I. Rel. not within purview of civil authority.
notes for speech in the virginia house of delegates November, 1785.
COMMERCIAL REGULATIONS.mad. mss.
6. Embargo’s in war—case of Delaware in late war.
1. Case of French provinces, Neckar says 23,000 patrols employd. agst internal contraband.
TO EDMUND PENDLETON.Mad. Mss.
Richmond, Jany 9th, 1787.
My dear Sir,—
Your favor of the 9th. ult, has been so long on hand unanswered that I can not now acknowledge it without observing in the apology for the delay that I waited for some measures of which I wished to communicate the event. The district bill of which I formerly made mention, was finally thrown into a very curious situation, and lost by a single voice. I refer you for its history to Col. Pendleton, who was here at the time and is now with you. An attempt has been since made to render the General Court more efficient by lengthening its terms, and transferring the criminal business to the Judges of the Admiralty. As most of the little motives which co-operated with a dislike to Justice, in defeating the District Bill happened to be in favour of the subsequent attempt, it went through the House of Delegates by a large Majority. The Senate have disappointed the majority infinitely in putting a negative on it, as we just learn that they have done, by a single voice. An amendment of the County Courts has also been lost, through a disagreement of the two Houses on the subject. Our merit on the score of Justice has been entirely of the negative kind. It has been sufficient to reject violations of this cardinal virtue, but not to make any positive provisions in its behalf.
The revised code has not been so thoroughly passed as I hoped at the date of my last. The advance of the Session, the coldness of a great many, and the dislike of some to the subject, required that it should be pressed more gently than could be reconciled with a prosecution of the work to the end. I had long foreseen that a supplemental revision as well of some of the articles of the Code, as of the laws passed since it was digested, would become necessary, and had settled a plan for the purpose with myself. This plan was to suspend the laws adopted from the code, until the supplement could be prepared, and then to put the whole in force at once. Several circumstances satisfied me of late that if the work was put within the reach of the next assembly, there would be danger not only of its being left in a mutilated state, but of its being lost altogether. The observations in your favor above acknowledged, encouraged me to propose that the parts of the code adopted should take effect without waiting for the last hand to it. This idea has been pursued, and the bills passed at the last Session are to coence as then determined, those passed at the present being suspended until July next. I would myself have preferred a suspension of the former also till July, for the sake of a more thorough promulgation, and of a contemporary introduction of the laws many of which are connected together; but the Senate thought otherwise, and in a ticklish stage of the Session, the friends of the code in the H. of D. joined me in opinion that it would be well to create no unnecessary delays or disagreements. I have strong apprehensions that the work may never be systematically perfected for the reasons which you deduce from our form of Government. Should a disposition however continue in the Legislature as favorable as it has been in some stages of the business, I think a succession of revisions, each growing shorter than the preceding, might ultimately bring a completion within the compass of a single Session. At all events, the invaluable acquisition of important bills prepared at leisure by skilful hands, is so sensibly impressed on thinking people by the crudeness and tedious discussion of such as are generally introduced, that the expence of a continued revision will be thought by all such to be judiciously laid out for this purpose alone. The great objection which I personally feel arises from the necessity we are under of imposing the weight of these projects on those whose past services have so justly purchased an exemption from future labours. In your case the additional consideration of ill health, became almost an affair of Conscience, and I have been no otherwise able to stifle the remorse of having nominated you along with Mr Wythe and Mr. Blair for reviewing the subject left unfinished, than by reflecting that your colleagues will feel every disposition to abridge your share of the burden, and in case of such an increase of your infirmity as to oblige you to renounce all share, that they are authorised to appoint to, I will not say to fill, the vacancy. I flatter myself that you will be at least able to assist in general consultations on the subject, and to adjust the bills unpassed to the changes which have taken place since they were prepared. On the most unfortunate suppositions my intentions will be sure to find in your benevolence a pardon for my error.
The Senate have saved our commerce from a dreadful blow which it would have sustained from a bill passed in the H. of D. imposing enormous duties, without waiting for the concurrence of the other States or even of Maryland. There is a rage at present for high duties, partly for the purpose of revenue, partly of forcing manufactures, which it is difficult to resist. It seems to be forgotten in the first case that in the arithmetic of the customs as Dean Swift observes 2 & 2 do not make four; and in the second that manufactures will come of themselves when we are ripe for them. A prevailing argument among others on the subject is that we ought not to be dependent on foreign nations for useful articles, as the event of a war may cut off all external supplies. This argument certainly loses its force when it is considered that in case of a war hereafter, we should stand on a very different ground from what we lately did. Neutral Nations, whose rights are becoming every day more & more extensive, would not now suffer themselves to be shut out from our ports, nor would the hostile Nation presume to attempt it. As far as relates to implements of war which are contraband, the argument for our fabrication of them is certainly good.
Our latest information from the Eastwd. has not removed our apprehensions of ominous events in that quarter. It is pretty certain that the seditious party has become formidable in the Govt. and that they have opened a counication with the viceroy of Canada. I am not enough acquainted with the proceedings of Congress to judge of some of the points, which you advert to. The regulations of their land office have appeared to me nearly in the light in which they do to you. I expect to set out in a few days for N. York, when I shall revive my claim to a correspondence which formerly gave me so much pleasure and which will enable me perhaps to answer your queries. The end of my paper will excuse an abrupt but affecte Adieu.
TO THOMAS JEFFERSON.mad. mss.
New York, Feby 15th, 1787.
My last was from Richmond, of the 4th. of December, and contained a sketch of our legislative proceedings prior to that date. The principal proceedings of subsequent date relate as nearly as I can recollect 1st, to a rejection of the Bill on crimes & punishments, which after being altered so as to remove most of the objections as was thought, was lost by a single vote. The rage agst Horse stealers had a great influence on the fate of the bill. Our old bloody code is by this event fully restored, the prerogative of conditional pardon having been taken from the Executive by a judgmt., of the Court of Appeals, and the temporary law granting it to them having expired and been left unrevived. I am not without hope that the rejected bill will find a more favorable disposition in the next Assembly. 2dly. To the bill for diffusing knowledge, it went through two readings by a small majority and was not pushed to a third one. The necessity of a systematic provision on the subject was admitted on all hands. The objections agst that particular provision were 1. the expence, wch was alledged to exceed the ability of the people 2. the difficulty of executing it in the present sparse settlement of the Country. 3. the inequality of the districts as contended by the Western members. The last objection is of little weight and might have been easily removed if it had been urged in an early stage of the discussion. The bill now rests on the same footing with the other unpassed bills in the Revisal. 3dly. To the Revisal at large. It was found impossible to get thro’ the system of the late Session, for several reasons. 1. the changes which have taken place since its compilement, in our affairs and our laws; particularly those relating to our Courts, called for changes in some of the bills which could not be made with safety by the Legislature. 2. The pressure of other business which tho’ of less importance in itself, yet was more interesting for the moment. 3. the alarm excited by an approach toward the Execution Bill, which subjects land to the payment of debts. This bill could not have been carried, was too important to be lost, and even too difficult to be amended without destroying its texture. 4. the danger of passing the Repealing Bill at the end of the Code, before the operation of the various amendments, &c., made by the Assembly could be leisurely examined by competent Judges. Under these circumstances it was thought best to hand over the residue of the work to our successors, and in order to have it made compleat, Mr. Pendleton, Mr. Wythe, & Blair, were appd. a Committee to amend the unpassed bills & also to prepare a supplemental revision of the laws which have been passed since the original work was executed. It became a critical question with the friends of the Revisal whether the parts of the Revisal actually passed shd be suspended in the mean time, or left to take their operation. The first plan was strongly recommended by the advantage of giving effect to the system at once, and by the inconveniency arising from the latter of leaving the old laws to a constructive repeal only. The latter notwithstanding was preferred as putting the adopted bills out of the reach of a succeeding Assembly, which might possibly be unfriendly to the system altogether. There was good reason to suspect Mr. Henry who will certainly be then a member. By suffering the bills which have passed to take effect in the mean time it will be extremely difficult to get rid of them. 4thly. Religion. The Act incorporating the protestant Episcopal Church excited the most pointed opposition from the other Sects. They even pushed their attacks agst. the reservation of the Glebes &c., to the church exclusively. The latter circumstance involved the Legislature in some embarrassment. The result was a repeal of the Act, with a saving of the property. 5th. The district Courts. After a great struggle they were lost in the House of Delegates by a single voice. 6thly. taxes; the attempts to reduce former taxes were baffled, and sundry new taxes added, on lawyers, of their fees, on Clks of Courts, ¼ of do., on doctrs. a small tax, a tax on houses in towns so as to level their burden with that of real estate in the country, very heavy taxes on riding carriages, &c. Besides these an additional duty of 2 per Ct. ad valorem on all merchandizes imported in vessels of nations not in treaty with the U. S. an addl. duty of 4d. on every gallon of wine except French wines and of 2d. on every gallon of distilled Spirits except French brandies which are made duty free. The exceptions in favor of France were the effect of the sentiments & regulations communicated to you by Mr. Calonne. A printed copy of the communication was recd. the last day of the session in a newspaper from N. York, and made a warm impression on the Assembly. Some of the taxes are liable to objections, and were much complained of. With the additional duties on trade they will considerably enhance our revenue. I should have mentioned a duty of 6s. per Hhd. on Tobo. for complying with a special requisition of Congs. for supporting the corps of men raised for the public security. 7th. the Mississippi. At the date of my last the House of Delegates only had entered into Resolutions agst. a surrender of the right of navigating it. The Senate shortly after concurred. The States South of Virga. still adhere as far as I can learn to the same ideas as have governed Virginia. N. Jersey one of the States in Congress which was on the opposite side has now instructed her Delegates agst. surrendering to Spain the navigation of the River even for a limited time. And Pena it is expected will do the same. I am told that Mr. Jay has not ventured to proceed in his project and I suppose will not now do it1 . 8th. the Convention for amending the federal Constitution. At the date of my last Virga. had passed an Act for appointing deputies. The deputation consists of Genl. Washington Mr. Henry, late Govr, Mr. Randolph present Govr. Mr. Blair Mr. Wythe Col. Mason & Js. M. N. Carola has also made an appt., including her present & late Govr. S. C. it is expected by her delegates in Congs., will not fail to follow these examples. Maryland has determined I just hear to appt. but has not yet agreed on her deputies. Delaware, Penna., & N. Jy., have made respectable appointmts. N. York has not yet decided on the point. Her Assembly has just rejected the impost which has an unpropitious aspect. It is not clear however that she may not yet accede to the other measure. Connecticut has a great aversion to Conventions, and is otherwise habitually disinclined to abridge her State prerogatives. Her concurrence nevertheless is not despaired of. Massts. it is said will concur, though hitherto not well inclined. N. Hampshire will probably do as she does. Rhode Island can be relied on for nothing that is good. On all great points she must sooner or later bend to Massts. and Connecticut.
Having but just come to this place I do not undertake to give you any general view of American affairs, or of the particular State of things in Massts. The omission is probably of little consequence as information of this sort must fall within your correspondence with the office of foreign affairs. I shall not however plead this consideration in a future letter, when I hope to be more able to write fully.
Mr. Fitzhugh has paid into my hands for your use £58-6-8 Virga. Currency in discharge of 1000 livres advanced to him in France. He was anxious to have settled it according to the actual exchange instead of the legal one of 33⅓ on the British standard, and even proposed the addition of Interest. I did not hesitate to conclude that I should fulfill your intentions by rejecting both. I have sent to Mrs Carr £25 for the use of your nephews as you directed. The balance is in my hands subject to your orders tho’ I shall venture to apply it in the same way if I shd. be apprised of its being necessary to prevent interruption to the studies of the Young gentlemen. My last informed you of the progress &c. of Master Peter. I have since recd from the presdt. of Hampden Sydny a letter containing the following paragraph “Dabney Carr is a boy of very promising genius & very diligent application. He conducts himself with a good deal of prudence, & I hope will answer the expectations of his friends. I was afraid at first that he was dull or indolent from his appearance, but I find myself agreeably disappointed. His principal study at present is the Latin language, but he is also obliged to pay some attention to his native tongue.
I remain Dr. Sir Yr Affecte. friend
TO GEORGE WASHINGTON.wash. mss.
New York Feby 21, 1787.
Some little time before my arrival here a quorum of the States was made up and Genl Sinclair put in the Chair. We have at present nine States on the ground, but shall lose South Carolina to-day. Other States are daily expected. What business of moment may be done by the present or a fuller meeting is uncertain. The objects now depending and most immediately in prospect are 1. The Treaty of peace. The Secretary of foreign Affairs has very ably reported a view of the infractions on both sides, his exposition of the contested articles, and the steps proper to be taken by Congress. I find what I was not before apprized of that more than one infraction on our part, preceded even the violation on the other side in the instance of the Negroes. Some of the reasoning on the subject of the debts would be rather grating to Virginia. A full compliance with the Treaty according to judicial constructions, and as a ground for insisting on a reciprocal compliance, is the proposition in which the Report terminates. 2. a Recommendation of the proposed Convention in May. Congs. have been much divided and embarrassed on the question whether their taking an interest in the measure would impede or promote it. On one side it has been urged that some of the backward States have scruples agst. acceding to it without some constitutional sanction; on the other that other States will consider any interference of Congs. as proceeding from the same views which have hitherto excited their jealousies. A vote of the Legislature here entered into yesterday will give some relief in the case. They have instructed their delegates in Congs. to move for the recoendation in question. The vote was carried by a majority of one only in the Senate, and there is room to suspect that the minority were actuated by a dislike to the substance rather than by any objections agst. the form of the business. A large Majority in the other branch a few days ago put a definitive veto on the Impost. It would seem as if the politics of this State are directed by individual interests and plans, which might be incommoded by the controul of an efficient federal Government. The four States North of it are still to make their decision on the subject of the Convention. I am told by one of the Massst. delegates that the Legislature of that State which is now sitting, will certainly accede and appoint deputies if Congs. declare their approbation of the measure. I have similar information that Connecticut will probably come in, though it is said that the interference of Congress will rather have a contrary tendency there. It is expected that S. Carolina will not fail to adopt the plan, and that Georgia is equally well disposed. All the intermediate States between the former and N. York have already appointed deputies, except Maryland which it is said means to do it, and has entered into some vote which declares as much. Nothing has yet been done by the New Congs. with regard to the Mississippi. Our latest information from Massts. gives hopes that the meeting or as the Legislature there now style it, the Rebellion is nearly extinct. If the measures however on foot for disarming and disfranchising those concerned in it should be carried into effect, a new crisis may be brought on. I have not been here long enough to gather the general sentiments of leading characters touching our affairs & prospects. I am inclined to hope that they will gradually be concentered in the plan of a thorough reform of the existing system. Those who may lean towards a Monarchial Govt, and who I suspect are swayed by very indigested ideas, will of course abandon an unattainable object whenever a prospect opens of rendering the Republican form competent to its purposes. Those who remain attached to the latter form must soon perceive that it cannot be preserved at all under any modification which does not redress the ills experienced from our present establishments. Virginia is the only State which has made any provision for the late moderate but essential requisition of Congs., and her provision is a partial one only.
This would have been of earlier date, but I have waited for more interesting subjects for it. I shall do myself the pleasure of repeating the liberty of dropping you a few lines as often as proper occasions arise, on no other condition however than your waiving the trouble of regular answers or acknowledgements on your part.
With the greatest respect and Affection I am Dr. Sir
Yr. Obedt. friend & Servt.
TO EDMUND PENDLETON.mad. mss.
New York, Feby 24, 1787.
If the contents of the Newspapers of this place find their way into the gazettes of Richmond you will have learnt that the expedition of Genl. Lincoln against the insurgents has effectually dispersed the main body of them. It appears however that there are still some detachments which remain to be subdued, & that the Government of Massts. consider very strong precautions as necessary agst. farther eruptions. The principal incendiaries have unluckily made off. By some it is said that they are gone to Canada; by others that they have taken shelter in Vermont, and by some that they are opening a communication with the upper parts of this State. The latter suggestion has probably some color, as the Governor here has thought proper to offer rewards for them after the example of Govr Bowdoin. We have no interesting information from Europe.
The only step of moment taken by Congs., since my arrival has been a recommendation of the proposed meeting in May for revising the federal articles. Some of the States, considering this measure as an extra-constitutional one, had scruples agst. concurring in it without some regular sanction. By others it was thought best that Congs. should remain neutral in the business, as the best antidote for the jealousy of an ambitious desire in them to get more power into their hands. This suspense was at length removed by an instruction from this State to its delegates to urge a Recommendatory Resolution in Congress which accordingly passed a few days ago. Notwithstanding this instruction from N. York, there is room to suspect her disposition not to be very federal, a large majority of her House of delegates having very lately entered into a definite refusal of the impost, and the instruction itself having passed in the Senate by a casting vote only. In consequence of the sanction given by Congs., Massts. it is said will send deputies to the Convention, and her example will have great weight with the other N. England States. The States from N. Ca. to N. Jersey inclusive have made their appointments, except Maryd., who has as yet only determined that she will make them. The gentlemen here from S. Ca. & Georgia, expect that those States will follow the general example. Upon the whole therefore it seems probable that a meeting will take place, and that it will be a pretty full one. What the issue of it will be is among the other arcana of futurity and nearly as inscrutable as any of them. In general I find men of reflection much less sanguine as to the new than despondent as to the present System. Indeed the Present System neither has nor deserves advocates; and if some very strong props are not applied, will quickly tumble to the ground. No money is paid into the public Treasury; no respect is paid to the federal authority. Not a single State complies with the requisitions; several pass them over in silence, and some positively reject them. The payments ever since the peace have been decreasing, and of late fall short even of the pittance necessary for the Civil list of the Confederacy. It is not possible that a government can last long under these circumstances. If the approaching convention should not agree on some remedy, I am persuaded that some very different arrangement will ensue. The late turbulent scenes in Massts. & infamous ones in Rhode Island, have done inexpressible injury to the republican character in that part of the U. States; and a propensity towards Monarchy is said to have been produced by it in some leading minds. The bulk of the people will probably prefer the lesser evil of a partition of the Union into three more practicable and energetic Governments. The latter idea I find after long confinement to individual speculations & private circles, is beginning to shew itself in the Newspapers. But tho’ it is a lesser evil, it is so great a one that I hope the danger of it will rouse all the real friends of the Revolution to exert themselves in favor of such an organization of the confederacy as will perpetuate the Union, and redeem the honor of the Republican name.
I shall follow this introductory letter with a few lines from time to time as a proper subject for them occurs. The only stipulation I expect on your part is that you will not consider them as claiming either answers or acknowledgements; and that you will believe me to be, with sincerest wishes for your health and every other happiness,
Yr. affecte. friend & servt.
TO GEORGE WASHINGTON.wash. mss.
New York March 18th. 1787.
Recollecting to have heard you mention a plan formed by the Empress of Russia for a comparative view of the aborigines of the New Continent, and of the N. E. parts of the old, through the medium of their respective tongues, and that her wishes had been conveyed to you for your aid in obtaining the American vocabularies, I have availed myself of an opportunity offered by the kindness of Mr. Hawkins, of taking a copy of such a sample of the Cherokee & Choctaw dialects as his late commission to treat with them enabled him to obtain, and do myself the honor now of inclosing it. I do not know how far the list of words made use of by Mr Hawkins may correspond with the standard of the Empress, nor how far nations so remote as the Cherokees & Choctaws from the N. W. shores of America, may fall within the scheme of comparison. I presume however that a great proportion at least of the words will answer, and that the laudable curiosity which suggests investigations of this sort will be pleased with every enlargement of the field for indulging it. Not finding it convenient to retain a copy of the inclosed as I wished to do for myself, I must ask the favor of your amanuensis to perform that task for me.
The appointments for the Convention go on very successfully. Since the date of my last, Georgia, S. Carolina, N. York, Massts, & N. Hampshire have come into the measure. Georgia & N. Hampshire have constituted their Delegates in Congs. their representatives in Convention. S. Carolina has appointed Mr. J. Rutledge, Genl. Pinkney, Mr. Laurens, Major Butler and Mr. Chas. Pinkney, late member of Congs., The deputies of Massts. are Mr. Dana, Mr. King, Mr. Ghoram, Mr. Gerry, Mr. Strong. I am told that a Resolution of the Legislature of this State which originated with their Senate lays its deputies under the fetter of not departing from the 5th. of the present articles of Confederation. As this Resolution passed before the Recommendatory act of Congress was known, it is conjectured that it may be rescinded; but its having passed at all denotes a much great[er] prevalence of political jealousy in that quarter than had been imagined. The deputation of N. York consists of Col. Hamilton, Judge Yates, and a Mr. Lansing. The two last are said to be pretty much linked to the anti federal party here, and are likely of course to be a clog on their colleague. It is not doubted now that Connecticut & R. Island will avoid the singularity of being unrepresented in the Convention.
The thinness of Congs has been an obstacle to all the important business before them. At present there are nine States on the ground but this number, though adequate to every object when unanimous, makes a slow progress in business that requires seven States only. And I see little prospect of the number being increased.
By our latest and most authentic information from Massts., it would seem that a calm has been restored by the expedition of Genl. Lincoln. The precautions taking by the State however betray a great distrust of its continuance. Besides their act disqualifying the malcontents from voting in the election of members for the Legislature &c. another has been passed for raising a corps of 1000 or 1500 men, and appropriating the choicest revenues of the Country to its support. It is said that at least half of the insurgents decline accepting the terms annexed to the amnesty, and that this defiance of the law agst Treason, is countenanced not only by the impunity with which they shew themselves on public occasions, even with insolent badges of their character, but by marks of popular favor conferred on them in various instances in the election to locl offices.
A proposition has been introduced & discussed in the Legislature of this State for relinquishing its claim to Vermont, and urging the admission of it into the Confederacy. As far as I can learn difficulties will arise only in settling the form, the substance of the measures being not disliked by any of the parties. It is wished by those who are not interested in claims to lands within that district to guard agst. any responsibility in the State for compensation. On the other side it will at least be insisted that they shall not be barred of the privilege of carrying their claims before a federal Court, in case Vermont shall become a party to the Union. I think it probable if she should not decline becoming such altogether, that she will make two conditions if not more: 1. that neither her boundaries nor the rights of her citizens shall be impeachable under the 9th art: of Confederation. 2. that no share of the public debt already contracted shall be allotted to her.
I have a letter from Col. Jno. Campbel, dated at Pittsburg, from wch. I gather that the people of that quarter are thrown into great agitation by the reported intention of Congs. concerning the Mississippi, and that measures are on foot, for uniting the minds of all the different settlements which have a common interest at stake. Should this policy take effect I think there is much ground to apprehend that the ambition of individuals will quickly mix itself with the first impulses of resentment and interest, that by degrees the people may be led to set up for themselves, that they will slide like Vermont insensibly into a communication and latent connection with their British Neighbours, and, in pursuance of the same example, make such a disposition of the Western territory as will entice into it most effectually emigrants from all parts of the Union. If these apprehensions be not imaginary they suggest many observations extremely interesting to Spain as well as to the United States.
I hear from Richmond with much concern that Mr. Henry has positively declined his mission to Philada. Besides the loss of his services on that theatre, there is danger I fear that this step has proceeded from a wish to leave his conduct unfettered on another theatre where the result of the Convention will receive its destiny from his omnipotence.
With every sentiment of esteem & affection I remain
Dear Sir, your Obedt. and very hble Servt.
TO THOMAS JEFFERSON.
New York, March 19th [18th], 1787.
My last was of the 11th of February, and went by the packet. This will go to England in the care of a French gentleman, who will consign it to the care of Mr. Adams.
The appointments for the Convention go on auspiciously. Since my last, Georgia, South Carolina, New York, Massachusetts, and New Hampshire, have come into the measure. The first and the last of these States have commissioned their delegates to Congress as their representatives in Convention. The deputation of Massachusetts consists of Messrs. Gorham, Dana, King, Gerry, and Strong. That of New York, Messrs. Hamilton, Yates, and Lansing. That of South Carolina, Messrs. J. Rutledge, Laurens, Pinckney, (General,) Butler, and Charles Pinckney, lately member of Congress. The States which have not yet appointed are Rhode Island, Connecticut, and Maryland. The last has taken measures which prove her intention to appoint, and the two former it is not doubted will follow the example of their neighbours. I just learn from the Governor of Virginia that Mr. Henry has resigned his place in the deputation from that State, and that General Nelson is put into it by the Executive, who were authorised to fill vacancies. The Governor, Mr. Wythe, and Mr. Blair, will attend, and some hopes are entertained of Col. Mason’s attendance. General Washington has prudently authorised no expectations of his attendance, but has not either precluded himself absolutely from stepping into the field if the crisis should demand it.
What may be the result of this political experiment cannot be foreseen. The difficulties which present themselves are, on one side, almost sufficient to dismay the most sanguine, whilst on the other side the most timid are compelled to encounter them by the mortal diseases of the existing Constitution. These diseases need not be pointed out to you, who so well understand them. Suffice it to say, that they are at present marked by symptoms which are truly alarming, which have tainted the faith of the most orthodox republicans, and which challenge from the votaries of liberty every concession in favor of stable Government not infringing fundamental principles, as the only security against an opposite extreme of our present situation.
I think myself that it will be expedient, in the first place, to lay the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities. 2dly. Over and above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases whatsoever on the local Legislatures. Without this defensive power, experience and reflection have satisfied me that, however ample the federal powers may be made, or however clearly their boundaries may be delineated on paper, they will be easily and continually baffled by the Legislative sovereignties of the States. The effects of this provision would be not only to guard the national rights and interests against invasion, but also to restrain the States from thwarting and molesting each other; and even from oppressing the minority within themselves by paper money and other unrighteous measures which favor the interest of the majority. In order to render the exercise of such a negative prerogative convenient, an emanation of it must be vested in some set of men within the several States, so far as to enable them to give a temporary sanction to laws of immediate necessity. 3dly. To change the principle of Representation in the federal system. Whilst the execution of the acts of Congress depends on the several Legislatures, the equality of votes does not destroy the inequality of importance and influence in the States. But in case of such an augmentation of the federal power as will render it efficient without the intervention of the Legislatures, a vote in the general Councils from Delaware would be of equal value with one from Massachusetts or Virginia. This change, therefore, is just. I think, also, it will be practicable. A majority of the States conceive that they will be gainers by it. It is recommended to the Eastern States by the actual superiority of their populousness, and to the Southern by their expected superiority; and if a majority of the larger States concur, the fewer and smaller States must finally bend to them. This point being gained, many of the objections now urged in the leading States against renunciations of power will vanish. 4thly. To organize the federal powers in such a manner as not to blend together those which ought to be exercised by separate departments. The limited powers now vested in Congress are frequently mismanaged from the want of such a distribution of them. What would be the case under an enlargement not only of the powers, but the number of the federal Representatives? These are some of the leading ideas which have occurred to me, but which may appear to others as improper as they appear to me necessary.
TO THOMAS JEFFERSON.
New York, March 19, 1787.
Congress have continued so thin as to be incompetent to the dispatch of the more important business before them. We have at present nine States, and it is not improbable that something may now be done. The report of Mr. Jay on the mutual violations of the treaty of peace will be among the first subjects of deliberation. He favors the British claim of interest, but refers the question to the court. The amount of the report, which is an able one, is, that the treaty should be put in force as a law, and the exposition of it left, like that of other laws, to the ordinary tribunals.
The Spanish project sleeps. A perusal of the attempt of seven States to make a new treaty, by repealing an essential condition of the old, satisfied me that Mr. Jay’s caution would revolt at so irregular a sanction. A late accidental conversation with Guardoqui proved to me that the negotiation is arrested. It may appear strange that a member of Congress should be indebted to a foreign Minister for such information, yet such is the footing on which the intemperance of party has put the matter, that it rests wholly with Mr. Jay how far he will communicate with Congress, as well as how far he will negotiate with Guardoqui. But although it appears that the intended sacrifice of the Mississippi will not be made, the consequences of the intention and the attempt are likely to be very serious. I have already made known to you the light in which the subject was taken up by Virginia. Mr. Henry’s disgust exceeds all measure, and I am not singular in ascribing his refusal to attend the Convention to the policy of keeping himself free to combat or espouse the result of it according to the result of the Mississippi business, among other circumstances. North Carolina also has given pointed instructions to her Delegates; so has New Jersey. A proposition for the like purpose was a few days ago made in the Legislature of Pennsylvania, but went off without a decision on its merits. Her Delegates in Congress are equally divided on the subject. The tendency of this project to foment distrust among the Atlantic States, at a crisis when harmony and confidence ought to have been studiously cherished, has not been more verified than its predicted effect on the ultramontane settlements. I have credible information that the people living on the Western waters are already in great agitation, and are taking measures for uniting their consultations. The ambition of individuals will quickly mix itself with the original motives of resentment and interest. Communication will gradually take place with their British neighbours. They will be led to set up for themselves, to seize on the vacant lands, to entice emigrants by bounties and an exemption from Federal burthens, and in all respects play the part of Vermont on a large theatre. It is hinted to me that British partizans are already feeling the pulse of some of the Western settlements. Should these apprehensions not be imaginary, Spain may have equal reason with the United States to rue the unnatural attempt to shut the Mississippi. Guardoqui has been admonished of the danger, and, I believe, is not insensible to it, though he affects to be otherwise, and talks as if the dependence of Britain on the commercial favors of his Court would induce her to play into the hands of Spain. The eye of France also cannot fail to watch over the western prospects. I learn from those who confer here with Otto and De la Forest, that they favor the opening of the Mississippi, disclaiming at the same time any authority to speak the sentiments of their Court. I find that the Virginia Delegates, during the Mississippi discussions last fall, entered into very confidential interviews with these gentlemen. In one of them the idea was communicated to Otto of opening the Mississippi for exports but not for imports, and of giving to France and Spain some exclusive privileges in the trade. He promised to transmit it to Vergennes, to obtain his sentiments on the whole matter, and to communicate them to the Delegates. Not long since Grayson called on him, and revived the subject. He assured Grayson that he had received no answer from France, and signified his wish that you might pump the Count de Vergennes, observing that he would deny to you his having received any information from America. I discover, through several channels, that it would be very grateful to the French politicians here to see our negotiations with Spain shifted into your hands, and carried on under the mediating auspices of their Court.
Van Berkel has remonstrated against the late acts of Virginia, giving privileges to French wines and brandies in French bottoms, contending that the Dutch are entitled by their treaty to equal exemptions with the most favored nation, without being subject to a compensation for them. Mr. Jay has reported against this construction, but considers the act of Virginia as violating the treaty;—first, as it appears to be gratuitous, not compensatory, on the face of it; secondly, because the States have no right to form tacit compacts with foreign nations. No decision of Congress has yet taken place on the subject.
The expedition of General Lincoln against the insurgents has effectually succeeded in dispersing them. Whether the calm which he has restored will be durable or not, is uncertain. From the precautions taking by the Government of Massachusetts, it would seem as if their apprehensions were not extinguished. Besides disarming and disfranchising, for a limited time, those who have been in arms, as a condition of their pardon, a military corps is to be raised to the amount of one thousand or fifteen hundred men, and to be stationed in the most suspected districts. It is said that, notwithstanding these specimens of the temper of the Government, a great proportion of the offenders choose rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty; that they not only appear openly on public occasions, but distinguish themselves by badges of their character; and that this insolence is in many instances countenanced by no less decisive marks of popular favor than elections to local offices of trust and authority.
A proposition is before the Legislature of this State, now sitting, for renouncing its pretensions to Vermont, and urging the admission of it into the Confederacy. The different parties are not agreed as to the form in which the renunciation should be made, but are likely to agree as to the substance. Should the offer be made, and should Vermont not reject it altogether, I think they will insist on two stipulations at least;—first, that their becoming parties to the Confederation shall not subject their boundaries, or the rights of their citizens, to be questioned under the ninth Article; secondly, that they shall not be subject to any part of the public debts already contracted.
The Geographer and his assistants have returned surveys on the Federal lands to the amount of about eight hundred thousand acres, which it is supposed would sell pretty readily for public securities, and some of it, lying on the Ohio, even for specie. It will be difficult, however, to get proper steps taken by Congress, so many of the States having lands of their own at market. It is supposed that this consideration had some share in the zeal for shutting the Mississippi. New Jersey, and some others having no Western lands, which favored this measure, begin now to penetrate the secret.
A letter from the Governor of Virginia informs me, that the project of paper-money is beginning to recover from the blow given it at the last session of the Legislature. If Mr. Henry espouses it, of which there is little doubt, I think an emission will take place.
TO EDMUND RANDOLPH.
New York, March 25, 1787.
I have had the pleasure of your two favors of the first and seventh instant. The refusal of Mr. Henry to join in the task of revising the Confederation is ominous; and the more so, I fear, if he means to be governed by the event which you conjecture. There seems to be little hope, at present, of being able to quash the proceedings relative to the affair which is so obnoxious to him, though on the other hand, there is reason to believe that they will never reach the object at which they aimed.
Congress have not changed the day for meeting at Philadelphia as you imagine. The act of Virginia, I find, has done so in substituting second day for the second Monday in May, the time recommended from Annapolis.
I cannot suppose that Mr. Otto has equivocated in his explanation to the public touching the Floridas. Nothing of that subject has been mentioned here, as far as I know. Supposing the exchange in question to have really been intended, I do not see the inference to be unfavorable to France. Her views, as they occur to me, would most probably be to conciliate the Western people, in common with the Atlantic States, and to extend her commerce, by reversing the Spanish policy. I have always wished to see the Mississippi in the hands of France, or of any nation which would be more liberally disposed than the present holders of it.
Mr. Jay’s report on the treaty of peace has at length been decided on. It resolves and declares, that the treaty, having been constitutionally formed, is the law of the land, and urges a repeal of all laws contravening it, as well to stop the complaints of their existing as legal impediments, as to avoid needless questions touching their validity. Mr. Jay is preparing a circular address to accompany the Resolutions, and the latter will not be forwarded till the former is ready.
TO JAMES MADISON.mad. mss.
N. York April 1, 1787.
I have received your favor of the 17th. Feby. and have made enquiry as to the Andover Works, not indeed thro’ the channel you suggested, but through one still more direct & authentic. I find that the works are not pursued with such alacrity at present as to promise the supply you wish, that it is uncertain whether it would be delivered at Philada at all, and that the price is at present unfixed. I shall have an opportunity of seeing in Trenton on my way to the Convention, the man who is connected with these works and will collect any further information he may be able to give.
Congress has remained very thin ever since my arrival, and have done but little business of importance. The general attention is now directed towards the approaching Convention. All the States have appointed deputies to it except Connecticut, Maryland, and Rho. Island. The first, it is not doubted will appoint, and the second has already resolved on the expediency of the measure. Rho. Island alone has refused her concurrence. A majority of more than twenty in the Legislature of that State has refused to follow the general example. Being conscious of the wickedness of the measures they are pursuing they are afraid of everything that may become a controul on them. Notwithstanding this prospect of a very full and respectable meeting, no very sanguine expectations can well be indulged. The probable diversity of opinions and prejudices, and of supposed or real interests among the States, renders the issue totally uncertain. The existing embarrassments and mortal diseases of the Confederacy form the only ground of hope, that a spirit of concession on all sides may be produced by the general chaos, or at least partitions of the Union, which offers itself as the alternative.
N. Carolina and N Jersey have followed the example of Virginia in giving instructions in favor of the Missi. Penna. has not done so as was expected, but she has appointed a Delegation which thinks differently from her last on the subject.
I am anxious to hear from my brother A. on the subject of the Tobacco. It will at furthest I hope arrive within the current month in Philada. With affecte regards to my mother & the family
I remain yr dutiful son
TO EDMUND RANDOLPH.
New York, April 8, 1787.
Your two favors of the twenty-second and twenty-seventh of March, have been received since my last. In a preceding one you ask, what tribunal is to take cognizance of Clark’s offence? If our own laws will not reach it, I see no possibility of punishing it. But will it not come within the act of the last session concerning treasons and other offences committed without the commonwealth? I have had no opportunity yet of consulting Mr. Otto on the allegation of Oster touching the marriage of French subjects in America. What is the conspicuous prosecution which you suspect will shortly display a notable instance of perjury?
I am glad to find that you are turning your thoughts towards the business of May next. My despair of your finding the necessary leisure, as signified in one of your letters, with the probability that some leading propositions at least would be expected from Virginia, had engaged me in a closer attention to the subject than I should otherwise have given. I will just hint the ideas that have occurred, leaving explanations for our interview.
I think with you, that it will be well to retain as much as possible of the old Confederation, though I doubt whether it may not be best to work the valuable articles into the new system, instead of engrafting the latter on the former. I am also perfectly of your opinion, that, in framing a system, no material sacrifices ought to be made to local or temporary prejudices. An explanatory address must of necessity accompany the result of the Convention on the main object. I am not sure that it will be practicable to present the several parts of the reform in so detached a manner to the States, as that a partial adoption will be binding. Particular States may view different articles as conditions of each other, and would only ratify them as such. Others might ratify them as independent propositions. The consequence would be that the ratifications of both would go for nothing. I have not, however, examined this point thoroughly. In truth, my ideas of a reform strike so deeply at the old Confederation, and lead to such a systematic change, that they scarcely admit of the expedient.
I hold it for a fundamental point, that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the States into one simple republic is not less unattainable than it would be inexpedient. Let it be tried, then, whether any middle ground can be taken, which will at once support a due supremacy of the national authority, and leave in force the local authorities so far as they can be subordinately useful.
The first step to be taken is, I think, a change in the principle of representation. According to the present form of the Union, an equality of suffrage, if not just towards the larger members of it, is at least safe to them, as the liberty they exercise of rejecting or executing the acts of Congress, is uncontrollable by the nominal sovereignty of Congress. Under a system which would operate without the intervention of the States, the case would be materially altered. A vote from Delaware would have the same effect as one from Massachusetts or Virginia.
Let the national Government be armed with a positive and complete authority in all cases where uniform measures are necessary, as in trade, &c., &c. Let it also retain the powers which it now possesses.
Let it have a negative, in all cases whatsoever, on the Legislative acts of the States, as the King of Great Britain heretofore had. This I conceive to be essential and the least possible abridgement of the State sovereignties. Without such a defensive power, every positive power that can be given on paper will be unavailing. It will also give internal stability to the States. There has been no moment since the peace at which the Federal assent would have been given to paper-money, &c., &c.
Let this national supremacy be extended also to the Judiciary department. If the Judges in the last resort depend on the States, and are bound by their oaths to them and not to the Union, the intention of the law and the interests of the nation may be defeated by the obsequiousness of the tribunals to the policy or prejudices of the States. It seems at least essential that an appeal should lie to some national tribunals in all cases which concern foreigners, or inhabitants of other States. The admiralty jurisdiction may be fully submitted to the National Government.
A Government formed of such extensive powers ought to be well organized. The Legislative department may be divided into two branches. One of them to be chosen every — years by the Legislatures or the people at large; the other to consist of a more select number, holding their appointments for a longer term, and going out in rotation. Perhaps the negative on the State laws may be most conveniently lodged in this branch. A Council of Revision may be superadded, including the great ministerial officers.
A national Executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be constituted, or of the authorities with which it ought to be clothed.
An article ought to be inserted expressly guaranteeing the tranquillity of the States against internal as well as external dangers.
To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the Legislatures.
I am afraid you will think this project, if not extravagant, absolutely unattainable and unworthy of being attempted. Conceiving it myself to go no further than is essential, the objections drawn from this source are to be laid aside. I flatter myself, however, that they may be less formidable on trial than in contemplation. The change in the principle of representation will be relished by a majority of the States, and those too of most influence. The northern States will be reconciled to it by the actual superiority of their populousness; the Southern by their expected superiority on this point. This principle established, the repugnance of the large States to part with power will in a great degree subside, and the smaller States must ultimately yield to the predominant will. It is also already seen by many, and must by degrees be seen by all, that, unless the Union be organized efficiently on republican principles, innovations of a much more objectionable form may be obtruded, or, in the most favorable event, the partition of the Empire, into rival and hostile confederacies will ensue.
TO EDMUND RANDOLPH.
New York, April 15, 1787.
Your favor of the fourth of April has been received since my last. The probability of General Washington’s coming to Philadelphia is, in one point of view, flattering. Would it not, however, be well for him to postpone his actual attendance, until some judgment can be formed of the result of the meeting? It ought not to be wished by any of his friends that he should participate in any abortive undertaking. It may occur, perhaps, that the delay would deprive the Convention of his presiding auspices, and subject him, on his arrival, to a less conspicuous point of view than he ought on all occasions to stand in. Against this difficulty must be weighed the consideration above mentioned, to which may be added the opportunity which Pennsylvania, by the appointment of Doctor Franklin, has afforded of putting sufficient dignity into the Chair.
The effect of the interposition of Congress in favor of the treaty at this crisis, was foreseen by us. I would myself have preferred a little procrastination on the subject. But the manifest and undeniable propriety of the thing itself, with the chance that the Legislature here, which will adjourn in a little time until next winter, and which is one of the principal transgressors, may set an immediate example of reformation, overruled the argument for delay. The difficulties which, as you suggest, may be left behind by a mere repeal of all existing impediments, will be probably found of a very serious nature to British creditors. If no other advantage should be taken of them by the State, than the making the assent of the creditors to the plan of instalments, a condition of such further provisions as may not come within the treaty, I do not know that the existence of these difficulties ought to be matter of regret. In every view Congress seem to have taken the most proper course for maintaining the national character; and if any deviations in particular States should be required by peculiar circumstances, it will be better that they should be chargeable on such States than on the United States.
The Maryland Assembly met on the second instant, being convened by proclamation. The expected delay, therefore, in her appointments for the Convention, cannot be admitted among the considerations which are to decide the time of your setting out. I am sorry that punctuality on your part will oblige you to travel without the company of Mrs. Randolph. But the sacrifice seems to be the more necessary, as Virginia ought not only to be on the ground in due time, but to be prepared with some materials for the work of the Convention. In this view, I could wish that you might be able to reach Philadelphia some days before the second Monday in May.
This city has been thrown into no small agitation by a motion, made a few days ago, for a short adjournment of Congress, and the appointment of Philadelphia as the place of its reassembling. No final question was taken, but some preliminary questions shewed that six States were in favor of it; Rhode Island, the seventh State, was at first in the affirmative, but one of its Delegates was overcome by the exertions made to convert him. As neither Maryland nor South Carolina was present, the vote is strong evidence of the precarious tenure by which New York enjoys her metropolitan advantages. The motives which led to this attempt were probably with some of a local nature. With others they certainly were of a general nature.
Mr. Jay was a few days ago instructed to communicate to Congress the State of the Spanish negotiation. An unwilling but silent assent was given by Massachusetts and Connecticut. The Report shews that Jay viewed the act of seven States as valid, and has even adjusted with Guardoqui an article for suspending our use of the Mississippi during the term of the treaty. A subsequent report, on a reference of Western information from Virginia and North Carolina denotes little confidence in the event of the negotiation, and considerable perplexity as to the steps proper to be taken by Congress. Wednesday is fixed for the consideration of these reports. We mean to propose that Jefferson be sent, under a special commission, to plead the cause of the Mississippi at Madrid.
TO GEORGE WASHINGTON.wash. mss.
New York April 16 1787.
I have been honored with your letter of the 31 March, and find with much pleasure that your views of the reform which ought to be pursued by the Convention, give a sanction to those which I have entertained. Temporising applications will dishonor the Councils which propose them, and may foment the internal malignity of the disease, at the same time that they produce an ostensible palliation of it. Radical attempts although unsuccessful will at least justify the authors of them.
Having been lately led to revolve the subject which is to undergo the discussion of the Convention, and formed some outlines of a new system, I take the liberty of submitting them without apology to your eye.
Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.
I would propose as the ground-work that a change be made in the principle of representation. According to the present form of the Union in which the intervention of the States is in all great cases necessary to effectuate the measures of Congress, an equality of suffrage, does not destroy the inequality of importance in the several members. No one will deny that Virginia and Massts. have more weight and influence both within & without Congress than Delaware or Rho. Island. Under a system which would operate in many essential points without the intervention of the State Legislatures, the case would be materially altered. A vote in the national Councils from Delaware, would then have the same effect and value as one from the largest State in the Union. I am ready to believe that such a change would not be attended with much difficulty. A majority of the States, and those of greatest influence, will regard it as favorable to them. To the Northern States it will be recommended by their present populousness; to the Southern by their expected advantage in this respect. The lesser States must in every event yield to the predominant will. But the consideration which particularly urges a change in the representation is that it will obviate the principal objections of the larger States to the necessary concessions of power.
I would propose next that in addition to the present federal powers, the national Government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization, &c &c.
Over and above this positive power, a negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded & defeated. The States will continue to invade the National jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest. Another happy effect of this prerogative would be its controul on the internal vicissitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals. The great desideratum which has not yet been found for Republican Governments seems to be some disinterested & dispassionate umpire in disputes between different passions & interests in the State. The majority who alone have the right of decision, have frequently an interest, real or supposed in abusing it. In Monarchies the sovereign is more neutral to the interests and views of different parties; but, unfortunely he too often forms interests of his own repugnant to those of the whole. Might not the national prerogative here suggested be found sufficiently disinterested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole Society. There has not been any moment since the peace at which the representatives of the Union would have given an assent to paper money or any other measure of a kindred nature.
The national supremacy ought also to be extended as I conceive to the Judiciary departments. If those who are to expound & apply the laws, are connected by their interests & their oaths with the particular States wholly, and not with the Union, the participation of the Union in the making of the laws may be possibly rendered unavailing. It seems at least necessary that the oaths of the Judges should include a fidelity to the general as well as local constitution, and that an appeal should lie to some National tribunals in all cases to which foreigners or inhabitants of other States may be parties. The admiralty jurisdiction seems to fall entirely within the purview of the national Government.
The National supremacy in the Executive departments is liable to some difficulty, unless the officers administering them could be made appointable by the supreme Government. The Militia ought certainly to be placed in some form or other under the authority which is entrusted with the general protection and defence.
A Government composed of such extensive powers should be well organized and balanced. The legislative department might be divided into two branches; one of them chosen every NA years by the people at large, or by the Legislatures; the other to consist of fewer members, to hold their places for a longer term, and to go out in such a rotation as always to leave in office a large majority of old members. Perhaps the negative on the laws might be most conveniently exercised by this branch. As a further check, a council of revision including the great ministerial officers might be superadded.
A National Executive must also be provided. I have scarcely ventured as yet to form my own opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed.
An article should be inserted expressly guarantying the tranquillity of the States against internal as well as external dangers.
In like manner the right of coercion should be expressly declared. With the resources of Commerce in hand, the National administration might always find means of exerting it either by sea or land; But the difficulty & awkwardness of operating by force on the collective will of a State, render it particularly desirable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutuality of dependence between the General and particular authorities, as to answer this purpose or perhaps some defined objects of taxation might be submitted along with commerce, to the general authority.
To give a new System its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures. This will be the more essential as inroads on the existing Constitutions of the States will be unavoidable.
The inclosed address to the States on the subject of the Treaty of peace has been agreed to by Congress, & forwarded to the several Executives. We foresee the irritation which it will excite in many of our Countrymen; but could not withhold our approbation of the measure. Both the resolutions and the address, passed without a dissenting voice.
Congress continue to be thin, and of course do little business of importance. The settlement of the public accounts,—the disposition of the public lands, and arrangements with Spain, are subjects which claim their particular attention. As a step towards the first, the treasury board are charged with the task of reporting a plan by which the final decision on the claims of the States will be handed over from Congress to a select sett of men bound by the oaths, and cloathed with the powers of Chancellors. As to the Second article, Congress have it themselves under consideration. Between 6 & 700 thousand acres have been surveyed and are ready for sale. The mode of sale however will probably be a source of different opinions; as will the mode of disposing of the unsurveyed residue. The Eastern gentlemen remain attached to the scheme of townships. Many others are equally strenuous for indiscriminate locations. The States which have lands of their own for sale are suspected of not being hearty in bringing the federal lands to market. The business with Spain is becoming extremely delicate, and the information from the Western settlements truly alarming.
A motion was made some days ago for an adjournment of Congress for a short period, and an appointment of Philada. for their reassembling. The eccentricity of this place as well with regard to E. and West as to N. & South has I find been for a considerable time a thorn in the minds of many of the Southern members. Suspicion too has charged some important votes on the weight thrown by the present position of Congress into the Eastern Scale, and predicts that the Eastern members will never concur in any substantial provision or movement for a proper permanent seat for the National Government whilst they remain so much gratified in its temporary residence. These seem to have been the operative motives with those on one side who were not locally interested in the removal. On the other side the motives are obvious. Those of real weight were drawn from the apparent caprice with which Congress might be reproached, and particularly from the peculiarity of the existing moment. I own that I think so much regard due to these considerations, that notwithstanding the powerful ones on the other side, I should have assented with great repugnance to the motion, and would even have voted against it if any probability had existed that by waiting for a proper time, a proper measure might not be lost for a very long time. The plan which I shd. have judged most eligible would have been to fix on the removal whenever a vote could be obtained but so as that it should not take effect until the commencement of the ensuing federal year. And if an immediate removal had been resolved on, I had intended to propose such a change in the plan. No final question was taken in the case. Some preliminary questions shewed that six States were in favor of the motion. Rho. Island the 7th. was at first on the same side, and Mr. Varnum, one of the delegates continues so. His colleague was overcome by the solicitations of his Eastern brethren. As neither Maryland nor South Carolina were on the floor, it seems pretty evident that N. York has a very precarious tenure of the advantages derived from the abode of Congress.
We understand that the discontents in Massts, which lately produced an appeal to the sword, are now producing a trial of strength in the field of electioneering. The Governor will be displaced. The Senate is said to be already of a popular complexion, and it is expected that the other branch will be still more so. Paper money it is surmised will be the engine to be played off agts. creditors both public and private. As the event of the elections however is not yet decided, this information must be too much blended with conjecture to be regarded as a matter of certainty.
I do not learn that the proposed Act relating to Vermont has yet gone through all the stages of legislation here; nor can I say whether it will finally pass or not. In truth, it having not been a subject of conversation for some time, I am unable to say what has been done or is likely to be done with it. With the sincerest affection & the highest esteem I have the honor to be, Dear Sir your devoted Servt.
TO JAMES MONROE.mad. mss.
New York, April 19, 1787.
No definite steps are yet taken for the transportation of your furniture. I fear we shall be obliged to make use of a conveyance to Norfolk as soon as one shall offer. I have examined the workmanship of the man in Chappel street. The face of it is certainly superior to that of your workman. Whether it may prove much so for substantial purposes, I do not undertake to say. Should Mrs. Monroe not be pleased with the articles, I wd. recommend that you dispose of them, which may be done probably without loss, and send us a commission to replace them. I think we could please you both; and on terms not dearer than that of your purchase. We learn nothing yet of a remittance from S. Carolina.
The business of the Mississippi will I think come to a point in a few days. You shall know the result in due time.
A motion was lately made to remove shortly to Philada. six States would have been for it. Rh. Island was so at first and would have been a seventh. One of the delegation was overpowered by exertions of his Eastern brethren. I need not rehearse to you the considerations which operated on both sides. Your conjectures will not mistake them. My own opinion is that there are strong objections agst. the movement, objections which nothing would supersede but the difficulty of bringing the sense of the Union to an efficient vote in Congress, and the danger of losing altogether a proper measure by waiting for a proper time. A middle way would have been my choice; that is, to fix Philada. for the meeting of the ensuing Congs., & to remain here in the mean time. This would have given time for all preliminary arrangements, would have steered clear of the Convention, and, by selecting a natural period for the event, and transferring the operation of it to our successors in office, all insinuations of suddenness, and of personal views, would have been repelled.
I hear with great pleasure that you are to aid the deliberations of the next Assembly, and with much concern that paper money will probably be among the bad measures which you will have to battle. Wishing you success in this and all your other labours for the public and for yourself, I remain, with best
respects to Mrs. Monroe, yours affely.
TO EDMUND PENDLETON.mad. mss.
New York April 22 1787.
My dear Sir,—
The period since my last has afforded such scanty materials for a letter that I have postponed it, till I have now to thank you for yours of the 7th. inst: which came to hand two days ago. I always feel pleasure in hearing from you, but particularly when my concern for your doubtful health is relieved by such an evidence in its favor. At the same time I must repeat my wishes to forego this pleasure whenever it may interfere with the attention which you owe to your ease, your business, or your other friends.
I do not learn that any symptoms yet appear of a return of the insurgent spirit in Massts. On the contrary it is said that the malcontents are trying their strength in a more regular form. This is the crisis of their elections, and if they can muster sufficient numbers, their wicked measures are to be sheltered under the forms of the Constitution. How far their influence may predominate in the current appointments is uncertain, but it is pretty certain that a great change in the rulers of that State is taking place, and that a paper emission, if nothing worse, is strongly apprehended. Governor Bowdoin is already displaced in favor of Mr. Hancock, whose acknowledged merits are not a little tainted by a dishonorable obsequiousness to popular follies. A great change has also taken place in the Senate, and a still greater is prognosticated in the other branch of the Legislature.
We are flattered with the prospect of a pretty full and very respectable meeting in next month. All the States have made appointments except Connecticut Maryland, & Rh. Island. The last has refused. Maryland will certainly concur. The temper of Connecticut is equivocal. The turn of her elections which are now going on, is said to be rather unpropitious. The absence of one or two States however will not materially affect the deliberations of the Convention. Disagreement in opinion among those present is much more likely to embarrass us. The nearer the crisis approaches, the more I tremble for the issue. The necessity of gaining the concurrence of the Convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the States, presents a series of chances, which would inspire despair in any case where the alternative was less formidable. The difficulty too is not a little increased by the necessity which will be produced by encroachments on the State Constitutions, of obtaining not merely the assent of the Legislatures, but the ratification of the people themselves. Indeed if such encroachments could be avoided, a higher sanction than the Legislative authority would be necessary to render the laws of the Confederacy paramount to the acts of its members.
I enclose a late Act of Congress, which will shew you the light in which they view and inculcate a compliance with the Treaty of peace. We were not unaware of the bitterness of the pill to many of our countrymen, but national considerations overruled that objection. An investigation of the subject had proved that the violations on our part were not only most numerous and important, but were of earliest date. And the assurances on the other part are explicit that a reparation of our wrongful measures shall be followed by an immediate and faithful execution of the Treaty by Great Britain.
Congress are at present deliberating on the most proper plan for disposing of ye Western lands, and providing a criminal and civil administration for the Western settlements beyond the Ohio. The latter subject involves great difficulties. On the former also opinions are various. Between 6 & 7,00,000 Acres have been surveyed in Townships & are to be sold as soon as they shall be duly advertised. The sale was at first to have been distributed throughout the States. This plan is now exchanged for the opposite extreme. The sale is to be made where Congs sits. Unquestionably reference ought to have been had in fixing on the place, either to the Center of the Union or to the proximity of the premises. In providing for the unsurveyed lands, the difficulty arises from the Eastern attachmt. to townships & the Southern to indiscriminate locations. A Copper coinage was agreed on yesterday to the amount of upwards of two hundred thousand dollars, 15 per Ct. is to be drawn into the federal Treasury from this operation.
Our affair with Spain is on a very delicate footing. It is not easy to say what precise steps would be most proper to be taken on our side, and extremely difficult to say what will be actually taken. Many circumstances threaten an Indian war, but the certainty of it is not established. A British officer was lately here from Canada, as has been propagated, but not on a mission to Congress. His business was unknown, if he had any that was important.
I am extremely concerned, though not much surprised at the danger of a paper emission in Virginia. If Mr. H. shd. erect the standard he will certainly be joined by sufficient force to accomplish it. Remorse and shame are but too feeble restraints on interested individuals agst unjust measures, and are rarely felt at all by interested multitudes.
Wishing you all happiness I remain Dear Sir
Your affecte humble servant
TO THOMAS JEFFERSON.
New York, April 23, 1787.
Congress have agreed to Mr. Jay’s report on the treaty of peace, and to an address which accompanies it. Copies of both will no doubt be sent you from his Department. The Legislature of this State, which was sitting at the time, and on whose account the acts of Congress were hurried through, has adjourned till January next, without deciding on them. This is an ominous example to the other States, and must weaken much the claim on Great Britain of an execution of the treaty on her part, as promised in case of proper steps being taken on ours. Virginia, we foresee, will be among the foremost in seizing pretexts for evading the injunctions of Congress. South Carolina is not less infected with the same spirit. The present deliberations of Congress turn on, first, the sale of the Western lands; secondly, the government of the Western settlements within the Federal domain; thirdly, the final settlement of the accounts between the Union and its members; fourthly, the treaty with Spain.
1. Between six and seven hundred thousand acres have been surveyed in townships, under the land ordinance, and are to be sold forthwith. The place where Congress sit is fixed for the sale. Its eccentricity, and remoteness from the premises, will, I apprehend, give disgust. On the most eligible plan of selling the unsurveyed residue, Congress are much divided; the Eastern States being strongly attached to that of townships, notwithstanding the expense incident to it; the Southern being equally biassed in favor of indiscriminate locations, notwithstanding the many objections against that mode. The dispute will probably terminate in some kind of compromise, if one can be hit upon.
2. The government of the settlements on the Illinois and Wabash is a subject very perplexing in itself, and rendered more so by our ignorance of many circumstances on which a right judgment depends. The inhabitants at those places claim protection against the savages, and some provision for both criminal and civil justice. It appears also that land-jobbers are among them, who are likely to multiply litigations among individuals, and, by collusive purchases of spurious titles, to defraud the United States.
3. The settlement of the public accounts has long been pursued in varied shapes, and with little prospect of success. The idea which has long been urged by some of us, seems now to be seriously embraced, of establishing a plenipotentiary tribunal for the final adjustment of the mutual claims, on the great and simple principle of equity. An ordinance for this purpose has been reported by the Treasury Board, and has made some progress through Congress. It is likely to be much retarded by the thinness of Congress, as indeed is almost every other matter of importance.
4. The Spanish negotiation is in a very ticklish situation. You have been already apprized of the vote of seven States last fall for ceding the Mississippi for a term of years. From sundry circumstances it was inferred that Jay was proceeding under this usurped authority. A late instruction to him to lay the state of the negotiation before Congress has discovered that he has adjusted with Guardoqui an article for suspending the use of the Mississippi by the citizens of the United States. The report, however, leaves it somewhat doubtful how far the United States are committed by this step, and a subsequent report of the Secretary on the seizure of Spanish property in the Western country, and on information of discontents touching the occlusion of the Mississippi, shews that the probable consequences of the measure perplex him extremely. It was nevertheless conceived by the instructed delegations to be their duty to press a revocation of the step taken, in some form which would least offend Spain, and least irritate the patrons of the vote of seven States. Accordingly a motion was made to the following effect—that the present state of the negotiation with Spain, and of the affairs of the United States, rendered it expedient that you should proceed, under a special commission, to Madrid, for the purpose of making such representations as might at once impress on that Court our friendly disposition and induce it to relax on the contested points; and that the proper communications and explanations should be made to Guardoqui relative to this change in the mode of conducting the negotiation. This motion was referred to Mr. Jay, whose report disapproves of it. In this state the matter lies. Eight States only being present, no effective vote is to be expected. It may, notwithstanding, be incumbent on us to try some question which will at least mark the paucity of States who abet the obnoxious project. Massachusetts and New York alone, of the present States, are under that description; and Connecticut and New Hampshire alone of the absent. Maryland and South Carolina have hitherto been on the right side. Their future conduct is somewhat problematical. The opinion of New Hampshire is only conjectured. The conversion of Rhode Island countenances a hope that she too may, in this instance, desert the New England standard.
The prospect of a full and respectable Convention grows stronger every day. Rhode Island alone has refused to send Deputies. Maryland has probably appointed by this time. Of Connecticut alone doubts are entertained. The anti-federal party in that State is numerous and persevering. It is said that the elections which are now going on are rather discouraging to the advocates of the Convention. Pennsylvania has added Dr. Franklin to her deputation. There is some ground to calculate on the attendance of General Washington. Our Governor, Mr. Wythe, Mr. Blair, and Col. Mason will pretty certainly attend. The last, I am informed, is renouncing his errors on the subject of the Confederation, and means to take an active part in the amendment of it. Mr. Henry pretty soon resigned the undertaking. General Nelson was put into his place, who has also declined. He was succeeded by Mr. R. H. Lee, who followed his example. Doctor M’Clurg has been since appointed, and as he was on the spot must have been previously consulted.
April, 1787.mad. mss.
Observations by J. M. (A copy taken by permission by Danl.Vices of the Political system of the U. States. Carroll & sent to Chs Carroll of Carrollton.)
1. This evil has been so fully experienced both during the war and since the peace, results so naturally from the number and independent authority of the States and has been so uniformly exemplified in every similar Confederacy,1. Failure of the States to comply with the Constitutional requisitions. that it may be considered as not less radically and permanently inherent in than it is fatal to the object of the present system.
2. Encroachments by the States on the federal authority.2. Examples of this are numerous and repetitions may be foreseen in almost every case where any favorite object of a State shall present a temptation. Among these examples are the wars and treaties of Georgia with the Indians. The unlicensed compacts between Virginia and Maryland, and between Pena. & N. Jersey—the troops raised and to be kept up by Massts.
3. Violations of the law of nations and of treaties.3. From the number of Legislatures, the sphere of life from which most of their members are taken, and the circumstances under which their legislative business is carried on, irregularities of this kind must frequently happen. Accordingly not a year has passed without instances of them in some one or other of the States. The Treaty of Peace—the treaty with France—the treaty with Holland have each been violated. [See the complaints to Congress on these subjects.] The causes of these irregularities must necessarily produce frequent violations of the law of nations in other respects.
As yet foreign powers have not been rigorous in animadverting on us. This moderation, however cannot be mistaken for a permanent partiality to our faults, or a permanent security agst those disputes with other nations, which being among the greatest of public calamities, it ought to be least in the power of any part of the community to bring on the whole.
4. Trespasses of the States on the rights of each other.4. These are alarming symptoms, and may be daily apprehended as we are admonished by daily experience. See the law of Virginia restricting foreign vessels to certain ports—of Maryland in favor of vessels belonging to her own citizens—of N. York in favor of the same—
Paper money, instalments of debts, occlusion of Courts, making property a legal tender, may likewise be deemed aggressions on the rights of other States. As the Citizens of every State aggregately taken stand more or less in the relation of Creditors or debtors, to the Citizens of every other State, Acts of the debtor State in favor of debtors, affect the Creditor State, in the same manner as they do its own citizens who are relatively creditors towards other citizens. This remark may be extended to foreign nations. If the exclusive regulation of the value and alloy of coin was properly delegated to the federal authority, the policy of it equally requires a controul on the States in the cases above mentioned. It must have been meant 1. to preserve uniformity in the circulating medium throughout the nation. 2. to prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquillity at home, or involve the Union in foreign contests.
The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive and vexatious in themselves than they are destructive of the general harmony.
5. Want of concert in matters where common interest requires it.5. This defect is strongly illustrated in the state of our commercial affairs. How much has the national dignity, interest, and revenue, suffered from this cause? Instances of inferior moment are the want of uniformity in the laws concerning naturalization & literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, wch may at present be defeated by the perverseness of particular States whose concurrence is necessary.
6. Want of Guaranty to the States of their Constitutions & laws against internal violence.6. The confederation is silent on this point and therefore by the second article the hands of the federal authority are tied. According to Republican Theory, Right and power being both vested in the majority, are held to be synonimous. According to fact and experience a minority may in an appeal to force, be an overmatch for the majority. 1. if the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one-third only may conquer the remaining two-thirds. 2. one-third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government. 3. where slavery exists the republican Theory becomes still more fallacious.
7. Want of sanction to the laws, and of coercion in the Government of the Confederacy.7. A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Conution. Under the form of such a constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between independent and Sovereign States. From what cause could so fatal an omission have happened in the articles of Confederation? from a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals: a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies, to the acts of the federal Government ought not to be calculated on. Even during the war, when external danger supplied in some degree the defect of legal & coercive sanctions, how imperfectly did the States fulfil their obligations to the Union? In time of peace, we see already what is to be expected. How indeed could it be otherwise? In the first place, Every general act of the Union must necessarily bear unequally hard on some particular member or members of it, secondly the partiality of the members to their own interests and rights, a partiality which will be fostered by the courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence, thirdly a distrust of the voluntary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all. Here are causes & pretexts which will never fail to render federal measures abortive. If the laws of the States were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congs. which depending for their execution on the will of the State legislatures, wch are tho’ nominally authoritative, in fact recommendatory only?
8. Want of ratification by the people of the articles of Confederation.8. In some of the States the Confederation is recognized by, and forms a part of the Constitution. In others however it has received no other sanction than that of the legislative authority. From this defect two evils result: 1. Whenever a law of a State happens to be repugnant to an act of Congress, particularly when the latter [former] is of posterior date to the former, [latter] it will be at least questionable whether the latter [former] must not prevail; and as the question must be decided by the Tribunals of the State, they will be most likely to lean on the side of the State.
2. As far as the union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of the Confederation by any of the parties to it, absolves the other parties from their respective Obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.
9. Multiplicity of laws in the several States.9. In developing the evils which viciate the political system of the U S., it is proper to include those which are found within the States individually, as well as those which directly affect the States collectively, since the former class have an indirect influence on the general malady and must not be overlooked in forming a compleat remedy. Among the evils then of our situation may well be ranked the multiplicity of laws from which no State is exempt. As far as laws are necessary to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion which might be abused, their number is the price of liberty. As far as laws exceed this limit, they are a nuisance; a nuisance of the most pestilent kind. Try the Codes of the several States by this test, and what a luxuriancy of legislation do they present. The short period of independency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume. This may be the effect in part, but it can only be in part, of the situation in which the revolution has placed us. A review of the several Codes will shew that every necessary and useful part of the least voluminous of them might be compressed into one tenth of the compass, and at the same time be rendered ten fold as perspicuous.
10. mutability of the laws of the States.10. This evil is intimately connected with the former yet deserves a distinct notice, as it emphatically denotes a vicious legislation. We daily see laws repealed or superseded, before any trial can have been made of their merits, and even before a knowledge of them can have reached the remoter districts within which they were to operate. In the regulations of trade this instability becomes a snare not only to our citizens, but to foreigners also.
11. Injustice of the laws of the States.11. If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself; but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of public Good and private rights. To what causes is this evil to be ascribed?
These causes lie 1. in the Representative bodies. 2. in the people themselves.
1. Representative appointments are sought from 3 motives. 1. ambition. 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent. Hence the candidates who feel them, particularly, the second, are most industrious, and most successful in pursuing their object: and forming often a majority in the legislative Councils, with interested views, contrary to the interest and views of their constituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unway to misplace their confidence?
How frequently too will the honest but unenlightened representative be the dupe of a favorite leader, veiling his selfish views under the professions of public good, and varnishing his sophistical arguments with the glowing colours of popular eloquence?
2. A still more fatal if not more frequent cause, lies among the people themselves. All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors—rich or poor—husbandmen, merchants or manufacturers—members of different religious sects—followers of different political leaders—inhabitants of different districts—owners of different kinds of property &c &c. In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals? Three motives only 1. a prudent regard to their own good as involved in the general and permanent good of the community. This consideration although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals, that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it to be imagined that an ordinary citizen or even Assemblyman of R. Island in estimating the policy of paper money, ever considered or cared, in what light the measure would be viewed in France or Holland; or even in Massts or Connect? It was a sufficient temptation to both that it was for their interest; it was a sufficient sanction to the latter that it was popular in the State; to the former, that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other passions, is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of religion, and while it lasts will hardly be seen with pleasure at the helm of Government. Besides as religion in its coolest state is not infallible, it may become a motive to oppression as well as a restraint from injustice. Place three individuals in a situation wherein the interest of each depends on the voice of the others; and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand? The contrary is witnessed by the notorious factions & oppressions which take place in corporate towns limited as the opportunities are, and in little republics when uncontrouled by apprehensions of external danger. If an enlargement of the sphere is found to lessen the insecurity of private rights, it is not because the impulse of a common interest or passion is less predominant in this case with the majority; but because a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number. The Society becomes broken into a greater variety of interests, of pursuits of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be inferred that the inconveniences of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits.
The great desideratum in Government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions, to controul one part of the society from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the whole Society. In absolute Monarchies the prince is sufficiently, neutral towards his subjects, but frequently sacrifices their happiness to his ambition or his avarice. In small Republics, the sovereign will is sufficiently controuled from such a sacrifice of the entire Society, but is not sufficiently neutral towards the parts composing it. As a limited monarchy tempers the evils of an absolute one; so an extensive Republic meliorates the administration of a small Republic.
An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the society the purest and noblest characters which it contains; such as will at once feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.
OF ANCIENT & MODERN CONFEDERACIES.mad. mss.
In this confederacy the number of votes allotted to each member was proportioned to its pecuniary contributions. The Judges and Town magistrates were elected by the general authority in like proportion.
See Montesquieu who prefers this mode.
The name of a federal republic may be refused to Lycia which Montesquieu cites as an example in which the importance of the members determined the proportion of their votes in the general Councils. The Gryson League is a juster example. Code de l’Hum Confederation.
Lyciorum quoque ανομιαν celebrat Strabo: de quâ pauca libet heic subjungere. Fuêre eorum urbes XXIII, distinctæ in classes tres pro modo virium. In primâ classe censebantur maximæ sex, in alterâ mediæ, numero nobis incerto, in tertiâ reliquæ omnes, quarum fortuna minima. Et singulæ quidem urbes hæ domi res suas curabant, magistratus suos, ordinemque civilem suum habebant: universæ tamen in unum coëuntes unam communem rempublicam constituebant, concilioque utebantur uno, velut, senatu majore. In eo de bello, de pace, de fœderibus, denique de rerum Lyciacarum summâ deliberabant et statuebant. Coibant vero in concilium hoc ex singulis urbibus missi cum potestate ferendi suffragii: utebanturque eâ in re jure æquissimo. Nam quælibet urbs primæ classis habebat jus suffragiorum trium, secundæ duorum, tertiæ unius. Eademque proportione tributa quoque conferebant, et munia alia obibant. Quemadmodum enim ratio ipsa dictat, et poscit æquitas, ut plura qui possident, et cæteris ditiores sunt, plura etiam in usus communes, et reipublicæ subsidia conferant, sic quoque eadem æquitatits regula postulat, ut in statuendo de re communi iidem illi plus aliis possint: præsertim cum eorundem magis intersit rempublicam esse salvam quam tenuiorum. Locum concilii hujus non habebant fixum & certum, sed, ex omnibus urbem deligebant, quæ videbatur pro tempore commodissima. Concilio coacto primum designabant Lyciarcham principem totius Reipublicæ, dein magistratus alios creabant partes reipublicæ administraturos demum judicia publica constituebant. Atque hæc omnia faciebant servatâ proportione eâdem, ut nulla omnino urbs præteriretur munerumve aut honorum horum non fieret particeps. Et hoc jus illibatum mansit Lyciis ad id usque tempus, quo Romani assumpto Asiæ imperio magnâ ex parte sui arbitrii id fecerunt.—Ubbo Emmius de Republica Lyciorum in Asia. [Apud Grovonii Thes., iv, 597.]
Instituted by Amphyction son of Deucalion King of Athens 1522 years Ant.: Christ.: Code De l’Humanité.
Seated first at Thermopylæ, then at Delphos, afterwards at these places alternately. It met half yearly to wit in the Spring & Fall, besides extraordinary occasions. Id. In the latter meetings, all such of the Greeks as happened to be at Delphos on a religious errand were admitted to deliberate, but not to vote. Encyclopedie.
The number and names of the confederated Cities differently reported. The Union seems to have consisted originally of the Delphians and their neighbors only, and by degrees to have comprehended all Greece. 10, 11, 12, are the different numbers of original members mentioned by different Authors. Code de l’Humanité.
Each city sent two deputies one to attend particularly to Religious matters—the other to civil and criminal matters affecting individuals—both to decide on matters of a general nature. Id. Sometimes more than two were sent, but they had two votes only. Encyclop.
The Amphyctions took an oath mutually to defend and protect the united Cities—to inflict vengeance on those who should sacrilegiously despoil the temple of Delphos—to punish the violators of this oath—and never to divert the water courses of any of the Amphyctionic Cities either in peace or in war. Code de l’Hum. Æschines orat: vs. Ctesip.
The Amphyctionic Council was instituted by way of defence and terror agst the Barbarians. Dictre de Treviux.
The Amphyctions had full power to propose and resolve whatever they judged useful to Greece. Encycop Pol. Œcon.
1. They judged in the last resort all differences between the Amphyctionic cities. Code de l’Hum.
2. mulcted the aggressors. Id.
3. employed whole force of Greece agst such as refused to execute its decrees. Id. & Plutarch, Cimon.
4. guarded the immense Riches of the Temple of Delphos, and decided controversies between the inhabitants and those who came to consult the Oracle. Encyclop.
5. superintended the Pythian games. Code de l’Hum.
6. exercised right of admitting new members. See decree admitting Philip, in Demosthenes on Crown.
7. Appointed General of the federal troops with full powers to carry their decrees into execution. Ibid.
8. Declared & carried on war. Code de l’Human.
Strabo says that the Council of the Amphyctions was dissolved in the time of Augustus; but Pausanias, who lived in the time of Antoninus Pius says it remained entire then, and that the number of Amphyctions was thirty. Potter’s Gre. Ant: Vol. 1, p. 90.
The institution declined on the admission of Phil and in the time of the Roman Emperors, the functions of the Council were reduced to the administration & police of the Temple. This limited authority expired only with the Pagan Religion. Code de l’Human.
Vices of the Constitution.
It happened but too often that the Deputies of the strongest Cities awed and corrupted those of the weaker, and that Judgment went in favor of the most powerful party. Id. see also Plutarch’s Themistocles.
Greece was the victim of Philip. If her Confederation had been stricter, & been persevered in, she would never have yielded to Macedon, and might have proved a Barrier to the vast projects of Rome. Code de l’Hum.
Philip had two votes in the Council. Rawleigh Hist: World, lib. 4, c. 1, Sec. 7.
The execution of the Amphyctionic powers was very different from the Theory. Id.—It did not restrain the parties from warring agst each other. Athens & Sparta were members during their conflicts. Quer. whether Thucidides or Xenophon in their Histories ever allude to the Amphyctionic authority which ought to have kept the peace?
See Gillies’ Hist. Greece, particularly Vol. II. p. 345.
In 124 olympd. the Patrians & Dymæans joined first in this league. Polyb. lib. 2, c. 3.
This League consisted at first of three small Cities. Aratus added Sicyon, and drew in many other Cities of Achaia & Peloponnesus. Of these he formed a Republic of a peculiar sort. Code de l’Human.
It consisted of twelve cities, and was produced by the necessity of such a defence agst the Etolians. Encyclo. Pol. Œ. & Polyb. lib. 2.
The members enjoyed a perfect equality, each of them sending the number of deputies to the Senate. Id.
The Senate assembled in the Spring & Fall, and was also convened on extraordinary occasions by two Pretors charged with the administration during the recess, but who could execute nothing witht the consent of the Inspectors. Id.
1. The Senate composed of the deputies made war & peace. D’Albon I page 270
2. Appointed a Captain General annually. Co. d’Hum.
3. Transferred the power of deciding to ten Citizens taken from the deputies, the rest retaining a right of consultation only. Id.
4. Sent and received Ambassadors. D’Albon. Ibid.
5. appointed a prime Minister. D’Albon. Ibid.
6. Contracted foreign Alliances. Code de l’Hum.
7. Confederated Cities in a manner forced to receive the same laws & customs weights & measures: Id. & Polyb. lib. 2 cap. 3, yet considered as having each their independent police & Magistrates. Encyclop. Pol. Œcon.
8. Penes hoc concilium erat summum rerum arbitrium, ex cujus decreto bella suscipiebantur, & finiebantur, pax conveniebat, fœdera feriebantur & solvebantur, leges fiebant ratæ aut irritæ. Hujus etiam erat Magistratus toti Societati communes eligere, legationes decernere &c. Regebant concilium prætor præcipue, si præsens esset, et magistratus alii, quos Achæi δημιουργοὺς nuncupabant. Ubbo Emmius.
Hi numero X erant suffragiis legitimi concilii, quod verno tempore habebatur, electi ex universa societate prudentia præcipui, quorum concilio potissimum prætor ex lege utebatur. Horum potestas & dignitas maxima erat post ipsum Prætorem, quos idcirco Livius, Polybium sequens, summum Achæorum magistratum appellabat. Cum his igitur de negociis gravioribus in concilio agitandis Prætor præconsultabat, nec de iis, nisi in id pars major consentiret, licebat ad consilium referre. Id.
Ista vero imprimis memorabilis lex est, vinculum societatis Achaicæ maximé stringens, et concordiam muniens, quâ interdictum fuit, ne cui civitati Societatis hujus participi fas esset, seorsim ad exteros ullos mittere legatos, non ad Romanos, non ad alios. Et hoc expressim inserta fuit pactis conventis Achæorum cum populo Romano. . . . Omnium autem laudatissima lex apud eos viguit &c., quâ vetitum, ne quis omnino, sive privatæ conditionis, seu magistratum gerens, ullam ob causam, quæcunque etiam sit, dona a Rege aliquo caperet. Id.
Vices of the Constitution.
The defect of subjection in the members to the general authority ruined the whole Body. The Romans seduced the members from the League by representing that it violated their sovereignty. Code de l’Human.
After the death of Alexander, this Union was dissolved by various dissentions, raised chiefly thro’ the acts of the Kings of Macedon. Every City was now engaged in a separate interest & no longer acted in concert. Polyb. lib 2, cap. 3. After in 142 Olympd, they saw their error & began to think of returning to their former State. This was the time when Pyrhus invaded Italy. Ibid.
Commenced in 1308 by the temporary, and in 1315 by the perpetual Union of Uri, Switz & Underwald, for the defence of their liberties agst. the invasions of the House of Austria. In 1315 the Confederacy included 8 Cantons, and 1513 the number of 13 was compleated by the accession of Appenzel. Code de l’Hum.
The General Diet representing the United Cantons is composed of two deputies from each. Some of their allies as the Abbi St. Gall &c., are allowed by long usage to attend by their deputies. Id.
All general Diets are held at such time & place as Zurich, which is first in rank & the depository of the common archives, shall name in a circular summons. But the occasion of annual conferences for the administration of their dependent bailages has fixed the same time, to wit the feast of St. John, for the General Diet. And the city of Frauenfeld in Turgovia is now the place of Meeting. Formerly it was the City of Baden. Id.
The Diet is opened by a Complimentary Address of the first Deputy of each Canton by turns, called the Helvetic salutation. It consists in a congratulatory review of circumstances & events favorable to their common interest—and exhortations to Union and patriotism.
The deputies of the first canton Zurich propose the matters to be discussed. Questions are decided by plurality of voices. In case of division, the Bailiff of Turgovia has the casting one. The Session of the Diet continues about a month. Id.
After the objects of universal concern are despatched, such of the deputies whose Constituents have no share in the dependent bailages, withdraw, and the Diet then becomes a representation of the Cantons to whom these bailages belong, and proceeds to the consideration of the business relating thereto. Id.
Extraordinary Diets for incidental business or giving audience to foreign ministers may be called at any time by any one of the Cantons or by any foreign minister who will defray the expense of meeting. Seldom a year without an extraordinary Diet. Stanyan’s Switzerland.
There is an annual Diet of 12 Cantons by one deputy from each for the affairs of the Ultramontane bailages. Code de l’Human.
Particular Cantons also have their diets for their particular affairs, the time & place for whose meeting are settled by their particular Treaties.
All public affairs are now treated not in Genl Diet, but in the particular Assemblies of Protestant & Catholic Cantons. D’Albon.
The title of Republic and Sovereign State improperly given to this Confederacy, which has no concentered authority the Diets being only a Congress of Delegates from some or all of the Cantons, and having no fixt objects that are national. Dictionaire de Suisse.
The 13 Cantons do not make one Commonwealth like the United Provinces, but are so many independent Coonwealths in strict alliance. There is not so much as any common instrument by which they are all reciprocally bound together; The 3 primitive Cantons alone being each directly allied to the other twelve. The others in many instances are connectedindirectly only, as allies of allies. In this mode any one Canton may draw in all the others to make a common cause in its defence. Stanyan.
The confederacy has no common Treasury—no common troops—no common Coin—no common Judicatory—nor any other common mark of sovereignty. Id.
The General Diet cannot terminate any interesting affair without special instructions, & powers, & the deputies accordingly take most matters proposed ad referendum. Code de l’Hum.
The Cantons individually exercise the right of sending & receiving ambassadors—making Treaties—coining money—proscribing the money of one another—prohibiting the importation and exportation of merchandise—furnishing troops to foreign States, and doing everything else which does not wound the liberty of any other Canton. Excepting a few cases specified in the Alliances and which directly concern the object of the league, no Canton is subject to the Resolutions of the plurality. Id.
The only establishment truly national is that of a federal army, as regulated in 1668, and which is no more than an eventual plan of defence adopted among so many allied States. Id.
1. The League consists in a perpetual defensive engagement agst external attacks and internal troubles. It may be regarded as an axiom in the public Law of the confederacy, that the federal engagements are precedent to all other political engagements of the Cantons. Id.
2. Another axiom is that there are no particular or common possessions of the Cantons for the defence of which the others are not bound as Guarantees or auxiliaries of Guarantees. Id.
3. All disputes are to be submitted to Neutral Cantons, who may employ force if necessary in execution of their decrees. Id. Each party to choose 4 Judges who may in case of disagreement chuse umpire, and these under oath of impartiality to pronounce definitive sentence, which all Cantons to enforce.—D’Albon. & Stan.
4. No Canton ought to form new alliances without the consent of the others [this was stipulated in consequence of an improper alliance in 1442 by Zurich with the House of Austria.] Id.
5. It is an essential Object of the league to preserve interior tranquillity by the reciprocal protection of the form of Governmt established in each Canton, so that each is armed with the force of the whole Corps for the suppression of rebellions & Revolts, and the History of Switzerland affords frequent instances of mutual succors for these purposes. Dictre. de Suisse.
6. The Cantons are bound not to give shelter to fugitives from Justice, in consequence of which each Canton can at this day banish malefactors from all the territories of the League. Id.
7. Tho’ each Canton may prohibit the exportation & importation of merchandize, it must allow it to pass thro’ from one neighboring Canton to another without any augmentation of the tolls. Code de l’Hum.
8. In claiming succors agst foreign powers, the 8 Elder Cantons have a more extensive right than the 5 Junior ones. The former may demand them of one another without explaining the motives of the quarrel. The latter cannot intermeddle but as mediators or auxiliaries; nor can they commence hostilities without the sanction of the Confederates; and if cited by their adversaries, cannot refuse to accept the other Cantons for arbiters or Judges. Dictre. de Suisse.
9. In general each Canton is to pay its own forces without compensation from the whole or the succoured party. But in case a siege is to be formed for the benefit of a particular Canton, this is to defray the expence of it, and if for the common benefit, each is to pay its just proportion. D’Albon. On no pretext is a Canton to be forced to march its troops out of the limits of Switzerland. Stanyan.
10. Foreign Ministers from different Nations reside in different Cantons. Such of them as have letters of credence for the whole Confederacy address them to Zurich the chief Canton. The Ambassador of France, who has most to do with the Confederacy is complimented at his Quarters by deputies from the whole body.
Vices of the Constitution
1. disparity in size of Cantons
2. different principles of Governmt. in difft. Cantons
3. intolerance in Religion
4. weakness of the Union. The coon bailages wch. served as a cement, sometimes become occasions of quarrels. Dictre. de Suisse.
In a treaty in 1683 with Victor Amadœus of Savoy, it is stipulated that he shall interpose as Mediator in disputes between the Cantons, and if necessary use force agst the party refusing to submit to the sentence. Dictre. de Suisse.—a striking proof of the want of authority in the whole over its parts.
established in 1679 by the Treaty called the Union of Utrecht. Code de l’Humanité.
The provinces came into this Union slowly. Guelderland the smallest of them made many difficulties. Even some of the Cities & towns pretended to annex conditions to their acceding. Id.
When the Union was originally established a committee composed of deputies from each province was appointed to regulate affairs, and to convoke the provinces according to art. XIX of the Treaty. Out of this Committee grew the States General Id.—who strictly speaking are only the Representatives of the States General who amount to 800 members. Temple, p. 112.
The number of Deputies to the States General from each province not limited, but have only a single voice. They amount commonly, all together to 40 or 50. They hold their seats, some for life, some for 6 3 & 1 years, & those of Groninguen & Overyssel during pleasure. They are paid, but very moderately, by their respective constituents, and are amenable to their Tribunals only. Code de l’Hum. No military man is deputable to the States Genl Id.
Ambassrs. of Republic have session & deliberation but no suffrage in States Genl. Id. The grand pensioner of Holland as ordinary deputy from Holland, attends always in the States Genl, & makes the propositions of that Province to States Gl. Id.
They sit constantly at the Hague since 1593, and every day in the week except Saturday & Sunday. The States of Holland in granting this residence, reserve by way of protestation, the rights, the honors & prerogatives belonging to them as sovereigns of the Province; yielding the States Genl. only a rank in certain public ceremonies. Id.
The eldest deputy from each province presides for a week by turns. The president receives letters &c. from the Ministers of the Republic at foreign Courts, and of foreign Ministers residing at the Hague, as well as of all petitions presented to the Assembly; all which he causes to be read by the Secretary. Id.
The Secretary besides correcting & recording the Resolutions prepares & despatches instructions to Ministers abroad—& letters to foreign powers. He assists also at conferences held with foreign Ministers & there gives his voice. He has a deputy when there is not a second Secretary. The Agent of the States Genl is charged with the Archives and is also employed on occasions of receiving foreign Ministers or sending Messages to them. Id.
The avowed objects of the Treaty of Union. 1. to fortify the Union—2. to repel the common enemy. Id.
The Union is to be perpetual in the same manner as if the Confederates formed one province only, without prejudice however to the privileges & rights of each province & City. Id.
Differences between provinces & between Cities are to be settled by the ordinary Judges—by arbitration—by amicable agreement, without the interference of other provinces otherwise than by way of accommodation. The Stadtholder is to decide such differences in the last resort. Id.
No change to be made in the articles of Union, without unanimous consent of the parties & everything done contrary to them to be null & void. Id.
States General. 1. execute, without consulting their constituents, treaties & alliances already formed. Id.
2. take oaths from Generals & Governrs, and appoint Field Deputies.
3. The collection of duties on imports & exports and the expedition of Safe Conducts are in their name & by their officers. Id.
4. they superintend & examine accounts of the E. India Company. Id.
5. inspect the Mint—appoint les Maitres de la Monnoye—fix la taille & la valeur of the Coin, having always regard to the regular rights of the provinces within their own Territories. Id.
6. Appoint a Treasurer General & Receiver General of the Quotas furnished by the Provinces. Id.
7. elect out of a double nomination, the fiscal & other officers within the departments of the admiralties, except that the High officers of the fleet are appointed by the Admiral General, to whom the maritime provinces have ceded this right. Id.—The Navy supported by duties on foreign trade, appropriated thereto by the maritime provinces, for the benefit of the whole Republic. Id.
8. They govern as sovereigns, the dependent territories, according to the several capitulations. Id.
9. they form Committees of their own body of a member from each deputation, for foreign affairs—finances marine—& other matters. At all these conferences the Grand Pensioner of Holland & the Secretary of the States Genl attend and have a deciding voice. Id.
10. Appt & receive Ambassrs—negociate wth foreign powers—deliberate on war—peace—alliances—the raising forces—care of fortifications—military affairs to a certain degree—the equipment of fleets—building of ships—directions concerning money. Id. But they can neither make peace—nor war—nor truces—nor treaties—nor raise troops—nor impose taxes, nor do other acts requiring unanimity without consulting & obtaining the sanction of the Provinces. Id. Coining money also requires unanimity & express sanction of provinces Temple. repealing an old law on same footing. Burrish. Batav illustrata. In points not enumerated in this article plurality of voices decides. Code de l’Hum.
11. composition & publication of edicts & proclamations relative both to the objects expressed in the articles of Union and to the measures taken for the coon good, are in the name of the States, and altho’ they are addressed to the States of the Provinces who announce them with their sanction, still it is in the name of the States Genl that obedience is required of all the inhabitants of the provinces. Code de l’Hum.
The Provinces have reserved to themselves.
1. their sovereignty within their own limits in general. Code de l’Hum.
2. the right of coining money, as essential to Sovereignty, but agreed at the same time that the money which sd be current throughout the Republic sd. have the same intrinsic value: To give effect to which regulation a mint is established at the Hague under a chamber which has the inspection of all money struck either in name of States Genl or particular provinces, as also of foreign coin. Id.—Coining money not in provinces or Cities, but in the generality of Union by coon agreement. Temple.
3. Every province raises what money & by what means it pleases, and sends its quota to Receiver General Temple.
The quotas were not settled without great difficulty. Id.
4. the naming to Goverts of Towns within themselves—keeping keys & giving word to Magistrates—a power over troops in all things not military—conferring Cols Coissions & inferior posts in such Regiments as are paid by the provinces respectively—taking oath of fidelity—concerning a revocation of all which the States Genl are not permitted to deliberate. Id.
The Provinces are restricted.
1. from entering into any foreign Treaties without consent of the rest. Code de Hum.
2. from establishing imposts prejudicial to others without general consent. Id.
3. from charging their neighbours with higher duties than their own subjects. Id.
Council of State.—composed of deputies from the provinces in different proportions. 3 of them are for life, the rest generally for 3 years: they vote per capita. Temple.
They are subordinate to the States General, who frequently however consult with them. In matters of war which require secrecy they act of themselves. Military & fiscal matters are the objects of their administration. They vote.
They execute the resolutions of the States Genl., propose requisitions of men & money & superintend the fortifications &c., & the affairs of revenues & Govts., of the conquered possessions. Temple.
Chamber of Accounts, was erected for the ease of the Council of State. It is subordinate to the States Genl, is composed of two deputies from each province, who are changed triennially. They examine and state all accts of the several Receivers—controul and register orders of Council of State disposing of the finances. Id.
College of Admiralty established by the States Genl 1597 is subdivided into five of wch. three are in Holland—one in Zealand—one in Friezland, each composed of 7 deputies, 4 appd. by the province where the admiralty resides & 3 by the other provinces. The vice-Admiral presides in all of them when he is present. Temple.
They take final cognizance of all crimes & prizes at sea; — — — —— of all frauds in customs provide quota of fleets resolved on by States Genl appt. Capts & superior officers of each squadron take final cognizance also of Civil matters within 600 florins—an appeal lying to States Genl for matters beyond that sum. Code de l’Hum. & Temple.
The authority of States Genl. in Admiralty Depmartt is much limited by the influence & privileges of maritime provinces, & the jurisdiction herein is full of confusion & contradiction. Code de l’humanité.
Stadtholder who is now hereditary in his political capacity is authorized 1. to settle differences between provinces, provisionally till other methods can be agreed on, which having never been this prerogative may be deemed a permanent one. Code de l’Hum.
2. Assists at deliberations of States Genl & their particular conferences, recommends & influences appointmt of Ambassadors. Id.
3. has seat & suffrage in Council of State. Id.
4. presiding in the provincial Courts of Justice where his name is prefixed to all public acts. Id.
5. supreme Curator of most of the Universities. Id.
6. As Stadtholder of the provinces has considerable rights partaking of the sovereignty, as appointing town magistrates on presentation made to him of a certain number. Executing provincial decrees &c. Id. & Mably, Etud. de l’hist.
7. gives audiences to Ambassadors & may have Agents with their Sovereigns for his private affairs. Mab. Ibid
8. exercises power of pardon. Temple.
In his Military capacity as Capt. Genl.
1. commands forces—directs marches—provides for garrisons—& in general regulates military affairs. Code de l’Hum.
2. disposes of all appointmts, from Ensigns to Cols. The Council of State havg. surrendered to him the appointmts within their disposal Id. & the States Genl appt the higher grades on his recoendation. Id.
3. disposes of the Govts &c. of the fortified towns tho’ the coissions issue from the States Genl. Id.
In his Marine capacity as Admiral General. 1. superintends & directs everything relative to naval forces & other affairs within Admiralty. Id.
2. presides in the Admiralties in person or by proxy. Id.
3. Appoints Lieuts. Admirals & officers under them. Id.
4. establishes Councils of war, whose sentences are in the name of the States Genl & his Highness and are not executed till he approves. Id.
The Stadtholder has a general & secret influence on the great machine which cannot be defined. Id.
His Revenue from appointmts. amount to 300,000 florins, to which is to be added his extensive patrimonies. Id.
The standing army of the Republic, 40,000 men.
Vices of the Constitution.
The Union of Utrecht imports an authority in the States Genl seemingly sufficient to secure harmony; but the Jealousy in each province of its sovereignty renders the practice very different from the Theory. Code de l’Hum.
It is clear that the delay occasioned by recurring to seven independent provinces including about 52 voting Cities &c. is a vice in the Belgic Republic which exposes it to the most fatal inconveniences. Accordingly the fathers of their country have endeavored to remedy it in the extraordinary Assemblies of the States Genl. in (1584) in 1651, 1716, 1717, but unhappily without effect. This vice is notwithstanding deplorable. Id.—Among other evils it gives foreign ministers the means of arresting the most important deliberations by gaining a single province or city. This was done by France in 1726, when the Treaty of Hanover was delayed a whole year. In 1688 the States concluded a Treaty of themselves but at the risk of their heads. Id. It is the practice also in matters of contribution or subsidy to pass over this article of the Union, for where delay wd. be dangerous the consenting provinces furnish their quotas without waiting for the others, but by such means the Union is weakened and if often repeated must be dissolved—Id.
Foreign Ministers elude matters taken ad referendum by tampering with the provinces & Cities. Temple p. 116.
Treaty of Union obliges each Province to levy certain contributions. But this article never could probably never will be executed because the inland provinces who have little commerce cannot pay an equal Quota. Burrish, Bat. illustrat:
Deputations from agreeing to disagreeing provinces frequent. Temple.
It is certain that so many independent Corps & interests could not be kept together without such a center of Union as the Stadtholdership, as has been allowed & repeated in so many solemn Acts. Code de Hum.
In the intermission of the Stadtholdership Holland by her Riches & Authority which drew the others into a sort of dependence, supplied the place. Temple.
With such a Governmt. the Union never cd have subsisted, if in effect the provinces had not within themselves a spring capable of quick—ing their tardiness, and impelling them to the same way of thinking. This Spring is the Stadtholder. His prerogatives are immense—1, &c. &c.—A strange effect of human contradictions. Men too jealous to confide their liberty to their representatives who are their equals, abandoned it to a prince who might the more easily abuse it as the affairs of the Republic were important & had not them fixed themselves. Mably Etude d’Hist., 205. 6.
Grotius has sd. that the hatred of his countrymen agst the H of Austria kept them from being destroyed by the vices of their Constitution. Ibid.
The difficulty of procuring unanimity has produced a breach of fundamentals in several instances—Treaty of Westphalia was concluded without consent of Zealand &c D’Albon & Temple—These tend to alter the constitution. D’Albon.
It appears by several articles of the Union that the confederates had formed the design of establishing a Genl tax, [Impôt,] to be administered by the States Genl.. But this design so proper for bracing this happy Union has not been executed. Code de l’Hum.
Germanic Confederacy—took its present form in the year —.—Code de l’Hum.
The Diet is to be convoked by the Emperor, or on his failure, by the Archbishop of Mentz, with consent of Electors once in ten years at least from the last adjournment, and six months before the time of meeting. Ratisbon is the seat of the Diet since 1663.
The members amount to 285, and compose three Colleges, to wit, that of the Electors—of Princes—of Imperial Cities. The voices amount to 159, of which 153 are individual & 6 collective. The latter are particular to the College of princes and are formed out of 39 prelates &c. and 93 Counts &c. The individual voices are common to the three Colleges, and are given by 9 Electors—94 princes, 33 of the ecclesiastical & 61 of the secular Bench—& 50 Imperial Cities, 13 of the Rhenish, & 37 of the Suabian Bench. The K. of Prussia has nine voices in as many different capacities. Id.
The three Colleges assemble in the same House but in different apartments. Id.
The Emperor as head of the Germanic body is presidt. of the Diet. He & others are represented by proxies at present. Id.
The deliberations are groundd. on propositions from Emperor & commerce in the College of Electors, from whence they pass to that of the princes, & thence to that of the Imperial Cities. They are not resolutions till they have been passed in each. When the Electors & Princes cannot agree, they confer; but do not confer with the Imperial Cities. plurality of voices decide in each College, except in matters of Religion & a few reserved cases, in which according to the Treaty of Westphalia, and the Imperial Capitulations the Empire is divided into the Catholic & Evangelic Corps. Id.
After the Resolutions have passed the three Colleges, they are presented to the Representative of the Emperor, without whose ratification they are null. Id. they are called placita after passing the three Colleges—conclusa after ratification by Emperor. Id.
The Collection of Acts of one Diet is called the Recess, which cannot be made up & have the force of law, till the Close of the Diet. the subsisting diet has not been closed for more than a hundred years, of course it has furnished no effective Resolution, though a great number of Interesting ones have passed. This delay proceeds from the Imperial Court who refuse to grant a Recess, notwithstanding the frequent and pressing applications made for one. Id.
The powers as well as the organization of the Diet have varied at different times. Antiently it elected as a corps the Emperors and judged of their Conduct. The Golden Bull gives this right to the Electors alone. Antiently it regulated tolls—at present the Electors alone do this. Id.
The Treaty of Westphalia & the capitulations of the Emperors from Charles V downwards, define the present powers of the Diet. These concern—1. Legislation of the Empire—2. War & peace & alliances—3. raising troops—4. contributions—5 construction of fortresses—6 Money—7 Ban of the Empire. 8 Admission of new princes—9. the Supreme tribunals—10. disposition of Grand fiefs & grand Charges—In all these points the Emperor & Diet must concur. Id.
The Ban of the Empire is a sort of proscription by which the disturbers of the public peace are punished. The offenders life & goods are at the mercy of every one, formerly the Emperors themselves pronounced the ban agst. those who offended them. It has been since regulated that no one shall be exposed to the Ban without the examination & consent of the Diet. Encyclop.
By the Ban the party is outlawed, degraded from all his federal rights—his subjects absolved from their allegiance—and his possessions forfeited. Code de l’Hum.
The Ban is incurred when the Emperor or one of the supreme Tribunals address an order to any one, on pain in case of disobedience, of being proscribed ipso facto. Id.
The Circles formerly were in number 6 only. There are now ten. They were instituted for the more effectual preservation of the public peace, and the execution of decrees of Diet & supreme Tribunals against contumacious members, for which purposes they have their particular diets, with the chief prince of the Circle at their head, have particular officers for commanding the forces of the Circle, levy contributions, see that Justice is duly administered—that the coin is not debased—that the customs are not unduly raised.—Savage vol. 2 p. 35.
If a Circle fail to send its due succours, it is to pay damages suffered therefrom to its neighbours. If a member of the circle refuse, the Col. of the Circle is to admonish, & if this be insufficient, the delinquent party is to be compelled under a sentence from the Imperial Chamber. Id.
Aulic Council [established by Diet in 1512. Encyclop.,] composed of members appointed by the Emperor. Code de l’Hum.
Its cognizance is restrained to matters above 2,000 Crowns; is concurrent with the jurisdiction of the Imperial Chamber in controversies between the States—also in those of subjects of the Empire by way of appeal from subaltern Tribunals of the Empire, and from sovereign tribunals of princes. Id.—Arms are to be used for carrying its decrees into execution, as was done in 1718 by the troops of the Circle of upper Rhine in a controversy between Landgrave of Hesse Cassel & Prince of Hesse of Rhinfitz. Id.
Imperial Chamber, established in 1495 by the Diet as a means of public peace, by deciding controversies between members of the Empire. Code de l’Hum.
This is the first Tribunal of the Empire. It has an appellate jurisdiction in all Civil, and fiscal causes or where the public peace may be concerned. It has a concurrent jurisdiction with the Aulic Council; and causes cannot be removed from one to the other. Id.
The Judges of this Tribunal are appointed partly by the Emperor—partly by Electors—partly by circles—are supported by all the States of the Empire, excepting the Emperor. They are badly paid, though great salaries are annexed to their offices. Id.
In every action, real or personal—The Diet—Imperial Chamber and Aulic Council are so many supreme Courts to which none of the States can demur. The jurisprudence, by which they govern themselves, are according to the subject matter—1. the provincial laws of Germany 2. the Scripture—3 the law of nature—4 law of Nations—5 the Roman law—6 the canon law—7 the fœdal law of the Lombards. Id.
Members of Diet as such are subject in all public affairs to be judged by Emperor & Diet,—as individuals in private capacity are subject to Aulic Council & Imperial Chamber. Id.
The members have reserved to themselves the right 1. to enter into war & peace with foreign powers 2 to enter into alliances with foreign powers and with one another, not prejudicial to their engagements to the Empire. Code de ’Hum.—3 to make laws, levy taxes, raise troops, to determine on life & death. Savage. 4 Coin money. Id. 5. exert territorial sovereignty within their limits in their own name. Code de l’Hum. 6. to grant pardons. Savage, p. 44. 7. to furnish their quotas of troops, equipped mounted & armed & to provide for sustenance of them, as if they served at home. Code de l’Hum.
Members of Empire restricted.
1. from entering into Confederacies prejudicial to the Empire.
2. from laying tolls or customs upon bridges, rivers, or passages to which strangers are subject, without consent of the Emperor in full Diet.
3. cannot give any other value to money, nor make any other kind of money, than what is allowed by the Empire. Savage vol. 2, p. 45.
4. (by edict of 1548, particularly) from taking arms one agst another, from doing themselves justice—from affording retreat, much more, assistance to infractors of the public peace; the ban of the Empire being denounced agst. the transgressors of these prohibitions, besides a fine of 2000 marks of gold and loss of regalities.—Code d’Hum.
Emperor.—has the prerogative 1. of exclusively making propositions to the Diet—2 presiding in all Assemblies & Tribunals of the Empire when he chuses—3 of giving suffrage in all affairs treated in the diet—4 of negativing their resolutions—5 of issuing them in his own name—6 of watching over the safety of the Empire—7 of naming Ambassadors to negociate within the Empire as well as at foreign Courts—affairs concerning the Germanic Corps. 8. of re-establishing in good fame persons dishonored by Council of war & civil Tribunals. Code d’Hum.—9 of giving investiture of the principal immediate fiefs of the Empire, wch is not indeed of much consequence—10 of conferring vacant electorates—11 of preventing subjects from being withdrawn from the jurisdiction of their proper Judge—12. Of conferring charges of the Empire. 13 of conferring dignities & titles as of Kings &c.—14 of instituting military orders—15 of granting the dernier resort—16. of judging differences & controversies touching tolls—17. of deciding contests between Catholic & Protestant States touching precedence &c.—Id.—18. of founding Universities within the lands of the States, so far as to make the person endowed with Academic honors therein be regarded as such throughout Germany.—19 of granting all sorts of privileges not injurious to the States of the Empire—20 of establishing great fairs—21 of receiving the droit des Postes generales—22 of striking money, but without augumenting or diminishing its value. 23 of permitting strangers to enlist soldiers, conformably to Recess of 1654. Id. 24. Of receiving and applying Revenues of Empire.—Savage, p. NA. He cannot make war or peace, nor laws, nor levy taxes nor alter the denomination of money nor weights or measures.—Savage, v. 2, p. 35. The Emperor as such does not properly possess any territory within the Empire, nor derive any revenue for his support. Code de ’Hum.
Vices of the Constitution.
1. The Quotas are complained of & supplied very irregularly & defectively. Code de ’Hum. provision is made by decree of diet for enforcing them, but it is a delicate matter to execute it agst. the powerful members. Id.
2. The establishmt. of Imperial Chamber has not been found an efficacious remedy agst. civil wars. It has committed faults. The Ressortissans have not always been docile. Id.
3. Altho’ the establishmt. of Imperial Chambers &c give a more regular form to the police of the fiefs, it is not to be supposed they are capable of giving a certain force to the laws and maintaining the peace of the Empire if the House of Austria had not acquired power eno’ to maintain itself on the imperial Throne, to make itself respected, to give orders which it might be imprudent to despise, as the laws were therefore despised. Mabley Etude d’ hist., p. 180.
[Jealousy of the Imperial authority seems to have been a great cement of the Confederacy.]
ORIGIN OF THE CONSTITUTIONAL CONVENTION.mad. mss.
A SKETCH NEVER FINISHED NOR APPLIED.
As the weakness and wants of man naturally lead to an association of individuals under a Common Authority, whereby each may have the protection of the whole against danger from without, and enjoy in safety within, the advantages of social intercourse, and an exchange of the necessaries & comforts of life; in like manner feeble communities, independent of each other, have resorted to a Union, less intimate, but with common Councils, for the common safety agst. powerful neighbors, and for the preservation of justice and peace among themselves. Ancient history furnishes examples of these confederal associations, tho’ with a very imperfect account, of their structure, and of the attributes and functions of the presiding Authority. There are examples of modern date also, some of them still existing, the modifications and transactions of which are sufficiently known.
It remained for the British Colonies, now United States, of North America, to add to those examples, one of a more interesting character than any of them which led to a system without an example ancient or modern, a system founded on popular rights, and so combining a federal form with the forms of individual Republics, as may enable each to supply the defects of the other and obtain that advantage of both.
Whilst the Colonies enjoyed the protection of the parent Country as it was called, against foreign danger; and were secured by its superintending controul, against conflicts among themselves, they continued independent of each other, under a common, tho’ limited dependence, on the Parental Authority. When however the growth of the offspring in strength and in wealth, awakened the jealousy and tempted the avidity of the parent, into schemes of usurpation & exaction, the obligation was felt by the former of uniting their Counsels and efforts, to avert the impending calamity.
As early as the year 1754, indications having been given of a design in the British government to levy contributions on the Colonies, without their consent; a meeting of Colonial deputies took place at Albany, which attempted to introduce a compromising substitute, that might at once satisfy the British requisitions, and save their own rights from violation. The attempt had no other effect, than by bringing these rights into a more conspicuous view, to invigorate the attachment to them, on the one side; and to nourish the haughty & encroaching spirit on the other.
In 1774. The progress made by G. B. in the open assertion of her pretensions, and the apprehended purpose of otherwise maintaining them by Legislative enactments and declarations, had been such that the Colonies did not hesitate to assemble, by their deputies, in a formal Congress, authorized to oppose to the British innovations whatever measures might be found best adapted to the occasion; without however losing sight of an eventual reconciliation.
The dissuasive measures of that Congress, being without effect, another Congress was held in 1775, whose pacific efforts to bring about a change in the views of the other party, being equally unavailing, and the commencement of actual hostilities having at length put an end to all hope of reconciliation; the Congress finding moreover that the popular voice began to call for an entire & perpetual dissolution of the political ties which had connected them with G. B., proceeded on the memorable 4th of July, 1776 to declare the 13 Colonies Independent States.
During the discussions of this solemn Act, a Committee consisting of member from each colony had been appointed, to prepare & digest a form of Confederation, for the future management of the Common interests, which had hitherto been left to the discretion of Congress, guided by the exigencies of the contest, and by the known intentions or occasional instructions of the Colonial Legislatures.
It appears that as early as the 21st of July 1775, A plan entitled “Articles of Confederation & perpetual Union of the Colonies,” had been sketched by Docr. Franklin, The plan being on that day submitted by him to Congress; and tho’ not copied into their Journals remaining on their files in his handwriting. But notwithstanding the term “perpetual” observed in the title, the articles provided expressly for the event of a return of the Colonies to a connection with G. Britain.
This sketch became a basis for the plan reported by the Come on the 12th of July, now also remaining on the files of Congress, in the handwriting of Mr. Dickinson. The plan, tho’ dated after the Declaration of Independence, was probably drawn up before that event; since the name of Colonies, not States is used throughout the draught. The plan reported, was debated and amended from time to time, till the 17th. of November 1777, when it was agreed to by Congress, and proposed to the Legislatures of the States, with an explanatory and recommendatory letter. The ratifications of these by their Delegates in Congs duly authorized took place at successive dates, but were not compleated till March 1, 1781, when Maryland who had made it a prerequisite that the vacant lands acquired from the British Crown should be a common fund, yielded to the persuasion that a final & formal establishment of the federal Union & Govt would make a favorable impression not only on other foreign Nations, but on G. B. herself.
The great difficulty experienced in so framing the fedl. system as to obtain the unanimity required for its due sanction, may be inferred from the long interval, and recurring discussions, between the commencement and completion of the work; from the changes made during its progress; from the language of Congs. when proposing it to the States, wch dwelt on the impracticability of devising a system acceptable to all of them; from the reluctant assent given by some; and the various alterations proposed by others; and by tardiness in others again which produced a special address to them from Congs, enforcing the duty of sacrificing local considerations and favorite opinions to the public safety, and the necessary harmony: Nor was the assent of some of the States finally yielded without strong protests against particular articles, and a reliance on future amendments removing their objections.
It is to be recollected, no doubt, that these delays might be occasioned in some degree, by an occupation of the Public Councils both general & local, with the deliberations and measures, essential to a Revolutionary struggle; But there must have been a balance for these causes, in the obvious motives to hasten the establishment of a regular and efficient Govt; and in the tendency of the crisis to repress opinions and pretensions, which might be inflexible in another state of things.
The principal difficulties which embarrassed the progress, and retarded the completion of the plan of Confederation, may be traced to 1. the natural repugnance of the parties to a relinquishment of Power; 2 a natural jealousy of its abuse in other hands than their own; 3 the rule of suffrage among parties unequal in size, but equal in sovereignty; 4 the ratio of Contributions in money and in troops, among parties, whose inequality in size did not correspond with that of their wealth, or of their military or free population; 5, the selection and definition of the powers, at once necessary to the federal head, and safe to the several members.
To these sources of difficulty, incident to the formation of all such Confederacies, were added two others one of a temporary, the other of a permanent nature. The first was the case of the Crown lands, so called because they had been held by the British Crown, and being ungranted to individuals when its authority ceased, were considered by the States within whose charters or asserted limits they lay, as devolving on them; whilst it was contended by the others, that being wrested from the dethroned Authority, by the equal exertions of all, they resulted of right and in equity to the benefit of all. The lands being of vast extent and of growing value, were the occasion of much discussion & heart-burning; & proved the most obstinate of the impediments to an earlier consummation of the plan of federal Govt. The State of Maryland the last that acceded to it held out as already noticed, till the 1. March 1781 and then yielded only to the hope that by giving a stable & authoritative character to the Confederation, a successful termination of the Contest might be accelerated. The dispute was happily compromised by successive surrenders of portions of the territory by the States having exclusive claims to it, and acceptances of them by Congress.
The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro’ whose ports, their commerce was carried on. New Jersey placed between Phila & N. York, was likened to a cask tapped at both ends; And N. Carolina, between Virga & S. Carolina to a patient bleeding at both Arms. The Articles of Confederation provided no remedy for the complaint; which produced a strong protest on the part of N. Jersey; and never ceased to be a source of dissatisfaction & discord, until the new Constitution superseded the old.
But the radical infirmity of the “Arts. of Confederation” was the dependence of Congs on the voluntary and simultaneous compliance with its Requisitions, by so many independent Communities, each consulting more or less its particular interests & convenience and distrusting the compliance of the others. Whilst the paper emissions of Congs continued to circulate they were employed as a sinew of war, like gold & silver. When that ceased to be the case, and the fatal defect of the political System was felt in its alarming force, the war was merely kept alive and brought to a successful conclusion by such foreign aids and temporary expedients as could be applied; a hope prevailing with many, and a wish with all, that a state of peace, and the sources of prosperity opened by it, would give to the Confederacy in practice, the efficiency which had been inferred from its theory.
The close of the war however brought no cure for the public embarrassments. The States relieved from the pressure of foreign danger, and flushed with the enjoyment of independent and sovereign power; (instead of a diminished disposition to part with it), persevered in omissions and in measures incompatible with their relations to the Federal Govt and with those among themselves.
Having served as a member of Congs. through the period between Mar. 1780 & the arrival of peace in 1783, I had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to Congs I had found moreover that despair of success hung over the compromising provision of April 1783, for the Public necessities, which had been so elaborately planned and so impressively recommended to the States. Sympathizing, under this aspect of affairs, in the alarm of the friends of free Govt at the threatened danger of an abortive result to the great & perhaps last experiment in its favour, I could not be insensible to the obligation to co-operate as far as I could in averting the calamity. With this view I acceded to the desire of my fellow Citizens of the County that I should be one of its representatives in the Legislature, hoping that I might there best contribute to inculcate the critical posture to which the Revolutionary cause was reduced, and the merit of a leading agency of the State in bringing about a rescue of the Union, and the blessings of liberty staked on it, from an impending catastrophe.
It required but little time after taking my seat in the House of Delegates in May 1784, to discover that however favorable the general disposition of the State might be towards the Confederacy the Legislature retained the aversion of its predecessors to transfers of power from the State to the Govt of the Union; notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Fedl System, and the animosity kindled among the States by their conflicting regulations.
The temper of the Legislature & the wayward course of its proceedings may be gathered from the Journals of its Sessions in the years 1784 & 1785.
The failure however of the varied propositions in the Legislature, for enlarging the powers of Congress, the continued failure of the efforts of Congr to obtain from them the means of providing for the debts of the Revolution; and of countervailing the commercial laws of G. B., a source of much irritation & agst. which the separate efforts of the States were found worse than abortive; these Considerations with the lights thrown on the whole subject, by the free & full discussion it had undergone led to a general acquiescence in the Resoln. passed on the 21. of Jany 1786, which proposed & invited a meeting of Deputies from all the States to—insert the Resol. (See Journal.)
The resolution had been brought forward some weeks before on the failure of a proposed grant of power to Congress to collect a revenue from commerce, which had been abandoned by its friends in consequence of material alterations made in the grant by a Committee of the whole. The Resolution Tho introduced by Mr. Tyler an influential member, who having never served in Congress, had more the ear of the House than those whose services there exposed them to an imputable bias, was so little acceptable that it was not then persisted in. Being now revived by him, on the last day of the Session, and being the alternative of adjourning without any effort for the crisis in the affairs of the Union, it obtained a general vote; less however with some of its friends from a confidence in the success of the experiment than from a hope that it might prove a step to a more comprehensive & adequate provision for the wants of the Confederacy.
It happened also that Commissioners appointed by Virga & Maryd to settle the jurisdiction on waters dividing the two States had, apart from their official reports, recoended a uniformity in the regulations of the 2 States on several subjects & particularly on those having relation to foreign trade. It appeared at the time that Maryd. had deemed a concurrence of her neighbors, Pena & Delaware, indispensable in such a case, who for like reasons would require that of their neighbors. So apt and forcible an illustration of the necessity of a uniformity throughout all the States could not but favour the passage of a Resolution which proposed a Convention having that for its object.
The coissioners appointed by the Legisl: & who attended the Convention were E. Randolph the attorney of the state St. Geo: Tucker & J. M. The designation of the time & place to be proposed for its meeting, and communicated to the states having been left to the Comrs. they named for the time early September and for the place the City of Annapolis avoiding the residences of Congs and large Coercial Cities as liable to suspicions of an extraneous influence.
Altho’ the invited Meeting appeared to be generally favored, five states only assembled; some failing to make appointments, and some of the individuals appointed not hastening their attendance, the result in both cases being ascribed mainly, to a belief that the time had not arrived for such a political reform, as might be expected from a further experience of its necessity.
But in the interval between the proposal of the Convention, and the time of its meeting such had been the advance of public opinion in the desired direction, stimulated as it had been by the effect of the contemplated object, of the meeting, in turning the general attention to the Critical State of things, and in calling forth the sentiments and exertions of the most enlightened & influential patriots, that the Convention thin as it was did not scruple to decline the limited task assigned to it and to recommend to the States a Convention with powers adequate to the occasion. Nor was it unnoticed that the commission of the N. Jersey Deputation had extended its object to a general provision for the exigencies of the Union. A recommendation for this enlarged purpose was accordingly reported by a Come to whom the subject had been referred. It was drafted by Col: H., and finally agreed to unanimously in the following form. Insert it.
The recommendation was well recd. by the Legislature of Virga, which happened to be the first that acted on it, the example of her compliance was made as conciliatory and impressive as possible. The Legislature were unanimous or very nearly so on the occasion, and as a proof of the magnitude & solemnity attached to it, they placed Genl. W. at the head of the Deputation from the State; and as a proof of the deep interest he felt in the case he overstepped the obstacles to his acceptance of the appointment.
The law complying with the recommendation from Annapolis was in the terms following:
A resort to a General Convention to remodel the Confederacy, was not a new idea. It had entered at an early date into the conversations and speculations of the most reflecting & foreseeing observers of the inadequacy of the powers allowed to Congress. In a pamphlet published in May 81 at the seat of Congs Pelatiah Webster an able tho’ not conspicuous Citizen, after discussing the fiscal system of the U. States, and suggesting among other remedial provisions including national Bank remarks that “the Authority of Congs, at present is very inadequate to the performance of their duties; and this indicates the necessity of their calling a Continental Convention for the express purpose of ascertaining, defining, enlarging and limiting, the duties & powers of their Constitution.”
On the 1. day of Apl, 1783, Col: Hamilton, in a debate in Congs. observed that.
He alluded probably to (see life of Schuyler in Longacre —)
It does not appear however that his expectation had been fulfilled.
In a letter to J. M. from R. H. Lee then President of Congs. dated Novr 26, 1784 He says:
The answer of J. M. remarks.
In 1785, Noah Webster whose pol & other valuable writings had made him known to the Public, in one of his publications, of American policy brought into view the same resort for supplying the defects Fedl System (see his life in Longacre).
The proposed & expected Convention at Annapolis the first of a general character that appears to have been realized, & the state of the public mind awakened by it, had attracted the particular attention of Congs and favored the idea there of a Convention with fuller powers for amending the Confederacy. to J. M. letters of Monroe of Grayson.
It does not appear that in any of these cases, the reform system was to be otherwise sanctioned than by the Legislative authy of the States; nor whether nor how far a change was to be made in the structure of the Depository of the Federal powers.
The act of Virga providing for the Convention at Philada, was succeeded by appointments from the other states as their Legislatures were assembled, the appointments being selections from the most experienced & highest standing Citizens. Rh. Is. was the only exception to a compliance with the recommendation from Annapolis, well known to have been swayed by an obdurate adherence to an advantage which her position gave her of taxing her neighbors thro’ their consumption of imported supplies, an advantage which it was forseen would be taken from her by a revisal of the “articles of Confederation.”
As the pub. mind had been ripened for a salutary Reform of the pol. System, in the interval between the proposal & the meeting of the Comrs. at Annapolis, the interval between the last event, and the meeting of Deps at Phila had continued to develope more & more the necessity & the extent of a systematic provision for the preservation and Govt of the Union. Among the ripening incidents was the Insurrection of Shays, in Massts., against her Govt; which was with difficulty suppressed, notwithstanding the influence on the insurgents of an apprehended interposition of the Fedl troops.
At the date of the Convention, the aspect & retrospect of the pol. condition of the U. S. could not but fill the pub. mind with a gloom which was relieved only by a hope that so select a Body would devise an adequate remedy for the existing and prospective evils so impressively demanding it.
It was seen that the public debt rendered so sacred by the cause in which it had been incurred remained without any provision for its payment. The reiterated and elaborate efforts of Cong. to procure from the States a more adequate power to raise the means of payment had failed. The effect of the ordinary requisitions of Congress had only displayed the inefficiency of the authy making them; none of the States having duly complied with them, some having failed altogether or nearly so; and in one instance, that of N. Jersey, a compliance was expressly refused; nor was more yielded to the expostulations of members of Congs deputed to her Legislature, than a mere repeal of the law, without a compliance (see letter of Grayson to J. M.).
The want of Authy in Congs. to regulate Commerce had produced in Foreign nations particularly G. B., a monopolizing policy injurious to the trade of the U. S., and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishg all apprehensions of a Countervailing policy on the part of the U. States.
The same want of a general power over Commerce led to an exercise of the power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, and to coerce a relaxation of the British monopoly of the W. Inda. navigation, which was attempted by Virginia, (see Journal of NA) the States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro’ them, as N. Y., Pena., Virga & S. Carolina. Some of the States, as Connecticut, taxed imports as from Massts, higher than imports even from G. B. of wch Massts. complained to Virga. and doubtless to other States (see letter of J. M.). In sundry instances as of N. Y., N. J., Pa & Maryld, (see NA). The navigation laws treated the Citizens of other States as aliens.
In certain cases the Authy of the Confederacy was disregarded, as in violation not only of the Treaty of peace; but of Treaties with France & Holland, which were complained of to Congs.
In other cases the Fedl Authy was violated by Treaties & wars with Indians, as by Geo.; by troops raised & kept up witht the consent of Congs, as by Massts.; by compacts witht the consent of Congs, as between Pena and N. Jersey, and between Virga & Maryld. From the Legisl: Journals of Virga it appears, that a vote refusing to apply for a sanction of Congs was followed by a vote agst the communication of the Compact to Congs.
In the internal administration of the States a violation of Contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Instalment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, Relatively creditor, as well as Citizens Creditors within the State.
Among the defects which had been severely felt was that of a uniformity in cases requiring it, as laws of naturalization and bankruptcy, a Coercive authority operating on individuals and a guaranty of the internal tranquillity of the States.
As a natural consequence of this distracted and disheartening condition of the union, the Fedl Authy had ceased to be respected abroad, and dispositions were shewn there, particularly in G. B., to take advantage of its imbecility, and to speculate on its approaching downfall: At home it had lost all confidence & credit; the unstable and unjust career of the States had also forfeited the respect & confidence essential to order and good Govtt involving a general decay of confidence between Man & man. It was found moreover that those least partial to popular Govt, or most distrustful of its efficacy were yielding to anticipations, that from an increase of the confusion a Govt might result more congenial with their taste or their opinions. Whilst those most devoted to the principles and forms of Republics, were alarmed for the cause of liberty itself, at stake in the American Experiment, and anxious for a system that wd avoid the inefficacy of a mere confederacy without passing into the opposite extreme of a consolidated govt. It was known that there were individuals who had betrayed a bias towards Monarchy (see Knox to G. W. and him to Jay,) (Marshall’s life ) and there had always been some not unfavorable to a partition of the Union into several Confederacies; either from a better chance of figuring on a Sectional Theatre, or that the Sections would require stronger Govts, or by their hostile conflicts lead to a monarchical consolidation. The idea of a dismemberment had recently made its appearance in the Newspapers.
Such were the defects, the deformities, the diseases and the ominous prospects, for which the Convention were to provide a remedy, and which ought never to be overlooked in expounding & appreciating the Constitutional Charter, the remedy that was provided.
As a sketch on paper, the earliest perhaps wch of a Constitutional Govt for the Union (organized into the regular Departments with physical means operating on individuals) to be sanctioned by the people of the States, acting in their original & sovereign character, was contained in a letter from J. M. of Apl 8 1787 to Govr. Randolph, a copy of the latter is here inserted.
The feature in the letter which vested in the general Authy a negative on the laws of the States, was suggested by the negative in the head of the British Empire, which prevented collisions between the parts & the whole, and between the parts themselves. It was supposed that the substitution, of an elective and responsible authority for an hereditary and irresponsible one, would avoid the appearance even of a departure from the principle of Republicanism. But altho’ the subject was so viewed in the Convention, and the votes on it were more than once equally divided, it was finally & justly abandoned, as apart from other objections it was not practicable among so many states increasing in number and enacting each of them so many laws. Instead of the proposed negative, the objects of it were left as finally provided for in the Constitution.
On the arrival of the Virginia Deputies at Philada, it occurred to them that from the early and prominent part taken by that State in bringing about the Convention some initiative step might be expected from them. The Resolutions introduced by Governor Randolph were the result of a Consultation on the subject; with an understanding that they left all the Deputies entirely open to the lights of discussion, and free to concur in any alterations or modifications which their reflections and judgments might approve. The Resolutions as the Journals shew became the basis on which the proceedings of the Convention commenced, and to the developments, variations and modifications of which the plan of Govt. proposed by the Convention may be traced.
The curiosity I had felt during my researches into the History of the most distinguished Confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it more especially in what related to the process, the principles, the reasons, & the anticipations, which prevailed in the formation of them, determined me to preserve as far as I could an exact account of what might pass in the Convention whilst executing its trust, with the magnitude of which I was duly impressed, as I was with the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, & the reasonings from which the new System of Govt. was to receive its peculiar structure & organization. Nor was I unaware of the value of such a contribution to the fund of materials for the History of a Constitution on which would be Staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world.
In pursuance of the task I had assumed I chose a seat in front of the presiding member, with the other members on my right & left hands. In this favorable position for hearing all that passed, I noted in terms legible & in abbreviations & marks intelligible to myself what was read from the Chair or spoken by the members; and losing not a moment unnecessarily between the adjournment & reassembling of the Convention I was enabled to write out my daily notes during the session or within a few finishing days after its close, in the extent and form preserved in my own hand on my files.
In the labor and correctness of this I was not a little aided by practice, and by a familiarity with the style and the train of observation and reasoning which characterized the principal speakers. It happened, also, that I was not absent a single day, nor more than a casual fraction of an hour in any day, so that I could not have lost a single speech unless a very short one.
It may be proper to remark, that, with a very few exceptions, the speeches were neither furnished, nor revised, nor sanctioned, by the speakers, but written out from my notes, aided by the freshness of my recollections. A further remark may be proper, that views of the subject might occasionally be presented, in the speeches and proceedings, with a latent reference to a compromise on some middle ground, by mutual concessions. The exceptions alluded to were,—first, the sketch furnished by Mr. Randolph of his speech on the introduction of his propositions, on the twenty-ninth day of May; secondly, the speech of Mr. Hamilton, who happened to call on me when putting the last hand to it, and who acknowledged its fidelity, without suggesting more than a very few verbal alterations which were made; thirdly, the speech of Gouverneur Morris on the second day of May, which was communicated to him on a like occasion, and who acquiesced in it without even a verbal change. The correctness of his language and the distinctness of his enunciation were particularly favorable to a reporter. The speeches of Doctor Franklin, excepting a few brief ones, were copied from the written ones read to the Convention by his colleague, Mr. Wilson, it being inconvenient to the Doctor to remain long on his feet.
Of the ability and intelligence of those who composed the Convention the debates and proceedings may be a test; as the character of the work which was the offspring of their deliberations must be tested by the experience of the future, added to that of nearly half a century which has passed.
But whatever may be the judgment pronounced on the competency of the architects of the Constitution, or whatever may be the destiny of the edifice prepared by them, I feel it a duty to express my profound and solemn conviction, derived from my intimate opportunity of observing and appreciating the views of the Convention, collectively and individually, that there never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787, to the object of devising and proposing a constitutional system which should best supply the defects of that which it was to replace, and best secure the permanent liberty and happiness of their country.
end of volume ii.
“The Commissioners alluded to, are those who settled the late Territorial Controversy between Massachusetts & New York—
“Mr. King presents his compliments to Col. Grayson & Mr. Madison, and for the satisfaction of his friend, who wrote the Letter, from which the above is an Extract, begs to be informed whether they have any knowledge of a letter written by the Delegates of Virginia or any of them, containing the information suggested in the Extract, or of any proceedings of the Virginia Legislature of the nature alleged. . . .
“Monday morng. 11 Mar. 1787.”