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Subject Area: Political Theory
Subject Area: History
Topic: The American Revolution and Constitution

CXLVI a.: James McHenry before the Maryland House of Delegates. 2 - Max Farrand, The Records of the Federal Convention of 1787, vol. 3 [1911]

Edition used:

The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 3.

Part of: The Records of the Federal Convention of 1787, 3 vols.

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CXLVIa.

James McHenry before the Maryland House of Delegates.2

Maryland Novr. 29th 1787 —

The Delegates to the late Convention being call’d before the House of Representatives to explain the Principles, upon which the proposed Constitution for the United States of America were formed

Mr. McHenry addressed the House in the followg. terms

Mr. Speaker,

Convention having deposited their proceedings with their Worthy President, and by a Resolve prohibited any copy to be taken, under the Idea that nothing but the Constitution thus framed and submitted to the Public could come under their consideration, I regret that at this distant period, I am unable from Memory to give this Honorable House so full and accurate information as might possibly be expected on so important and interesting a Subject. I Collated however from my Notes as soon as the Pleasure of this House was made known to me such of the proceedings as pass’d under my observation from an anxious desire I have to give this Honorable Body the information they require —

It must be within the Knowledge of this House Mr Speaker that the plan of a Convention originated in Virginia — accordingly when it met at Philadelphia the objects of the meeting were first brought forward in an address from an Honorable Member of that State. He premised that our present Constitution had not and on further experiance would be found that it could not fulfill the objects of the Confederation.

1st. It has no sufficient provision for internal defence nor against foreign invasion, if a State offends it cannot punish; nor if the rights of Embassadors or foreign Nations be invaded have the Judges of the respective States competent Jurisdiction to redress them. In short the Journals of Congress are nothing more than a History of expedients, without any regular or fixed system, and without power to give them efficacy or carry them into Execution —

2nd. It does not secure the separate States from Sedition among themselves nor from encroachments against each other —

3rd. It is incapable of producing certain blessings the Objects of all good governments, Justice, Domestic Tranquillity, Common Defence Security to Liberty and general Welfare — Congress have no powers by imposts to discharge their internal engagements or to sustain their Credit with Foreigners — they have no powers to restrain the Emission of Bills of Credit issued to the destruction of foreign Commerce — the perversion of National Justice and violation of private Contracts — they have no power to promote inland Navigation, encourage Agriculture or Manufactures

4th. They have no means to defend themselves against the most direct encroachments — in every Congress there is a party opposed to Federal Measures — In every state even there is a party opposed to efficient Government, the wisest regulations may therefore thwarted and evaded: the Legislature be treated with insult and derision and there is no power, no force to carry their Laws into execution, or to punish the Offenders who oppose them.

5th. The Confederation is inferior to the State Constitutions and cannot therefore have that controul over them which it necessarily requires — the State Governments were first formed and the federal Government derived out of them wherefore the Laws of the respective States are paramount and cannot be controuled by the Acts of Congress —

He then descanted with Energy on our respective situations from New Hampshire to Georgia, on the Situation of our joint National Affairs at Home and abroad and drew the Conclusion that all were on the brink of ruin and disolution — That once dissolve the tie by which we are united and alone preserved and the prediction of our Enemies would be compleat in the bloodshed in contending and opposite interests — That perhaps this was the last, the only opportunity we should ever have to avoid or remedy those impending evils — The Eyes of all actuated by hopes or fears were fixed upon the proceedings of this Convention and if the present meeting founded in a Spirit of Benevolence and General Good, did not correct, or reform our present Situation, it would end most assuredly in the Shame and ruin of ourselves and the Tryumph of others — He therefore moved that it be “Resolved the Articles of the Confederation ought to be corrected and enlarged, and for that purpose submitted certain resolves to the further Consideration of the Convention — Convention being thus in possession of these propositions on the thirtieth of May Resolved to go into a consideration of them when the Honorable Gentleman who first brought them forward moved to withdraw the two first Resolutions, and to substitute the following in lieu of them — 1st. That the Union of the States ought to be founded on the basis of Common Defence, security to Liberty, and General Welfare. 2d. That to this end the right of Suffrage ought to be in proportion to the value of the Property contributing to the expence of General Government or to the free Inhabitants that compose such Government. 3rd. That a National Government ought to be formed with Legislative and Judicial powers. — At this period, Mr. Speaker I was suddenly call’d from Philadelphia by an account that one of my nearest and Dearest Relations was at the point of Death, and did not return till the 4th of August — Convention had formed a Committee of Detail in my absence which on the sixth of August brought in their report, that had for its Basis the propositions handed from Virginia, and with some amendments is the Constitution now submitted to the People—1

S: 2 To this Section it was objected that if the qualifications of the Electors were the same as in the State Governments, it would involve in the Federal System all the Disorders of a Democracy; and it was therefore contended, that none but Freeholders, permanently interested in the Government ought to have a right of Suffrage — the Venerable Franklin opposed to this the natural rights of Man — their rights to an immediate voice in the general Assemblage of the whole Nation, or to a right of Suffrage & Representation and he instanced from general History and particular events the indifference of those, to the prosperity and Welfare of the State who were deprived of it. Residence was likewise thought essential to interest the Human heart sufficiently by those ties and affections it necessarily creates to the general prosperity — at first the Report of the Committee had extended it to three Years only, but on better consideration it was altered to Seven; And the Period of Twenty five Years deemed a necessary Age to mature the Judgement and form the mind by habits of reflection and experience. — Little was said on this subject it passed without any considerable opposition and therefore I was not at the pains to note any other particulars respecting it

That the Representatives should be appointed according to Numbers occasioned a very long, interesting and serious Debate. The Larger States warmly contended for this Regulation and were seriously opposed by the lesser — by the latter it was contended it threw too much power into the hands of the former, and it was answered by the former that Representation ought to be according to property, or numbers, and in either case they had a right to such influence as their Situation gave them, on the contrary if each State had an equal voice, it would unreasonably throw the whole power in the lesser States — In the end a compromise took place by giving an equal Voice to each State in the Senate which ’till then the larger States had contended ought to be formed like the other branch by a Representation according to numbers1

S: 3d. The Classing the Senate so as to produce the proposed change was established by Convention on the principle that a Rotation of power is essential to Liberty. No qualification of property was adopted, that merit alone might advance unclogged by such restriction. It did not pass however unattempted; but the proposed rate of property by the South, was thought much too high by the East, as that by the East on the Contrary was deemed too low by the South.—

The Committee of Detail by their report had at first given to the Senate the choice of their own President but to avoid Cabal and undue influence, it was thought better to alter it. And the power of trying impeachments was lodged with this Body as more likely to be governed by cool and candid investigation, than by those heats that too often inflame and influence more populous Assemblys.

S 4. It was thought expedient to vest the Congress with the powers contained in this Section, which particular exigencies might require them to exercise, and which the immediate representatives of the People can never be supposed capable of wantonly abusing to the prejudice of their Constituents — Convention had in Contemplation the possible events of Insurrection, Invasion, and even to provide against any disposition that might occur hereafter in any particular State to thwart the measures of the General Government on the other hand by an Assembly once a Year Security is Annually given to the People against encroachments of the Governments on their Liberty.

S 5. Respects only the particular privileges and Regulations of each branch of the Legislature.

S 6. That the attendance of Members in the General Legislature at a great distance from their respective abodes might not be obstructed and in some instances prevented either by design or otherwise in withholding any Compensation for their Services, Convention thought it most adviseable to pay them out of the General Treasury, otherwise a representation might some times fail when the Public Exigence might require that attendance — Whether any Members of the Legislature should be Capable of holding any Office during the time for which he was Elected created much division in Sentiment in Convention; but to avoid as much as possible every motive for Corruption, was at length Settled in the form it now bears by a very large Majority.

S: 7. Much was also said on the Priviledge that the immediate Representatives of the People had in originating all Bills to create a Revenue: It was opposed by others on the Principle that, in a Government of this Nature flowing from the People without any Hereditary rights existing in either Branch of the Legislature, the public Good might require, and the Senate ought to possess powers coexistive in this particular with the House of Representatives. The Larger States hoped for an advantage by confirming this priviledge to that Branch where their numbers predominated, and it ended in a compromise by which the Lesser States obtained a power of amendment in the Senate — The Negative given to the President underwent an amendment, and was finally restored to its present form, in the hope that a Revision of the Subject and the objections offered against it might contribute in some instances to perfect those regulations that inattention or other motives had at first rendered imperfect —

S 8. The power given to Congress to lay taxes contains nothing more than is comprehended in the Spirit of the eigth article of the Confederation. To prevent any Combination of States, Duties, Imposts and Excises shall be equal in all, and if such a Duty is laid on foreign Tonage as to give an advantage in the first instance to the Eastern States, it will operate as a bounty to our own Shipbuilders. If an oppressive Act should be obtained to the prejudice of the Southern States, it will always be subject to be regulated by a Majority, and would be repealed as soon as felt. That at most it could prevail no longer than ’till that Jealousy should be awakened which must have Slept when it passed, and which could never prevail but under a supposed Combination of the President and the two Houses of the Legislature.

S. 9. Convention were anxious to procure a perpetual decree against the Importation of Slaves; but the Southern States could not be brought to consent to it — All that could possibly be obtained was a temporary regulation which the Congress may vary hereafter.

Public Safety may require a supension of the Ha: Corpus in cases of necessity: when those cases do not exist, the virtuous Citizen will ever be protected in his opposition to power, ’till corruption shall have obliterated every sense of Honor & Virtue from a Brave and free People. Convention have also provided against any direct or Capitation Tax but according to an equal proportion among the respective States: This was thought a necessary precaution though it was the idea of every one that government would seldom have recourse to direct Taxation, and that the objects of Commerce would be more than Sufficient to answer the common exigencies of State and should further supplies be necessary, the power of Congress would not be exercised while the respective States would raise those supplies in any other manner more suitable to their own inclinations — That no Duties shall be laid on Exports or Tonage, on Vessells bound from one State to another is the effect of that attention to general Equality that governed the deliberations of Convention. Hence unproductive States cannot draw a revenue from productive States into the Public Treasury, nor unproductive States be hampered in their Manufactures to the emolument of others. When the Public Money is lodged in its Treasury there can be no regulation more consistant with the Spirit of Economy and free Government that it shall only be drawn forth under appropriation by Law and this part of the proposed Constitution could meet with no opposition as the People who give their Money ought to know in what manner it is expended.

That no Titles of Nobility shall be granted by the United States will preserve it is hoped, the present Union from the Evils of Aristocracy.

S: 10. It was contended by many that the State sought to be permitted to Emit Bills of Credit where their local Circumstances might require it without prejudice to the obligations arising from private Contracts; but this was overruled by a vast Majority as the best Security that could be given for the Public faith at home and the extension of Commerce with Foreigners.

Article the 2nd.

S: 1st. The Election of the President according to the Report of the Committee of Detail was intended to have been by ballot of both Houses; to hold his appointment for Seven Years, and not be Capable to be reelected; but this mode gave an undue influance to the large States, and paved the way to faction and Corruption — all are guarded against by the present method, as the most exalted Characters can only be Known throughout the whole Union — His power when elected is check’d by the Consent of the Senate to the appointment of Officers, and without endangering Liberty by the junction of the Executive and Legislative in this instance.

Article the 3rd.

S: 1st. The judicial power of the United States underwent a full investigation — it is impossible for me to Detail the observations that were delivered on that Subject — The right of tryal by Jury was left open and undefined from the difficulty attending any limitation to so valuable a priviledge, and from the persuasion that Congress might hereafter make provision more suitable to each respective State — To suppose that mode of Tryal intended to be abolished would be to Suppose the Representatives in Convention to act Contrary to the Will of their Constituents, and Contrary to their own Interest.

Thus Mr. Speaker I have endeavour’d to give this Honorable House the best information in my power on this important Subject — Many parts of this proposed Constitution were warmly opposed, other parts it was found impossible to reconcile to the Clashing Interest of different States — I myself could not approve of it throughout, but I saw no prospect of getting a better — the whole however is the result of that spirit of Amity which directed the wishes of all for the general good, and where those Sentiments govern it will meet I trust, with a Kind and Cordial reception.

[2 ]This document and the one following (CXLVIb), in the possession of the Library of Congress, were among the manuscripts of John Leeds Bozman. Mr. Bernard C. Steiner of the Enoch Pratt Free Library, Baltimore, identifies them as a part of the legislative records of Maryland and as in the handwriting of one of the clerks of the legislature. (Maryland Historical Magazine, December, 1909.)

The documents having become accessible since the manuscript of the present work was completed, the editor has been unable to give as complete a series of crossreferences to them as their importance would warrant.

[1 ]The third page of the MS. ends at this point, and the next page begins abruptly with a discussion of article I, Section 2, of the completed Constitution.

[1 ]McHenry was absent from the Convention at the time of this debate and compromise, so that this statement is not based upon his own observation.