of support ; or an acquiescence in the dissolution of our Union
bv the secession of one of its members. When the first was proposed, it
was known that it could not be listened to for a moment. It was
092 The Tariff. [1833
known, if force was applied to oppose the execution of the laws, that it
must be repelled by force ; that Congress could not, without involving itself
in disgrace, and the country in ruin, accede to the proposition ; and yet, if
this is not done on a given day, or if any attempt is made to. execute
the laws, the state is, by the ordinance, declared to be out of the Union.
The majority of a convention assembled for the purpose have dictated
these terms, or rather this rejection of all lerins, in the name of the people
of South Carolina. It is true that the government of the state speaks of
the submission of their grievances to a convention of ail the states, which,
he says, they ** sincerely and anxiously seek and desire." Yet this obvi-
ous and constitutional mode of obtaining the sense of the other states on
the construction of the federal compact, and amending it, if necessary, has
never been attempted by those who hiive urged the state on to this destruc-
tive measure. The state might have proposed the call for a general con-
vention to the other states, and Congress, if a sufficient number of them
concurred, must have called it. But the first magistrate of South Carolina,
when he expressed a hope that, ** on a review, l)y Congress and the func-
tionaries of the general government, of the merits of the controversy,"
such a convention will be accorded to them, must have known that neither
Congress, nor any functionary of the general government, has authority
to call such a convention, unless it may be demanded by two thirds of the
states. This suggestion, then, is another instance of the reckless inat-
tention to the provisions of the Constitution with which this crisis has been
madly hurried on ; or of the attempt to persuade the people that a consti-
tutional remedy had been sought and refused. If the legislature of South
Carolina ** anxiously desire" a general convention to consider their com-
plaints, why have they not made application for it in the way the Constitu-
tion points out ? The assertion that they '^ earnestly seek it " is completely
negatived by the omission.
ON THE TARIFF.
SUMMARY OF THE ARGUMENT ON THE SOUTH CAROLINA
EXPOSITION.
(See p. 580.)
<* The argument against the constitutional authority [to lay taxes, ex-
cept for the purposes of revenue] is understood to be maintained on the
following grounds, which, though applied to the protection of manufac-
tures, are equally applicable to all other cases, where revenue is not the
object. The general government is one of specific powers, and it can
rightfully exercise only the powers expressly granted, and those which may
be 'necessary and proper* to carry them into effect; all others being
reserved expressly to the states, or to the people. It results, necessarily,
that those who claim to exercise a power under the Constitution are bound
to show that it is expressly granted, or that it is * necessary and proper,'
as a means to execute some of the granted powers. No such proof ban
been offered in regard to the protection of manufactures.
** It is true that the 8th section of the Ist article of the Constitution au-
thorizes Congress to lay and collect an impost duty ; but it is granted at*
1836.] Inflammatory Appeals. — Calhoun. 593
tax power, for the sole purpose of revenue — a power in its nature essen
dally different from that of imposing protective or prohibitory duties. The
two are incompatible ; for the prohibitory system must end in destroying
the revenue from imports. It has been said that the system is a violation
of the spirit, and not of the letter, of the Constitution. The distinction
is not material. The Constitution may be as grossly violated by acting
agninst its meaning, as against its letter. The Constitution grants to
Congress the power of imposing a duty on imports for revenue, which
power is abused by being converted into an instrument for rearing up the
industry of one section of tlie country on the ruins of another. The
violation, then, consists in using a power, granted for one object, to ad-
vance another, and that by a sacrifice of the original object. It is, in a
word, a violation of perversion ^ the most dangerous of all, because the most
insidious, and difficult to resist. Such is the reasoning emanating from
high legislative authority." — Story,
MR. CALHOUN'S REPORT
ON
THE CIRCULATING, THROUGH THE MAILS, OF INFLAMMATORt
APPEALS.
Senate, February 4, 1836.
The message recommends that Congress should pass a law to pimish
the transmission, through the mail, of incendiary publications intended to
instigate the slaves to insurrection. It of course assumes for Congress a
right to determine what papers are incendiary and intended to excite insur-
rection. The question, then, is, Has Congress such a right ? — a question
of vital importance to the slaveholding states.
Af\cr examining this question with due deliberation, in all its bearings,
the committee are of opinion, not only that Congress has not the right,
but to admit it would be fatal to those states. Nothing is more clear than
that the admission of the right, on the part of Congress, to determine what
papers are incendiary, and, as such, to prohibit their circulation through
the mail, necessarily involves the right to determine what are not incendi-
ary, and to enforce their circulation. Nor is it less certain that to admit
such a right would be virtually to clothe Congress with the power to abolish
slavery, by giving it the means of breaking down all the barriers which the
slaveholding states have erected for the protection of their lives and prop-
erty. It would give Congress, without regard to the prohibition laws of
the states, the authority to open the gates to the flood of incendiary publi-
cations which are ready to break into those states, and to punish all
who dare resist as criminals. Fortunately, Congress has no such right.
The internal peace and security of the states are under the protection of
the states themselves, to the entire exclusion of all authority and control
on the part of Congress. It belongs to them, and not to Congress, to de-
termine what is, or is not, calculated to disturb their peace and security,
and, of course, in the cise under consideration, it belongs to the slave-
holding states to determine what is incendiary and intended to incite to
insurrection, and to adopt such defensive measures as may be necessary
Qir their security, with unlimited means of carrying them into effedj^ except
VOL. IV. 76
594 Abolition Petitions, — Gushing. [t836i
such as may be expressly inhibited to the states by the Constitution. To
establish the truth of this position, so essential to the safety of those states,
it would seem sufficient to appeal to their constant exercise of this right,
at all times, without restriction, or question, both before and since the
adoption of the Constitution.
That the states which form our federal Union are sovereign and inde-
pendent communities, bound together by a constitutional compact, and
are possessed of all the powers belonging to distinct and separate states,
excepting such as are delegated to be exercised by the general govern-
ment, is assumed as unquestionable. The compact itself expressly pro-
vides that all powers not delegated are reserved to the states and the
people. To ascertain, then, whether the power in question is delegated
or reserved, it is only necessary to ascertain whether it is to be found
among the enumerated powers or not If it be not among them, it be-
longs, of course, to the reserved powers. On turning to the Constitution,
it will be seen that, while the power of defending the country against ex-
ternal danger is found among the enumerated, tlie instrument is wholly
silent as to the power of defending the internal peace and security of the
stales, and, of course, reserves to the states this important power, as it
stood before the adoption of the Constitution, with no other limitations,
as has been stated, except such as are expressly prescribed by the instru-
ment itself. From what has been stated, it may be inferred that the
right of a state to defend itself against internal dangers is a part of the
great primary and inherent right of self-defence, which, by the laws of
nature, belongs to all communities; and so jealous were the states of this
essential right, without which their independence could not be preserved,
that it is expressly provided by the Constitution, that the general govern-
ment shall not assist a state, even in case of domestic violence, except
on the application of the authorities of the state itself; thus excluding,
by a necessary consequence, its interference in all other cases.
ABOLITION. — RECEPTION OF PETITIONS.
HocsE, January J 1836.
Mr. CUSHING. Looking into the Constitution, I find, among the
amendments proposed by the Congress of 1789, and in the very first of
the number, the following article : —
** ConjErress shall make no law respecting an establishment of relierion, or prohibiting
the free exercise thereof, or abrid^inj? the freedom of speech or of the press, or ihe
right of the penple peaceably to assemole and to petition the government for a redress
of grievances.*^
Long before I had imagined that such a right would ever be called in
question, I remember to have read the remark of a distinguished jurist
and magistrate of the state of Virginia, (Tucker's Notes on Blackstone,)
complaining that the concluding words of the clause I have cited from
the Constitution did not so strongly guard the great right of petition as the
liberties of the people demanded. On the other hand, a still more distin-
guished jurist and magistrnte of my own stnte. Massachusetts, (Story,)
in remarking upon the same article, expresses the opinion thnt it is am-
ple in terms; because, he adds, " It [the rijrht of petition] lesults from
the very nature of the structure and institutions of a republican gorern*
1836.] Abolition Petitions. — Pr£nti8S. 59*^
merit ; it is impossible that it should be practically denied until the spiix
of liberty had wholly disappeared, and the people had become so serviie
and debased as to be unfit to exercise any of the privileges of freemen."
These eminent constitutional lawyers agreed in opinion of the importance
of the provision ; they differed only in thinking, the one, that tue right of
petition could not be too clearly defined; the other, that, vttiether defec*
tively defined or not in the letter, the people would take care that it should
in spirit be faithfully observed. While the first entertained a wise jeal-
ousy of the encroachments of the people's representatives, the other looked
for the protection of the public rights to the people themselves, the mas-
ters of the people's representatives ; and, as the fears of the former have
been verified too speedily, I trust the hopes of the latter will be not less
truly realized.
When the Constitution was submitted to the people of the respective
states, for their adoption or rejection, it awakened the warmest debates of
the several state conventions. Some of them, in accepting the proposed
plan of government, coupled their acceptance with a recommendation of
various additions to the Constitution, which they deemed essential to the
preservation of the rights of the states, or of the people. The common-
wealth of Massachusetts insisted, among other things, on the adoption of
that memorable amendment.
New York, North Carolina, and Rhode Island, proposed, either liter-
ally or in substance, the same provision ; and the consequence was, the
addition to the Constitution of the article, which I am now discussing, on
the Tight of conscience, speech, and petition. And, such being the his-
tory of this clause, I look to the gentlemen from Virginia especially,
constant and honorable as they are in their attachment to constitutional
principles at whatever hizard, to go with me in maintaining inviolate this
great original right of the people.
SXNATE, 1836.
Mr. PRENTISS. If Congress, under the clause giving it "exclusive
legislation, in all cases whatsoever," over the District, has authority to
mipose taxes, and provide how they shall be raised, for local and munici-
pal purposes, I do not see why it has not the power, by means of taxa-
tion, to effect the abolition of slavery here. I say nothing of the right
or justice of exerting the power for such a purpose. I speak only of the
power, and of its capacity to be used to accomplish such an end. But,
however this may be, I hold that Congress, if the public interest and wel-
fare require it, may directly, and at once, emancipate the slave.s, on ma-
king a just compensation to the owners. The clause in the Constitution
which regulates the taking c>f private property for public use, is not, in
my opinion, restricted to auch property, merely, as may be converted and
applied to the actual use and emolument of the public. I think the word
use, in the Constitution, is to be understood, in a liberal sense, as equiva-
lent to purpose or benefit ; and that whatever is taken for public purposes,
or for the public benefit, is taken for public use, within the meaning of
the Constitution. Neither justice, nor the security of private rights
would seem to demand any other or different construction. No principle
of justice can be violated, nor can private property be exposed to wrong-
ful and unjust invasions of power, when an equivalent is required to be
rendered. A more strict, narrow, and limited interpretation would be
obviously less beneficial, and does not appear to be called for either by
the words or the intent of the Constitution. Such an interpretaikm woaM
596 AboHiUm Pi tXons, — White. 11830,
not only be ao unnecessary and inconvenient restraint upon the powet
of the legislature, but might prevent, in many instances, the accomplish-
ment of objects of the greatest importance — objects of the highest in-
terest and utility to the community. The equivalent prescribed and guar-
antied by the Constitution is a sure and sufficient security against any
abuse of the power; and it certainly is not unreasonable that private
rights should yield, on terms of just compensation, to the paramount
rights of the public, so far, and to such extent, as the interest and wel-
fare of the public may require, or as may be necessary to effectuate great
and useful public purposes.
Mr. HUGH L. WHITE. When the Constitution was framed, the
great and leading interests of the whole country were considered, and, in
the spirit of liberality and compromise, were adjusted and settled. They
were settled upon principles that ought to remain undisturbed so long as
the Constitution lasts, which I hope will be forever ; for although liberty
may be preferable to the Union, yet I think the Union is indispensable to
the security of liberty. At the formation of the Constitution, slavery
existed in many of the states ; it was one of the prominent interests that was
then settled. It, in all its domestic bearings, was lefl exclusively to the
respective states to do with as they might think best, without any inter*
ference on the part of the federal government. This, it is admitted by
every gentleman who has addressed you, is now the case, in every slave-
holding state ; therefore it is only urged that Congress has the power to
abolish slavery in the District of Columbia. It should never be forgotten
that when the Constitution was formed and adopted, what is now the Dis-
trict of Columbia was then comprehended within two of the slaveholding
states, Maryland and Virginia.
In my opinion, we should refuse to receive these petitions. It is a mere
question of expediency what disposition we shall make of them. All who
have yet spoken admit that Congress has no power whatever over slavery
in the respective states. It is settled. Whether slavery is right or wrong,
we have now np power to consider or discuss. Suppose, then, a petitiori
were presented to abolish slavery in the states; should we receive it ? As-
suredly we ought not, because it would be asking us to act upon a subject
over which we have no power.
Slaves are property in this District. Congress cannot take private prop*
erty, even for public use, without making just compensation to the owner.
No fund is provided by the Constitution to pay for slaves which may be
liberated ; and the Constitution never gives Congress the power to act upon
any subject, without, at the same time, furnishing the means for its accom-
plishment. To liberate slaves is not taking them for public use. It is de-
claring that neither individuals nor the public shall use them.
Congress sits here as the legislature of the whole Union, and also as the
only legislature for the local concerns of the District of Columbia. These
petitions do not ask us to make a general law, operating throughout the
whole Union ; but a law the operations of which are to be -spent entirely
upon property within the ten miles square. Now, if we were in form, as
well as in substance, a local legislature when acting on this question
which gentlemen say is to affect slavery in the District, and nowhere else,
should we be bound to receive thesse petitions ? No more than we are
bound to receive petitions from France or Germany. Would gentlemen,
if sitting as members of the legislature of Alabama, feel b6und to receive
petitions from citizens of Maine or Pennsylvania to emancipate slaves
within their own state ? Assuredly not If that be so, 16 it not moe* rea
1830.] Abolition PttUUms. — Buchanan. 597
sonable; when we are called upon to pass au act confined exclusively te
this District, that we should conduct towards the people here as if in tins
matter they were our constituents ?
Mr. GRUNDY. He would not go into an examination of the constttu
tionai power of Congress. For his own part, he should consider himselt
as culpable, were he to vote for such a measure, if the constitutional
power existed, as were he to vote for it in the absence of such power.
He considered the faith of the government pledged not to interfere with
this subject in this District, and the faith of the government should be
preserved as sacredly as the Constitution.
It would be recollected that, by the Constitution of the United States, Con-
gress is expressly prohibited from interfering with the slave trade, which
might be carried on by the citizens of the different states for the space of
tweuty-one yeirs ; yet in 1790, the society of Quakers, or Friends, forward-
ed their petition to Congress praying their interference upon that subject.
This petition, although in direct opposition to t)ie Constitution, was
received, and a motion was made to send it to a committee. This was
opposed, and a proposition was made to lay it upon the table. Those
most opposed to the object of the petition sustained the latter proposition.
Mr. Madison, of Virginia, a slaveholding state, advocated the reference to
a committee.
Mr. KING, (of Alabama.) The cession (of the District of Columbia)
was made with a clear understanding, implied or otherwise, that no such
power (abolition) would ever be claimed. This was apparent from the
fact that, at the time of the cession, the states of Virginia and Maryland
had, as they still have, a large slave population; and they never would
have been so blind to their own safety as to make this cession, could they
have believed that Congress thereby acquired the power to produce a state
of things in this District that would operate on their slaves in so danger-
ous a manner. If such, then, was the understanding with which this ces-
sion was made, would it not be a violation of the faith pledged to these two
states, if government was now to attempt any interference with the pro-
hibited subject 1
Mr. BUCHANAN. Although the Constitution, as it came from the
hands of its framers, gave to Congress no power to touch the right of pe-
tition, yet some of the states to whom it was submitted for ratification,
apprehending that the time might arrive when Congress would be disposed
to act like the British Parliament, (in Charles II.'s time,) expressly with-
drew the subject from our control. Not satisfied with the fact, that no
power over it had been granted by the Constitution, they determined to
prohibit us, in express terms, from ever exercising such a power.
The proposition [the right of petition] is almost too plain for argument,
that, if the people have a constitutional right to petition, a corresponding
duty is imposed upon us to receive their petitions. From the very nature
of things, rights and duties are reciprocal. The human mind cannot con-
ceive of the one without the other. They are relative terms. If the
people have a right to command, it is the duty of their servants to obey.
If I have a right to a sum of money, it is the duty of my debtor to pay it
to me. If the people have a right to petition their representativeft, it is
our duty to receive their petition.
This question was solemnly determined by the Senate more than thirty
years ago. Neither before nor since that time, so far as I can learn, has
the general right of petition ever been called in question ; until the motion
now under consideratioD was made by the senator from South Carolina
598 Expunging RtsohUion, — Leigb. [I836i.
Mr. KING, (of Georgia.) Congress, under this article, [the first
amendment] can pass no law to '< abridge " the right of the people to pe-
tition the government. A modern commentator on the Constitution, of
some note and much ability, in noticing this part of the article, dismissed
it with the remark, that it was totally unnecessary. This is obvious to
every one who will consider for a moment the relation between a free
people and the government of their own choice. The privilege belonged
(Mr. K. said) to the form of government — was united with it, and in-
separable from it. It as clearly belonged to the people, on the formation
of the government, as did the right to use the English language without
any constitutional provision for that purpose; and, said Mr. K., if gentle-
men will only look at the Constitution, and not evade it, they will see that
the right was not acquirbd by the Constitution, but only secured by it.
The right, as a preexisting one, was expressly recognized by the language
of the Constitution itself What was the language applicable to the ques-
tion before the Senate ? It prevented Congress from passing any law
** abridging the right of the people to petition," &/C.
The right belonged to the people as inseparably incident to their form
of government ; was acknowledged to exist by the language of the Consti-
tution ; and was guardedly secured by the provisions of that instrument.
Mr. CALHOUN. The first amended article of the Constitution, which
provides that Congress shall pass no law to prevent the people from peace-
ably assembling ^nd petitioning for a redress of grievances, was clearly
intended to prescribe the limits within which the right might be exercised.
It is not pretended that to refuse to receive petitions, touches, in the
slightest degree, on these limits. To suppose that the framers of the
Constitution — no, not the framers, but those jealous patriots who were
not satisfied with that instrument as it came from the hands of the framers,
and who proposed this very provision to guard what they considered a
sacred right — performed their task so bunglingly as to omit any essential
guard, would be to do great injustice to the memory of those stern and
sagacious men.
If the Constitution makes it our duty to receive, we should have no dis-
cretion left to reject, as the motion presupposes. Our rules of proceeding
must accord with the Constitution. Thus, in the case of revenue bills,
which, by the Constitution, must originate in the other house, it would
be out of order to introduce them here; and it has accordingly been so
decided. For like reasons, if we are bound to receive petitions, the pres-
ent motion would be out of order ; and, if such should be your opinion,
it is your duty, as the presiding officer, to call me to order, and to arrest
dll further discussion on the question of reception.
EXPUNGING RESOLUTION.
SxifATX, 183&
Mr. LEIGH. The original manuscript journal is the journal — that
Journal which the Constitution cofmmnnds us to keep. But gentlemen
insist that the constitutional provision, that ** each house shall keep a jour-
nal," imports only that they shall make one. without requiring that they
shall preserve it.
This Anglo-Saxon word to keep is generally used in a strict literal sense,
and then always imports to preserve^ and nothing els* ^ mete. It is tised
1836.] Kxpunging Resolution, — Rives. 599
in divers metaphorical senses, which, from frequency, have the appearance,
at first view, of being literal ; but it always imports the idea of preserva-
tion or indefinite continuation, requested or commanded. It is never used
as synonymous with making any thing.
I think myself well warranted in saymg that the expunging of the reso-
lution of the Senate of the 2Sth of March, 1834, from the journal, literaJly
or figuratively, is wholly irreconcilable with the Constitution, upon any
fair construction of its words; and that no authority for such expunction
can be found in any precedent whatever at all applicable to the purpose,
or entitled to the least weight. I think myself warranted in saying, too,
that, if the Senate shall adopt this proposition, and carry it into execu-
tion, it will set a precedent fraught with the most dangerous and pernicious
consequences.
Mr. RIVES. In the jealous apprehensions which were entertained, at
the time of the adoption of the Constitution, of the encroachments and
abuses of the new government, this objection was. strongly urged against
the clause in question; but it was replied, and with success, that every
legislative body must have the power of concealing important transactions,
the publication of which might compromise the public interests; and as it
was impossible to foresee and enumerate all the cases in which such con-
cealment might be necessary, they should be left to the sound discretion
of the body itself, subject to the constitutional responsibility of its members,
and the other securities provided by the Constitution against the abuse of
power. These securities have hitherto been found sufficient ; and, in point
of fact, the journals of both houses have been published from day to day,
with such special and limited exceptions as have been universally approved
by the public judgment.
This publication, when made, is the practical fulfilment and con-
summation of the design of the Constitution in requiring a journal' to
be kept, by either house, of its proceedings. It is agreed, on all hands,
that the great object for which a journal is required to be kept is, to give
authentic information to our constituents of our proceedings ; and that
information is to be given, as the Constitution provides, by means of a
publication, from time to time, of the journal itself The requisition to
keep a journal, on which gentlemen have laid so much stress, is therefore
merely introductory, or what the lawyers call matter of inducement only,
to that which forms the life and substance of the provision, to wit, the
publication, from time to time, of the journal. The whole structure and
sequence of the sentence sustains this interpretation : ** each house shall
keep a journal of its proceedings, and, from time to iime^ publish the same."
It is evident that the whole practical virtue and effect of the provision is
n the latter mnmber of the sentence, and that the former would have been
implied and comprehended in it, though not expressed.
The requisition in the present Constitution, to keep a journal, is but an
expression, for the sake of greater fulness, of what would otherwise have
been implied, and serves only as a more formal introduction to the practi-
cal end and substance of the constitutional provision on the subject, and
that with which it emphatically concludes, to wit, the publication^ from
time to time, of the journal. That publicaticn once made, and the people
put in possession of the authentic evidence* of the proceedings of their
agents, the purposes of the Constitution are fulfilled, and the preservation
of the original manuscript journal becomes thenceforward an officia'
'^mality.
APPENDIX.
MADISON ON THE TARIFF.
LETTER 1.
MoNTPELiKR, September 18, 182H.
Dear Sir : Your late letter reinindd nie of our conversation on the constitu-
tionality of the power in Congress to impose a tariff* for the encounqfeitient of
manufactures, and oi' my promise to sketch the grounds of the confident opin-
ion I had expressed that it was among the powers vested in that body.
The Constitution vests in Congress, expressly, ^*the power to lay and collect
taxes, duties, imposts, and excises," and ** the power to regulate trade."
That the former power, if not particularly expressed, would have been in-
cluded in the latter as one oi' the objects of a general power to regulate trade,
is not necessarily impugned by its being so expressed. Examples of this sort
cannot sometimes l)e easily avoided, and are to be seen elsewhere in the Con-
stitution. Thus the power **to define and punish offences against the law of
nations" includes the power, afterwards particularlv expressed, ^to make rules
concerning captures, &c., from offending neutrals. So also a power ^ to coin
money" would doubtless include that of ** regulating its value," had not the
latter power been expressly inserted. The term laxtSt if standing aloncj would
certainly have included duties, imposts, and exrises. In another clause, it is
said, *^ no tax or duties shall be laid on exports," &c Here the two terms are
used as synonymous. And in another clause, where it is said, ^ No state shall
lay any impost, or duties," &c., the teru)s imposts and duties ave synonymous.
Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing
in their shades of meaning, (always to be expounded with reference to the con-
text, and under the control of the genend character and manifest scope of the
instrument in which they are found,) are to be ascribed, sometimes to the
purpose of greater caution, sometimes to the imperfections of language, and
sometimes to the imperfection of man himself. In this view of the subject, it
was quite natural, however certainly the general power to reeulate trade nii&rht
include a power to impose duties on it, not to omit it hi a clause enumentting
the several modes of revetme authorized by the Constitution. In few cases
could the "ex majori cowie/a" occur with more claim to respect.
Nor can it be inferred that a power to regulate trade does not involve a
power to tax it, from the distinction made in the original controversv with Great
Britain, between a power to regulate trade with the colonies, and a power to
tax them. A power to regulate trade between different parts of the empire was
confessedly ntctssary^ and was admitted to lie, as far as tliat was the C4ise, in the
British Parliament ; the taxing part being at the same time denied to the Par-
liament, and asserted to be necessarily inherent in the colonial legislatures, as
sufficient, and the only safe depositories of the tnxing power. So difficult was
it, nevertheless, to maintain the distinction in practice, that the ingredient of
revenue was occasionally overlooked or disregarded in the British regulations,
as in the duty on sugar and molasses imported into the colonies. And it was
fortunate that the attempt at an internal and direct tax, in the case of the stamp
act, produced a radical examination of the subject before a regulation of trade,
with a view to revenue, had grown into an established authority. One thing at
least is certain — that the main and admitted object of tlie parliamentary rtgvr'
lotions of trade with the colonies was the encouragement of manufactureii Id
Gnsat Britain.
Jiut the present question is unconnected with the former relations betweer
1828.] 'APPENDIX. — Madison on the Tariff. 601
Great Britain and her colonies, which were of a peculiar, a complicated, an 1,
in several respects, of an undefined character. It is a simple question, under
the Constitution of the United States, whether** the power to regulate trade
with foreign nations," as a distinct and suhstautive item in the enumerated
powers, enibrnces the object of encouraging by duties, restrictions, and prohi-
bition:*, the manufactures and products of the country. And the affirmative
must lie inferred from the following considerations: —
1. The meaning of the phrase **to regulate trade" must be sought in the
general use of it ; in other words, in the objects to which the power was
SBnemlly understood to be applicable when the phrase was inserted in the
Constitution.
2. The power has been understood and used, by all commercial and manu
facturing nations, as embracing the object of encouraging manufactures. It \b
believed that not a single exception can be named.
3. Tiiis has been particularly the case with Great Britain, whose commercial
vocabulary is the parent of ours. A primary object of her commercial regula-
tions is well known to have been, the protection and encouragement of her
manufactures.
4. Such was understood to be a proper use of the power by the states most
prepared for manufacturing industry, whilst retaining the power over their for-
eign trade.
5. Such a use of the |K>wer by Congress accords with the intention and
ex|)ectatton of the states, in transferring tlie power over trade from themselves
to the government of the United States. This was emphatically the case in the
Eastern, the more manufacturing members of the confederacy. Hear the lan-
guage held in the Convention of Massachusetts.
By Mr. Dawes, im advocate for the Constitution, it was observed — ^ Our
manufactures are another great subject which has received no encouragement
by national duties on foreign manufactures, and they never can by any authority
in the old Confederation." Again — ^If we wish to encourage our own manu-
factures, to preserve our own commerce, to raise the value of our own lands,
we must give Congress the powere in question."
By Mr. Widgery, an opponent — ** All we hear is, that the merchant and farm-
er will flourish, and that the mechanic and tradesman are to make their fortunes
directly, if the Constitution goes down."
The Convention of Massachusetts was the only one in New England whose
debates have been preserved.* But it r^innot be doubted tliat the sentiment
there expressed was common to the other states in that quarter, more especially
to Connecticut and Rhode Island, the most thickly-peopled of all the states, and
having, of course, their thoughts most turned to the subject of manufactures.
A like inference may be confidently applied to New Jersey, whose debates in
Convention have not been preserved. In the populous and manufacturing state
of Pennsylvania, a partial account only of the debates having been published,
nothing certain is known of what passed in her Convention on this point But
ample evidence may be found* elsewhere, that regulations of trade, for the en-
couragement of manufactures, were considered as within the powers to be
granted to the new Congress, as well as within th^ scope of the national |K>Iicy.
Of the states south of Pennsylvania, the only two in whose Conventions the
debates have been preserved are Virginia and North Carolina; and from these
no adverse inferences can be drawn ; nor is there the slightest indication that
either of the two states farthest south, whose debates in Convention, if preserved,
have not been made public, viewed the encouragement of manufiictures as not
within the general |H)wer over trade to be transferred to the government of the
United States.
6. If Congress have not the power, it is annihilated for the nation — a policy
without example in any other nation, and not within the reason of the solitary
one in our own. The example alluded to is the prohibition of a tax on exports,
which resulted from the apparent impossibility of raising, in that mode, a reve-
nue from the states, proportioned to the ability to pay it — the ability of sooM
* Ex «pt a portion of the Convention of Connecticat. See Tol. ii
VOL. IV. 76 51
602 APPENDIX. - Ufadisan on the Tariff: [182SI
being d^rivf A in a great measure, not from their exjiortH, but from their fl8herief^
from their rrrjigh'd, and from commerce at larjyre, in some of ita branches alto-
gether external lo the United States; the profits from idl which, lieing invitfible
and inumgihie, wouUl escape a tax on exports. A tax on iin})orts, on the other
hand, being a tax on consumption, which is in proportion to the abihty of the
consumers, whencesoever derived, was free from that inequality.
7. If revenue be the sole object of a legitimate im)M)st, and the encourage-
ment of domestic articles be not within the |>ower of regulating trade, it wcmld
Ibllow that no monopolizing or unequal regulations of foreign nations could be
countei-actcd ; that neither the staple articles of subsistence, nor the essential
implements for the public safety, could, under any circumstances, lie insured or
fostered at home, by regulations of commerce, the usual and most convenient
mode of providing for both ; and that the American navigation, tliough the
source of naval defence, of a cheapening competition in carrjin^ our valuable
and bulky articles to market, and of an independent carriage ot them during
foreign wars, when a foreign navigation might be withdrawn, must l)e at once
abandoned, or speedily destroyed ; it l)eing evident that a tonnage duty, in Ibr-
eign ports, against our vessels, and an exemption from such a duty in our porta,
in favor of foreign vessels, must have the inevitable effect of bauishiog ours
from the ocean.
To assume a power to protect our navigation, and tlie cultivation and fabrica-
tion of all articles requisite for the public safety, as incident to the war power,
would be a more latitudinary construction of the text of the Ckinstitution, than
to consider it as embraced by the s^iecified power to regulate trmle -— a power
which has been exercised by all nations for those purposes, and which effects
those purposes with less of interference with the authority and conveniency of
the states than might result from internal and direct modes of encoumging the
articles, any of which modes would he authorized, as far as deemed ^^ueceaaary
and proper," by considering the power as an incidental power.
8w That the encouragement of manufactures was ati object of the power to
regulate trade, is proved by the use made of the power for that object, in the
first session of the first Congress under the Constitution ; when among the
members present were so many who had been members of the Federal Con-
vention which framed tlie Constitution, and of the state Conventions which
ratified it ; each of these classes consisting also of members who had opposed,
and who had esiioused, the Constitution in its actual fonn. It does not ap|)ear,
from the printed proceedings of Congress on that occasion, that the power waa
denied by any of them ; and it may he remarked that members from Virginia,
in particular, as well of the anti-federal as the federal party, — the names
then distinguishing those who had opposed and those who had approved the
Constitution, — did not hesitate to propose duties, and to suggest even prohibi-
tions in favor of several articles of her productions. By one a duty was pro-
Eosed on mineral coal, in favor of the Virginia coal-pits ; by another, a duty on
«*mp was proposed, to encourage the growth of that article ; and by a third, a
prohibition even of foreign lieef was suggested, aa a measure of sound jjolicy.
A further evidence in support of the constitutional power to protect and fos-
ter manufactures by regulations of trade, — an evidence that ought of itself to
settle the question, — is the uniform and practical sanction given to the power,
by the general government, for nearly forty years, with a concurrence or acqui-
escence of every state government throughout the same period, and, it may be
added, through all the vicissitudes of porty which marked the period. No novel
construction, however ingeniously devised, or however respectable and (latriotic
its pations, can withstand the weight of such authorities, or the unbroken cur-
rent of so prolonged and universal a practice. And well it is that this c4innol
be done without the intervention of the same oulhority which maile the Con-
stitution. If it could be so done, there would be an end to that stability in
government, and in laws, which is essential to good government and good laws —
a sUihility, the want of which is the imputation which has at all times been
levelled against republicanism, with most effect, by its most dexterous adver-
^ries.
The imputation ought never, therefore, to be countenanced, by innovating
183a] APPENDIX. ~ Madison on the Tatiff. 603
conatructions, without any pled of precipitancy, or a paucity of the constructive
fkrecedents they oppose ; without any appeal to material foots newly brought to
ight ; without any claim to a better knowledge of the original evils and incon-
veniences for which remedies were needed — the very best keys to the true
object and meaning of all laws and constitutions.
And may it not be fairly leA to the unbiased judgment of all men of ex|ieri-
ence and of intelligence, to decide, -which is most to be relied on for a hound
and safe test of the meaning of a constitution, — a uniform interpretation by alt
the successive authorities utidi^r it, cotiunencing with its birth, and continued tor
a long period, through the varied state of political contests ; or the opinion of
every new legislature, heated as it may be by the strife of ^mrties — or warped,
as ollen happens, by the eager pursuit of some favorite object — or carried
awuy, i>ossibly, by the powerful eloquence or captivating addresses of a tew
popular statesmen, themselves, perhaps, influenced by the same misleading
causes ? If the latter test Is to prevail, every new legislative opinion might
muke a new constitution, as the foot of every new chancellor would make a
new Ptandard of measure.
It is seen, with no little surprise, that an attempt has been made, in a highly-
respectable quarter, and at length reduced to a resolution, formally pn>|K>sed m
Congress, to substitute, for the power of Congress to regulate trade so as to
encourage manufactures, a power in the several states to do so, with the consent
of that body ; and this ex{>edient is derived from a clause in the 10th section of
article 1st of the Constitution, which says, *' No state shall, without the consent
of Congress, lay any imposts or duties on imports or exports, except what may
be absolutely necessary for executing its inspection laws ; and the net produce
of all duties and imposts, laid by any state on imports and exports, shall be for
the use of the treasury of the United States ; and all such laws shall be subject
to the revision and control of the Congress."
To say nothing of the clear indications in the Journal of the Convention
of 1787, that the clause was intended merely to providi; f >r expenses incurred
by particular states, in their inspection laws, and in such improvements as they
might choose to make in their harbors and rivers, with the sanction of Congress,
— objects to which the reserved power has been applied, in several instances,
at the request of Virginia and Georgia, — bow coula it ever be imagined that
any state would wish to tax its own trade for the encouragement of manufac--
tures, if possessed of the authority — or could, in fact, do so, if wishing it?
A tax on imports would be a tax on its own consumption ; and the net proceeds
going, according to the clause, not into its own treasury, but into the treasnrF
of the United States, the state would tax itself separately for the equal gain of
all the other states ; and as far as the manufactures, so encouraged, might sue
ceed in ultimately increasing the stock in market, and lowering the price by
competition, this advantage, also, procured at the sole expense of the state, would
be common to all the others.
But the very suggestion of such an expedient to any state would have an air
of mockery, when its experienced impracticability is taken into view. No one,
who recollects or recurs to the jHjriod when the power over commerce was in
the individual states, and separate attempts were made to tax, or otherwise reg-
ulate it, need l)e told that the attempts were not only abortive, but, by dernon-
ttraiing the necessity of general and uniform regulations, gave ti>c original
mpulffi to the constitutional reform which provided for such regulations.
To refer a state, therefore, to the exercise of a power, as re^rved to her by
the Constitution, the impossibility of exercising which was an inducement to
adopt the Constitution, is, of all remedial devices, the last that ought to be
brought forward. And what renders it the more extraordinary is, that, as the
tax on commerce, as far as it could be separately collected, instead of belonging
to the treasury of the state, as previous to the Constitution, would be a tribute
to the United States, the state would be in a worse* condition, af\er the adoption
of .-he Constitution, than before, in reference to an important interest, the im-
provement of which was a particulai* object in adopting the Constitution.
Were Congress to mnke the proposed declaration of consent to state tariffs m
liTor of state manufactures, and the permitted attempts did not defeat them
604 APPENDIX. — Madis<m on the Tariff. [1828
•elves, Wiin wi uld be the situation of states deriving their foreign supplies
through tlie |>ort8 of other states? It is evident that they might be compelled
to pay, in their consumption of particular ai*ticles imported, a tax for the com-
mon treasury, not common to all the states, without having any manufacture or
product of their own, to partake of the contemplated benefit.
Of the impracticability of se|mrute regulations of trade, and the resulting
necessity of general regulations, no state was more sensible than Virginia. She
was I ccordingly among the most earnest for granting to Congress a power ade-
quate to the object. On more occasions than one, in the proceedings of her
legislative councils, it was recited, ^ that the relative situation of the states had
been found, on iriaLf to require uniformity in their commercial regulations, as the
only effectual policy for obtaining, in the i)orts of foreign nations, a stipulation of
privileges reciprocal to those enjoyed, by the subjects of such nations, in the
ports of the United States; lor preventing animosities which cannot fail to arise
among the several states from the interference of partial and separate regula-
tions ; and for deriving from commerce such aids to the public revenue as it
ou^ht to contribute, &c.
During the delays and discouragements experienced in the attempts to invest
Congress with the necessary powers, the state of Virginia made various trials of
what could be done by her individual laws. She ventured on duties and im-
posts as a source of revenue; resolutions were passed, at one time, to encourage
and protect her dwn navigation and shifi-building ; and in consequence of com-
plaints and petitions from Norfolk, Alexandria, and other places, against the
motiopolizing navigation laws of Great Britain, particularly in the trade bettoeen
the United States and the British ^'esi Indies^ she deliberated, with a purpose con-
trolled only by the ineflicacy of separate measures, on the experiment of forcing
n reciprocity by prohibitory regulations of her own.
The effect of her separate attempts to raise reveime by duties on imports soon
appeared in representations from her merchants that the commerce of the state
was banished by them into other channels, especially of Maryland, where im-
ports were less burdened than in Virginia.
Such a tendency of separate regulations was, indeed, too manifest to escafKs
anticipation. Among the projects prompted by the want of a federal authority
over commerce, was that of a concert, first proposed on the part of Maryland,
for a uniformity of regulations between the two states; and commissioners
were appointed for that purpose. It was soon perceived, however, that the con-
currence of Pennsylvania was as necessary to Maryland as of Maryland to Vir-
^nia, and the concurrence of Pennsylvania was accordingly invited. But
Pennsylvania could no more concur without New York than Maryland without
Pennsylvania, nor New York without the concurrence of Boston, &c.
These projects were superseded, for the moment, by that of the Convention
at Anna|K)lis in 1786, and forever by the Convention at Philadelphia in 1767,
and the Constitution which was the fruit of it.
There is a passiige in Mr. Necker's work on the finances of France which
affords a signal illustration of the difficulty of collecting, in contiguous commu-
nities, indirect taxes, when not the same in all, by the violent means resorted to
against smuggling from one to another of them. Previous to the late revolu-
tionary war in that country, the taxes were of very different rates in the different
provinces : particularly the tax on salt, which was high in the interior provinces
and low in the maritime, and the tax on toltacco, which was very high in gen-
ei il, whilst in some of the provinces the use of the article was altogether free.
The consequence was, that the standing army of fMitrols against smuggling had
swollen to the iitmiber of twenty-three thousand ; the annual arrest of men,
women, and children, engaged in smuggling, to five thousand five hundred and
fif\y ; and the number annually arrested on account of salt and tobacco alone,
to sevetiteen or eighteen hundred, more than three hundred of whom were con-
signed to the terrible punish/hent of the galleys.
May it not be regarded as among the providential blessings to these states,
that tiieir geographical relations, multiplied as they will l»e by artificial channels
of intercourse, give such additional force to the many obligations to cherish thai
union which alone secures their peace, their safe^, and their prosperity ! Apcurt
1828.] APPENDIX. — MudUon on the Tariff. 605
from the more obvious and awful consequences of their entire separution into
independent sovereignties, it is worthy of special consideration, that, divided
from each other as they must be by narrow waters and territorial lines 4nerely,
the facility of surreptitious introductions of c^^ntraband articles would defeat
every attempt at revenue, in the easy and indirect modes of impost and excise :
80 that, whilst their expenditures would be necessarily and vastly increased by
their new situation, they would, in providing for them, be limited to direct taxes
on land or other property, to arbitrary assessments on invisible funds, and to the
odious tax on persons.
You will observe that I have confined myself, in what has been said, to the
constitutionality and expediency of the power in Congress to encourage domes-
tic products by regulations of commerce. la the exercise of the power, they
are resfMiisible to their constituents, whose right and duty it is, in that as in all.
other cases, to bring tlieir metisures to the test of justice and of tlie general
good. With groat esteem and cordial respect,
Jos. a Cabeu^ Esq. JAMES MADISON.
LETTER II.
MoNTPELiKR, October 30, 1828.
In my letter of September 18th, I stated briefly the grounds on which I rested
my opinion, that a power to impose duties and restrictions on imports, with a
view to encourage domestic productions, was constitutionally lodged in Congress.
In the observations then made was involved the opinion, also, that the power
was properly there lodged. As this last opinion necessarily implies that there
are cases in which this power maybe usefully exercised by Congress, — the
only body witliin our (lolitical system capable of exercising it with effect, — you
may think it incumbent on me to point out cases of that description.
I will premise that I concur in the opinion, that, as a general rule, individuals
ought to be deemed the best judges of the best application of their industry and
resources.
I am ready to admit, also, that there is no counti-y in which the application
may, with more safety, be lefl to the intelligence and enterprise of individuals,
than the United Slates.
Finally, 1 shall not deny, that, in all doubtful cases, it becomes every govern-
ment to lean rather to a confidence in the judgment of individuals, than to
interpositions controlling the free exercise of it.
With all these concessions, 1 think it can be satisfactorily shown that there
are exceptions to the general rule, now expressed by the plinise ** Let ns alone,"
forming cases which call for the interposition of the competent authority, and
which are not inconsistent with the generality of the rule.
1. The theory of *^Let us alone" supposes that all nations concur in a per-
fect freedom of commercial intercourse. Were this the case, they would, in a
commercial view, be but one nation, as much as the several districts composing
i particular nation ; and the theor}' would be as applicable to the former as to
the latter. But this golden age of free trade has not yet arrived ; nor is there a
single nation that has set the example. No nation can, indeed, safely do so,
until a reciprocity, at least, be insured to it. Take, for a proof, the furniliar case
of the navigation employed in a foreign conunerce. If a nation, adhering to
r;he rule of never interposing a countervailing protection of its vessels, admits
foreign vessels into its |)orts tree of duty, whilst its own vessels are subject to a
duty in foreign ports, the ruinous effect is so obvious, that the warmest advocate
for the theory in question must shrink from a universal application of it.
A nation leaving its foreign ti*ade, in all cases, to regulate itself, might soon
find it regulated, by other nations, into a subserviency to a foreign interest In
the interval between the (>cace of 1783 and the establishment of the present
Constitution of the United States, the want of a general authority to regulate
trade is known to have had this conseouence. And have not the pretensions
and policy latterly exhibited by Great Britain given warning of a like resul:
from a renunciation of all countervaifmi^ regulations on th<^ fiart of the United
fi06 APPENDIX. — Madison an the Tariff. [1828.
Htatenf Were ahe permitted, by conferring on cerUiin portions of her domain
the nonie of colonies, to open from these a trade lor hervelf to foreign countries,
and to exclude, at the ranie time, a reciprocal trade to such colonies, by foreign
countries, the use to be made of the monopoly need not be traced. Its^char-
acter will be placed in a just relief by supposing that one of the colonial islands,
instead of its present distance, hap|>ened to be in the vicinity of Great Britain ;
or that one of the islands in that vicinity should receive the name and be re-
garded in the light of a colony, with the {jeculiar privileges claimed lor colon icis.
Is it not manifest that, in this case, the favored island might lie made the sole
medium of the commercial intercourse with foreign nations, and the |»areni
country thence enjoy every essential advantage, as to the terms of it, which
would flow from an unreciprocal trade from her other ports with other nations ?
. Fortunately, the British claims, liowever speciously colored or adroitly man-
aged, were repelled at the commencement of our commercial career as an inde-
pendent people, and at successive epochs under the existing Constitution, both
m legislative discussions and in diplomatic negotiations. The claims were
repelled on the solid ground that the colonial trade, as a rightful monopoly, was
limited to the intercourse between the parent country and its colonies, and
between one colony and anotlier; the whole being, strictly, in the nature of a
coasting trade from one to another fiort of the same nation — a trade with which
no other nation has a right to interfere. It follows, of necessity, that the parent
country, whenever it o^iens a colonial port for a direct trade to a foreign country,
departs, itself, from the principle of colonial monopoly, and entitles the fbreign
country to the same reciprocity, in every respect, as in its intercourse with any
other ports of the nation.
Tiiis is common sense and common right It is still more, if more could be
required. It is in conformity with the established usage of all nations, other
than (ireat Britain, which have colonies. Some of those nations are known to
adhere to the monof>oly of their colonial trade, with all the vigor and constancy
which circumstances permit* But it is also known that, whenever, and fit>m
whatever cause, it has l)een found necessary or expedient to open their colonial
ports to a foreign trade, the rule of reciprocity in favor a^ the foreign party was
not refused, nor, as is believed, a right to refuse it pretended.
It cannot be said that the reciprocity was dictated by a deficiency in the com-
mercial marine. F'rance, at least, could not l)e, in every instance, governed by
that consideration ; and Holland still less, to say nothingof the navigating states
of Sweden and Denmark, which have rai*ely, if ever, enforced a colonial mo-
nopoly. The remark is, indeed, obvious, that the shipping libei-ated from the
usual conveyance of supplies from the parent country to the colonies might be
employed, in the new channels opened for them, in supplies from abroad.
Rccif)rocity, or an equivalent for it, is the only rule of intercourse among in-
dependent communities; and no nation ought to admit a doctrine, or adopt an
invariable policy, which would preclude the counteracting measures necessary
to enforce the rule.
2. The theory supposes, moreover, a |)erpetiial peace — a supposition, it is to
be feared, not less chimerical than a imiversal freedom of commerce.
The effect of war, among the commercial and maniifactnring nations of the
world, in raising the wages of labor and the cost of its products, with a like effect
on the charges of fr*eight atid insurance, need neither proof nor ex])lanation. In
order to determine, therefore, a question of economy, l)etween de|»ending on
foreign supplies and encouraging domestic stibstitutes, it is necessary to com-
pare the probable periods of war with the probable periods of peace, and the
cost of the domestic encouragement m time of peace with the cost added to
foreign articles in time of war.
During the last centniT, the periods of war and peace have been nearly equal.
The ertcct of a state of war in raising the price of imported articles cannot l>e
estimated with exactness. It is certain, however, that the increased price of
particular articles may make it cheaper to manufacture them at home.
Taking, for the sake of illustration, an equality in the two periods, and the
cost of an imported yard of cloth in time of war to be nine and a half dollars,
ajid in time of peace to l)e seven dollars, whilst the <«itme could at all times be
1828.1 APPENDIX. — Madison on the Tariff, 607
manu&clured at borne for eight dollars, it is evident tliat a tarifT of one dollar
anil a qiinrter on ttie imported yard would protect the home manutiicture in
time of peace, and avoid a tax of one dollar and a half impoiied by a tttate
of war.
It cannot be said that the manufactures which could not support tbemselve*
against foreign competition, in periods of peace, would spring up of tiienjselvea
at the recurrence of war prices, it must be obvious to every one, that, anart
from the ditHculty of grcjit and sudden changes of employment, no prudent
capitnliKts would engage in expensive establishments of any sort, at the com-
mencement of a war of uncert^iiu duration, with a certuiiity of having them
cnijihed by the return of peace.
The strictest economy, therefore, suggests, as exceptions to the genera) rule,
an estimate, in every given cose, of war and peace, periods and prices, with
inferences tlierefrom of the amount of a tariff which might be atiforded during
peace, in oider to avoid the tax resulting from war ; and it will o<:cur at once
tliat the inferences will be strengthened by adding, to the supposition of wura
wholly foreign, that of wars in which our own country might l)e a party.
3 It is an opinion in which all must agree, that no nation ought to be unne-
cessarily de|)endent on others for the munitions of public defence, or for the
materials essential to u nuval force, where the nation bus a maritime frontier, or
a foreign commerce, to protect. To this class of exceptions to tjie theory may
be added the instruments of agriculture, and of the mechanic arts wliich supply
the other primary wants of the corrnnunity. The time has been, when many of
these were derived from a foreign source, and some of them might rt-lapse into
that de|>endence, were the encouragentent of the fabrication of iliem jit home
withdrawn. But, as all foreign sources must lie liable to interruptions too in-
convenient to l)e ha2^rded, a provident policy would favor an internal and
independent source, as a reasonable exception to the general rule of consulting
cheapness alone.
4. There are cases wh:^re a nation may be so far a<lvanced in the prerequi-
sites for a particular branch of manufactures, that this, if once brought into ex-
istence, would sup|iort itself; and yet, unless aided, in its nascent and infant
state, by public encouragement and a confidence in public protection, might
remain, if not altogether, for a long time, unattempted without success. Is not
our cotton maimfacture a fair example? However favored by an advantageous
command of the raw material, and a machinery which disi^enses in so exiraor-
dinarv a proportion with manual lalxir, it is quite probable that, without the
impulse given by a war cutting off foreign supplies, and the fmtronage of an
early tariff, it might not even yet have established itself; and pretty certain that
it would be far short of the prosperous condition which enables it to face, in
foreign markets, the fabrics of a nation that defies all other competitors. The
number must be small that would now pronounce this mnimfacturing lN>on not
to have been cheaply purchased by the tariff which nursed it into its present
maturity.
5. Should it happen, as has been suspected, to be an object, though not of a
foreign government itself, of its great manufacturing capit^dists, to strangle in
the cradle the infant manufactures of an extensive customer, or an anticipated
rival, it would surely, in such a case, be incumbent on the suffering? party so far
to make an exception to the " let alone" policy, as to parry the evil by opposite
regfilations of its foreign commerce.
6. It is a common objection to the public encouragement of particular
branches of industry, that it calls off laborers from other branches found to be
more profitable ; and the objection is in general a weighty one. But it loses
that character in proportion to the effect of the encouragement in attracting
skilful laborers from abroad. Something of this sort has already taken place
among ourselves, and nnich more of it is in prospect ; and, as far as it has
taken or may take place, it forins an exception to the gei»eral policy in
question.
The history of manufactures in Great Britain, the greatest manufacturing
nation in tlie world, informs us that the woollen branch — till of htte her great*
•Mt bruish — owed both its original and subsequent growths to i>e>^«ecrted
608 APPENDIX. — Madison an Banks. [1831 .
exiles from tlie Netherlands ; and that her silk maniifactiireB — now a. floiiria*!-
ing and favorite branch — were not less indebted to emigrants flyintj from the
persecuting edicts of France. — Jindtrson^s History of Commerce.
It apfiears, indeed, from the general history ol' manufacturing industry, that
the prompt and successful introduction of it into new situations has Ijeen tiie
result of emigration from countries in wliich manufactures hud gi'adually grown
up to a prosperous state; as into Italy on the fail of the Greek empire ; from Italy
into Spain and Flanders, on the loss of liberty in Floix;nce and other cities ; and
from Flanders and France into England, as above noticed. — Franklin^s Canada
Pamphlet.
In the selection of cases here made as exceptions to tlie ** let alone theory,
none have been included which were deemed controvertible. And if I have
viewed them, or a part of them only, in their true light, they show, what was to
be shown, that the power granted to Congress to encourage domestic products,
by regulations of foreign trade, was profjerly granted, inasnnich as the power
is, in effect, confined to that lx)dy, and may, when exen!iHed with a sound legis-
lative discretion, provide the better for the safety and pros|>erity of the nation.
With great esteem and regard,
Jos. C. Cabell, Esq. JAMES MADISON.
BANKS.
LETTER FROM J. MADISON TO CHAS. J. INGERSOLl..
OF THE PEIflfSTLVANIA LZOlSf.ATURE,
ON THE SUBJECT OF "BILLS OF CREDIT;"
Dated Montpclikr, February 22, 1831
Dear Sir: I have received your letter of January 21, asking —
1. Is thtre any state poioe*- to make banks ?
2. Is the fediral poicer, as has been exercised^ or as proposed to be exercisedy by
President Jackson^ preferable ?
The evil which produced the prohibitory clause in the Constitution of the
United States, was the practice of the states in making bills of credit, and, in
some instances, appraised property, a " legal tender." If the notes of state
banks, therefore, whether chartered or unchartered, l)e made a legal tender, they
are prohibited ; if not made a legal tender, they do not fall within the prohib-
itory clause. The number of the Federalist referred to was written with that
view of the subject ; and this, with probably other contemporary ex|>osition8,
and the uninterrupted practice of the states in creating and permitting banks,
without making their notes a legal tender, would seem to l>e a bar to the ques-
tion, if it were not inexpedient now to agitate it.
A virtual and incidental enforcement of the depreciated notes of the state
banks, by iL^'ir crowding out a sound medium, though a great evil, was not fore-
seen ; and, if it had been apprehended, it is questionable whetlier the Constitu-
tion of the United States, (which had many obstacles to encounter,) would have
irentured to guard against it, by an additional provision. A virtual, and, it is
hoped, an adequate remedy, may hereafler be found in the refusal of state
paper, when delwised, in any of the federal transactions, and the control of the
federal bnnk ; this being itself controlled from suspending its specie payments
by the public authority. ,
On the other question, I readily dccid** against the project recommended by
tbe President Reasons, more than sufficient, appear to have l)een presented to
the public in the reviews, and other comments, which it has called forth. How
far a hint for it may have been taken from Mr. Jefferson, 1 know not Tbo
APPENDIX. — Jtffersm on Banks. 609
kindred ideas of the latter may be eeen in hia Memoirs, &C., vol. iv. pp. 19G,
207, 5136 ; * and his view of the state banks, vol. iv. pp. 199, 220.
There are sundry statutes in Virginia, prohibiting the oircuUtion of notes,
payable to bearer, whether issued by individuals, or unchartered banks.
JAMES MADISON.
IDEAS OF MR. JEFFERSON ON BANKS;
RBFKRRSD TO BT MR. MADISOIT IS THE PRSCEnilfO LETTER.
[extracb.]
The bill for establishing a national bank, in 1791, undertakes, among other
things, —
1. To form the subscribers into a corporation.
2. To enable them, in their corpomte capacities, to receive grants of lands
and, so far, is against the laws of mortmain, f
li. To make alien subscribers capable of holding lands ; and, so fiir, is agains<
the laws of cUitnagt.
4. To transmit these lands, on the death of a proprietor, to a certain line of
successors; and, so far, changes the course ofdescerUg.
5. To put the lands out of the reach of forfeiture, or escheat ; and, so far, ii
against die laws of forfetture and eacheaL
6. To transmit personal chattels to successors, in a certain line ; and, so far,
i.s against the laws of distribution.
7. To give them the sole and exclusive right of lianking, under the national
authority ; and, so far, is affainst the laws of monopoly.
8. To communicate to tnem a power to make laws, paramount to the laws
of the states ; for so they must be construed, to protect the institution from the
control of the state legislatures; and so, probably, they will be construed.
I consider the foundation of the Constitution as laid on this ground — that all
powers not dAt^aUl to the United States, by the ConstitiUion, nor prohibited by it to
the states, are reserved to the states, or to the people, (12th amend.) To take a sin-
gle step beyond the boundaries thus specially drawn around the powers of
&ongreiid, is to take possession of a boundless field of power, no longer suscep-
tible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not,
m my opinion, been delegated to the United States by the Constitution.
— ■■■ I.. -I ■■ 11 ^— ■■■ ■ !■■■ ■■■■^■■^^■^■l,^ ^m^m^^ i ■ — ^— ^i»^w^— ^i»^w^^-^— 1P^^^^^^^— ^
* Extract from President Jackson's Message of December 7, 1830. — ** It beconm
us to inquire, whether it be not posiible to lecure the advantages afforded by the
present bank, through the agency of a bank of the United btates, so modified,
in its principles and structure, as to obviate constitutional and other objections.
It is thought practicable to organize such a bank, with the necessary officers,
as a blanch of the treasury department, based on the public and individual deposits,
without power to make loans or purchase property, which shall remit the funds of the
government, and the expenses of^ which may be paid, if thought advisable, by allowing
its officers to sell bills of exchange to private individuals, at a moderate premium
Not being a corporate body, having no stockholders, debtors, or properti^, and buf few
officers, it would not be obnoxious to the constilutionHl objections which are urged
against the present bank ; and having no means to operate on the hopes, fears, or in*
Cerests, of large masses of the community, it would be shorn of the influence which
makes that bank formidable. The states would be strengthened by having in their
hands the means of furnishing the local paper currency through their own banks ^
while the Bank of the United States, though issuing no paper, would check the issues
of the state banks, by taking their notes in deposit, and for exchange, only so long as
they continue to be redeemed with specie.**
t Though the Constitution controls the laws of mortmain so fkr as to permit Con^
gress itself to hold lands for certain purposes, yet not so far as to permit tbem la
eommunicate a similar right to other corporate bodies.
VOL. IV, 77
C 1 0 APPENDIX. — Jrfferson on Banks.
\. TVity are not among the potoers specially envaneraUd, For these art, —
1. A power to Iom taxes for the piir^iose of |)aying the debts of the Unite<l
States. But no debt is ptiid In* this bill, nor any tax laid. Were it a bill to
raise money, its organization ui the Senate would condemn it by the Consti-
tution.
2. To "borrow money." But this bill neither borrows money nor msures
the borrowing of it The proprietors of the liarik will be just as free as any
other moiiey-liolders lo lend, or not to lend, their money to the public. The
openition proposed in the bill, first to lend them two millions, and then l)on*ow
thern buck again, cannot change the nature of the latter act, which will still bt^
a puynietit, and not a loan, call it by what name yon please.
3. ** To regulate cgnnnen'e with foreign nations, and among the states, and
with the Indian iriljes." To erect a bank, and lo regulate commerce, are very
different acts. He who erects a Ivink creates a subject of commence in its bills;
$o does he who makes a bushel of wheat, or digs a dollar out of the mines: yet
neither of these persons regulates commerce thereby. To make a thing which
may l>e bought and sold, is not to prescribe regulations for buying and sellrng.
Besides, if iliis were an exercise of the power of regulating commerce, it would
\te void, as extending as much to the internal commerce of every state, as to its
external. For che power given to Congress by the Constitution does not ex-
tend to the internal regulation of the commerce of a state, (that is to say, of the
connnerce between citizen and citizen,) which remains exclusively with its own
legislature; but to its external connnerce only, that is to say, its commerce with
another state, or with foreign nations, or with the Indian tribes. Accordingly,
the bill does not pro[)ose the measure us a "regulation of trade," but as " pro-
ductive of considerable advantage to tr:ide."
Still less are these powers covered by nny other of the special enumerations.
11. JSTor are they mthin either of the general phrases, which are the two folluuh
ing : —
J. "To lay taxes to provi<le for the general welfare of the United States;**
that is to say, " to lay taxes /or the purpose of providing for the general welfare ;"
for the laying of taxes is the power, and the general welfare tlie purpose for
which the power is to l)e exercised. Congress are not to lay taxes ad libitum,
for anij purpose they please ; but only to pay the debts, or providtfolc^liie welfare,of
the Union, In like manner, they are not to do any thing they please, to provide
for the general welfare, but only to Uty taxes for that purpose. To consider the
latter phrase, not as describing the purpose of the first, nut as giving a distinct
and independent power to do any act they please which might be for the good
of the Union, would render all the preceding and subsequent enumerations of
power completely useless. It would reduce the whole instrument to a single
phrase — that of instituting a Congress with power to do whatever would be for
the good of the United Suites ; and, as they would be the sole judges of the
good or evil, it would he also a power to do whatever evil they jileased. It is
an estxiblished rule of construction, where a phnise will boar either of two mean-
nigs, to give it that which will allow some meaning to the other parts of the
instrument, and not that which will render all the others useless. Certaiidy no
such universal power was meant to l)e given them. It was intended lo lace
them uf) straitly within the enmnerated powers, and those without which, as
means, these powers could not lie carried into effect It is known tliat the very
power now proposed as a m/eans, was rejected as an end by the Ck)nvention whidt
formed the Constitution. A pro|>osition was made to them, to authorize Con-
cress to open canals, and an amendutory one to empower them lo incorporate.
But the whole was rejected ; and one of the reasons of objection urged in debate
was, that they then would have a power to erect a bank, whicl^ woidd rendei
great cities, where there were prejudices and jealousies on that subject, adverse
to the reception of the Constitution.
2. The second genend plirasf is, " to make all laws necessary and proper for
carrying into execution the enumerated powers." But they can all be earned
into execution without a bank. A bank, therefore, is not necessary, and conse-
quently not autitorized by this phrase.
It has l>een much urged tliat a bank will give great fucili/v or convenience io
APPENDIX. — Jifftrson on Banks, 6 1 1
rne collection of taxoB. Suppone this were true ; yet the Constitution allowg
only the means which are ** necessary," not those which are merely "conve*
nient," for effecting the enumerated |)owers. If such a latitude of construction
l»e allowed to this phrase as to f^ive any non-enumerated fiower, it will go to
every one ; for there is no one which ingenuity may not torture into a convent'
tnce, in some way or ot?ierj to some one of so long a list of enumerated |>ower8. It
would swallow up all the delegated i>owers, and reduce the whole to one phrase,
as before observed. Therefore it was that the Constitution restrained them to
the necesscary means ; that is to say, to those means without which the grant of
the power would be nugatory.
Perhaps bank bills may l)e a more convenient vehicle than treasury orders.
But a little difference in the degree of conveuienre cannot constitute the neces-
sity which the Constitution makes the ground for assuming any non-enumerated
flower.
Can it be thought that the Constitution intended that, for a shade or two of
convenience, more or less, Congress should be authorized to break down the most
ancient and fundamental laws of the several states, such as those aguiiirit mort-
main, the laws of alienage, the rules of descent, the acts of distribution, the law9
of escheat and forfeiture, and the laws of monopoly ?
Nothing but a necessity invincible by any other means, can justify such 9
prostration of laws, which cx)nstitute the pillars of our whole system ofjuris^
prudence. Will Congress Im) too strait-laced to carry the Constitution iutp
honest effect, unless they may pass over the foundation laws of the state goverur
nients, for the slightest convenience to theirs?
The negative of the President is the shield provided by the Constitution to
protect, against the invasions of the legislature, 1. The rights of the executive;
2, Of ike judiciary ; S, Of the stales and state legislatures. The present is the
case of a right remaining exclusively with the states, and is, consequently, one
of those intended by the Constitution to he placed under his protection.
It must l)e added, however, that, unless the President's mind, on a view of
every thing which is urged for and against this bill, is tolerably clear that it is
unauthorized by the Constitution, if the pro and the con hang so even as to Iml-
ance his judgment, a just respect for the wisdom of the legislature would
naturally decide the balance in fiivor of their opinion. It is chiefly for cases
where they are clearly misled by error, ambition, or interest, that the Constitu-
tion has placed a check in the negative of the President February 15, 1791.
THOMAS JEFFERSON.
NOTES — ON BANKS.
March 11, 1798. When the bank bill was under discussion, in the House ot
Representatives, Judge Wilson came in, and was standing by Baldwin. Bald-
win reminded him of the following fact, which passed in ^^thesprnnd Convention/'
Among the enumerated powers given to Congress, was one to erect corpora-
tions. It was, on debate, struck out. Sevenu particular powers were then
pro)K)sed. Among others, Robert Morris proposed to give Congress a power to
estid)lish a Tiutional bank. Gouvemevr Morris opfiosed it, observing that it was
pxtremely doubtful whether the Constitution they were fniming could ever be
fmssed at all by the |;eople of America ; that, to give it its best chance, however,
they should mnkc it as palatable as possible, and put nothing into it, not very
essemial, which might raise up enemies; that his colleague (Roliert Morris^
well knew that "a bank" was in their state (Pennsylvania) the very watchword
of |)arty ; that a bank had l)een the great lione of contention l>et\veen the two
parties of the srate from the establishment of their Constitution ; having been
erected, put down, erected again, as either party preponderated ; that, therefore,
to insert this power would instiuitly enlist against the whole instrument the
M'hole of the anti-bank party in Pennsylvania. Whereupon it was rejected, tt4
6 1 'I APPENDIX. — Madison* s Letter on Debts. [ 1830.
Wifi every other special power, except that of giving copyrights to authors, and
patents to inventors ; the general power of incorporating being whittled down
to this shred. Wilson agreed to the fact — Jtffereon^s Mtmovrs.
LETTER OF MR. MADISON TO MR. STEVENSON,
Dated 37th Novkmbee, 1830,
iJ^AMINING THC ORIGIN AND PROGRESS OF THK CLAUSE OV THE COM-
STITUTION "TO PAY THE DEBTS, AND PROVIDE FOR THE COMMON
DEFENCE, &c."
[exteact.]
A special provision, says Mr. Madison, could not have been necessary for the
iMa of the new Congress ; ibr a power to provide money, and a power to per-
form certain acts, of which money is the ordinary and appropriate means, muK^
of course, carry with them a power to pay the expense of perfurminff the acta
Nor was any special provision for debts proposed till the case of the re vol u
vionary debts was brought into view ; and it is a fkir presumption, fW>m the
course of the varied propositions which have been noticed, that but fbr the old
debts, and their association with the terms ** common defence and general wel
ftire," the clause would have remained, as reported in the first draft of a consti-
tution, expressing, ffenerally, '^a power in Uon^ress to lay and collect taxes,
duties, imposts, and excises,** without any addition of the phrase "to provide
for the common defence and general welfare." With this addition, indeed, the
language of the clause being m conformity with that of the clause in the Arti*
cles of Confederadon, it would be qualified, as in those Articles, by the specifi-
cation of powers subjoined to it But there is sufficient reason to suppose that
the terms in question would not have been introduced, but for the introduction
of the old debts, with which they happened to stand in a fiimiliar, though
inoperadve, relation. Thus introduced, however, they pass, undisturbed,
through the subsequent stages of the Constitution.
If it be asked why the terms "common defence and general welfare," if not
meant to convey the comprehensive power which, taken literally, they express,
were not qiiali^ed and explained by some reference to the particular power
subjoined, the answer is at hand — tiiat, although it might easily have been
done, and experience shows it mi^ht be well if it had been done, yet the omis-
sion is accounted for by an inattention to the phraseology, occasioned, doubtless,
by the identity with the harmless character attached to it in the instrument from
which it was borrowed.
But may it not be asked, with infinitely more propriety, and without the
possibility of a satisfactory answer, w)iy, if the terms were meant to embrace
not only all the powers particularly expressed, but the indefinite power which
has been claimed under them, the intention was not so declared ; why, on that
idup)K)sition, so much critical lal)or was employed in enumeratiirg the particular
powers, and in defining and limiting their extent?
The variations and vicissitudes in the modification of the clause in which the
terms " common defence and general welfare " appear, are remarkable, and to
be no otherwise explained than by differences of opinion concerning the neces-
sity or the form of^ a constitutional provision for the debts of the revolution ;
some of the members apprehending improper claims for losses, by depreciated
bills of credit ; others, an evasion of proptT claims, if not positively brought
within the authorized functions of the new government ; and others, again,
considering the past debts of the United States as sufficientlv secured by the
principle that no change in the government could change the obligations of
the nation. Besides the indications in the Journal, the history o/ the period
•auctions this explanation.
1890.] APPENDIX. — Madison's Letter on Debts. 6 1 ^
But It is to be emphaticullj ramarked, that, in the multhucle of niotion%
propositions, and amendments, there is not a single one having reference to the
tenns ^ common defence and general weltiire,'' unless we were so to understand
the proposition containing them, made on August ^h, which was disagreed to
by all tiie states except one.
The obvious conclusion to which we are brought is, that these terms, copiod
irom the Articles of Con^eration, were regarded in the new, as in the old
instrument, merely as general terms, explained and limited by the subjoined
sfiecifications, and therefore requiring no critical attention or studied precaution*
li' the pructice of the revolutionary Congress be nleaded hi opposition to this
view of the case, the plea is met by the notoriety, that, on several accounts, the
uractice of that body is not the expositor of the ^ Articles of Confederation."
These Articles were not in force till they were finally ratified by Maryland io
1761. Prior to that event, the power of Congress was measured by the exigen-
cies of the war, and derived its sanction from the acquiescence of the states.
After that event, habit, and a continued expediency, amounting often to a reel or
apparent necessity, prolonged the exercise of an undefined authority, which was
the more readily overlooked, as the members uf the liody held their seats during
pleasure ; as its acts, particularlv after the failure of the bills of creilit,de|H*nde<^
for their efficacy, on the will ol the state ; and as its general impotency became
manifest Examples of departure from the pre8cril>ed rule are too well known
to require proof. The case of the old Bank of North America might be cited as
a memorable one. The incorfiorating ordinance grew out of the inferred
necessity of such an institution to carry on the war, by aiding the finances, which
were starving under the neglect or inability of the states to furnish the assessed
quotas. Congress was at the time so much aware of the deficient authority,
that tliey recommended it to tlie state legislatures <o pass laws giving due
effect to the ordinance, which was done by Pennsylvania and several otlier
states.
Mr. Wilson, justly distinguished for his intellectual powers, beine deeply
impressed with the importance of a bank at such a crisis, published a small
(lamphlet, entitled " Considerations on the Bank of North America," in which
he endeavored to derive the power from the nature of the Union, in which tho
colonies were declared and became independent states, and also from the tenor
of the ^ Articles of Confederation " themselves. But what is particularly worthy
of notice is, that, with all his anxious search in those Articles for such a power,
he never glanced at the terms ^^ common defence and general welfare," as a
source of it. He rather chose to rest the claim on a recital in the text, ^ tluit,
for the more convenient management of the general interests of the United States,
delegates shall be annually appointed to meet in Congress," which, he said,
implied that the United States had general rights, general [lowers, and general
obligations, not derived from any particular suite, nor from all the |mrticuliir
states, taken separately, but ** resulting from the Union of thb whole ; '* these
general powers not being controlled by the article declaring that each state
retained all [)owers not granted by the Articles, because ^ the individual statee
never possessed, and could not retain, a general power over the others."
l*he authority and argument here resorted to, if proving the ingenuity and
patriotic anxiety of the author, on one hand, show sufficiently, on the other,
that the term ** common defence and general welfare " could not, according to
the known acceptation of them, avail his object
That the terms in question were not suspected, in the Ct>nvention which
formed tho Constitution, of any such meaning as has been constructively applied
to them, may be pronounced with entire confidence ; for it exceeds the possibil-
ty of belief, that the known advocates, in the Convention, for a jealous grant
and cautious definition of federal powers, should have silently permitted the
introduction of words or phrases in a sense repdering fruitless the restrictions
and definitions elaborated by them.
Consider, for a moment, the immeasurable difference between the Constitii'^
tion, limited in its |)owers to the enumerated objects, and expanded as it wonid
he by the import claimed for the phraseology in question. The difference is
tquivalent to two constitutions, of characters enentially contrasted with eacft*
52
6 1 4 APPENDIX. — Madison's Letter' an Debts. [ 1 830
other ; the one possessing powers confined to certain specified cases, the other
exteniled to all cases whatsoever. For what is the case that would not be
einhrAced by a general power to raise money, a power to provide ibr the general
weltiu'e, and a power to pass all laws necesHary and proper to carry these
powers n)to execution — all surh provii^ions and laws superseding, at tiie same
time, all local laws and constitutions at variance with them ?■ Can less be said,
'vith the evidence before us tiirnished by the Journal of the Convention itself,
than that it is impossible that such a constitution as^ the latter would have lieen
recommended to the states by all the members of that body whose names were
subscribed to the instrument ?
Passing from this view of the sense in which tlie terms ** common defence
and general welfare ^ were used by the framers of the Constitution, let us look
for that in which they must have been understood by tlie conventions, or rather
by the (>eople, who, through their conventions, accepted and ratified it And
here the evidence is, if possible, still more irresistible, that the terms could not
have been regarded as giving a scope to federal legislation infinitely more objec-
tionable than any of the s|)ecified powers which produced such strenuous
op|)osition, and calls for amendments which might be safeguards against the
dangers apprehended from them.
Without recurring to the published debates of those conventions, which, as
far as they can be relied on for accuracy, would, it is believed, not impair the
evidence furnished by their recorded proceedings, it will suflice to consult
the list of amendments proposed by such of the conventions as considered the
powers granted to the government too extensive, or not f*afely defined.
Besides the restrictive and explanatory amendments to the text of the Consti-
tution, it may be obnerved, that a long list was premised under the name and in
the nature of '* Declarations of Rights;" all of them indicating a jealousy of tlje
federal powers, and an anxiety to multiply securities against a constructive en-
largement of them. But the ap))eal is more particularly made to the number and
nature of the amendments proposed to be made specific and integral parts of
the constitutional text
No less than seven states, it appears, concurred in adding to their ratifications
a series of amendments, which they deemed requi:«ite. Of these amendments,
nine were pro)>osed by the Convention of Massachusetts, five by that of South
Carolina, twelve bv that of New Hampshire, twenty by that of Virginia, thirty-
three by tliat of N^ew York, twenty-six by that of North Carolina, and twenty-
one by thut of Rhode Island.
Here are a majority of the states proposing amendments, in one instance
thirty-three by a single state, all of them intended to circumscril)e the power
granted by them to the general government, by explanations, restrictions, or
prohibitions, without including a single proposition from a single state referring
to the terms ^'connnon defence and genenil welfare;" which, if understood to
convey the nssertt^ power, could not have failed to be the power most stren-
uously aimed at, because evidently more alarming in its range than all the
powers objected to put together. And that the terms should have passed alto-
gether unnoticed by tlie many eyes which saw danger in terms and phrases
employed in some of thn most minute and limited of the enumerated powers,
must be regarded as a demonstration that it was taken for granted that the
terms were harndess, because explained and limited, as in the *^ Articles of
Confederation," by the enumerated powers which followed them.
A like demonstration that these terms were not understood in any sense tliiit
could invest Congress with powers not otherwise bestowed by the constitn-
tionul chatter, may be found in what passed in the first session of Congress,
wh«n the subjects of amendment were taken up, with the conciliatory view of
freeing the Constitution from objections which had been made to the extent of
Its powers, or to the unguarded. terms employed in describing them. Not only
were the terms "common defence and general welfare" unnoticed in the long
list of amendments brought forward in the outset, but the Journals of Congrea«
^how that, in the progress of the discussions, not a single proposition was madt,
in either branch of the legislature, which referred to the phrase as admitting a
C4>usiructive enlargement of the granted powers, and requiring an amendment
1831.] APPENDIX— Jfo^'son on Banks . 6K>
guarding against it Such a fbrltcarauce and silence on such an occasion, and
among so many members who belonged to the pan of the nation which called
for explanatory and restnciive amendments, and who had been elected as known
advocates for them, cannot be accounted tor without sup|>osing that the terms
^common defence and general welfare " were not, at tliat time, deemed sua*
ceptible of any such construction as has since been applied to them.
It may be tiiought, perhaps, due to the subject, to advert to a letter of October
5, 1787, to Sanmel Adams, and another, of Octolter 16, of the same year, to the
governor oi' Virginia, from R. H. Lee, in both of which it is seen that the terms
liad attnicied his notice, and were apprehended by him **to submit to Congress
ever>' object of human legislation." But it is particularly wortliy of remark that,
although a member of the Senate of the United States, when ameitdments to
the C(>n:<iitution were before that house, and sundry additions and alterations
were there made to the list sent from the other, no notice was taken of those
terms as pregnant with danger. It must be inferred that the opinion formed
by tlie distinguished member, at the first view of the Constitution, and lietbre it
hud been fully discussed and elucidated, had been changed into a conviction
that the terms did not fairly admit the construction he liad originally put on
them, and tlierefore needed no explanatory precaution against it
Jfote. Against the opinion of Mr. Madison, there are the opinions of men of great
eminence ; and amon^ these may be enumerated Presidents Washington, Jefferson*
and Monroe, and Mr. Hamilton.
MADISON'S LETTER
09 THE
CONSTITUTIONALITY OF THE BANK OF THE UNITED STATES »
Dated Mortpklier, June 25, 1831.
Dear Sir : I have received your friendly letter of the 18th insL The few
lines wliicK answered your former one, of the 21st of January last, were written
in haste and in bad health ; but they expressed, though without the attention in
some res|>ects due to the occasion, a dissent from the views of the Pi^sideut, as
to a Bank of the United States, and a substitute for it ; to which I cannot but
ailhere. The objections to the latter have appeared to me to prc|)ondenite
f,'reatly over the advantages ex[)ected from it, and the constitutionality of the
former I still regard as sustained by the considerations to which I yielded, in
giving my assent to the existing bank.
The rhurge of inconsistency between my objection to the constitutionality of
such a bank in 1791, and my assent in 1817, turns on the question, how far
legisilative precedents, expounding the Constitution, ought to guide succeeding
legislatures, and to overrule individual opinions.
Some obscurity has been thrown over the question, by confounding it with
the respect due from one legislature to laws passed by preceding legislatures.
But the two cases are essentially different A Constitution, being derived from
a su|>erior authority, is to be expounded and obeyed, not controlled or varied by
the suhordinate authority of a legislature. A law, on the other hand, resting on
no higher authoritv than that possessed by every successive legislature, itn
expediency, as well as it;* meaning, is within the scope of the latter.
The case in question has its true analogy in the obligation arising from
judicial ex|>ositions of the law on succeeding judges, the Constitution being a
loiff to the legislator, as the law is a rtde of decision to the judge.
And why are judicial precedents, when formed on due discussion and con-
sideration, and deliberately sanctioned by reviews and repetitions, regarded w»
of binding influence, or rather of authoritative force, in settling the meaning of
« law ? It must 1)0 answered, 1. Because it is a reasonable and estaldished
n I i> . APPENDIX. -- Madis^m on Bank$ [ 1 831
ixiom, tliat tlie good of society requires that the rules of conduct of its mem-
bers should be ceruin and known ; which would not be the case if any jndge,
disre^ardiug the decisions of his predecessors, sliould vary tiie rule of law
Bcc^rcling to his individual interpretation of it. MUera esl ntrviixu uln jtt$ esi
aui vagvm out ineognUtmu 2, Because an exposition of the law publicly made,
and repeatedly confirmed by tbe constituted authority, carries with it, bv fair
ihtereuce, the sanction of those who, having made the law through their legis-
lative organ, appear, under such circumstances, to have determined its meaning
through their judiciary organ.
Can it be of less consequence that the meaning of a Constitution should lie
fixed and known, than that the meaning of a law should be so ? Can, indeed,
A Jaw be fixed in its meaning and operation, unless the Constitution be so ? On
the rx)ntrary, if a particular legislature, differing, in the construction of the Con-
stitution, from a series of preceding constructions, proceed to act on that differ-
ence, they not only introduce uncertainty and instability in the Constitution, but
in the laws themselves ; inasmuch ns all laws preceding the new construction,
and inconsistent with it, are not only annulled for the future, but virtually pro-
notmced nullities from tiie beginning.
But it is said timt the legislator, having sworn to 8U|)|M)rt the Conntitution,
must 8up|>ort it in his own construction of it, however ditferent from that put
on it by his nredecessors, or whatever be the consequences of the construction.
And is not the judge under the same oath to support the law ? Yet has it ever
been supposed that he was required, or at liberty, to disregard all precedents,
however solemnly repeated and regularly observed, and, by giving effect to his
own abstract and individual opinions, to disturb the established course of prac-
tice in the businetts of the conununity ? Has the wisest and most conscientious
judge ever scrupled to acquiesce in decisions in which he has been overruled
by the matured opinions of the majority of his colleagues, and subsequently to
conform himself thereto, as to authoritative expositions of tiie law ? And is it
not reasonable that the same view of the oificial outh should be taken by a legis-
lator, acting under the Constitution, which is his guide, as is taken by a judge,
acting under the law, which is his ?
There is, in fact, and in common understanding, a necessity of regarding a
course of practice, as above characterized, in the light of a legal rule of inter-
preting a law ; and there is a like necessity of considering it a constitutional
rule of interpreting a constitution.
That there may be extraordinary and peculiar circumstances controlling the
nde in lioth cases, mav be admitted ; but with such exceptions, the rule will tbrce
itself on the practical judgment of the most ardent tneorist. He will find it
imfiossible to adhere to, and act officially upon, his solitary opinions, us to the
meaning of the law or Constitution, in opposition to a construction reduced to
practice during a reasonable period of tim^ ; more especially where no prospect
existed of a change of construction by the public or its agents. And if a reason-
(ible neriod of time, marked with the usual sanctions, would not bar the indi-
vidual prerogative, there could be no limitation to its exercise, although the
danger of error must increase with the increasing oblivion of explanatory
i^ircumstances, and with the continued changes in the import of words and
phrases.
Let it, then, l»e left to the decision of every intelligent and candid judge,
which, on the whole, is most to be relied on for the true and safe construction
of the Constitution: — that which has the uniform sanction of successive legis-
lative l>odics through a period of years, and under the varied ascemlency of
parties; not that which depends u|K)n the opinions of every new legislature,
heated as it may be by the spirit of party, eoger in the pursiut of some favorite
object, or led away by the eloquence and address of popular statesmen, them-
selves, perhaps, under the influence of the same misleading causes.
It was in conformitv with the view here taken of the res|)€Ct due to deliberate
and reiterated precedent, that the Bank of the United States, though on the
original question held to be unconstitutional, received the executive signaturt*
in the veor 1817. The act originally establishing a Ijank had undergone amplti
discussions in its [>assagii tbi ough the several branches of the goveiument It
1791.] APPENDIX. — HamiUmi an Brnki. 617
bad been earned into execution through a period of twenty years, with annual
legislative recognition,-*- in one inatance, indeed, with a tHMitive mmification
ofit into a new state, -« and with the entire acquieaceuoe or all the local autboi
ities, as well as of the nation at large ; to all of which may be added, a deoreas
ing prospect of any change in the public opinion adverse to the constitutionality
of such an iustitutton. A veto from the executive, under tliese circumstances,
with an admission of the expediency, and almost necessity, of the measure,
would have been a deHauce of all the obligations derived trom a course of
precedents amounting to the requisite evidence of the national judgment and
mtentions.
It has been contended that the authority of precedents was, in that case, in-
validated bv the consideration, that they proved only a respect lur the stipulated
duration ot the bank, with a toleration of it until the law should expire, and by
the casting vote given in the Senate by the Vice-President, in the year 181],
against a bill for establishing a national bank, the vote being expressly given
on the ground of unconstitutionality. But if the law itself was unconstitutional,
the stipulation was void, and could not be constitutionally fulfilled or tolerated
And as to the negative of the Senate by the casting vote of the presiding officer,
it is a fact, well understood at the time, that it resulted, not from an equality
of opinions in that assembly on the power of Congress to establish a bank,
but from a junction of those who adnutUd the power, but daanpnved the plan,
with those who denied the power. On a simple question or constitutionality
there was a decided majority in favor of it.
JAMES MADISON.
Ma. IHOERSOLL. ^
HAMILTON'S ARGUMENT
Oir TBS
CONSTITUTIONALITY OF A BANK OF THE UNITED STATES.
Fbbruakt, 1791.
[KXTRikCTS.]
It remains to show, that the incorporation of a bank is within the operatioo
of the provision which authorizes Congress to make all needful rules and rest*
olations concerning the property of the United States. But it is previously
necessary to advert to a aistinction which has been taken up by the attorney*
general. He admits that the word property may signify personal property,
however acquired ; and yet asserts that it cannot signify money arismg from
the sources of revenue pointed out in the Constitution, *^ because,*^ says he,
^ the disposal and regulation of money is the final c^use for raising it by taxes."
But it would be more accurate to say that the ohjtd to which money is in-
lended to be applied is ihejinal cause for raising it, than that the disposal and
regulation of it is such. The sup|K)rt of a government, the support of troops
for the common defence, the payment of the public debt, are the true final
causes lor raising mone^. The disposition and regulation of it, when raised,
are the steps by which it is applied to the ends for which it was raised, not
the ends themselves. Hence, therefore, the moneys to be raised by taxes, as
well as any other personal property, must bo supposed to come within the
meaning, as thcv certainly do within tlie letter, of authority to make all needful
rules nud regulations concerning the pro|)erty of the United States. A case
will make thin plainer. Suppose the public debt discharged, and the funds
now pledged for it liberated. In some mstances, it would be found exfiedient
to repeal the taxes; in others, the repeal might injure our own industry — our
agrici;*idre and manufactures. In these cases, they would, of course, he re-
tained. Here, then, would be moneys, arising from the authorized sources of
revenue, which w ould not fall within the rule by which the attoroey-genend
VOL. IV. 78
61 8 APPENDIX. —/fonitT^an on Banks [1T91
endeavors to except tliem from other personal property, and from the opera
tion of tlie clmise in question. The moneys being in the cofiers of government
what is to hinder such a dis|>osition to be made of them as is contemplated in
the hill ; or what an incorporation of the parties concerned, under the clause
which has been cited?
It is admitted tliat, with regard to the western territory, they give a power to
erect a corporation ; that is, to constitute a government. And by what rule
of construction can it be maintained that the same words, in a constitution of
government, will not have the same effect when applied to one species of
|>roperty as to another, as fur as the subject is capable of it ? or that a legisla*
live power to make all needful rules and regulations, or to pass aJI laws neces-
sary and proper concerning the public property, which is admitted to authorize
an incorporation, in one case, will not autiiorize it in another ; will justify the
institution of a government over the western territory, and will not justify the
incorpomtion of a bank for the more useful management of the money of the
nation ? If it will do the last as well as the first, then, under this provision
alone, the bill is constitutional, because it contemplates that the United Stales
shall be joint proprietors of the slock of the bank. There is an observation
of the secretary of state to this effect, which may require notice in this place.
— Congress, says he, are not to lay taxes ad libitum, Jbr any purpose ihty please^
but only to pay the debts, or provide for the welfare, of tlie Union. Certainly
no inference can be drawn from this against the power of applying their money
for the institution of a bank. It is true that they cannot, without breach of
trust, lay taxes for any other pur {)ose than the general welfare; but so neither
can any other government. The welfare of the comnnmity is the only legiti-
mate end for which money can be raised on the community. Congress can be
considered as only tmder one restriction, which does not apply to other govern-
ments. They cannot rightfully apply the money they raise to any purpose
merely or purely local. But, widi this exception, they have as large a discre-
tion, in relation to the application of money, as any legislature whatever.
The constitutional test of a right application must always l)e, whether it be
for a purpose of general or local nature. If the former, there can l>e no want
of constitutional power. The quality of the object, as how tar it will really
promote, or not, the welfare of the Union, must be matter of conscientious dis-
cretion ; and the arguments for or against a measure, in this light, nnist be
arguments concerning ex[>ediency or inex[>ediency, not constitutional right:
whatever relates to the general order of the finances, to the general interests of
trade, &c., being general objects, are constitutional ones, for the application of
money, A bank, then, whose bills are to circulate in all the revtmues of the
country, is evidentiv a general object ; and, for that very reason, a constitutional
one, as far as regards the appropriation of money to it. Whether it will really be
1 beneficial one, or not, is worthy of careful examination, but is no more a con-
ititutional point, in the particular referred to, than the question, whether the
western lands shall be sold lor twenty or thirty cents per acre. A hope is en-
tertained that, by this time, it has been made to appear to the satisfaction of
the President, that the liank has a natural relation to the power of collecting
taxes; to that of reijulaling trade ; to that of providing for the <!onimon defence ;
and that, as the bill muler consideration contemplates the government in the
light of a joint proprietor of the stock of the liank, it brings the case within
the provision of the clause of the Constitution which immediately respects the
property of the United States. Under a conviction that such a relation subsists,
the siv:relary of the treasury, with all deference, conceives that it will result as
a necessar}- consequence from the position, that all the specified jK)wers of
government are sovereign, as to the proper object**; that the incorporation of
a bank is a constitutional measure ; and that the objections, taken to the bill in
this respect, are ill founded.
But, from an earnest desire to give the utmost possible satisfaction to tlie
mmd of the President, on so delicate and important a subject, the secretary of
the treasury will ask his indulgence, while he gives some additional illustrationsi
of cases in w lich a power of erecting corporations may be exercised, under
some of thoM heads of the specified powers of the government which are
1791.] ^??ENDlX. — Hat.alton on Banks. Gl^
alleged to inc.ude the right of incorporating a bank. 1. It does not appear
susceptible of a doubt, that, if Congress hail thought proper to provide, in the
collection law, that the bondrt, to be given for the duties, should be given to
the collector of the District A, or B, as the case might require, to enure to hini
and his successoi-s in office, in trust tor the United States, it would have
been consistent with the Constitution to make such an aiTangement. Arid yet
this, it is conceived, would amount to an incorporation. 2. It is not an unu-
sual expedient of taxation to form particular branches of revenue ; that is, to
sell or mortgage the product of them tor certain definite sums, leaving the col-
lection to the paj'ties to wiioni they are mortgaged or sold. There are even
examples of this in the United States. Suppose that there was any particular
branch of revenue which it- was manifestly expedient to place on this footing
and there were a number of persons willing to engage with the government,
upon condition that they should be incorporated, and the funds vested in them,
as well tor their greater safety as for the more convenient recovery and man-
agement of the taxes ; is it supposable that tliere could be any constitutional
obstacle to the measure ? It is presumed that tliere could be none. It is cer-
tainly a mode of collection which it would be in the discretion of the govern-
ment to adopt, though the circumstances must be very extraordinary that would
induce the secretary to think it expedient. 3. Suppose a new and unexploi*ed
branch of trade should present itself with some foreign country ; 8up()0se it
was manilbst that to undeitake it with advantage required a union of the capi-
tals of a number of individuals, and that those individuals would not be dis-
posed to embark without an hicorporation, as well to ohviute the consequenceti
of a private partnership, which makes every individual liable in his whole
estate tor the debts of the company to their utmost extent, as tor the more con-
venient management of the business ; what reason can there l>e to doubt that
tlie national government would have a constitutional right to institute and in-
corporate such a company? None. Tbev possess a general authority to reg-
ulate trade with tbreign countries. This is a mean which has biien practised
to that end by all the principal commercial nations, who have trading conifui-
nies to this day, which have subsisted for centuries. Why may not the United
States eonMulionally employ the means usual in other countries tor attaining
the ends intrusted to them ? A power to make all needful rules and regula-
tions concerning territory has been construed to mean a i>ower to erect a
government A power to regulate trade is a power to make all needful rules
and regulations concerning trade. Why may it not, then, include that of erect-
ing a trading company, as well as in other cases to erect a government?
It is retnarkable that the state conventions, who have proposed amendments
in relation to this point, have, most, if not all of them, expressed themselves
nearly thus : Congress shall not grant mono|>olies, nor ered any company with
exclusive advantages of commerce ! Thus at the same time expressing their
sense that the power to erect trading companies, or corporations, was inlierent
in Congress, and objecting to it no further than as to the gtunt of exclusive privi-
leges. The secretary entertains all the doubts which prevail concerning the
utility of such companies ; but he cannot fashion to his own mind a reasrin to
induce a doubt that there is a constitutional authority in the United States to
establish them. If such a reason were demanded, none could be given, unless
it were this — that Congress cannot erect a corporation; which would be no
better than to say they cannot do it liecause they cannot do it ; first presuming
an inability without reason, and then assigning that inability as the cause of
itself The very general power of laying and collecting taxes, and appropriat-
ing their proceeds ; that of borrowing money indefinitely ; that of coining
money and regulating foreign coins; that of making all needfid rules and regu-
lations resjiectiMg the property of the United States; — these powers condyned,
a^ well as the reason and nature of the thing, 8]>eak strongly this language —
that it is tlie manifest design and scope of the Constitution to vest in Congress
all the powers requisite to the effectual administration of tlie finances of the
United Strtes. As far as concerns this object, there appears to be no parsioiouy
of power.
To suppose, theii, that the government is precluded from the employment o/
620 APPENDIX. — History of the I cto.
CO uffual and no important an instrument for the administration of its finances
as that of a bank, is to suppoHe, what does not coincide with the general tenor
and complexion of the Constitution, and what is not agreeable to the imprea*
sious that any mere spectator would entertain concenihig \u Little less than a
prohibitory clause can destroy the strong presumptions which result from the
general aspect of the government. Nothing but demonstration should exclude
the idea that the power exists. The fact that all the principal commercial na-
tioiis have made use of trading corporations or companies, for the purpose of
extenuU commerce, is a satisfactory proof that the establishment of them is an
incident to ihe regulation of commerce. This other fact, that banks are a usual
engine in the administration of national finances, and an ordinary and the most
effectual instrument of loans, and one which, in this country, has been found
essential, pleads strongly against the supposition that a government, clothed
with most of the important prerogatives of sovereignty, in relation to its reve-
nites, its debt, its credit, its defence, its trade, its intercourse with foreign nations,
IS forbidden to make use of that instrument, as an appendage to its own author-
ity. It has lieen usual, as an auxiliary test of constitutional authority, to try
whether it abritiges any preexisting right of any state, or any indKidual. Each
vtate may still erect as many banks as it pleases : every individual may still
carry on the lianking business to any extent he pleases. • • •
Surely a liank has more reference to the objects intrusted to the national
government than to those left to the care of the state governments. The com*
moo defence b decisive in this comparison.
A SHORT HISTORY OP THE VETO.*
Lipon the proceedings of the American colonial assemblies, there existed a
double negative or veto — one vested in the royal governor, the other in the king
By the royal governors the right was often exercised, and the king frequently sig-
nified his disallowance of acts which bad not only passed the colonial assemblies!,
but even lieen sanctioned by the governor. This feature was one strongly aet
forth as a prime grievance, in recounting the injuries and usurpations of the
British moiiarch, in the Declaration of Independence, and its exercise was
highly repugnant to the interests of America.
Dr. Franklin, in the Debates of the F^ederal Convention, thus shows the influ
ence of the veto power under the proprietary government of Fenn: —
* Historical Memoranda of the Veto.
The veto power originated with the ancient Romans, and was the first essay of the
<(omroon people of ihe republic towards the securing of their proper liberties. Th^
Plebeians, having long been oppressed by the Patricians, at the instigation of Sicinius,
1^ years afler the founding of the city, made secession to a mountain three miles
distant from Rome, (ever after termed Mons Sacer^) and would not relnrn to the city
until they had received from the Patricians compliance with their demand, and the
solemn assurance, that the common people should elect magistrates, whose persons
should be sacred and inviolable, to whom they could commit the protection of their
rigiits. These magistrates were called tribunes ; a name given by Romulus to the
three miliury ofhrrrs in chief, selected from the three tribes into which he had
divided the city. The civic tribunes were originally chosen from the Plebeians, and
no Patrician could hold the ofBce, unless he had been first adopted into a Plebeian
family. Their power w^as at first limited, but at the same time extraordinary. It was
preventive^ rather than enforcing ; it was to interpose and protect the people from the
oppressions and tyranny of their superiors ', to assist them in redressing their wrongs,
and in maintaining their liberties; and consisted in the utterance of but one word,
and that one, *♦ Veto," (I forbid.) These officers could prevent the discussion of any
question, the passage of any law, the execution of any sentence, the levying of any
taxes, the enlisting of any troops, and almost arrest thi mtire machinerr of fovern
APPENDIX. — Htstm-y of the Vdo. 62 1
•
'* The negative of the goveraor wm conitantl^ made uie of to extort money. So
good Uw viriiutever could be passed without a private bargain with him. An increase
af salary, or some donation, was always made a condition; till, at last, it became the
regular practice to have orders in his tlivor on the treasury presented along with the
bius to be signed, so that he might actually receive the former before be should sicrn
the latter. When the Indians were scalping the western people, and notice or it
arrived, the concurrence of the governor in the means of self^defenee could not be
got, until it was agreed that his estate should be exempted from taxation ; so that the
people were to fight for the security of his property, whilst he was to have no share of
the burdens of taxation."
At first sight, then, it appears strange that the fVamers of oar ConstitutioD|
when they were originating a new government, which should combine the
experience of the past, without borrowing any of its defects, should bring in
such a power, the operation of which had proved so baneful, and which had
already been so struugly reprobated. But such was the fact. The war of the
revolution over, the Articles of Confederation alone bound the states together;
and the reaction which took place in several places urgently demanded some*
new form of compact more aae€|uate for the purposes ot government, and mom
consonant with the altered condition of affairs. Upon the 25th May, 1787, tlif
Federal Convention met in the city of Philadelphia. Having organized them
selves by the choice of pro(>er officers, and the adoption of necessary rules, Mr
ment, by standing up and speaking that one word. Veto. No reasons were requirec*
of them ; no one dared oppose them ; their Vuo was supreme ! As originally de
signed, it was emphatically the peoples measure, for the people's protection ; thi
necessary balance-wheel, to equalize tne powers of the government, which had hitherUi
been engrossed by the rich, and give the people that interposing check, which the
alarming tyranny of the Patricians made necessary. It was the first attempt at a
democratic, i. e. a people-ruling institution, and in all its features, save that of unlim-
ited power, showed the humility of its origin. The tribunes must be not only of the
Plebeian order, but they had no insignia of office, save a kind of beadle, who went
before them ; were not allowed to use a carriage, had no tribunal, but sat on benches.
Their doors were open night and day for the people to prefer their requests or com*
plaints. They were not allowed to enter the senate, and were not even dignified
with the name of magistrate. As designed by Sicinius, it was the mere unadorned
majesty of the people's voice, assimilated to the lowly pretensions of the people — the
visible exponent of their will. These popular traits did not, however, long remain.
The grasping ambition of some, the restlessness for change in otliers, soon abused the
power ; the tribunes became themselves a greater evil than tiiey remedied, and their
authority was more tyrannous than the edicts of those thev were created to oppose.
Feto became a word of despotic power. The decrees or the senate, the ordinances
of the people, the entire arrangements of government, bowed to its supremacy ; and
such was the force of the word, that not only could it stop the proceedings otttW the
magistrates, which Coesar well calls ^^ extremum jvs tribitnorum^ but whoever, senator
or consul. Patrician or Plebeian, dared oppose it, was immediately led to prison to
answer fur his crime. And so sacred were the persons of the tribunes, that whoever
hurt thorn was held accursed, and his goods were confiscated. Sylla was the first
who resisted the gross encroachments of tne tribunes ; but on his death they regained
their influence, and henceforth it became but the tool of ambitious men, who used it
almost to the ruin of the state. Such was its abuse, that, as Cicero says, the popular
assemblies became the scenes of violence and massacre, in which the most darmg and
iniquitous always prevailed. The perversion of the original design of the veto was
now completed by the arts of the emperor Augustus, who got the tribuneship conferred
on himself, which concentrated in his person the entire and uncontrolled disposition
of the state. This was the first instance of the combination of royal and veto power,
and its assumption was all that was wanting to make the king a tyrant. From this
time it was conferred upon the emperors, though the tribunes still continued to be
elected, without, however, the exercise of tribunitian power, until the time of Con-
stantine, when the office was abolished.
The early operation of the veto power in Rome was good, the subsequent disastrous.
At first, it protected the people, gave them a voice in the legislative assemblies, and
secured their liberties ; ultimately, it oppressed the lower orders, excluded them from
the councils of the nation, and made tnem the passive instruments of power-lusting
demagogues. The first civil blood shed at Kome was the blood of Tiberius ; the
tribune battling, in 'prudently indeed, against the oppressions of the nobility. Thf
622 APPENDIX. — History of the Veto,
m
Kando1|>h, of Virginia, opened the business of the Convention by proposing, on
the 29th May, a series of resolutions, iinhodying his views as to what ihe crisis
required ; and on the same day General Charles Pinckney, of South Carolina^
laid liefore the delegates the draught of a federal government, to be agreed upon
between the free and independent states of America. 'J'he veto power entered
into the schemes of both these gentlemen, though centred by them in diflereut
points. The 8th resolution of Mr. Randolph says: —
" Resolvetlj That the executive and a convenient number of the national judiciary
ought to compose a council of revision, with authority to examine every act of the
national legislature before it shall operate, and every act of a particular legislature be-
fore a negative thereon shall be final; and that the dissent of the said council shall
amount to a rejection, unless the act of the national legislature be again passed, or
that of a particular legislature be again negatived by of the members of each
branch.**
The article embracing this feature, in the draft of Mr. Pinckney, reads thus: —
** Every bill which shall have passed the leffislatore shall be presented to the Presi-
dent of the United States for his revision. If he approve it, he shall sign it; but if he
does not approve it, he shall return it, with bis objections, to the house it originated
in ; which house, if two thirds of the members present, notwithstanding the President's
objections, agree to pass it, shall send it to the other house, with the President's objec-
tions ; whore, if two thirds of the members present also agree to pass it, the sanie.snall
last but closed the sanguinary series of intestine wars, created, continued, and
tragically ended, by the very f>erver8ion of that power which was at first designed to
five peace and unity to the Roman nation. So true has it ever been, that the
delegated power of the people, when abused, has always reverted to their own de-
struction. Having tracecf the veto power, from the simple word of the tribune to the
imperial exercise of its rights in Home, we are prepared to come down to modern
times, and cite a few instmces of its adoption and influence in European states.
The king of Great Britain possesses tne veto right, upon the resolutions of parlia-
ment, thouj^h no instance of its exercise has occurred since 1692. In fact, constituted
as the British government is, tlie -veto is entirely unnecessary. Such is the powerful
agency of money and influence, that they will prevent the passage of any law obnox-
ious to the crown, and the king can, through his ministers, so trim and shape the
proceedinirs of tliose bodies, as to accommodate them to his views; while, on the
other hand, the taking away responsibility from the monarch, and resting it with the
cabinet, which varies with the changes of public sentiment, never creates an emer-
gency for the exercise of the royal negative. The same power is also vested with the
king of Norway ; but if three successive storthings or diets repeat the resolution or
decree, it becomes a law witliout the king's assent, though he may have negatived it
twice before. As the storthing, however, sits only every third vear, the veto of the
king, though it may not eventually be ratified, has yet a prohibitory operation on
any given law for six years. It was thus that nobility was abolished in Norway in
ISi^l. The king had twice vetoed the law, passed by the storthing, against the
further continuance of the nobility ; but the third diet confirmed the resolutions of the
two former, and the law became established, notwithstanding the royal negative.
The constituent assembly of France conferred the veto power on the king in 1789,
but the very first exercise of it proved his ruin. It was preposterous for such a body,
and at such a time, to ninke such a provision in the constitution they were then pass-
ing, and as afl*airs then stood, when judicious temporizing, and not royal prerogative,
was required. It was equally preposterous in Louis to employ it. It but showed the
waywardness of the popular will, which could at one time grant such a rioht, and at
another punish the exercise of it. The negative is, however, held by the present
king, though it has never yet been put into requisition.
By the constitution of the cortes, the king of Spain was vested with the same
poiver, and it still forms a provision of the Spanish government. In Poland, tlie
veto power assumed another shape It was centred, not in the king, but in the for-
mer r«*public. Each member of the diet could, by his " JV/> Portrfl/am," (I do not per-
mit it,) prevent the passage of any resolution, and defeat the operations of the rest.
On Uie partition of Poland, Russia confirmed this librrum veto to the Polish assembly,
with the sinister design of thereby frustrating any efil»clive or independent legislation;
well knowing that, in its then dislrnctod state, the continuance of this individual veto,
would be, as it proved, destructive to harmony of action and unity of design, nnd the
** JVi« PozuHilnm " of the Polish representative has been but an apple of discord to that
noble but sufi'ering people.
APPENDIX. —History of the Veto. 623
become a law. And all bills sent to the President, and not returned by him within
daySf shall be laws, unless the legislature, by their adjournment, prevent thcii
return, in which case they shall not be laws."
Mr. Randolph's views were evidently based on the suggestions of Mr. Madi-
son ; for that gentleman, in a letter td Mr. Kandolph, a few weeks previous^
urged the same idea of a negative by the national goveniment, ** in ail cases
whatsoever, on the legislative acts of the states, us the king of Great Britain
heretofore had."
The resolutions of Mr. Randolph became the basis on which the proceedings
of the Convention commenced, and, as Mr. Madison says, **to the developments,
narrations, and modifications of which the plan of government proposed by the
Convention may be traced."
Let us, then, follow out the discussions of this lK)dy until the suggested jouit
revision by the executive and judiciary became altered to the single negative of
the President. On the 4th ot June, the first clause of Mr. Randolpli's eighth
resolution was taken up ; but Mr. Gerry, from Massachusetts, doubting whether
the judiciary ought to have any thing to do with it, moved to postpone the
clause, and introduced the following amendment : —
" That the national executive shall have a right to negative any legislative act
which shall not afterwards be passed by parts of each branch of the national
legislature."
Rufus King, from Massachusetts, seconded the motion, and the proposition
of Mr. Gerry was taken up. Mr. Wilson, of Pennsylvania, and Alexander
Hamilton, of New York, wished to strike out the latter clause, so as to give the
executive an absolute negative on the laws; but, though supported by these
gentlemen, it was op|)osed by Dr. Franklin, Roger Sherman, of Connecticut,
Madison, Butler, of South Carolina, and Mason, of Virginia; and was therefore
negatived.
Mr. Butler and Dr. Franklin then wished to give a suspending instead of a
negative power; but this was overruled, and the blank of Mr. Gcrry^s resolution
was filled up, sitb silentio, with tu}0 thirds ; and the question l)eing taken on the
motion, as thus stated, it received the votes of ei*;ht states, Connecticut and
Maryland voting in the negative. On the 6th June, according to previous
notice, Mr. Wilson and Mr. Madison moved to reconsider the vote excluding
the judiciary from a share in the revisioti and negative of the executive, with
the view of reen forcing the latter with the hifluence of the former. But though
Mr. Madison urged the plan of associating the judges in the revisionary function
of the executive, as thereby doubling the advantages and diminishing the dan-
gers, and as enabling the judiciary better to defend itself against legislative
encroachments, it was as eloquently opposed by Mr. Gerry, and others, who
thought that the executive, while standing alone, would be more impartial than
when he could lie covered by the sanction and seduced by the sophistry of the
judges; and it was finally rejected. Two days after, at the conclusion of an
animated debate, the subject of giving the national legislature a negative on the
sevend state laws, which was first suggestetl to the convention by Mr. Ran-
dolph's resolutions, and subsequently brought up for reconsideration by Mr.
Piiickney and Mr. Madison, was also voted down, — three states in the affirma-
tive, seven in the negative, Delaware divided.
On the 18th of Jiine, Mr. Hamilton offered to the Convention a plan of
government, in the fourth article of which the veto power was unqualifiedly
coriferretl on the execuiive. The next <lay, Mr. Gorhani, from Massachusetts,
re[)orted from the conmjittee appointed to reconsider the various propositions
liefore the Convention, and the tenth resolution of that report says: "That the
national executive shall have a right to ne^nttive any legislative act, which shall
not be afterwards passed, uidess by two thirds of each branch of the national
legislature." The Convention proceeded to take up the sevenil ariich's and
clauses of this report, and it was not till the Idth Jidy, that the tenth resoluiion
tierauie the order of the day; it was then passed nein, con. On the 2Jst, how-
ever, Mr. Wilson, still entertaining his original views, as to the union of the
judiciary with the executive on the veto nower, moved an amendment to tb#
624 APPENDIX. — List of ike Vetoes,
PMOiunon, which gave rise to a most interesting debate, in which Mr. Ells>
worth, from Connecticut, Mr. Mason, from Virginia, and Mr. Madison and M*
Gouverneur Morris, of Pennsylvania, sustained the views of Mr. Wilson ; and
Messrs. Gorhani, Gerry, and Strong, of Massochusetts, Mr. Martin, €si MaryJauo,
and Mr. Rutledge, of South Carolina, opposed them, and the aoiendnient was
losL The original resolution, therefore, was again passed.
Having gone critically through with the report of the committee, the vorious
resolutions which had been agreed to were, on Thursday, t26lh July, referred
to a conmiittee of detail, to report on Monday, August dth, a drail of the Con-
stitution. This committee, of which Mr. Rutledge was chairman, reported on
the day assigned, and the veto power was conferred by the J 3th section of the
sixth aiticle. This (laragraph, as reported by the committee, came under dis-
cussion on Wednesday, 15th August, when Mr. Madison moved an amend meni,
which revived the previously agitated question of uniting the judges of the
Supreme Court with the President in his revision and rejection of laws passed
by Congress. Much debate followed. Mr. Wilson and Mr. Mercer supfioried
Mr. Maaison, and Mr. Pinckney opposed. The amendment was lost — three
states voting lor it, and eight against it. Having thus surveyed the subject in
alt its bearings, the Constitution, amended, altered, and perlected, was, on the
]7th September, 1787, signed by the Convention, and constitutes to this day
the basiH of our government. The veto power in this Constitution is thus
expressed, article 1, section 7: —
" Every bill which shall have passed the House of Representatives shall, before it
becomes a law, be presented to the President of the United States. If he approve,
be shall sign it ; but if not, he shall return it, with his objections, to that house in
which it shall have originated, who shall enter the objections at large on their Journal,
and proceed to reconsider it."
The first use of this constitutional power was by Washington, who, on the
5th April, 171)2, vetoed the ** Representation Bill," which originated in the
House of Representatives. As this, from its priority, is an event worthy of
extended notice, we give the circumstances of the case, as briefly related by Jef-
ferson, then secretary of state : —
^^ April Gih. The President called on me before breakfast, and first introduced
some other matter, then fell on the Representation Bill, which he had now in his pos-
session for tlie 10th day. 1 had before ffiven him my opinion, in writing, that the
method of apportionment was contrary to the Constitution. He agreed that it was con
trary to the common understanding or that instrument, and to what was nndrrstood st
the time by the makers of it ; that vet it would bear the construction which the bill
put ; and he observed that the vote for and against the bill wsji perfectly geoflrraphica)
— a northern against a southern vo^^ — and he feared he should be thought to be taking
side with a sDuiiiern party. I admitted the motive of delicacy, but that it should not
induce hiin to do wrong, and urged the dangers to which the scramble for the fraction-
ary members would always lead. He here expressed his fear that there would, ere
long, be a separation of the Union; that the public mind seemed dissatisfied, and
tending to this. He went home, sent for Randolph, the attorney-general, desired him
to get Mr. Madison immediately, and come to me; and if we three concuired in opin-
ion, that he would negative the bill. He desired to hear nothing more about it, but
that we would draw up the instrument for him to sign. Thev came; — our minds
had been bt>fore made up; — we drew the instrument. Randolph carried it to him,
and told him we all concurred in it. He walked with him to the door, and, as if he
still wished to get off, he said, " And you say you aoprove of this vourself .' " " Yes,
sir," says Randolph; *• I do, upon my honor." He sent it to the House of Repre-
sentatives instantly. A fewof tne hottest friends of the bill expressed passion, but the
majority were satisfied, and both in and out of doors it e^ve pleasure to have at leng*h
an instance of the negative being exercised. Written this, the 9th April."
LIST OF THE VETOES.
1. Returned to the House of Representatives, by George WAsniifOTON,
April 5, 1792 — "An Act for an apportionment of representatives among the
several states, according to the first enumeration.'*
2. Returned to the House of Repreaentatives, by Georok WASHisieTOii.
APPENDIX. — List of the Vetoes. 625
March 1, 1797 — <* An Act to alter and amend an act, entitled, An Act to ascer*
tain and fix the military establishment of the United States."
3. Returned to the House of Representatives, by James Madisoit, February
21, 1811 — ** An Act for incorporating the Protestant Episcopal Church in the
town of Alexandria, iu the District of Columbia."
4. Returned to the House of Representatives, by James Madison, February
28, 1811 — "An Act for the relief of Richard Tervin, William Coleman, Edwin
Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem meet-
ing-house, in the Missis6ip|>i territory."
5. Returned to the House of Representatives, by Jambs Maoison, April 3,
1812 — *' An Act providing for the trial of caut^es pending in the respective Dis-
trict Courts of the United States, in case of the absence or disability of the
judges thereof.**
6. Bill not approved, nor returned with objections, for want of time ; retained^
and notice thereof sent to Congress, by James Madison, November 5, 1812 -^
*' An Act supplementary to the acts heretofore passed on the subject of a uniform
rule of naturalization."
7. Returned to the Senate, by James Madison, January 30. 1815 — <* An Acr
to incorporate the subscribers to the Bank of the United States of America."
8. Returned to the House of Representatives, by James Madison, March 3
1817 — *^ An Act to set apart and pledge certain funds for internal improvement.^
9. Returned to the House of Representatives, by James Monroe, May 4
1822 — ^ An Act for the preservation and repair of the Cumberland road."
10. Returned to the House of Representatives, by Andrew Jackson, Ma}
27, 1830 — *^ An Act authorizing a subscription of stock in the Maysville, Wash-
ington, Paris, and Lexington Turnpike Road Company."
11. Returned to the Senate, by Andrew Jackson, May 31,1830 — *'An
Act authorizing a subscription of stock in the Washington Turnpike Road
Company."
12. Returned to the Senate, by Andrew Jackson, July 10, 1832 — "An Acl
to incorporate the subscribers to the Bank of the United States."
13. Returned to the Senate, by Andrew Jackson, December 6, 1832 —
*^ An Act providing for the final settlement of the claims of states for interests
on advances to the United States, made during the last war."
14. Returned to the House of Representatives, by Andrew Jacks6n,
December 6, 1832 — "An Act for the improvement of certain harbors, and th^
navigation of certain rivers."
15. Bill not approved, nor returned with objections, for want of time^
retained, and notice sent to the Senate, by Andrew Jackson, December 5,
1833 — " An Act to appropriate, for a limited time, the proceeds of the sales of
the public lands of the United States, and for granting lands to certain states."
16. Returned to the Senate, by Andrew Jackson, March 3, 1835 — "An Act
to authorize the secretary of the treasury to compromise the claims allowed by
the commissioners under the treaty with the king of the Two Sicilies, concluded
Octoljer 14, 18:32."
17. Bill not approved, nor returned with objections, for want of time;
retained, and notice thereof sent to Congress, by Andrew Jackson, December
2, 1834 — "An Act to improve the navigation of the Wabash River."
18. Returned to the Senate, by Andrew Jackson, June 10, 1836 — "An Act
to appoint a day for the annual meeting of Congress."
19. Returned to the Senate, by Iohn Ttler, August 16, 1841 — ** An Act to
incorporate the subscribers to thf li'iscal Bank of the United States."
20. Relumed to the House o! Representatives, by John Ttler, September
9, 1841 — "An Act to provide for the better collection, safe keeping, and disburse-
ment, of the public revenue, by means of a corporation, to be styled the * Fiscal
Corporation of the United States.'"
21. Returned to the House of Representatives, by John Ttler, June 29.
1842 — "An Act to extend, for a limited period, the present laws for laying and
collecting duties on imports;" (containing a proviso about distribution of pro«
ceeds of lands.)
22. Retumea to the House of Representatives, by John Ttler, .August ^
VOL. IV 79 ^
626 APPENDIX. — Digest of Decisions m the U. S. Courts.
1842 — **An Act to provide revenue from imports, and to change and inodtiy
the existing laws imposing duties on imports, and for other purpoaea." (Thia
bill was ailerwards revived, with alterations and modifications; anc^ thus
amended, finally passed, and received the President's signature.)
Buapiiulatum qf Vetoes,
By George Washington, 2
** James Madison, 6
^ James Monroe, 1
^ Andrew Jaekson, .... 9
•« John Tyler, ._4
Total, r^
Such is a plain history of the veto power. As it respects the several stales,
the executives in some have the power, in others not Those which possess tlie
ne|[ative (K)wer, such as is given to the President, are New York, New Hamp-
shire, Mnssachusetts, Pennsylvania, Gieorgia, Louisiana, Mississippi, Missouri,
and Muine. The other stales do not have it at all, or the bill, when returned
by the governor, may be repassed by a mere mmyrity.
Of the ten Presidents, five have made use or the veto power and five have
■OL
Number of acts approved, upwards of 6^000.
DIGEST OF DECISIONS
IN THE COURTS OF THE UNION,
I9V0LVI90
CONSTITUTIONAL PRINCIPLES.
1. The individual states have a constitutional right to paai natural izatiOD
laws, provided they do not contravene the rule establislied by the authori^ of
the Union. CoUeU v. CoUeUy 2 Dall. 204. But see United States v. VittaUo, Ibid.
37a
2. The 2d section of the 3d article of the Constitution, giving original juris
diction to the Supreme Court in cases aflecting consuls, does not preclude the
legislature from vesting a concurrent jurisdiction in inferior courts. United
Stales V. Ravara, Dall. 207.
Every act of the legislature repugnant to the Constitution is, ipsofado^ void ;
and it is the duty of the court so to declare it Vanhanu^s Lessu v. Dorrance^
2 Dall. 304.
3. It is contrary to the letter and spirit of the Constitution to divest one cit-
tien of his right, and vest it in anotlier, without full compensation ; and if the
legislature may do so, upon full indemnification, it cannot of itself contititutioii-
ally determine upon the amount of the compensation. Ibid,
4. The constitution of England is at the mercy of Parliament Every act
of Parliament is transcendent, and must be obeyed. Ibid, 308.
5. In America, the case is widely diflTerent Every state of the Union has its
constitution, reduced to written exactitude. A constitution is the form of gov-
ernment delineated by the mighty hand of the people, in which ceitain first
principles of fundamental law are established. The Constitution is certain and
^xed ; it contains the pernmnent will of the people, and is the supreme law of
the land; it is naramoimt to the power of the legislaiure, and can be revoked
or altered only by the power that made it. The life-giving princi}>le and the
death-dealing stroke mu(<t proceed from the same hand. The legislatures are
creatures of the Constitution; they owe their existence to the Constitution;
they derive their powers from the Constitution. It is their commission, and
APPENDIX. — Digest of Decisions in the U, 8, Comis. 627
iherefbre all their acta rniiat be conformable to it, or else they will be void.
The Constitution m the work or will of the people themaelvea, in their origiuali
sovereign, and uiilhnited capacity. Law is the work or will of the legialaturei
in their derivative and subordinate capacity. The one \s the work of tlie croa*
tor, and the other of the creature. The Conatitution fixes limits to the exer-
cise of the legislative authority, and prescribes the orbit in which it must nio^^e.
Whatever may be the case in other countries, yet in this there can be no doubt
that every act of the legislature repugnant to the Constitution is absolutely void.
Ibid,
6. The right of trial by jury is a fundamental law, made sacred by the Con-
Htitution, and cannot be legislated away. Ibid, 309.
7. Wliether the individual states have concurrent authority with the United
States to puss naturalization laws, qwtrt ^ United Statee v. VUUUtOy 2 Dull. 370.
See anie. No. 1.
8. Congress cannot by law assign the judicial department any duties bat
such as are of a judicial character ; e. g*., appointing the judges of the Circuit
Court to receive and determine U|>on claims of persons to be placed on the
I>eti8ion list. Hayburn's Case, 2 Dull. 4C9.
9. A tax on carriages is not a direct tax, within the meaning of the Consti-
tution ; and the act of Congress of 5th June, 1794, ch. 219, (2 Bior. 414,) laving
a tax on carriages, was constitutional and valid. HuUon v. Uniled States^ 3 DalL
171.
10. A treaty, under the 6th article, sect. 2, of the Constitution, being the an-
preme law of the land, the treaty of peace, in 1783, operates as a repeal of all
state Iaw8, previously created, inconsistent with its provisions. f9^nre, AinCr, r.
HyUon, 3 Dall. 199.
11. The prohibition, in the Federal Constitution, of erpof^^/iicfo laws, extenda
to |>enal statutes only, and does not extend to cases affecting only the civil rights
of individuals. Caldtr H Ux, v. BuJH it Ux^ 3 Dall. 386.
12. A resolution or law of the legislature of Connectituit, setting aside a de*
cree of a court, and granting a new trial, to be had before the same court, i*
not void, under the Constitution, as an er poet fado law. ^id,
13. It is a self-evident pro|iosition that the several state legislatures retain
all the powers of legislation delegated m them by the state constitutions, which
are not expressly taken away by the Constitution of the United States. Per
Chase, J. Ibidi,
14. A law that punishes a citizen for an innocent action, or, in other ^orda,
for an act which, when done, was in violation of no existing law ; a law that
destroys or impiiirs the lawful private contracts of citizens ; a law that makes
a mnii judge in his own cause ; or a law that takes property from A, and gives
it to B, iti contrary to the great first principles of the social compact, and can-
not be considered as a rightful exercise of legislative authority. The genius,
the nature, the spirit of our state governments amount to a prohibition of such
acts of legisliition, and the general principles of law and reiison forbid them.
Per Chase, J. lhid»
l.'i. The words and intent of the prohibition embmce, 1st, every law that
makes uii action done before the framing of the law, and which was innocent
when done, criminal, and punishes such action ; 2d, every law that aggravates
a crime, or makes it greater than it was when committed ; 3d, every law that
changes the punishment, and inflicts a greater punishment tlian the law an-
nexed to the crime when committed ; 4th, every law that alters the legal rules
of evidence, and receives less or different testimony than the law required at
the time of the commission of the offence, in order to convict the offender.
l*er ('hase, J. Ibid,
1(1. If any act of Congress, or of the legislature of a state, violates the con-
stitntionul provisions, it is nnquestionahly void. If, on the other hand, the legis-
Litu e of the Union, or the legislature ot any memlier of the Union, shall pass
a law within the general sco|>e of thnir constitutional power, the court cannot
prononnce it to he void, inerily liecanse it is, in their judgment, contrary to thd
priiiciph'S of natural justice. If the legislature pursue the authority delegatea
to them, their acts are valid ; if they transgress the boundaries of tb*»r suthoritj,
their acts are invalid. Per Iredeix, J. Ibid.
628 APPENDIX. — Digest of Decisions in the U. 8. Omtrts.
17. An act of a state legislature, bauishing the person and confiscating tiM?
property of certain individuals therein named as traitors, passed before the
establishment of the Federal Constitution, is not void. Cooper v. Teifair, 4
Dall. 14.
18. The words of the Constitution, declaring that <'the judicial power shall
extend to all cases of admiralty and maritime jurisdiction,'* must be taken to
refer to the admiralty and maritime jurisdiction of England. United States v.
JkfGi/^ 4 Dall. 426, m
19. The Constitution, art. 2, sect. 2, 3, with regard to the appointment and
commissioning of officers by the President, seems to contemplate three distinct
operations — 1. The nomination : this is the sole act of the President, and is
completely voluntary. 2. The appointment : this is also the act of the President,
though it can only be performed by and with the advice and consent of tiie
Senate. 3. The commission : to grant a commission to a person appointed,
might perhaps be deemed a duty enjoined by the Constitution. Marbury v
Madison^ 1 Cranch, 137, 155.
20. The acts of appointing to office, and commissioning the person appointed,
are distinct acts. llnd, 15d
21. The Constitution contemplates cases where the law may direct the Pres-
ident to commission an officer appointed by the couns, or by the heads of
departments. In such a case, to issue a commission would be apparently s
duty distinct from the appointment, the performance of which, perhaps, couli
not be legally refused. Aid
22. wliere the officer is not removable at the will of the executive, the ap-
pointment is not revocable, and cannot be annulled ; it has conferred legal
rights which cannot be resumed. Ibid. 162.
23. The question whether the legality of the act of the heads of departments
be examinable in a court of justice, or not, must always depend on the nature
of that act. Ibid 165. Where the heads of departments are the political or
confidential agents of the executive, merely to execute the will of the President,
or rather to act on cases in which tlie executive possesses a confidential or legal
discretion, nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law, and indi-
vidual rights depend on the performance of that duty, it seems equally clear
that the individual who considers himself injured has a right to resort to the
laws of liis country for a remedy. Ibid.
24. Where the head of a department acts in a case in which executive di»
cretion is to be exercised, in which he is the mere organ of executive will, any
application to a court to control, in any respect, his conduct, would be rejected
without hesitation. But where he is directed by law to do a certain act affect-
ing the absolute rights of individuals, in the performance of which he is not
placed under the particular direction of the President, and the performance of
Y^hich the President cannot lawfully forbid, and therefore is never presumed
to have fbrbiddeD, — as, for example, to record a commission, or a patent for
land, which has received all the legal solemnities, or to give a copy of such
record, — in such cases, the courts of the country are no further excused from
the duty of giving judgment that right be done to an injured individual, than
if the same services were performed by a person not at the head of a department.
Ibid. 171.
25. The authority ffiven to the Supreme Court, by the act establishing the
judicial courts of the United States, to issue writs oT mandamus to public officers,
IS not warranted by the Constitution. Ibid. 176.
26. An act of Congress repugnant to the Constitution cannot become the law
of the land. Ibid. 176, 177, 180.
27. An act of Congress cannot invest the Supreme Court with an authority
not warranted by the Constitution. Ibid. 175, 176.
. 28. A contemporary exposition of the Constitution, practised and acquiesced
under for a period of years, fixes the construction, and the Court will not shake
ir control it Sluart v. Laird^ I Cranch, 299.
29. An act of Congress giving to the United States a preference over all other
creditors, in all cases, is constitutional and valid. United Statu v. Fisher et jU
2 Cranch, 2^% 395.
APPENDIX. — Digest of Decisions in the U. 8. Owrts. 629
30. Sich preference exists iu a case where no suit has been instituted ; as,
ipoo ao assignment by a bankrupt, the United States must be first paid. IbitL
3L The legislature of a state cannot annul the judgment, or determine the
jurisdiction, of the courts of the United States. United Slatet v. Peter$, 5 Cranch,
115w
32. in an action of ejectment between two citizens of the state where the
lands lie, if the defendant set up an outstanding title in a British subject, which
he contends is protected by treaty, and that therefore the title is out of the plain-
tiff, and the highest state court decides against the title thus set up, it is not a
case in 'which a writ of error lies to the Supreme Court of the United States.
Owing V. NoriKtOfT* l^esiee, 5 Cranch, 344.
33. This is not a case arising under the treaty, and the words of the judi-
ciary act must be restrained by those of the Constitution. Ibid.
34. Whenever a right grows out of, or is protected by, a treaty, it is sanc-
tioned against all the laws and judicial decisions of the states ; and whoever
may have this right, it is protected. But if the person's title is not affected by
the treaty, if he claims nothing under the trea^, his title cannot be protected
by the treaty. Ibid, 348.
35. If a title be derived from a legislative act, which the lej^slature might
constitutionally pass, if the act be clothed with all the requisite forms of law, a
court sitting as a court of law cannot sustain a suit by one individual against
another, founded on the allegation that the act is a nullity in consequence of
the impure motives which innuenced certain members of the legislature which
passed the act Fletcher v. Peck, 6 Cranch, 87, 131.
36. One legislature, so far as respects general legislation, is competent to
repeal any act which a former legislature was com|ietent to pass ; and one legis-
lature cannot abridge the powers of a succeeding legislature. But if an act be
done under a law, a succeeding legislature cannot undo it. Ibid, 135.
37. When a law is, in its nature, a contract, and absolute rights have vested
under that contract, a repeal of the law cannot divest those rights. Ibid,
38. It may well be doubted whether the nature of societv and government
does not prescribe some limits to the legislative power ; and if^any be prescribed,
where are they to be found, if the property of an individual, fairly and honestly
acquired, may be seized without compensation ? Ibid,
39. The question whether a law be void for its repugnancy to the Constitu-
tion, is a question which ought seldom, if ever, to be decided in the affirmative
in a doubtful case. The opposition between the Constitution and the law should
be such that the judire feels a clear and strong conviction of their incompatibility
with each other. Ibid, 128.
40. Where an estate has passed, under a legislative grant, into the hands of
a purchaser for a valuable consideration, without notice, the state is restrained,
either by general principles which are common to our free institutions, or by
the particular provisions of the Cons'itution of the United States, fmrn pass-
ing a law whereby the estate so purchased can be impaired and invalidated.
Ibid. 13!».
41. The appellate powers of the Supreme Court are given by the Constitu-
tion ; but they are limited and refrulated by the judiciary act and other acts of
Congress. Duromseau v. United States, 6 Cranch, 307.
42. An act of the legislature, declaring that certain lands which should be
purchased for the Indians should not thereafter be subject to any tax, constituted
a contract, which could not l»e rescinded by a subse«|uent legislative act : such
repealing act be^ng void under that clause of the Constitution of the United
States which prohibits a state from passing any law impairing the obligation of
contracts. JVcw Jersey v. H^ihon, 7 Cranch, 164.
43. In ex)»ounding the Constitution of the United States, a construction ought
not lightly to lie admitted which would give to a declaration of war an effect in
this (ountry it does not possess elsewhere, and whi«*h would fetter that exercise of
entire discretion resjwcting enemy's property, which may enable the government
to apfilv to the enemy the rule that he applies to us. Brown v. United States^
8 Cranch, 110.
44. The power of making ** rules concerning captures on land mA water
630 APPENDIX. — Digest vf Decisions in the U. & CmHs.
which is Buperadded, in the Coi>stitution, to that of deckuriog war, is oot can
fined to captures wiiich are extra-territorial, hut extends to rules reRpeetiit^
enemy's pr<»|ierty foun<l within the territory, and is an express grant to Congress
of the |>ower of confiscating enemy's property, found within the territory at
the declaration of war, as an independent substantive power, not included in
that of declaring war. Ilnd,
45. The legislature may enact laws more effectually to enable all 8e<*ts to
accomplish the great ol>jects of religion, by giving theVu corporate rights for tht
innnagement of their pro|»erty, and the regulation of their temporal as well aa'
*tpiritual concerns. Ttird et JU, v. Taylor et JU.^ Cranch, 43.
4(j. Consistently with the Constitution of Virginia, the legislature could not
create or continue a religious establishment which should have exclusive rights
and prerogatives, or compel the citizens to worship uuder a st^)ulated foiui or
tliscipline, or to pny taxes to those whose creed they do not conscientiously
believe. But the free exercise of religion is not restrained by aiding, with equal
attention, the votiu-ies of every sect to i)erform their own religious duties, or by
establishing funds for the support of ministers, for public charities, for the
endowment of churches, or for the sepulture of the dead. Nor did eitlier
public or constitutional principles require the abolition of all religious coirpo-
rations. Ibid,
47. The public property acquired by the Episcopal churches under the sanc-
tions of the law did not, at the revolution, become the property of the state
The title was indefeasibly vested in the churches, or their legal agents. The
Hissolution of the form of government did not involve in it a dissolution of civil
rights, or an abolition of the common law. IbidL
4d. A legislative grant and coniirmation vests an indefeasible, irrevocable
title; is not revocable in its own nature, or held only durante bene plaeito.
Ibid,
49. In respect to public corporations, which exist only for public pm-poses,
as counties, towns, cities, &c., tlie legislature may, under proper limitations,
have a right to change, modify, enlarge, or restrain them ; securing, however,
the property for the uses of those for whom, and at whose expense, it was origin-
ally purchased. Ibid.
.50. But the legislature cannot repeal statutes creating private corporations,
or confirming to them profierty already acquired under the faith of previous
laws, and by such repeal vest tlie property exclusively in the state, or dispose
of the Same to such (Hirposes as they may please, without the consent or default
of the corporators. Ibid,
51. Congress cannot vest any portion of the judicial power of the United
States, except in courts ordained and establislied by itselL Martin v. Hunters'
Lessee, 1 Wheat 304, 380.
5*2. The 25th sect of the judiciary act of September 24, 1789, ch. 20, (2 Bior.
56^ is 8iip|K>rted by the letter and spirit of the Constitution. Ibid,
The Constitution of the United States was ordained and established, not by
the Ufiited States in their sovereign capacities, but, as the preamble declaresi,
by the people of the United States. Ibid, 324.
5-*i It was com|)etent for the people to invest the national government with
all the powers whirh they might deem proper and necessary, to extend or limil
these |K)wers at their pleasure, and to give to them a paramount and supreme
authority. Ibid,
54. Tlie people had a right to prohibit to the states the exercise of any powers
which were, in their judgment, incompatible with the objects of the general
compact ; to make the powere of the state governments, in given cases, sul»or-
dinate to those of the nation ; or to reserve to themselves those sovereign
authorities which they might not choose to delegate to either. IbuL
55. The Constitution was not, therefore, necessarily carved out of existing
state sovereignties, nor a surrender of powera already existing io the state
governments. Ibid,
Sfi, On the other hand, the sovereign powera vested in the state govemroentp
hy their respective constitutions, remain unaltered and unimpaired, except
far as they rrt granted to the government of the United States. AitL
APPENDIX. — Digest of Dedsiams in the U. & CmtrU GAi
57 T ie goTernment of the United States can claim no povrera which
grante<l to it by the Constitution, either expressly or by oeceasary implica-
tion. IbiiL
58. Tbe Constitution, like every other grant, is to have a reasonable con-
struction, according to the import of its terms ; the words are to be taken in
their natural ami obvious sense, and not in a sense eitlier unreasonably restrict-
ed or enlarged. Ihid,
59. The power of naturalization is exclusively in CongresSb Chirac v. Chirac.
2 Wheat d5a
See ante. No. 1. ^
60. The grant, in the Constitution, to the United States, of all cases of admi-
ral^ and maritime jurisdiction, does not extend to a cession of the waters in
which those caftes may rise, or of the general jurisdiction over them. Uniied
SiaUs V. BevmiSy 3 Wheat 336.
Ql. Congress may pass all laws which are tiecessary for giving the most com-
plete effect to the exercise of the admiralty and maritime juriiMiiction, granted
in the Constitution to the United States; but the general jurisdiction, subject
to this grant, adheres to the territory, as a portion of sovereignty not yet
given away, and the residuary powers of legislation still remain in tbe stata
&L Congress has power to provide for the punishment of offences committed
by persons serving on board a ship of war of the United States, wherever that
ship may be ; but Congress has not exercised that power in the case of a ship
lying in the waters of the United States. Ibid,
6£ Since the adoption of the Constitution of the United States, a state has
authority to pass a bankni|)t law, (provided such law does not impair the obliga-
tion of contracts,) provided there be no acts of Congress in force to establish a
unifonn svstem of bankruptcy conflicting with such law. Stur/ces v. CVatcmtn-
ehield, 4 VVheat. 122. Contra, Goiden v. Pnnee, 3 Wash. C. C. R. 313, 5 Hall's
Am. L. Journ. 502. S. C. Accord, JIdami v. iSforf^, 6 Hal l*s Am. L. Journ. 474.
64. The mere grant of a power to Congress does not imply a prohibition on
the states to exercise the same power. Ibid,
'^S. Whenever the terms in which a power is granted to Congress require that
it should be exercised exclusively by Congress, the subject is as completely
taken from the state legislatures, as if they had been expressly forbi^lden to act
upon it. Dnd,
66. To release the future acquisitions of a debtor from liability to a contrset,
impairs its obligation. Ihid. 198.
b7. Statutes of limitation, and usury laws, unless retroactive in their effect, do
not impair the obligation of contracts, within the moaning of the Constitution.
Ml
68. The right of the states to pass bankrufrt laws is not extinguished by the
enactment of a unifonn bankrupt law throughout the Union by Congress ; it is
only sus|>ended. The repeal of that law cannot confer that power upon the
states, but it removes a disability to exercise, which was created by the act of
Congress. Ibid.
09. The act of the legislature of the state of New York, of April 3d, 1811,
which not only liberated the person of the debtor, but discharged nim from all
liability for any debt contracted previous to his discharge, on his surrendering
his property hi the manner prescribed, so far as it attempted to discharge the
coutrecr, is a law impairing the obligation of contracts within the meaning of
the Constitution of the United States, and is not a good plea in bar of an action
l)rougnt upon such contract Ib'uL
70. A Htiitc bankrupt or an insolvent law, which not only liberates tlie person
of tbe debtor, but discharges him from all liability for the debt, so far as it at-
tempts to discharffe the contract, is repugnant to the Constitution of the United
States; and it makes no difference whether the law was passed before or afVer
the debt was contracted. M'MUUm v. M'NkU, 4 Wheat 209.
71. The act of Assembly of Maryland, of I793y incorporating the Back of
Columbia, and giving to the corporation a summary process by execution, it;
the nature of an attaehment, against its debtors, who have, by an evDreai )mi»
632 APPENDIX. — Digest of Decisions in tlu U, S. (hurts.
■ent in writing, made the bonds, bills, or notes, by them drawn or endornpd
negotiable at the bank, is not repugnant to the Constiuition of the United State*
or of Muryland. Bank of Columbia v. Okeiy, 4 Wheat. 316.
72. Congress has power to incorporate a bank. Jtt^CuUoek /. MaryUmdj 4
Wheat 31&
73. The government of the Union is a government of the people ; it emanates
from them ; its powers are granted by tbeni, and are to be exercised directly on
them, and for their benefit Ibid.
74. The government of the Union, though limited in its powers, is supreme
within its sphere of action ; and its laws, when made in pursuance of the Con-
stitution, form the supreme laws of the land. Ibid.
75. The government, which has a right to do an act, and has imposed on it the
dttty of performing that act, must, according to the dictates of reason, be allowed
to select the means. Ibid.
76. There is nothing in the Constitution of the United States, similar to the
Articles of Confederation, which excludes incidental or implied powers. Ibid.
77. If the end be legitimate, and within the scope of the Constitution, all the
means which are appropriate, which are plainly adapted to that end, and which
are not prohibited, may constitutionally be employed to carry it into efiect
Ibid.
76. The power of establishing a corporation is not a distinct sovereign power
or end of government, but only the means of carrying into effect other powers
which are sovereign. Whenever it becomes an appropriate means of exer-
cising any of the powers given by the Constitution to tne government of the
Union, it may be exercised by that government Ibid.
79. If certain means to carry into effect any of the powers expressly given by
the Constitution to the government of the Union, be an appropriate measure, not
Krohibited by the Constitution, the degree of its necessity is a question of legis-
itive discretion, not of judicial cognizance. Ibid,
80. The act of April 10, 181G, ch. 44. (3 Stor. 1547,) to « incorporate the sub-
Bcribers to the Bank of the United States,** is a law made in pursuance of the
Constitution. Ibid.
81. The Bank of the United States has, constitutionally, a right to establish
its branches, or offices of discount and detiosit, within any state. Ibid.
82. The state within which such branch may be established cannot constitu-
tionally tax that branch. Ibid.
83. The state governments have no right to tax any of the constitutional
means employed by the .government of the Union to execute its constitutional
powers. Ibid.
84. The states have no power, by taxation otherwise, to retard, impede,
burden, or in any manner control, the operation of the constitutional laws en
acted by Congress to carry into efiect the powers vested in the national govern
ment. Ibid.
85. This principle does not extend to a tax paid by the real property of the
Bank of the United States, in common with the other real property in a particu-
lar state ; nor to a tax imposed on the proprietary interest which the citizens ol
that state may hold in this institution, in common with other property of the
same description throughout the state. Ibid.
86. The charter granted by the British crown to the trustees of Dartmouth
College, in New Hampshire, in the year 1769, is a contract within the meaning
of that clause of the Constitution of the United States, (art 1, sect 10,) which
declares that no state shall make any law impairing contracts ; and this charter
was not dissolved by the revolution. Trustets of Darhnouth College v. Wood-
loard, 4 Wheat 5ia
87. An act of the legislature of New Hampshire, altering the charter in a
material respect, without the consent of the corporation, is an act impairing the
obligation of a contract, and is unconstitutional and void. Ibid.
88. The act of Congress of Maroh 3, 1819, ch. 76, $ 35, referring to the law
uf nations for a definition of the crime of piracy, is a constitutional exercise of
the p<»wer of Congress to define that crime. Uwtei States v. Smiihy 5 Wheat 153.
89. C(»t gress has authority to impose a direct tax on the District of Columbis,
APPENDIX. — Digti^t of Deeisums in the U. & OmrU. 633
•R |>roportion to the census directed to be taken by the Constitution. Luf bor-
ough V. B/oftf, 5 Wheat 317.
90. The pouer of Congress to leyy and collect taxes, duties, imposts, and
excise, is coextensiTe with the territory of the United States. JbuL
91. The power of Congress to exercise exclusive legislation, in all cases
wliatsoever, within the District of Columbia, includes the power of taxing it
Ibid.
92. Congress has no power to exempt any state from its due share of the
burden of taxes, hut is not bound to extend a direct tax to the District and ter-
ritories. BntL
93b The present Constitution of the United States did not commence its
operation until tlie first Wednesday in March, 1789 ; and the providion that ** no
state shall make any law impairing the obligation of contracts," does not extend
to a law enacted before that day, and operating u(>on rights of property vested
before that time. Owinr$ v. Spud ti AL b Wheat 420.
94. An act of a state legislature, which discharges a debtor from all liability
for debts contracted previous to his dischnrge, on his surrendering his pro^ierty
tor the benefit of his creditors, is a law impairing the obligation of a contract,
within tlie meaning of the Constitution of the United States ; and it is immate-
rial that the suit was brought in a state court of a state of which both parties
were citizens, where the contract was made, and the discharge obtained, and
where they continued to reside until the suit was brought fbrmers' and Me*
chania^ Bank of Pennsylvania v. Smith, 6 Wheat 131.
95. The Supreme Court lias, constitutionally, appellate jurisdiction, under the
2Sth sect of the judiciary act of September 24, 1789, ch. 20, (2 Bior. 56,) from
the final judgment or decree of tlie hiffhest court of law or equity of a state
having jurisdiction of the suit, where is drawn in question the validity of a
treaty, jor statute of, or an authority exercised under, the United States, and the
decision is against their validity ; or where is drawn in question the validity of
a statute ofj or an authority exercised under, any state, on the ^und of their
being repugnant to the Constitution, treaties and laws of the United States, and
the decision is in favor of their validity ; or of the Constitution, or of a treaty
of, or of a statute ot\ or a commission held under, the United States, and the
decision is against the title, right, privilege, or exemption, s[iecially set up or
claimed by either party, under the Constitution, treaty, statute, or commission.
Cohens v. Virginia, 6 Wheat 264.
96. It is no objection to the exercise of this appellate jurisdiction, that one
of the parties is a state, and tlie other a citizen of that state. Ibid.
97. The 2d section of the 3d article of the Constitution defines the extent of
the judicial power of the United States. Jurisdiction is given to the courts of
the United States in two classes of cases. In the first, their jurisdiction defiends
on the character of the cause, whoever may t)e the parties. This class com pre*
lieods ^ all cases in law and equity arising under tnis Constitution, the laws of
the United States, and treaties made, or which shall be made, under their au-
thority.'' In the second class, the jurisdiction de|>ends entirely on the character
of the parties. In this class are comprehended ** controversies between two or
more states, l>etween a state and citizens of another state," and ^ between a
state and foreign states, citizens, or subjects." If these be the parties, it is en-
tirely unimportant what may be the subject of the controversy; be it what it
muy, these parties have a constitutional right to come into the courts of the
Union. i&tdL378.
98. A case in law or equity consists of the rights of the one parnr as well as
of the other, niid is said to arise under the Constitution or a law of'^the United
Stntes, whenever its correct decision depends on tlie construction of either.
Ibid.
99. The judicial power of every well-constituted government must be coex-
tensive with the legislative, and must be capable of deciding every judicial
question which grows out of the Constitution and laws. Ibid.
100. Where the words of the Constitution confer only ap()ellate jurisdiction
upon the Supreme Court, original jurisdiction is most cleariy not given ; but
wnere the words admit of appellate jurisdiction, the power to take oogiiuii0f>
VOL. IV. 80
634 APPENDIX. — Di^si of Decisions in the U. & QmrU.
of the suit orif ioally does not noceasarily negative the power to decide upon it
on an appeal, it* it rriay originate in a dilSereut court. Ibid. 397.
101. In every case to which the Judicial power extends, and in which oriei-
nal jurisdiction is not expressly given, that power shall be exercised in the
ap()ellate, and only in the appellate, tbrtn. The original jurisdiction of tlie
Supreme Court cannot be enlarged, but its ap|»ellate jurisdiction may be exer
cised in every case, co^iizable under the 3d article of the Constitution, in the
federal courts, in which original jurisdiction cannot be exercised. Ibid,
1012. Where a state obtains a judgment against an individual, and the court
rendering such judgment overrules a defence set up under the Constitution or
laws of the United States, the transfer of the record into the Supreme Court,
lor the sole pur|>ose of inquiring whether tlie judgment violates tlie Constitution
or laws of tlie United States, cannot be denominated a suit commenced or
prosecuted against the state whose judgment is so far reexamined, within the
lltli amendment of the Constitution of the United States. IbieL
XQQ. The act of Kentucky, of February 27, 1797, concerning occupying
elnimants of land, whilst it was in force, was repugnant to the Coiistitutiou at
the United States. It was, however, repealed by a subsequent act of January
31, 1812. This last act is also repugnant to tlie Constitution of the United
States, being in violation of ^he compact between the states of Virginia and
Kentucky, contained in the act of the legislature of Virginia, December 18,
1789, and incorporated into the Constitution of Kentucky. Crreen d w^ v. Bid'
die, 8 Wheat. 1.
104. The ob^ction to a law, on the ground of its impairing the obligation
of a contract, can never depend on the extent of the change which the law may
make in it ; any devintion from its terms, by postponing or accelerating the pe-
riod of performance which it prescribes, imposing conditions not expressed in
tlie contract, or dispensing with the performance of those which are, however
minute, or apparently immaterial in tneir effect upon the contract of the parties,
impairs its obligation. Ibid, i
105. The compact between the states ofKentudof and Fty^nia of 1789-1790,
is valid and binding upon the parties, and has, within the meaning of the Con-
stitution of the United States, received the assent of Congress, \^ act of Feb-
ruary 4, 1791, ch. 78, (2 B'lor. 191.) Ibid.
l(J6w This compact is not invalid on the ground of its containing limitations,
or a surrender of sovereign rights. Ibid.
107. A compact between two states is a contract within that clause of the
Constitution which prohibits states from passing any laws impairing the obli-
gation of contracts. Ibid,
108. The several acts of the legislature of the state of New York, granting
and securing to Robert R. Livingston and Robert Fulton the exclusive right
of navigating the waters within the jurisdiction of that state, with boats moved by
fire or steam, for the periods therein specified, are in collision with a constitu-
tional act of Congress, and so far repugnant to the Constitution of the United
States, and void. Gibbona v. Ogdtn, 9 Wheat 1, 209, 210.
109. The framers of the Constitution mutit be understood to have employed
words in their natural sense, and to have intended what they have said ; and
in construing the extent of the powers which it creates, there is no other rule
than to consider the language of the instrument which confers them, in connec
tion with the purposes for which they were conferred. Ibid, 188, 189.
1 10. In the clause of the Constitution of the United States, which declares
that ** Congress shall have power to regulate commerce with foreign nations, and
among the several slates, and with tlie Indian tribes," the word " commerce ^'
t*.oinprehends ** navigation ;" and a power to regulate navigation is as expressi}
^^nted as if that term had been added to the word ** commerce." Ibid, 189
193.
Ill It is a rule of construction that exceptions from a power mark its ex-
tent fbid. 191.
112. The power to reguU.e commerce extends to every species of eommer
cial intercourse between the United States and foreign nations, and among the
s^vAral states. Ibid, 193.
APPENDIX. — Di^t of Dedsums tn the U. S. OmrU. 635
113. It does not eomprebeiid that oommeroe wbieh is completely intemai
~ which is carried on between man and man in a state, or between different
parts of the same state, and which doea not extend to or affect otlier staie&
Ikid. 194.
114 ikit it does not stop at the jurisdictional lines of the several states ; it
must be exercised wherever the subject exists, and must be exercised within
the territorial jurisdiction of the several states. Ibid* 195, 196.
115. This power to regulate cornineree ia the power to presenile the rule
by which commerce is to be governed. IbidL
116. Like all other powers vested in Congress, it is complete in itself, may
t« exercised to its utmost extent, and baa no other liniitationa than such as are
prescribed in the Constitution. Ibid,
117. The authority of Congress to lay and collect taxes does not interfere
with the power of tlie states to tax for the support of their own governments ;
nor is the exercise of that power by the states an exercise of any portion of the
power that is granted to the United States. Md. 199.
1 18. But when a state proceeds to regulate commerce with foreign nations,
or among the several states^ it is exercising tlie very power that is granted to
Congress.
119. The power of laying duties on imports or exports is considered, in the
Constitution, as a branch of^the taxiiig power, and not of the power to regulate
commerce. Dnd, 301.
120. The inspection laws, quarantine laws, health laws of every description,
laws for regnlatuig the internal commerce of a state, and those which respect
turnpike roads, ferries, &c., are not in the exercise of^ a power to regulate com-
merce, within the language of the Constitution. Ibid. 209L
121. Although Congress cannot enable a state to legislate, it may adopt tbe
provisions of a state on any subject Ihid. 307.
122. B stems that the power to regulate implies, in its nature, full power
over the thing to be regulated, and excludes necessarily the action of all others
that would perfbrm the siune operation on tlie same thmg. Ibid. 209.
123. When the legislature attaches certain privileges and exemptions to the
exercise of a right over which its control is ansolute, the law must imply the
power to exercise the right ; and therefore the act on the subject of the coast*
ing trade implies an authority to licensed vessels to carry on that trade. Ibid,
212.
124 The license, under that law, is a legislative authority to the licensed
vessel to be employed in the coasting trade, and is not intended merely to con-
fer the national character : that character is conferred by tlie enrolment, not by
the license. Ibid. 214
125. The power to regulate commerce extends as well to vessels emplcr^d
in Carrying passengers as to those employed in transporting property. Aid,
215.
126. It extends equally to vessels propelled by steam, or fire, as to those
navigated by the instrumentality of wind and sails. Ibid. 219.
127. The clause in the act of incorporation of the Bank of the United States
whirh authorizes the bank to sue in the federal courts, is warranted bv the 3d
article of the Constitution of the United States, which declares ** that tlie judi-
cial power shall extend to all cases in law and equity arising under the Con-
stitution, the laws of the United States, or treaties made, or which shall lie
made, under their authority." Osbom €t AL v. Bank of iks Uniled Slates^ 9
Wheat 73a
128. The executive department may constitutionallv execute every law which
the legislature may constitutionally make, and the judicial department may re-
ceive from the legislature the power of constniing every such law. IbitL
129. The 3d article of the Constitution of the United States enables the ju-
dicial department to receive jurisdiction to the full extent of the Const itution^
laws, and treaties of the United States, when any question respecting them
shall assume such a form that the judicial power is capable of arimg on it
That power is capable of acting only when the subject is submitted to it by %
636 APPENDIX. — Digest of Decisions in the 17. S. Conru.
party who asserts his rights in the fonn prescribed by law. It then bee omei
a case. BndL
130. In those cases in which original jurisdiction is given to the Supremo
Court, tiie judicial power of the United States cannot be exercised in its ap-
pellate form. In every other case, the power is to be exercised in its original
or appellate form, or lM)th, as the wisdom of Congress may direct. IbiiL
131. With the exception of those cases in which original jurisdiction is given
to the Supreme Court, there is none to which the judicial power extends from
which the original jurisdiction of the inferior courts is excluded by the Con-
stitution. BndL
132. The Constitution establishes the Supreme Court, and defines its juris-
diction. It enumerates cases in which jurisdiction is original and exclusive,
and then defines that which is appellate, but does not insinuate that, in any
such case, the |)ower cannot be exercised in its original forms by courts of
original jurisdiction.
133. The postmaster-general cannot sue in the federal courts under tliar
(lart of the Constitution which gives jurisdiction to those courts in consequence
of the character of the party, nor is he authorized to sue by the judiciary act :
he comes into the courts of the United States under the authority of an act of
Congress, the constitutionality of which rests upon the admission that his suit
is a case arising under the law of the United States. Ibid,
134. The clause in the patent law authorizing suits in the Circuit Courts
stands on the principle that they are cases arising under a law of the United
States. IbuL
135. Jurisdiction is neither given nor ousted by the relative situation of the
parties concerned in interest, but by the relative situation of the parties named
on the record; consequently the 11th amendment to the Constitution, which
restrains the jurisdiction of the federal courts over suits against states, is limited
to those suits in which a state is a party on the record. Bnd. Bank of the
United Stales v. Planters' Bank of Geor^. Ibid 904, S. P.
136 The Circuit Courts of the United States have jurisdiction of a bill io
equity, filed by the Bank of the United States for the purpose of protecting the
bank in the exercise of its franchises, which are threatened with invasion and
destruction under an unconstitutional state law ; and, as the state itself cannot
be made a defendant, it may be maintained against the officers and agents of
the state wlio are appointed to execute such law. Ibid
137. The act of February 28, 1795, ch. 277, (2 Bior. 479,) to provide for
caUing out the militia, to execute the laws of the Union, to suppress insurrec-
tions, and repel invasions, is within the constitutional authority of Congress.
Martin v. Mott, 12 Wheat. 19.
138. The power granted to Congress, by the Constitution, ** to establish uni-
form laws on tlie subject of bankruptcy throughout the United States," does
not exclude the right of the states to legislate on the same subject, except when
the power is actually exercised by Congress, and the state laws cotiflict with
those of Congress. Ogden v. Saunders^ 12 Wheat. 213.
139. A state bankrupt or insolvent law, which discharges both the person of
the debtor and his future acquisitions of pro|)erty, is not ^a law impairing the
obligation of contracts'* so far as respects debts contracted subsequent to such
law. Ibid
140. But a certificate of discharge under such law cannot be pleaded in bar
of an action brought by a citizen of another slate in the courts of the United
States, or of any other state than that where the discharge was obtained. Ibid,
141. The states have a right to regulate or alx>lish imprisonment for debt,
,is a part of the remedy for enforcing the performance of contracts. Mason v.
HaiU, 12 Wheat. 370.
142. An act of a state legislature, requiring all importers of foreign goods by
die bale or package, &c., and other persons selling the same by wholesale, bale
or package, &c.,to take out a license, for which they shall pay fifty dollars, and
.n case of neglect or refusal to take out such license, subject them to certain for-
feitures and penalties, is repugnant to that provision of the Constitution of the
APPENDIX. — Digest of Decisions i% the U. 8. Courts. 637
United States which declares that <* no state shall, without the consent of Ck>n«
gress, lay any im|)08t, or duty on imports and exports, excepting what mi.y be
absolutely necessary tor executing its own inspection laws ; *' and also to that
which declares that Congress shall have power to regulate commerce with for-
eign nations, among the several states, and witli the Indian tribes. Brown el M,
T. StaU of MuTifUir^ 12 Wheat 419.
14^i. h is extremely doubtful whether the legislature can constitutionally
impose upon a judge of the Supreme Court of the United States tlie authority
or duty to hold a District Court There is a great difference between ^ving
new jurisdiction to a court of which such judge is a member, and appouiting
him pro hoc vice to a new office. Nor is there any sound distinction between an
appointment to a new office, and an appointment to pertbrm the duties of
another office, while it remains a separate and distinct office. Ex patrie United
SlaUs, 1 Gallis. 338.
144 The act of New Hampshire of June 19, 1805, which allows to tenants
the value of improvements, &c^ on recoveries against them, if it applies to
pai>t improvements, is so far unconstitutional and void. Society for the Propa
gatiwh fyc, V. fVheeler etJil.2 Gallis. 105.
145. The expressions ^ admiralty and maritime iurisdiction,'* in the Constitu-
tion of the United States, give jurisdiction of all things done upon and relating
to the sea, or, in other words, all transactions and proceedings relative to com
uierce and navigation, and to damages or injuries upon the sea* De Corvio \
BoUetM2 Gallis. 308, 468.
146. Tlie dele^tion of cognizance <*of all civil causes of admiralty ami
maritime jurisdiction " to the courts of the United States, comprehends all mari.
time contracts, torts, and injuries. The latter branch is necessarily bounded
by locality; the former extends over all contracts, wheresoever they may be
made or executed, or whatsoever may be the form of the stipulations, which
relate to the navigation, business, or commerce of the sea. Bnd. 474, 475.
147. The 9th section of the 1st article of the Constitution of the United
States, which restrained Congress from forbidding the migration or importation
of slaves prior to the year 1806, did not apply to state legislatures, who mi|rht at
any time prohibit the introduction of such persons. Butler v. Happen^ 1 Wash.
C. C. R. 499.
148. The 2d section of the 4th article of the Constitution of the United States
does not extend to a slave voluntarily carried by his master into another state,
and there lefl under the protection of a law declaring him free, but to slaves
escaping from one state into another. Ihid,
149. The powers bestowed by the Constitution upon the government of the
United States were limited in their extent, and were not intended, nor can they
be construed with other powers before vested in the state governments, which
of course were reserved to those governments, impliedly, as well as by an ex-
press provision of the Constitution. Golden v. Frince, 3 Wash. C. C. R. 3K).
5 Hall's Am. L. Jnurn. 502 S. C.
150. The state governments therefore retained the right to make such laws
as they might thinlc proper within tlie ordinary functions of legislation, if not
inconsistent with the powers vested exclusively in the government of the United
States, and not forbidden by some article of the Constitution of the United
States or of tlie state; and such laws were obligatory upon all the citizens of
that state, as well as others who might claim rights or redress for injuries under
those laws, or in the courts of that state. Ibid,
151. The establishment of federal courts, and the jurisdiction granted to them
in certain speci6ed cases, could not, consistently with the spirit and provisions
of the Constitution, impair any of the obligations thus imposed by the laws of
the state, by setting up in those courts a rule of decision at variance with that
which was binding upon the citizens, and which they were bound to ol)ey.
Ibid,
152. Thus the laws of a state affecting contracts, regulating the disposition
and transmission of property, real or personal, and a variety or others, which iu
themselves are free from all constitutional objections, are equally valid and
obligatory within the state, since the adoption of the Constitution of the United
54
638 APPENDIX. — Digest of Decisions in the U. 8. Courts.
States, as they were befbre. They provide rules of ciTil conduct for every inoi
vidual who is subject to their power. IbiiL
15!i With respect to niles of practice for transacting the business of tbe
courts, a different principle prevails. I'hese rules fonn the law of the court ;
and it is, in relation to the federal courts, a law arising under the Coiistitutioo
oi' the United States, consequently not subject to state regulations. It is in ref-
erence to this principle that the 17th section of the judicial act authorizes the
courts of the United States to make all necessary niles for the orderly condurt-
iag of business in the said courts, provided tiie same are not repugnant to the
laws of the United States ; and under this |)ower the different Circuit Courts, at
their first session, adopted the state practice as it then existed, which continues
to this day in all the states, except so far as the courts have thought proper, from
time to time, to alter or amend iL Jbid.
154. A law may be unconstitutional, and of course void, in relation to par-
ticular cases, and yet valid, to all intents and purposes, in its application to
other cases within the scope of its provisions, but varying from the former in
]>articular circumstances. Thus a law prospective in its operation, under which
a contract af\erward8 made may be avoided in a way different from that provi-
ded by the parties, would be clearly constitutional ; because the stipulations of
the parties, which are inconsistent with such a law, never had a legal existence,
and of course could not be impaired by the law. But if the law act retrospec-
tively as to other contracts, so as to impair their obligation, the law is invalid, or,
in milder terms, affords no rule of decision in these latter cases. Bnd,
155. A law of a stat<.', which declares that a debtor, by delivering up his
estate for the benefit of his creditors, shall be forever discharged from the pay-
ment of hid debts, due or contracted before the passage of the law, whether
the creditor do any act or not in aid of the law, cannot be set up to bar the
right of such creditor to recover his det>t either in a federal or state court; such
law impairs the obligation of the contract Ibid
156. A law which authorizes the discharge of a contract by a smaller sum,
or at a difTerent time, or in a different manner, than the parties have stipulated,
impairs its obligation, by substituting, for the contract of the parties, one which
thev never entered into, and to the performance of which, of course, they never
had. conr*ented. Ibid.
157. A state law, directing that the court befbre whom an insolvent debtor
is discharged, shall make an order, that whenever a majority of the creditors
shall consent, the debtor shall be released, and his future acquisitions exempted
from all liubilitv for seven vears, is unconstitutional and void. United States v.
Kedenckson, C. fc. U. S. P. 6ct 1821. M. S.
158. There is nothing in the Constitution of the United States which forbids
Congress to pass laws violating the obligation of contracts, though such pow-
er is denied to the states individually. Evans v. Eaton^ 1 Peters's C. C. R. 322:
159. If the local ordinances of a city are in collision with an act of Congress,
the former must give way. The laws of Congress, made in pursuance of the
Constitution of the United States, are tfie supreme laws of the land, any thing
in the constitution or laws of the particular state notwithstanding. United
States V. Hart, I Peters's C. C. R. %K).
160. An act of CongresK, laving an embargo for an indefinite period of time,
is constitutional and valid, tlnited Slates v. The fViUianif 2 Hall's Am. L.
Journ. 2.55.
161. There is nothing in the Constitution of the United States which forbids
the legislature of a state to exercise judicial functions. Satterlee v. Maihetoson,
Peters's Re[K)rts, vol. ii. 41.*5.
1(52. There is no |>art of the Constitution of the United States, which applies
to a state law, which divested rights vested by law in nn individual, provided
its effect be not to impair the obliiration of the cotitraot. Ibid 413.
16^3. A tax imposed by a law of any state of the United States or under the
authority of such a law, on stock ia^ued for loans made the United States,
18 uiiconsiinuional. fVeston et M, v. The Cittf Council of Charleston, Ibid 449.
l&L It is not the want of original |)ower in an independent sovereign state
to prohibit 1 lans to a foreign government, which restrains the state legislature
APPENDIX. — Digest of Decisions in the U. 8, Courts. 639
from ^xreti opposition to those made by the United States. The restraint is
imposed by our Constitution. The American people have conferred the power
of twrrowing money on tiie government; and, by making that government su-
preme, have shielded its action, in the exercise of that power, from the action of
the local governments. The grant of the power, and the declaration of su-
Eremacy, are a declaration that no such restraining or controlling ]iower shall
e exercised. BntL 468.
165. The provision in the 5th amendment to the Constitution of the United
States, declaring that private property shall not be taken for public use without
t'ust compensation, is mtended solely as a limitation on the exercise of power
>y the government of the United States, and is not applicable to tlie legislatioti
of the states. Barrgn v. The Mojfor mid Cibf Cowmu qf BaUimore^ 7 Peten
Siio. Cl U. 8.
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