Front Page Titles (by Subject) CXXIX.: OBSERVATIONS ON THE PLAN OF GOVERNMENT SUBMITTED TO THE FEDERAL CONVENTION, In PHILADELPHIA, on the 28th of May, 1787. - The Records of the Federal Convention of 1787, vol. 3
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CXXIX.: OBSERVATIONS ON THE PLAN OF GOVERNMENT SUBMITTED TO THE FEDERAL CONVENTION, In PHILADELPHIA, on the 28th of May, 1787. - Max Farrand, The Records of the Federal Convention of 1787, vol. 3 
The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 3.
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OBSERVATIONS ON THE PLAN OF GOVERNMENT SUBMITTED TO THE FEDERAL CONVENTION, In PHILADELPHIA, on the 28th of May, 1787.
By Mr. CHARLES PINCKNEY,
Delegate from the State of South-Carolina.
Delivered at different Times in the course of their Discussions.
NEW-YORK: — Printed by FRANCIS CHILDS.1
It is, perhaps, unnecessary to state to the House the reasons which have given rise to this Convention. The critical and embarrassed situation of our public affairs is, no doubt, strongly impressed upon every mind. I well know, it is an undertaking of much delicacy, to examine into the cause of public disorders, but having been for a considerable time concerned in the administration of the Federal System, and an evidence of its weakness, I trust the indulgence of the House will excuse me, while I endeavor to state with conciseness, as well the motives which induced the measure, as what ought, in my opinion, to be the conduct of the convention.
There is no one, I believe, who doubts there is something particularly alarming in the present conjuncture. There is hardly a man, in, or out of office, who holds any other language. Our government is despised — our laws are robbed of their respected terrors — their inaction is a subject of ridicule — and their exertion, of abhorrence and opposition — rank and office have lost their reverence and effect — our foreign politics are as much deranged, as our domestic economy — our friends are slackened in their affection, — and our citizens loosened from their obedience. We know neither how to yield or how to enforce — hardly anything abroad or at home is sound and entire — disconnection and confusion in offices, in States and in parties, prevail throughout every part of the Union. These are facts, universally admitted and lamented.
This state of things is the more extraordinary, because it immediately follows the close of a war, when we conceived our political happiness was to commence; and because the parties which divided and were opposed to our systems, are known, to be in a great measure, dissolved. No external calamity has visited us — we labor under no taxation that is new or oppressive, nor are we engaged in a war with foreigners, or in disputes with ourselves. To what then, are we to attribute our embarrassments as a nation? The answer is an obvious one. — To the weakness and impropriety of a government, founded in mistaken principles — incapable of combining the various interests it is intended to unite and support — and destitute of that force and energy, without which, no government can exist.
At the time I pronounce in the most decided terms, this opinion of our Confederation, permit me to remark, that considering the circumstances under which it was formed — in the midst of a dangerous and doubtful war, and by men, totally inexperienced in the operations of a system so new and extensive, its defects are easily to be excused. We have only to lament the necessity which obliged us to form it at that time, and wish that its completion had been postponed to a period better suited to deliberation. I confess myself in sentiment with those, who were of opinion, that we should have avoided it if possible, during the war. That it ought to have been formed by a Convention of the States, expressly delegated for that purpose, and ratified by the authority of the people. This indispensible power it wants; and is, therefore, without the validity a federal Constitution ought certainly to have had. In most of the States it has nothing more, strictly speaking, than a legislative authority, and might therefore to be said, in some measure, to be under the control of the State legislatures.
Independent of this primary defect, of not having been formed in a manner that would have given it an authority paramount to the Constitutions and laws of the several States, and rendered it impossible for them to have interfered with its objects or operations, the first principles are destructive, and contrary to those maxims of government which have been received, and approved for ages.
In a government, where the liberties of the people are to be preserved, and the laws well administered, the executive, legislative and judicial, should ever be separate and distinct, and consist of parts, mutually forming a check upon each other. The Confederation seems to have lost sight of this wise distribution of the powers of government, and to have concentred the whole in a single unoperative body, where none of them can be used with advantage or effect. The inequality of the principle of Representation, where the largest and most inconsiderable States have an equal vote in the affairs of the Union; the want of commercial powers; of a compelling clause to oblige a due and punctual obedience to the Confederation; a provision for the admission of new States; for an alteration of the system, by a less than unanimous vote; of a general guarantee, and in short of numerous other reforms and establishments, convince me, that upon the present occasion, it would be politic in the Convention to determine that they will consider the subject de novo. That they will pay no farther attention to the Confederation, than to consider it as good materials, and view themselves as at liberty to form and recommend such a plan, as from their knowledge of the temper of the people, and the resources of the States, will be most likely to render our government firm and united. This appears to me, far more proper than to attempt the repair of a system, not only radically defective in principle, but which, if it was possible to give it operation, would prove absurd and oppressive. You must not hesitate to adopt proper measures, under an apprehension the States may reject them. From your deliberations much is expected; the eyes, as well as hopes of your constituents are turned upon the Convention; let their expectations be gratified. Be assured, that, however unfashionable for the moment, your sentiments may be, yet, if your system is accomodated to the situation of the Union, and founded in wise and liberal principles, it will, in time, be consented to. An energetic government is our policy, and it will at last be discovered, and prevail.
Presuming that the question will be taken up de novo, I do not conceive it necessary to go into a minute detail of the defects of the present Confederation, but request permission, to submit, with deference to the House, the Draft of a Government which I have formed for the Union. The defects of the present will appear in the course of the examination I shall give each article that either materially varies or is new. I well know the Science of Government is at once a delicate and difficult one, and none more so than that of Republics. I confess my situation or experience have not been such, as to enable me, to form the clearest and justest opinions. The sentiments I shall offer, are the result of not so much reflection as I could have wished. The Plan will admit of important amendments. I do not mean at once to offer it for the consideration of the House, but have taken the liberty of mentioning it, because it was my duty to do so.
The first important alteration is, that of the principle of Representation, and the distribution of the different Powers of Government. In the federal Councils, each State ought to have a weight in proportion to its importance; and no State is justly entitled to a greater. A Representation is the sign of the reality. Upon this principle, however abused, the parliament of Great Britain is formed, and it has been universally adopted by the States in the formation of their Legislatures. It would be impolitic in us, to deem that unjust, which is a certain and beneficial truth. The abuse of this equality, has been censured as one of the most dangerous corruptions of the English Constitution; and I hope we shall not incautiously contract a disease that has been consuming them. Nothing, but necessity, could have induced Congress to ratify a Confederation upon other principles. It certainly was the opinion of the first Congress, in 1774, to acquire materials for forming an estimate of the comparative importance of each State; for, in the commencement of that session, they gave as a reason, for allowing each colony a vote, that it was not in their power, at that time, to procure evidence for determining their importance. This idea, of a just Representation, seems to have been conformable to the opinions of the best writers on the subject, that, in a confederated system, the members ought to contribute according to their abilities, and have a vote in proportion to their importance. But if each must have a vote, it can be defended upon no other ground, than that of each contributing an equal share of the public burdens: either would be a perfect system. The present must ever continue irreconcileable to justice. Montesquieu, who had very maturely considered the nature of a confederated Government, gives the preference to the Lycian, which was formed upon this model. The assigning to each State its due importance in the federal Councils, at once removes three of the most glaring defects and inconveniences of the present Confederation. The first is, the inequality of Representation: the second is, the alteration of the mode of doing business in Congress; that is, voting individually, and not by States: the third is, that it would be the means of inducing the States to keep up their delegations by punctual and respectable appointments. The dilatory and unpleasant mode of voting by States, must have been experienced by all who were members of Congress. Seven are necessary for any question, except adjourning, and nine for those of importance. It seldom happens that more than nine or ten States are represented. Hence it is generally in the power of a State, or of an individual, to impede the operations of that body. It has frequently happened, and indeed, lately, there have rarely been together, upon the floor, a sufficient number of States to transact any but the most trifling business. When the different branches of Government are properly distributed, so as to make each operate upon the other as a check, the apportioning the Representation according to the weight of the members, will enable us to remove these difficulties, by making a majority of the Houses, when constituted, capable of deciding in all, except a few cases, where a larger number may be thought necessary. The division of the legislative will be found essential, because, in a government where so many important powers are intended to be placed, much deliberation is requisite. No possibility of precipitately adopting improper measures ought to be admitted, and such checks should be imposed, as we find, from experience, have been useful in other governments. In the Parliament of Great Britain, as well as in most, and the best instituted legislatures in the States, we find, not only two Branches, but in some, a Council of Revision, consisting of their executive, and principal officers of government. This, I consider as an improvement in legislation, and have therefore incorporated it as a part of the system. It adds to that due deliberation, without which, no act should be adopted; and, if in the affairs of a State government, these restraints have proved beneficial, how much more necessary may we suppose them, in the management of concerns, so extensive and important?
The Senate, I propose to have elected by the House of Delegates, upon proportionable principles, in the manner I have stated, which, though rotative, will give that body a sufficient degree of stability and independence. The districts, into which the Union are to be divided, will be so apportioned, as to give to each its due weight, and the Senate, calculated in this, as it ought to be in every Government, to represent the wealth of the Nation. No mode can be devised, more likely to secure their independence, of, either the people, or the House of Delegates, or to prevent their being obliged to accomodate their conduct to the influence or caprice of either. The people, in the first instance, will not have any interference in their appointment, and each class being elected for four years; the House of Delegates, which nominate, must, from the nature of their institution, be changed, before the times of the Senators have expired.
The executive should be appointed septennially, but his eligibility ought not to be limited: He is not a branch of the legislature, farther, than as a part of the Council of Revision, and the suffering him to continue eligible, will, not only be the means of ensuring his good behavior, but serve to render the office more respectable. I shall have no objection to elect him for a longer term, if septennial appointments are supposed too frequent or unnecessary. It is true, that in our Government, he cannot be cloathed with those executive authorities, the Chief Magistrate of a Government often possesses; because they are vested in the Legislature, and cannot be used or delegated by them in any, but the specified mode. Under the New System, it will be found essentially necessary to have the Executive distinct. His duties, will be, to attend to the execution of the acts of Congress, by the several States; to correspond with them upon the subject; to prepare and digest, in concert with the great departments, such business as will come before the Legislative, at their stated sessions: to acquire, from time to time, as perfect a knowledge of the situation of the Union, as he possibly can, and to be charged with all the business of the Home Department. He will be empowered, whenever he conceives it necessary, to inspect the Departments of Foreign Affairs, of War, of Treasury, and when instituted, of the Admiralty. This inspection into the conduct of the Departments will operate as a check upon those Officers, keep them attentive to their duty, and may be the means in time not only of preventing and correcting errors, but of detecting and punishing mal-practices. He will have a right to consider the principals of these Departments as his Council, and to acquire their advice and assistance, whenever the duties of his Office shall render it necessary. By this means our Government will possess what it has always wanted, but never yet had, a Cabinet Council. An institution essential in all Governments, whose situation or connections oblige them to have an intercourse with other powers. He will be the Commander-in-Chief of the Land and Naval Forces of the United States; have a right to convene and prorogue the Legislature upon special occasions, when they cannot agree, as to the time of their adjournment; and appoint all Officers, except Judges and Foreign Ministers. Independent of the policy of having a distinct Executive, it will be found that one, on these principles will not create a new expense: The establishment of the President of Congres’s Household will nearly be sufficient; and the necessity which exists at present, and which must every day increase, of appointing a Secretary for the Home Department, will then cease. He will remain always removable by impeachment, and it will rest with the Legislature, to fix his salary upon permanent principles,
The mode of doing business in the Federal Legislature, when thus newly organized, will be the Parliamentary one, adopted by the State Legislatures. In a Council so important, as I trust the Federal Legislature will be, too much attention cannot be paid to their proceedings. It is astonishing, that, in a body, constituted as the present Congress, so few inaccuracies are to be seen in their proceedings; for certainly, no Assembly can be so much exposed to them, as that, wherein a resolution may be introduced, and passed at once. It is a precipitancy which few situations can justify, in deliberative bodies, and which the proposed alteration will effectually prevent.
The 4th article, respecting the extending the rights of the Citizens of each State, throughout the United States; the delivery of fugitives from justice, upon demand, and the giving full faith and credit to the records and proceedings of each, is formed exactly upon the principles of the 4th article of the present Confederation, except with this difference, that the demand of the Executive of a State, for any fugitive, criminal offender, shall be complied with. It is now confined to treason, felony, or other high misdemeanor; but, as there is no good reason for confining it to those crimes, no distinction ought to exist, and a State should always be at liberty to demand a fugitive from its justice, let his crime be what it may.
The 5th article, declaring, that individual States, shall not exercise certain powers, is also founded on the same principles as the 6th of the Confederation.
The next, is an important alteration of the Federal System, and is intended to give the United States in Congress, not only a revision of the Legislative acts of each State, but a negative upon all such as shall appear to them improper.
I apprehend the true intention of the States in uniting, is to have a firm national Government, capable of effectually executing its acts, and dispensing its benefits and protection. In it alone can be vested those powers and prerogatives which more particularly distinguish a sovereign State. The members which compose the superintending Government are to be considered merely as parts of a great whole, and only suffered to retain the powers necessary to the administration of their State Systems. The idea which has been so long and falsely entertained of each being a sovereign State, must be given up; for it is absurd to suppose there can be more than one sovereignty within a Government. The States should retain nothing more than that mere local legislation, which, as districts of a general Government, they can exercise more to the benefit of their particular inhabitants, than if it was vested in the Supreme Council; but in every foreign concern, as well as those internal regulations, which respecting the whole ought to be uniform and national, the States must not be suffered to interfere. No act of the Federal Government in pursuance of its constitutional powers ought by any means to be within the control of the State Legislatures; if it is, experience warrants me in asserting, they will assuredly interfere and defeat its operation. That these acts ought not therefore to be within their power must be readily admitted; and if so, what other remedy can be devised than the one I have mentioned? As to specifying that only their acts upon particular points should be subject to revision, you will find it difficult to draw the line with so much precision and exactness as to prevent their discovering some mode of counteracting a measure that is disagreeable to them. It may be said, that the power of revision here asked, is so serious a diminution of the State’s importance, that they will reluctantly grant it. — This, however true, does not lessen its necessity, and the more the subject is examined, the more clearly will it appear. It is agreed that a reform of our Government is indispensable, and that a stronger Federal System must be adopted; but it will ever be found, that let your System upon paper be as complete, and guarded as you can make it, yet still if the State Assemblies are suffered to legislate without restriction or revision, your Government will remain weak, disjointed, and inefficient. Review the ordinances and resolutions of Congress for the last five or six years, such I mean as they had a constitutional right to adopt, and you will scarcely find one of any consequence that has not, in some measure, been violated or neglected. Examine more particularly your treaties with foreign powers; those solemn national compacts, whose stipulations each member of the Union was bound to comply with. Is there a treaty which some of the States have not infringed? Can any other conduct be expected from so many different Legislatures being suffered to deliberate upon national measures? Certainly not. Their regulations must ever interfere with each other, and perpetually disgrace and distract the Federal Councils. I must confess, I view the power of revision and of a negative as the corner stone of any reform we can attempt, and that its exercise by Congress will be as safe as it is useful. In a Government constituted as this is, there can be no abuse of it. — The proceedings of the States which merely respect their local concerns, will always be passed as matters of form, and objections only arise where they shall endeavor to contravene the Federal Authority. Under the British Government, notwithstanding we early and warmly resisted their other attacks, no objection was ever made to the negative of the King. As a part of his Government it was considered proper. Are we now less a part of the Federal Government than we were then of the British? Shall we place less confidence in men appointed by ourselves, and subject to our recall, than we did in their executive? I hope not. Whatever views we may have of the importance or retained sovereignty of the States, be assured they are visionary and unfounded, and that their true interests consist in concentring as much as possible, the force and resources of the Union in one superintending Government, where alone they can be exercised with effect. In granting to the Federal Government certain exclusive national powers, you invest all their incidental rights. The term exclusive involves every right or authority necessary to their execution. This revision and negative of the laws is nothing more than giving a farther security to these rights. It is only authorizing Congress to protect the powers you delegate, and prevent any interference or opposition on the part of the States. It is not intended to deprive them of the power of making such laws as shall be confined to the proper objects of State legislation, but it is to prevent their annexing to laws of this kind, provisions which may in their nature interfere with the regulations of the Federal Authority. It will sometimes happen that a general regulation which is beneficial to the Confederacy, may be considered oppressive or injurious by a particular State. In a mixed Government, composed of so many various interests, it will be impossible to frame general systems, operating equally upon all its members. The common benefit must be the criterion, and each State must, in its turn, be obliged to yield some of its advantages. If it was possible, compleatly to draw the distinguishing line, so as to reserve to the States, the Legislative rights they ought to retain, and prevent their exceeding them, I should not object, but it will be found exceedingly difficult; for as I have already observed, leave them only a right to pass an act, without revision or controul, and they will certainly abuse it. The only mode that I can think of, for qualifying it, is to vest a power somewhere, in each State, capable of giving their acts a limited operation, until the sense of Congress can be known. To those who have not sufficiently examined the nature of our Federal System, and the causes of its present weakness and disorders, this curb upon the State Legislatures may perhaps appear an improper attempt to acquire a dangerous and unnecessary power. I am afraid the greater part of our Citizens are of this class, and that there are too few among them, either acquainted with the nature of their own Republic, or with those of the same tendency, which have preceded it. Though our present disorders must be attributed in the first instance, to the weakness and inefficacy of our Government, it must still be confessed, they have been precipitated by the refractory and inattentive conduct of the States; most of which, have neglected altogether, the performance of their Federal Duties, and whenever their State-policy, or interests prompted, used their retained Sovereignty, to the injury and disgrace of the Federal Head. Nor can any other conduct be expected, while they are suffered to consider themselves as distinct Sovereignties, or in any other light, than as parts of a common Government. The United States, can have no danger so much to dread, as that of disunion; nor has the Federal Government, when properly formed, anything to fear, but from the licentiousness of its members. We have no hereditary monarchy or nobles, with all their train of influence or corruption, to contend with; nor is it possible to form a Federal Aristocracy. Parties may, for a time prevail in the States, but the establishment of an aristocratic influence in the Councils of the Union, is remote and doubtful. It is the anarchy, if we may use the term, or rather worse than anarchy of a pure democracy, which I fear. Where the laws lose their respect, and the Magistrates their authority; where no permanent security is given to the property and privileges of the Citizens; and no measures pursued, but such as suit the temporary interest and convenience of the prevailing parties, I cannot figure to myself a Government more truly degrading; and yet such has been the fate of all the antient, and probably will be, of all the modern Republics. The progress has been regular, from order to licentiousness; from licentiousness to anarchy, and from thence to despotism. If we review the ancient Confederacies of Greece, we shall find that each of them in their turn, became a prey to the turbulence of their members; who, refusing to obey the Federal Head, and upon all occasions insulting, and opposing its authority, afforded an opportunity to foreign powers, to interfere and subvert them. There is not an example in history, of a Confederacy’s being enslaved or ruined by the invasions of the supreme authority, nor is it scarcely possible, for depending for support and maintenance upon the members, it will always be in their power to check and prevent injuring them. The Helvetic and Belgic Confederacies, which, if we except the Gryson league, are the only Governments that can be called Republics in Europe, have the same vices with the ancients. The too great and dangerous influence of the parts — an influence, that will sooner or later subject them to the same fate. In short, from their example, and from our own experience, there can be no truth more evident than this, that, unless our Government is consolidated, as far as is practicable, by retrenching the State authorities, and concentering as much force and vigor in the Union, as are adequate to its exigencies, we shall soon be a divided, and consequently an unhappy people. I shall ever consider the revision and negative of the State laws, as one great and leading step to this reform, and have therefore conceived it proper, to bring it into view.
The next article, proposes to invest a number of exclusive rights, delegated by the present Confederation; with this alteration, that it is intended to give the unqualified power of raising troops, either in time of peace or war, in any manner the Union may direct. It does not confine them to raise troops by quotas, on particular States, or to give them the right of appointing Regimental Officers, but enables Congress to raise troops as they shall think proper, and to appoint all the officers. It also contains a provision for empowering Congress to levy taxes upon the States, agreeable to the rule now in use, an enumeration of the white inhabitants, and three-fifths of other descriptions.
The 7th article invests the United States, with the complete power of regulating the trade of the Union, and levying such imposts and duties upon the same, for the use of the United States, as shall, in the opinion of Congress, be necessary and expedient. So much has been said upon the subjects of regulating trade, and levying an impost, and the States have so generally adopted them, that I think it unnecessary to remark upon this article. The intention, is to invest the United States with the power of rendering our maritime regulations uniform and efficient, and to enable them to raise a revenue, for Federal purposes, uncontrolable by the States. I thought it improper to fix the per centage of the impost, because it is to be presumed their prudence will never suffer them to impose such duties, as a fair trade will not bear, or such as may promote smuggling. But as far as our commerce, will bear, or is capable of yielding a revenue, without depressing it, I am of opinion, they should have a right to direct. The surrendering to the Federal Government, the complete management of our commerce, and of the revenues arising from it, will serve to remove that annual dependence on the States, which has already so much deceived, and will, should no more effectual means be devised, in the end, fatally disappoint us. This article, will, I think, be generally agreed to by the States. The measure of regulating trade, is nearly assented to by all, and the only objections to the impost, being from New York, and entirely of a constitutional nature, must be removed by the powers being incorporated with, and becoming a part of the Federal System.
The 8th article only varies so far from the present, as in the article of the Post Office, to give the Federal Government a power, not only to exact as much postage, as will bear the expense of the Office, but also, for the purpose of raising a revenue. Congress had this in contemplation, some time since, and there can be no objection, as it is presumed, in the course of a few years, the Post Office, will be capable of yielding a considerable sum to the Public Treasury.
The 9th article respecting the appointment of Federal Courts, for deciding territorial controversies between different States, is the same with that in the Confederation; but this may with propriety be left to the Supreme Judicial.
The 10th article gives Congress a right to institute all such offices as are necessary for managing the concerns of the Union; of erecting a Federal Judicial Court, for the purposes therein specified; and of appointing Courts of Admiralty for the trial of maritime causes in the States respectively. The institution of a Federal Judicial upon the principles mentioned in this article, has been long wanting. At present there is no Tribunal in the Union capable of taking cognizance of their officers who shall misbehave in any of their departments, or in their ministerial capacities out of the limits of the United States; for this, as well as the trial of questions arising on the law of nations, the construction of treaties, or any of the regulations of Congress in pursuance of their powers, or wherein they may be a party, there ought certainly to be a Judicial, acting under the authority of the Confederacy; for securing whose independence and integrity some adequate provision must be made, not subject to the controul of the Legislature. As the power of deciding finally in cases of Appeal and all Maritime Regulations are to be vested in the United States, the Courts of Admiralty in the several States, which are to be governed altogether by their Regulations, and the Civil Law, ought also to be appointed by them; it will serve as well to secure the uprightness of the Judges, as to preserve an uniformity of proceeding in Maritime Cases, throughout the Union.
The exclusive right of coining Money — regulating its alloy, and determining in what species of money the common Treasury shall be supplied, is essential to assuring the Federal Funds. If you allow the States to coin Money, or emit Bills of Credit, they will force you to take them in payment for Federal Taxes and Duties, for the certain consequence of either introducing base Coin, or depreciated Paper, is the banishing Specie out of circulation; and though Congress may determine, that nothing but Specie shall be received in payment of Federal Taxes or Duties, yet, while the States retain the rights they at present possess, they will always have it in their power, if not totally to defeat, yet very much to retard and confuse the collection of Federal Revenues. The payments of the respective States into the Treasury, either in Taxes or Imposts, ought to be regular and uniform in proportion to their abilities; — no State should be allowed to contribute in a different manner from the others, but all alike in actual Money. There can be no other mode of ascertaining this, than to give to the United States the exclusive right of coining, and determining in what manner the Federal Taxes shall be paid.
In all those important questions where the present Confederation has made the assent of Nine States necessary, I have made the assent of Two-Thirds of both Houses, when assembled in Congress, and added to the number, the Regulation of Trade, and Acts for levying an Impost and raising a Revenue: — These restraints have ever appeared to me proper; and in determining questions whereon the political happiness and perhaps existence of the Union may depend, I think it unwise ever to leave the decision to a mere majority; no Acts of this kind should pass, unless Two-Thirds of both Houses are of opinion they are beneficial, it may then be presumed the measure is right; but when merely a majority determines, it will be doubtful, and in questions of this magnitude where their propriety is doubtful, it will in general be safest not to adopt them.
The exclusive right of establishing regulations for the Government of the Militia of the United States, ought certainly to be ves[t]ed in the Federal Councils. As standing Armies are contrary to the Constitutions of most of the States, and the nature of our Government, the only immediate aid and support that we can look up to, in case of necessity, is the Militia. As the several States form one Government, united for their common benefit and security, they are to be considered as a Nation — their Militia therefore, should be as far as possible national — an uniformity in Discipline and Regulations should pervade the whole, otherwise, when the Militia of several States are required to act together, it will be difficult to combine their operations from the confusion a difference of Discipline and Military Habits will produce. Independent of our being obliged to rely on the Militia as a security against Foreign Invasions or Domestic Convulsions, they are in fact the only adequate force the Union possess, if any should be requisite to coerce a refractory or negligent Member, and to carry the Ordinances and Decrees of Congress into execution. This, as well as the cases I have alluded to, will sometimes make it proper to order the Militia of one State into another. At present the United States possess no power of directing the Militia, and must depend upon the States to carry their Recommendations upon this subject into execution — while this dependence exists, like all their other reliances upon the States for measures they are not obliged to adopt, the Federal views and designs must ever be delayed and disappointed. To place therefore a necessary and Constitutional power of defence and coercion in the hands of the Federal authority, and to render our Militia uniform and national, I am decidedly in opinion they should have the exclusive right of establishing regulations for their Government and Discipline, which the States should be bound to comply with, as well as with their Requisitions for any number of Militia, whose march into another State, the Public safety or benefit should require.
In every Confederacy of States, formed for their general benefit and security, there ought to be a power to oblige the parties to furnish their respective quotas without the possibility of neglect or evasion; — there is no such clause in the present Confederation, and it is therefore without this indispensable security. Experience justifies me in asserting that we may detail as minutely as we can, the duties of the States, but unless they are assured that these duties will be required and enforced, the details will be regarded as nugatory. No Government has more severely felt the want of a coercive Power than the United States; for want of it the principles of the Confederation have been neglected with impunity in the hour of the most pressing necessity, and at the imminent hazard of its existence: Nor are we to expect they will be more attentive in future. Unless there is a compelling principle in the Confederacy, there must be an injustice in its tendency; It will expose an unequal proportion of the strength and resources of some of the States, to the hazard of war in defence of the rest — the first principles of Justice direct that this danger should be provided against — many of the States have certainly shewn a disposition to evade a performance of their Federal Duties, and throw the burden of Government upon their neighbors. It is against this shameful evasion in the delinquent, this forced assumption in the more attentive, I wish to provide, and they ought to be guarded against by every means in our power. Unless this power of coercion is infused, and exercised when necessary, the States will most assuredly neglect their duties. The consequence is either a dissolution of the Union, or an unreasonable sacrifice by those who are disposed to support and maintain it.
The article impowering the United States to admit new States into the Confederacy is become indispensable, from the separation of certain districts from the original States, and the increasing population and consequence of the Western Territory. I have also added an article authorizing the United States, upon petition from the majority of the citizens of any State, or Convention authorized for that purpose, and of the Legislature of the State to which they wish to be annexed, or of the States among which they are willing to be divided, to consent to such junction or division, on the terms mentioned in the article. — The inequality of the Federal Members, and the number of small States, is one of the greatest defects of our Union. It is to be hoped this inconvenience will, in time, correct itself; and, that the smaller States, being fatigued with the expence of their State Systems, and mortified at their want of importance, will be inclined to participate in the benefits of the larger, by being annexed to and becoming a part of their Governments. I am informed sentiments of this kind already prevail; and, in order to encourage propositions so generally beneficial, a power should be vested in the Union, to accede to them whenever they are made.
The Federal Government should also possess the exclusive right of declaring on what terms the privileges of citizenship and naturalization should be extended to foreigners. At present the citizens of one State, are entitled to the privileges of citizens in every State. Hence it follows, that a foreigner, as soon as he is admitted to the rights of citizenship in one, becomes entitled to them in all. The States differed widely in their regulations on this subject. I have known it already productive of inconveniences, and think they must increase. The younger States will hold out every temptation to foreigners, by making the admission to office less difficult in their Governments, than the older. — I believe in some States, the residence which will enable a foreigner to hold any office, will not in others intitle him to a vote. To render this power generally useful it must be placed in the Union, where alone it can be equally exercised.
The 16th article proposes to declare, that if it should hereafter appear necessary to the United States to recommend the Grant of any additional Powers, that the assent of a given number of the States shall be sufficient to invest them and bind the Union as fully as if they had been confirmed by the Legislatures of all the States. The principles of this, and the article which provides for the future alteration of the Constitution by its being first agreed to in Congress, and ratified by a certain proportion of the Legislatures, are precisely the same; they both go to destroy that unanimity which upon these occasions the present System has unfortunately made necessary — the propriety of this alteration has been so frequently suggested, that I shall only observe that it is to this unanimous consent, the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.
If the States were equal in size and importance, a majority of the Legislatures might be sufficient for the grant of any new Powers; but disproportioned as they are and must continue for a time; a larger number may now in prudence be required — but I trust no Government will ever again be adopted in this Country, whose Alteration cannot be effected but by the assent of all its Members. The hazardous situation the United Netherlands are frequently placed in on this account, as well as our own mortifying experience, are sufficient to warn us from a danger which has already nearly proved fatal. It is difficult to form a Government so perfect as to render alterations unnecessary; we must expect and provide for them: — But difficult as the forming a perfect Government would be, it is scarcely more so, than to induce Thirteen separate Legislatures, to think and act alike upon one subject — the alterations that nine think necessary, ought not to be impeded by four — a minority so inconsiderable should be obliged to yield. Upon this principle the present articles are formed, and are in my judgment so obviously proper, that I think it unnecessary to remark farther upon them.
There is also in the Articles, a provision respecting the attendance of the Members of both Houses; it is proposed that they shall be the judges of their own Rules and Proceedings, nominate their own Officers, and be obliged, after accepting their appointments, to attend the stated Meetings of the Legislature; the penalties under which their attendance is required, are such as to insure it, as we are to suppose no man would willingly expose himself to the ignominy of a disqualification: Some effectual mode must be adopted to compel an attendance, as the proceedings of the Government must depend upon its formation — the inconveniencies arising from the want of a sufficient representation have been frequently and severely felt in Congress. The most important questions have on this account been delayed, and I believe I may venture to assert, that for six months in the year they have not lately had such a representation as will enable them to proceed on business of consequence. Punctuality is essential in a Government so extensive; and where a part of the Members come from considerable distances, and of course have no immediate calls to divert their attention from the Public business, those who are in the vicinity should not be suffered to disappoint them; if the power of compelling their attendance is necessary, it must be incorporated as a part of the Constitution which the United States will be bound to execute; at present it is contended that no such authority exists; that the Members of Congress are only responsible to the State they represent, and to this may be attributed that shameful remissness in forming the Federal Council, which has been so derogating and injurious to the Union. The Article I have inserted is intended to produce a reform, and I do not at present discover a mode in which the attendance of the Members can be more effectually enforced.
The next Article1 provides for the privilege of the Writ of Habeas Corpus — the Trial by Jury in all cases, Criminal as well as Civil — the Freedom of the Press, and the prevention of Religious Tests, as qualifications to Offices of Trust or Emolument: The three first essential in Free Governments; the last, a provision the world will expect from you, in the establishment of a System founded on Republican Principles, and in an age so liberal and enlightened as the present.
There is also an authority to the National Legislature, permanently to fix the seat of the general Government, to secure to Authors the exclusive right to their Performances and Discoveries, and to establish a Federal University.
There are other Articles, but of subordinate consideration. In opening the subject, the limits of my present observations would only permit me to touch the outlines; in these I have endeavored to unite and apply as far as the nature of our Union would permit, the excellencies of such of the State Constitutions as have been most approved. The first object with the Convention must be to determine on principles — the most leading of these are, the just proportion of representation, and the arrangement and distribution of the Powers of Government. In order to bring a system founded on these principles, to the view of the Convention, I have sketched the one which has just been read — I now submit it with deference to their Consideration, and wish, if it does not appear altogether objectionable, that it may be referred to the examination of a Committee.
There have been frequent but unsuccessful attempts by Congress to obtain from the States the grant of additional powers, and such is the dangerous situation in which their negligence and inattention have placed the Federal concerns, that nothing less than a Convention of the States could probably prevent a dissolution of the Union. Whether we shall be so fortunate as to concur in measures calculated to remove these difficulties, and render our Government firm and energetic, remains to be proved. A change in our political System is inevitable; the States have wisely foreseen this, and provided a remedy. Congress have sanctioned it. The consequences may be serious, should the Convention dissolve without coming to some determination. — I dread even to think of the event of a convulsion, and how much the ineffectual assemblage of this body may tend to produce it. Our citizens would then suppose that no reasonable hope remained of quietly removing the public embarrassment, or of providing by a well-formed Government, for the protection and happiness of the People. They might possibly turn their attention to effecting that by force, which had been in vain constitutionally attempted.
I ought again to apologize for presuming to intrude my sentiments upon a subject of such difficulty and importance. It is one that I have for a considerable time attended to. I am doubtful whether the Convention will at first be inclined to proceed as far as I have intended; but this I think may be safely asserted, that upon a clear and comprehensive view of the relative situation of the Union, and its Members, we shall be convinced of the policy of concentering in the Federal Head, a compleate supremacy in the affairs of Government; leaving only to the States, such powers as may be necessary for the management of their internal concerns.
[1 ]A reprint of the title-page. The text of the entire pamphlet is corrected from the copy of the original edition in the Library of the New York Historical Society.
[1 ]This paragraph hardly seems in keeping with the rest of the document, and it may well be a later insertion. These ideas were suggested by Pinckney in the Convention on August 20, see Records of that date.