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SPEECHES IN THE VIRGINIA CONVENTION. 1 - James Madison, The Writings, vol. 5 (1787-1790) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5.
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SPEECHES IN THE VIRGINIA CONVENTION.1
JUNE 5—NECESSITY FOR THE CONSTITUTION.
Mr. Madison then arose2 —(but he spoke so low that his exordium could not be heard distinctly). I shall not attempt to make impressions by any ardent professions of zeal for the public welfare; we know the principles of every man will, and ought to be judged, not by his professions and declarations, but by his conduct; by that criterion I mean in common with every other member to be judged; and should it prove unfavorable to my reputation; yet, it is a criterion, from which I will by no means depart. Comparisons have been made between the friends of this constitution, and those who oppose it: although I disapprove of such comparisons, I trust that, in points of truth, honor, candor, and rectitude of motives, the friends of this system, here, and in other states, are not inferior to its opponents. But, professions of attachment to the public good, and comparisons of parties, ought not to govern or influence us now. We ought, sir, to examine the constitution on its own merits solely: we are to enquire whether it will promote the public happiness: its aptitude to produce this desirable object, ought to be the exclusive subject of our present researches. In this pursuit, we ought not to address our arguments to the feelings and passions, but to those understandings and judgments which were selected by the people of this country, to decide this great question, by a calm and rational investigation. I hope that gentlemen, in displaying their abilities, on this occasion, instead of giving opinions, and making assertions, will condescend to prove and demonstrate, by a fair and regular discussion. It gives me pain to hear gentlemen continually distorting the natural construction of language; for it is sufficient if any human production can stand a fair discussion. Before I proceed to make some additions to the reasons which have been adduced by my honorable friend over the way, I must take the liberty to make some observations on what was said by another gentleman [Mr. Henry]. He told us, that this constitution ought to be rejected, because it endangered the public liberty, in his opinion, in many instances. Give me leave to make one answer to that observation: let the dangers which this system is supposed to be replete with, be clearly pointed out; if any dangerous and unnecessary powers be given to the general legislature, let them be plainly demonstrated, and let us not rest satisfied with general assertions of dangers, without examination. If powers be necessary, apparent danger is not a sufficient reason against conceding them. He has suggested that licentiousness, has seldom produced the loss of liberty; but that the tyranny of rulers has almost always effected it. Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations: but, on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority have produced factions and commotions, which, in republics, have more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes. If we consider the peculiar situation of the United States, and what are the sources of that diversity of sentiment which pervades its inhabitants, we shall find great danger to fear, that the same causes may terminate here, in the same fatal effects, which they produced in those republics. This danger ought to be wisely guarded against. Perhaps, in the progress of this discussion, it will appear, that the only possible remedy for those evils and means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression.
I must confess, I have not been able to find his usual consistency, in the gentleman’s argument on this occasion: he informs us that the people of the country are at perfect repose, that is, every man enjoys the fruits of his labor, peaceably and securely, and that every thing is in perfect tranquility and safety. I wish sincerely, sir, this were true. If this be their happy situation, why has every state acknowledged the contrary? Why were deputies from all the states sent to the general convention? Why have complaints of national and individual distresses been echoed and re-echoed throughout the continent? Why has our general government been so shamefully disgraced, and our constitution violated? Wherefore have laws been made to authorize a change, and wherefore are we now assembled here? A federal government is formed for the protection of its individual members. Ours has attacked itself with impunity. Its authority has been disobeyed and despised. I think I perceive a glaring inconsistency in another of his arguments. He complains of this constitution, because it requires the consent of at least three-fourths of the states to introduce amendments which shall be necessary for the happiness of the people. The assent of so many, he urges as too great an obstacle, to the admission of salutary amendments, which he strongly insists, ought to be at the will of a bare majority—we hear this argument, at the very moment we are called upon to assign reasons for proposing a constitution, which puts it in the power of nine states to abolish the present inadequate, unsafe, and pernicious confederation! In the first case, he asserts, that a majority ought to have the power of altering the government, when found to be inadequate to the security of public happiness.
In the last case, he affirms that even three-fourths of the community have not a right to alter a government, which experience has proved to be subversive of national felicity! Nay, that the most necessary and urgent alterations, cannot be made without the absolute unanimity of all the states. Does not the thirteenth article of the confederation expressly require, that no alteration shall be made without the unanimous consent of all the states? Could any thing in theory, be more perniciously improvident and injudicious, than this submission of the will of the majority to the most trifling minority? Have not experience and practice actually manifested this theoretical inconvenience to be extremely impolitic? Let me mention one fact, which I conceive must carry conviction to the mind of any one—the smallest state in the union has obstructed every attempt to reform the government—that like member has repeatedly disobeyed and counteracted the general authority; nay, has even supplied the enemies of its country with provisions. Twelve states had agreed to certain improvements which were proposed, being thought absolutely necessary to preserve the existence of the general government: but as these improvements, though really indispensable, could not by the confederation be introduced into it without the consent of every state, the refractory dissent of that little state prevented their adoption. The inconveniences resulting from this requisition, of unanimous concurrence in alterations in the confederation, must be known to every member in this convention, it is therefore needless to remind them of them. Is it not self-evident, that a trifling minority ought not to bind the majority? Would not foreign influence be exerted with facility over a small minority? Would the honorable gentleman agree to continue the most radical defects in the old system, because the petty state of Rhode Island would not agree to remove them?
He next objects to the exclusive legislation over the district where the seat of government may be fixed. Would he submit that the representatives of this state should carry on their deliberations under the control of any one member of the union? If any state had the power of legislation over the place where congress should fix the general government, this would impair the dignity, and hazard the safety of congress. If the safety of the union were under the control of any particular state, would not foreign corruption probably prevail in such a state, to induce it to exert its controlling influence over the members of the general government? Gentlemen cannot have forgotten the disgraceful insult which congress received some years ago. When we also reflect, that the previous session of particular states is necessary, before congress can legislate exclusively any where, we must, instead of being alarmed at this part, heartily approve of it.
But, the honorable member sees great danger in the provision concerning the militia: this, I conceive, to be an additional security to our liberty, without diminishing the power of the states, in any considerable degree; it appears to me so highly expedient, that I should imagine it would have found advocates even in the warmest friends of the present system: the authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power of establishing an uniform discipline throughout the states; and to provide for the execution of the laws, suppress insurrections and repel invasions; these are the only cases wherein they can interfere with the militia; and the obvious necessity of their having power over them in these cases, must convince any reflecting mind. Without uniformity of discipline, military bodies would be incapable of action: without a general controlling power to call forth the strength of the union, to repel invasions, the country might be over-run, and conquered by foreign enemies. Without such a power to suppress insurrections, our liberties might be destroyed by domestic faction, and domestic tyranny be established.
The honorable member then told us, that there was no instance of power once transferred, being voluntarily renounced. Not to produce European examples, which may probably be done before the rising of this convention, have we not seen already in seven states (and probably in an eighth state) legislatures surrendering some of the most important powers they possessed? But, Sir, by this government, powers are not given to any particular set of men, they are in the hands of the people; delegated to their representatives chosen for short terms, to representatives responsible to the people, and whose situation is perfectly similar to our own; as long as this is the case we have no danger to apprehend. When the gentleman called our recollection to the usual effects of the concession of powers, and imputed the loss of liberty generally to open tyranny I wish he had gone on farther. Upon his review of history he would have found, that the loss of liberty very often resulted from factions and divisions; from local considerations, which eternally lead to quarrels, he would have found internal dissentions to have more frequently demolished civil liberty, than a tenacious disposition in rulers, to retain any stipulated powers.
(Here Mr. Madison enumerated the various means whereby nations had lost their liberties.)
The power of raising and supporting armies is exclaimed against, as dangerous and unnecessary. I wish there were no necessity of vesting this power in the general government. But, suppose a foreign nation to declare war against the United States, must not the general legislature have the power of defending the United States? Ought it to be known to foreign nations, that the general government of the United States of America has no power to raise and support an army, even in the utmost danger, when attacked by external enemies? Would not their knowledge of such a circumstance stimulate them to fall upon us? If, sir, congress be not invested with this power, any powerful nation, prompted by ambition or avarice, will be invited, by our weakness, to attack us; and such an attack, by disciplined veterans, would certainly be attended with success, when only opposed by irregular, undisciplined militia. Whoever considers the peculiar situation of this country, the multiplicity of its excellent inlets and habours, and the uncommon facility of attacking it, however much he may regret the necessity of such a power, cannot hesitate a moment in granting it. One fact may elucidate this argument. In the course of the late war, when the weak parts of the union were exposed, and many states were in the most deplorable situation, by the enemy’s ravages, the assistance of foreign nations was thought so urgently necessary for our protection, that the relinquishment of territorial advantages, was not deemed too great a sacrifice for the acquisition of one ally. This expedient was admitted with great reluctance, even by those states who expected advantages from it. The crisis however at length arrived when it was judged necessary for the salvation of this country, to make certain cessions to Spain; whether wisely, or otherwise, is not for me to say; but the fact was, that instructions were sent to our representative at the court of Spain, to empower him to enter into negotiations for that purpose.—How it terminated is well known. This fact shews the extremities to which nations will go in cases of imminent danger, and demonstrates the necessity of making ourselves more respectable. The necessity of making dangerous cessions, and of applying to foreign aid, ought to be excluded.
The honorable member then told us, that there are heart-burnings in the adopting states, and that Virginia may, if she does not come into the measure, continue in amicable confederacy with the adopting states. I wish as seldom as possible to contradict the assertions of gentlemen, but I can venture to affirm, without danger of being in an error, that there is the most satisfactory evidence, that the satisfaction of those states is increasing every day, and that, in that state, where it was adopted only by a majority of nineteen, there is not one-fifth of the people dissatisfied. There are some reasons which induce us to conclude, that the grounds of proselytism extend every where; its principles begin to be better understood; and the inflammatory violence, wherewith it was opposed by designing, illiberal, and unthinking minds begins to subside. I will not enumerate the causes from which in my conception, the heart-burnings of a majority of its opposers have originated. Suffice it to say, that in all they were founded on a misconception of its nature and tendency. Had it been candidly examined and fairly discussed, I believe, sir, that but a very inconsiderable minority of the people of the United States would have opposed it. With respect to the Swiss, which the honorable gentleman has proposed for our example, as far as historical authority may be relied on, we shall find their government quite unworthy of our imitation. I am sure if the honorable gentleman had adverted to their history and government, he never would have quoted their example here; he would have found that instead of respecting the rights of mankind, their government (at least of several of their cantons) is one of the vilest aristocracies that ever was instituted: the peasants of some of their cantons are more oppressed and degraded than the subjects of any monarch in Europe: may, almost as much so, as those of any eastern despot. It is a novelty in politics, that from the worst of systems the happiest consequences should ensue. Their aristocratical rigor, and the peculiarity of their situation, have so long supported their union: without the closest alliance and amity, dismemberment might follow, their powerful and ambitious neighbors would immediately avail themselves of their least jarrings. As we are not circumstanced like them, no conclusive precedent can be drawn from their situation. I trust, the gentleman does not carry his idea so far as to recommend a separation from the adopting states. This government may secure our happiness; this is at least as probable, as that it shall be oppressive. If eight states have, from a persuasion of its policy and utility, adopted it, shall Virginia shrink from it, without a full conviction of its danger and inutility? I hope she will never shrink from any duty: I trust she will not determine without the most serious reflection and deliberation.
I confess to you, sir, were uniformity of religion to be introduced by this system, it would, in my opinion, be ineligible; but I have no reason to conclude, that uniformity of government will produce that of religion. This subject is, for the honor of America, perfectly free and unshackled. The government has no jurisdiction over it—the least reflection will convince us, there is no danger to be feared on this ground.
But we are flattered with the probability of obtaining previous amendments. This calls for the most serious attention of this house. If amendments are to be proposed by one state, other states have the same right, and will also propose alterations. These cannot but be dissimilar, and opposite in their nature. I beg leave to remark, that the governments of the different states, are in many respects dissimilar, in their structure; their legislative bodies are not similar—their executive, are more different. In several of the states the first magistrate is elected by the people at large—in others, by joint ballot of the members of both branches of the legislature—and in others, in other different manners. This dissimilarity has occasioned a diversity of opinion on the theory of government, which will, without many reciprocal concessions, render a concurrence impossible. Although the appointment of an executive magistrate, has not been thought destructive to the principles of democracy in many of the states, yet, in the course of the debate, we find objections made to the federal executive: it is urged that the president will degenerate into a tyrant. I intended, in compliance with the call of the honorable member, to explain the reasons of proposing this constitution, and develop its principles; but I shall postpone my remarks, till we hear the supplement which he has informed us, he intends to add to what he has already said.
Give me leave to say something of the nature of the government, and to show that it is safe and just to vest it with the power of taxation. There are a number of opinions; but the principal question is, whether it be a federal or consolidated government: in order to judge properly of the question before us, we must consider it minutely in its principal parts. I conceive myself that it is of a mixed nature; it is in a manner unprecedented; we cannot find one express example in the experience of the world. It stands by itself. In some respects it is a government of a federal nature; in others it is of a consolidated nature. Even if we attend to the manner in which the constitution is investigated, ratified and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this government is not completely consolidated, nor is it entirely federal. Who are parties to it? The people—but not the people as composing one great body; but the people as composing thirteen sovereignties: were it as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority, have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as it is suggested, it would be now binding on the people of this state, without having had the privilege of deliberating upon it; but, sir, no state is bound by it, as it is, without its own consent. Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states, whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made in it, the same idea is in some degree attended to. By the new system a majority of the states cannot introduce amendments; nor are all the states required for that purpose; three-fourths of them must concur in alterations: in this there is a departure from the federal idea. The members to the national house of representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the senate, its members are elected by the states in their equal and political capacity; but had the government been completely consolidated, the senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature, and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.
But the honorable member has satirised with peculiar acrimony, the powers given to the general government by this constitution. I conceive that the first question on this subject is, whether these powers be necessary; if they be, we are reduced to the dilemma of either submitting to the inconvenience, or losing the union. Let us consider the most important of these reprobated powers; that of direct taxation is most generally obejcted to. With respect to the exigencies of government, there is no question but the most easy mode of providing for them will be adopted. When, therefore, direct taxes are not necessary, they will not be recurred to. It can be of little advantage to those in power, to raise money, in a manner oppressive to the people. To consult the conveniences of the people, will cost them nothing, and in many respects will be advantageous to them. Direct taxes will only be recurred to for great purposes. What has brought on other nations those immense debts, under the pressure of which many of them labor? Not the expenses of their governments, but war. If this country should be engaged in war, and I conceive we ought to provide for the possibility of such a case, how would it be carried on? By the usual means provided from year to year? As our imports will be necessary for the expenses of government and other common exigencies, how are we to carry on the means of defence? How is it possible a war could be supported without money or credit? And would it be possible for a government to have credit without having the power of raising money? No, it would be impossible for any government, in such a case, to defend itself. Then, I say, sir, that it is necessary to establish funds for extraordinary exigencies, and give this power to the general government—for the utter inutility of previous requisitions on the states is too well known. Would it be possible for those countries, whose finances and revenues are carried to the highest perfection, to carry on the operations of Government on great emergencies, such as the maintenance of a war, without an uncontrolled power of raising money? Has it not been necessary for Great Britain, notwithstanding the facility of the collection of her taxes, to have recourse very often to this and other extraordinary methods of procuring money? Would not her public credit have been ruined, if it was known that her power to raise money was limited? Has not France been obliged, on great occasions, to use unusual means to raise funds? It has been the case in many countries, and no government can exist, unless its powers extend to make provisions for every contingency. If we were actually attacked by a powerful nation, and our general government had not the power of raising money, but depended solely on requisitions, our condition would be truly deplorable—if the revenue of this commonwealth were to depend on twenty distinct authorities, it would be impossible for it to carry on its operations. This must be obvious to every member here; I think therefore, that it is necessary for the preservation of the union, that this power shall be given to the general government.
But it is urged, that its consolidated nature, joined to the power of direct taxation, will give it a tendency to destroy all subordinate authority; that its increasing influence will speedily enable it to absorb the state governments. I cannot think this will be the case. If the general government were wholly independent of the governments of the particular states, then indeed usurpation might be expected to the fullest extent: but, sir, on whom does this general government depend? It derives its authority from these governments, and from the same sources from which their authority is derived. The members of the federal government are taken from the same men from whom those of the state legislatures are taken. If we consider the mode in which the federal representatives will be chosen, we shall be convinced, that the general, will never destroy the individual, governments; and this convicion must be strengthened by an attention to the construction of the senate. The representatives will be chosen probably under the influence of the members of the state legislatures: but there is not the least probability that the election of the latter will be influenced by the former. One hundred and sixty members represent this commonwealth in one branch of the legislature, are drawn from the people at large, and must ever possess more influence than the few men who will be elected to the general legislature.
The reasons offered on this subject, by a gentleman on the same side [Mr. Nicholas] were unanswerable, and have been so full, that I shall add but little more on the subject. Those who wish to become federal representatives, must depend on their credit with that class of men who will be the most popular in their counties, who generally represent the people in the state governments: they can, therefore, never succeed in any measure contrary to the wishes of those on whom they depend. It is almost certain, therefore, that the deliberations of the members of the federal house of representatives, will be directed to the interest of the people of America. As to the other branch, the senators will be appointed by the legislatures, and though elected for six years, I do not conceive they will so soon forget the source from whence they derive their political existence. This election of one branch of the federal by the state legislatures, secures an absolute dependence of the former on the latter. The biennial exclusion of one third, will lessen the facility of a combination, and may put a stop to intrigues. I appeal to our past experience, whether they will attend to the interests of their constituent states. Have not those gentlemen who have been honored with seats in congress, often signalized themselves by their attachment to their seats? I wish this government may answer the expectation of its friends, and foil the apprehension of its enemies. I hope the patriotism of the people will continue, and be a sufficient guard to their liberties. I believe its tendency will be, that the state governments will counteract the general interest, and ultimately prevail. The number of the representatives is yet sufficient for our safety, and will gradually increase—and if we consider their different sources of information, the number will not appear too small.
JUNE 7—POWER TO LAY TAXES.
Mr. Madison.—Mr. Chairman, in considering this great subject I trust we shall find that part which gives the general government the power of laying and collecting taxes, indispensable and essential to the existence of any efficient, or well organized system of government: if we consult reason, and be ruled by its dictates, we shall find its justification there; if we review the experience we have had, or contemplate the history of nations, here we find ample reasons to prove its expediency. There is little reason to depend for necessary supplies on a body which is fully possessed of the power of withholding them. If a government depends on other governments for its revenues: if it must depend on the voluntary contributions of its members, its existence must be precarious. A government which relies on thirteen independent sovereignties, for the means of its existence, is a solecism in theory, and a mere nullity in practice. Is it consistent with reason, that such a government can promote the happiness of any people? It is subversive of every principle of sound policy, to trust the safety of a community with a government, totally destitute of the means of protecting itself or its members. Can congress, after the repeated unequivocal proofs it has experienced of the utter inutility and inefficacy of requisitions, reasonably expect, that they would be hereafter effectual or productive? Will not the same local interests, and other causes, militate against a compliance? Whoever hopes the contrary must ever be disappointed. The effect, sir, cannot be changed without a removal of the cause. Let each county in this commonwealth be supposed free and independent; let your revenues depend on requisitions of proportionate quotas from them: let application be made to them repeatedly: is it to be presumed that they would comply, or that an adequate collection could be made from partial compliances? It is now difficult to collect the taxes from them: how much would that difficulty be enhanced, were you to depend solely on their generosity? I appeal to reason or every gentleman here, whether he is not persuaded, that the present confederation is as feeble, as the government of Virginia would be in that case, to the same reason I appeal, whether it be incompatible with prudence to continue a government of such manifest and palpable debility.
If we recur to history, and review the annals of mankind, I undertake to say that no instance can be produced by the most learned man of any confederate government, that will justify a continuation of the present system; or that will not demonstrate the necessity of this change: and of substituting to the present pernicious and fatal plan, the system now under consideration, or one equally energetic. The uniform conclusion drawn from a review of ancient and modern confederacies, is, that instead of promoting the public happiness, or securing public tranquility, they have, in every instance, been productive of anarchy and confusion; ineffectual for the preservation of harmony, and a prey to their own dissentions and foreign invasions.
The Amphyctionic league resembled our confederation in its nominal powers; it was possessed of rather more power. The component states retained their sovereignty, and enjoyed an equality of suffrage in the federal council. But though its powers were more considerable in many respects than those of our present system; yet it had the same radical defect. Its powers were exercised over its individual members, in their political capacities. To this capital defect it owed its disorders, and final destruction. It was compelled to recur to the sanguinary coercion of war to enforce its decrees.—The struggles consequent on a refusal to obey a decree, and an attempt to enforce it, produced the necessity of applying to foreign assistance; by complying with such an application, together with his intrigues, Philip of Macedon acquired sufficient influence to become a member of the league. This artful and insidious prince, soon after became master of their liberties.
The Achean league, though better constructed than the Amphyctionic, in material respects, was continually agitated with domestic dissentions, and driven to the necessity of calling in foreign aid; this, also, eventuated in the demolition of their confederacy. Had they been more closely united, their people would have been happier; and their united wisdom and strength, would not only have rendered unnecessary all sovereign interpositions in their affairs, but would have enabled them to repel the attack of an enemy. If we descend to more modern examples, we shall find the same evils resulting from the same sources.
The Germanic system is neither adequate to the external defence, nor internal felicity of the people; the doctrine of quotas and requisitions flourishes here. Without energy—without stability—the empire is a nerveless body. The most furious conflicts, and the most implacable animosities between its members, strikingly distinguish its history. Concert and co-operation are incompatible with such an injudiciously constructed system.
The republic of the Swiss is sometimes instanced for its stability, but even there, dissentions and wars of a bloody nature have been frequently seen between the cantons. A peculiar coincidence of circumstances contributes to the continuance of their political connection. Their feeble association owes its existence to their singular situation. There is a schism this moment, in their confederacy, which, without the necessity of uniting for their external defence, would immediately produce its dissolution.
The confederate government of Holland, is a further confirmation of the characteristic imbecility of such governments. From the history of this government we might derive lessons of the most important utility.
(Here Mr. Madison quoted sundry passages from De Witt, respecting the people of Holland, and the war which they had so long supported against the Spanish monarch: shewing the impolitic and injudicious structure of their confederacy; that it was entirely destitute of energy, because their revenues depended chiefly on requisitions; that during that long war, the provinces of Guelderland, and Overyssel had not paid their respective quotas, but had evaded, altogether, their payments; in consequence of which, two sevenths of the resources of the community had never been brought into action, nor contributed in the least toward the prosecution of the war; that the fear of pressing danger stimulated Holland and the other provinces to pay all the charges of the war; that those two provinces had continued their delinquences; that the province of Holland alone, paid more than all the rest; still those provinces who paid up their proportional shares, claimed from the failing states the amounts of their arrearages; that the most fatal consequences had nearly resulted from the difficulty of adjusting those claims; and from the extreme aversion of the delinquent states to discharge even their most solemn engagements; that there are existing controversies between the provinces on this account at present; and to add to the evils consequent upon requisitions, that unanimity and the revision and sanction of their constituents, were necessary to give validity to the decisions of the states general.)
Mr. Madison then added—that these radical defects in their confederacy must have dissolved their association long ago, were it not for their peculiar position—circumscribed in a narrow territory; surrounded by the most powerful nations in the world; possessing peculiar advantages from their situation; an extensive navigation and a powerful navy—advantages which it was clearly the interest of those nations to diminish or deprive them of; and that their late unhappy dissentions were manifestly produced by the vices of their system. He then continued—We may derive much benefit from the experience of that unhappy country. Governments destitute of energy, will ever produce anarchy. These facts are worthy the most serious consideration of every gentleman here. Does not the history of these confederacies coincide with the lesson drawn from our own experience? I most earnestly pray that America may have sufficient wisdom to avail herself of the instructive information she may derive from a contemplation of the sources of their misfortunes, and that she may escape a similar fate by avoiding the causes from which their infelicity sprung. If the general government is to depend on the voluntary contribution of the states for its support, dismemberment of the United States may be the consequence. In cases of eminent danger, the states more immediately exposed to it, would only exert themselves—those remote from it, would be too supine to interest themselves warmly in the fate of those whose distresses they did not immediately perceive. The general government ought, therefore, to be empowered to defend the whole union.
Must we not suppose, that those parts of America which are most exposed, will first be the scenes of war? Those nations whose interest is incompatible with an extension of our power, and who are jealous of our resources to become powerful and wealthy, must naturally be inclined to exert every means to prevent our becoming formidable. Will they not be impelled to attack the most exposed parts of the union? Will not their knowledge of the weakness of our government stimulate them the more readily to such an attack? Those parts to which relief can be afforded with most difficulty, are the extremities of the country, and will be the first objects of our enemies. The general government having no resources beyond what are adequate to its existing necessities, will not be able to afford any effectual succor to those parts which may be invaded.
America, in such a case, would palpably perceive the danger and folly of withholding from the union, a power sufficient to protect the whole territory of the United States. Such an attack is far from improbable, and if it be actually made, it is difficult to conceive a possibility of escaping the catastrophe of a dismemberment. On this subject we may receive an estimable and instructive lesson from an American confederacy; from an example which has happened in our country and which applies to us with peculiar force, being most analogous to our situation. I mean that species of association or union which subsisted in New England. The colonies of Massachusetts, Bristol, Connecticut, and New Hampshire, were confederated together.
The object of that confederacy was primarily to defend themselves against the inroads and depredations of the Indians. They had a common council, consisting of deputies from each party, with an equality of suffrage in their deliberations. The general expenditures and charges were to be adequately defrayed. Its powers were very similar to those of the confederation. Its history proves clearly, that a government founded on such principles must ever disappoint the hopes of those who expect its operation to be conducive to the public happiness.
There are facts on record to prove, that instead of answering the end of its institution, or the expectation of its framers, it was violated with impunity, and only regarded when it coincided perfectly with the views and immediate interests of their respective parties.
The strongest member of the union availed itself of its circumstances to infringe their confederacy. Massachusetts refused to pay its quotas. In the war between England and Holland, it was found particularly necessary to make exertions for the protection of that country.
Massachusetts being then more powerful and less exposed than the other colonies, refused its contributions to the general defence. In consequence of this, the common council remonstrated against the council of Massachusetts. This altercation terminated in the dissolution of their union. From this brief account of a system, perfectly resembling our present one we may easily divine the inevitable consequences of a longer adherence to the latter.
(Mr. Madison then recapitulated many instances of the prevalent persuasion of the wisest patriots of the states, that the safety of all America depended on union; and that the government of the U. States must be possessed of an adequate degree of energy, or that otherwise their connection could not be justly denominated an union. He likewise enumerated the expedients that had been attempted by the people of America to form an intimate association, from the meeting at New York in the year 1754, downwards that their sentiments on this subject had been uniform, both in their colonial and independent conditions: and that a variety of courses had hitherto prevented the adoption of an adequate system.)
He then continued thus—If we take experience for our guide, we shall find still more instructive direction on this subject. The weakness of the existing articles of the union, shewed itself during the war. It has manifested itself since the peace, to such a degree, as admits of no doubt to a rational, intelligent, and unbiassed mind, of the necessity of alteration—nay, this necessity is obvious to all America—it has forced itself on the minds of the people. The committee has been informed, that the confederation was not completed till the year 1781, when a great portion of the war was ended, consequently no part of the merit of the antecedent operations of the war could justly be attributed to that system. Its debility was perceived almost as soon as it was put in operation. A recapitulation of the proofs which have been experienced of its inefficacy is necessary. It is most notorious, that feebleness universally marked its character. Shall we be safe in another war in the same situation? That instrument required the voluntary contributions of the states, and thereby sacrificed some of our best privileges. The most intolerable and unwarrantable oppressions were committed on the people during the late war. The gross enormity of those oppressions might have produced the most serious consequences, were it not for the spirit of liberty, which preponderated against every consideration.
A scene of injustice, partiality and oppression, may bring heavenly vengeance on any people. We are now by our suffering expiating the crimes of the otherwise glorious revolution. Is it not known to every member of this committee, that the great principles of a free government, were reversed through the whole progress of that scene? Was not every state harrassed? Was not every individual oppressed and subjected to repeated distresses? Was this right? Was it a proper form of government, that warranted, authorized, or overlooked, the most wanton deprivation of property? Had the government been vested with complete power to procure a regular and adequate supply of revenue, those oppressive measures would have been unnecessary. But, sir, can it be supposed that a repetition of such measures would ever be acquiesced in? Can a government that stands in need of such measures secure the liberty or promote the happiness or glory of any country? If we do not change this system, consequences must ensue that gentlemen do not now apprehend. If other testimony were necessary, I might appeal to that which I am sure is very weighty, but which I mention with reluctance. At the conclusion of the war, the man who had the most extensive acquaintance with the nature of the country, who well understood its interests, and who had given the most unequivocal and most brilliant proofs of his attachment to its welfare—when he laid down his arms, wherewith he had so nobly and successfully defended his country publicly testified his disapprobation of the present system; and suggested that some alteration was necessary to render it adequate to the security of our happiness. I did not introduce that great name to bias any gentleman here. Much as I admire and revere the man, I consider these members as not to be actuated by the influence of any man; but I introduced him as a respectable witness to prove that the articles of the confederation were inadequate, and that we must resort to something else. His modesty did not point out what ought to be done, but said, that some great change was necessary. But, sir, testimony if wished for, may be found in abundance, and numerous conclusive reasons urged for this change. Experience was daily producing such irresistible proofs of the defects of this system, this commonwealth was induced to exert her influence to meliorate it: she began that noble work, in which I hope she will persist: she proposed to revise it—her proposition met with that concurrence, which that of a respectable party will always meet. I am sure if demonstration were necessary on the part of this commonwealth, reasons have been abundantly heard in the course of this debate, manifold and cogent enough, not only to operate conviction; but to disgust an attentive hearer. Recollect the resolution of the year 1784. It was then found that the whole burthen of the union was sustained by a few states. This state was likely to be saddled with a very disproportionate share. That expedient was proposed (to obviate this inconvenience) which has been placed in its true light. It has been painted in sufficient horrors by the honorable gentleman who spoke last.
I agree with the honorable gentleman, Mr. Henry, that national splendour and glory are not our objects—but does he distinguish between what will render us secure and happy at home, and what will render us respectable abroad? If we be free and happy at home, we shall be respectable abroad.
The confederation is so notoriously feeble, that foreign nations are unwilling to form any treaties with us—they are apprised that our general government cannot perform any of its engagements; but, that they may be violated at pleasure by any of the states. Our violation of treaties already entered into, proves this truth unequivocally. No nation will, therefore, make any stipulations with congress, conceding any advantages of importance to us: they will be the more averse to entering into engagements with us, as the imbecility of our government enables them to derive many advantages from our trade, without granting us any return. But were this country united by proper bands, in addition to other great advantages, we could form very beneficial treaties with foreign states. But this can never happen without a change in our system. Were we not laughed at by the minister of that nation, from which we may be able yet to extort some of the most salutary measures for this country? Were we not told that it was necessary to temporize till our government acquired consistency? Will any nation relinquish national advantages to us? You will be greatly disappointed, if you expect any such good effects from this contemptible system. Let us recollect our conduct to that country from which we have received the most friendly aid. How have we dealt with that benevolent ally? Have we complied with our most sacred obligations to that nation? Have we paid the interest punctually from year to year? Is not the interest accumulating, while not a shilling is discharged of the principal? The magnanimity and forbearance of that ally are so great, that she has not called upon us for her claims, even in her own distress and necessity. This, sir, is an additional motive to increase our exertions. At this moment of time a very considerable amount is due from us to that country and others.
(Here Mr. Madison mentioned the amount of the debts due to different foreign nations.)
We have been obliged to borrow money, even to pay the interest of our debts. This is a ruinous and most disgraceful expedient. Is this a situation on which America can rely for security and happiness? How are we to extricate ourselves? The honorable member told us, we might rely on the punctuality and friendship of the states, and that they will discharge their quotas for the future. The contributions of the states have been found inadequate from the beginning, and are diminishing instead of increasing. From the month of June 1787, till June 1788, they have only paid 276,641 dollars into the federal treasury for the purposes of supporting the national government, and discharging the interest of the national debts: a sum so very insufficient, that it must greatly alarm the friends of their country. Suggestions and strong assertions dissipate before these facts. I shall no longer fatigue the committee at this time, but will resume the subject as early as I can.
JUNE 11—POWER TO LAY TAXES.1
Mr. Chairman, it was my purpose to resume before now, what I had left unfinished, concerning the necessity of a radical change of our system. The intermission which has taken place discontinued the progress of the argument, and has given opportunity to others to advance arguments on different parts of the plan. I hope we shall steer our course in a different manner from what we have hitherto done. I presume that vague discourses and mere sports of fancy, not relative to the subject at all, are very improper on this interesting occasion. I hope these will be no longer attempted, but that we shall come to the point. I trust we shall not go out of order, but confine ourselves to the clause under consideration. I beg gentlemen would observe this rule. I shall endeavor not to depart from it myself.
The subject of direct taxation is perhaps one of the most important that can possibly engage our attention, or that can be involved in the discussion of this question. If it be, to be judged by the comments made upon it, by the opposers and favorers of the proposed system, it requires a most clear and critical investigation. The objections against the exercise of this power by the general government as far as I am able to comprehend them, are founded upon the supposition of its being unnecessary, impracticable, unsafe and accumulative of expense. I shall therefore consider, 1st, how far it may be necessary; 2d, how far it may be practicable; 3dly, how far it may be safe, as well with respect to the public liberty at large, as to the state legislatures; and 4thly, with respect to economy. First, then, is it necessary? I must acknowledge that I concur in opinion with those gentlemen who told you that this branch of revenue was essential to the salvation of the union. It appears to me necessary, in order to secure that punctuality which is necessary in revenue matters. Without punctuality individuals will give it no confidence, without which it cannot get resources. I beg gentlemen to consider the situation of this country, if unhappily the government were to be deprived of this power. Let us suppose for a moment that one of those powers which may be unfriendly to us, should take advantage of our weakness, which they will be more ready to do when they know the want of this resource in our government. Suppose it should attack us, what forces could we oppose to it? Could we find safety in such forces as we could call out? Could we call forth a sufficient number, either by draughts, or any other way, to repel a powerful enemy? The inability of the government to raise and support regular troops, would compel us to depend on militia.
It would be then necessary to give this power to the government, or run the risk of national annihilation. It is my firm belief, that if a hostile attack were made this moment on the United States, it would flash conviction on the minds of the citizens of the United States, of the necessity of vesting the government with this power, which alone can enable it to protect the community. I do not wish to frighten the members into a concession of this power, but to bring to their minds those considerations which demonstrate its necessity. If we were secured from the possibility, or probability of danger, it might be unnecessary. I shall not review that concourse of dangers which may probably arise at remote periods of futurity, nor all those which we have immediately to apprehend, for this would lead me beyond the bounds which I prescribed myself. But I will mention one single consideration, drawn from fact itself. I hope to have your attention.
By the treaty between the United States and his most Christian majesty, among other things it is stipulated, that the great principle on which the armed neutrality in Europe was founded, should prevail in case of future wars. The principle is this, that free ships shall make free goods, and that vessels and goods shall be both free from condemnation. Great Britain did not recognize it. While all Europe was against her, she held out without acting to it. It has been considered for sometime past, that the flames of war already kindled, would spread, and that France and England were likely to draw those swords which were so recently put up. This is judged probable. We should not be surprised in a short time, to consider ourselves as a neuteral nation—France on one side, and Great Britain on the other. What is the situation of America? She is remote from Europe, and ought not to engage in her politics or wars. The American vessels, if they can do it with advantage, may carry on the commerce of the contending nations. It is a source of wealth which we ought not to deny to our citizens. But, Sir, is there not infinite danger, that in despite of all our caution we shall be drawn into the war? If American vessels have French property on board, Great Britain will seize them. By this means we shall be obliged to relinquish the advantage of a neutral nation, or be engaged in a war.
A neutral nation ought to be respectable, or else it will be insulted and attacked. America in her present impotent situation would run the risk of being drawn in as a party in the war, and lose the advantage of being neutral. Should it happen that the British fleet should be superior, have we not reason to conclude, from the spirit displayed by that nation to us and to all the world, that we should be insulted in our own ports, and our vessels seized? But if we be in a respectable situation—if it be known that our government can command the whole resources of the union, we shall be suffered to enjoy the great advantages of carrying on the commerce of the nations at war: for none of them would be willing to add us to the number of their enemies. I shall say no more on this point, there being others which merit your consideration.
The expedient proposed by the gentlemen opposed to this clause, is, that requisitions shall be made, and if not complied with in a certain time, that then taxation shall be recurred to. I am clearly convinced, that whenever requisitions shall be made, they will disappoint those who put their trust in them One reason to prevent the concurrent exertions of all the states, will arise from the suspicion, in some states, of delinquency in others. States will be governed by the motives that actuate individuals.
When a tax is in operation in a particular state, every citizen, if he knows of the energy of the laws to enforce payment, and that every other citizen is performing his duty, will cheerfully discharge his duty; but were it known that the citizens of one district were not performing their duty, and that it was left to the policy of the government to make them come up with it, the other districts would be very supine and careless in making provisions for payment. Our own experience makes the illustration more natural. If requisitions be made on thirteen different states, when one deliberates on the subject, she will know that all the rest will deliberate upon it also. This, Sir, has been a principal cause of the inefficacy of requisitions heretofore, and will hereafter produce the same evil. If the legislatures are to deliberate on this subject, (and the honorable gentleman opposed to this clause, thinks their deliberation necessary) is it not presumable, that they will consider peculiar local circumstances? In the general council, on the contrary, the sense of all America would be drawn to a single point. The collective interest of the union at large, will be known and pursued. No local views will be permitted to operate against the general welfare. But when propositions would come before a particular state, there is every reason to believe, that qualifications of the requisitions would be proposed—compliance might be promised, and some instant remittances might be made. This will cause delays, which in the first instance will produce disappointment. This also will make failures every where else. This I hope will be considered with the attention it deserves. The public creditors will be disappointed, and more pressing. Requisitions will be made for purposes equally pervading all America; but the exertions to make compliances, will probably be not uniform in the states. If requisitions be made for future occasions, for putting the states in a state of military defence, or to repel an invasion, will the exertions be uniform and equal in all the states? Some parts of the United States are more exposed than others. Will the least exposed states exert themselves equally? We know that the most exposed will be more immediately interested, and will make less sacrifices in making exertions. I beg gentlemen to consider that this argument will apply with most effect to the states which are most defenceless and exposed. The southern states are most exposed, whether we consider their situation, or the smallness of their population. And there are other circumstances which render them still more vulnerable, which do not apply to the northern states. They are therefore more interested in giving the government a power to command the whole strength of the union in cases of emergency. Do not gentlemen conceive this mode of obtaining supplies from the states, will keep alive animosities between the general government and particular states? Where the chances of failures are so numerous as thirteen, by the thirteen states, disappointment in the first place, and consequent animosity must inevitably take place
Let us consider the alternatives proposed by gentlemen, instead of the power of laying direct taxes. After the states shall have refused to comply, weigh the consequences of the exercise of this power by congress. When it comes in the form of a punishment, great clamours will be raised among the people against the government; hatred will be excited against it. It will be considered as an ignominious stigma on the state. It will be considered at least in this light by the state where the failure is made, and these sentiments will no doubt be diffused through the other states. Now let us consider the effect, if collectors are sent where the state governments refuse to comply with requisitions. It is too much the disposition of mankind not to stop at one violation of duty. I conceive that every requisition that will be made on my part of America, will kindle a contention between the delinquent member, and the general government. Is there no reason to suppose divisions in the government (for seldom does any thing pass with unanimity) on the subject of requisitions? The parts least exposed will oppose those measures which may be adopted for the defence of the weakest parts. Is there no reason to presume, that the representatives from the delinquent state will be more likely to foster disobedience to the requisitions of the government, than study to recommend them to the public?
There is in my opinion, another point of view in which this alternative will produce great evil. I will suppose, what is very probable, that partial compliances will be made. A difficulty here arises which fully demonstrates its impolicy. If a part be paid, and the rest withheld, how is the general government to proceed? They are to impose a tax, but how shall it be done in this case? Are they to impose it by way of punishment, on those who have paid, as well as those who have not? All these considerations taken into view (for they are not visionary or fanciful speculations) will, perhaps, produce this consequence. The general government to avoid those disappointments which I first described, and to avoid the contentions and embarrassments which I last described, will in all probability, throw the public burdens on those branches of revenue which will be more in their power. They will be continually necessitated to augment the imposts. If we throw a disproportion of the burdens on that side, shall we not discourage commerce; and suffer many political evils? Shall we not increase that disproportion on the southern states, which for sometime will operate against us? The southern states, from having fewer manufactures, will import and consume more. They will therefore pay more of the imposts. The more commerce is burdened, the more the disproportion will operate against them. If direct taxation be mixed with other taxes, it will be in the power of the general government to lessen that inequality. But this inequality will be increased to the utmost extent, if the general government have not this power.
There is another point of view in which this subject affords us instruction. The imports will decrease in time of war. The honorable gentleman who spoke yesterday, said, that the imposts would be so productive, that there would be no occasion of laying taxes. I will submit two observations to him and the committee. First: in time of war the imposts will be less, and as I hope we are considering a government for a perpetual duration, we ought to provide for every future contingency. At present our importations bear a full proportion to the full amount of our sales, and to the number of our inhabitants; but when we have inhabitants enough, our imposts will decrease; and as the national demands will increase with our population, our resources will increase as our wants increase. The other consideration which I will submit on this part of the subject is this:—I believe that it will be found in practice, that those who fix the public burdens, will feel a greater degree of responsibility when they are to impose them on the citizens immediately, than if they were to say what sum should be paid by the states. If they exceed the limits of propriety, universal discontent and clamour will arise. Let us suppose they were to collect the taxes from the citizens of America—would they not consider their circumstances? Would they not attentively consider what could be done by the citizens at large? Were they to exceed in their demands, what were reasonable burdens, the people would impute it to the right source, and look on the imposers as odious.
When I consider the nature of the various objections brought against this clause, I should be led to think, that the difficulties were such, that gentlemen would not be able to get over them, and that the power, as defined in the plan of the convention, was impracticable. I shall trouble them with a few observations on that point:
It has been said that ten men deputed from this state, and others in proportion from other states, will not be able to adjust direct taxes, so as to accommodate the various citizens in thirteen states.
I confess I do not see the force of this observation. Could not ten intelligent men, chosen from ten districts from this state lay direct taxes on a few objects in the most judicious manner? It is to be conceived, that they would be acquainted with the situation of different citizens of this country. Can any one divide this state into ten districts so as not to contain men of sufficient information? Could not one man of knowledge be found in a district? When thus selected, will they not be able to carry their knowledge into the general council? I may say with great propriety, that the experience of our own legislature demonstrates the competency of congress to lay taxes wisely. Our assembly consists of considerably more than a hundred; yet from the nature of the business, it devolves on a much smaller number. It is through their sanction, approved of by all the others. It will be found that there are seldom more than ten men who rise to high information on this subject. Our federal representatives, as has been said by the gentleman [Mr. Marshall] who entered into the subject with a great deal of ability, will get information from the state governments. They will be perfectly well informed of the circumstances of the people of the different states, and the mode of taxation that would be most convenient for them, from the laws of the states. In laying taxes, they may even refer to the state system of taxation. Let it not be forgotten, that there is a probability, that that ignorance which is complained of in some parts of America, will be continually diminishing. Let us compare the degree of knowledge which the people had in time past to their present information. Does not our own experience teach us, that the people are better informed than they were a few years ago? The citizen of Georgia knows more now of the affairs of New Hampshire, than he did before the revolution, of those of South Carolina. When the representatives from the different states are collected together, to consider this subject, they will interchange their knowledge with one another, and will have the laws of each state on the table. Besides this, the intercourse of the states will be continually increasing. It is now much greater than before the revolution. My honorable friend, over the way [Mr. Monroe] yesterday, seemed to conceive, as an insuperable objection, that if land were made the particular object of taxation, it would be unjust, as it would exonerate the commercial part of the community—that if it were laid on trade, it would be unjust in discharging the landholders; and that any exclusive selection would be unequal and unfair. If the general government were tied down to one object, I confess the objection would have some force in it. But if this be not the case, it can have no weight. If it should have a general power of taxation, they could select the most proper objects, and distribute the taxes in such a manner, as that they should fall in a due degree on every member of the community. They will be limited to fix the proportion of each state, and they must raise it in the most convenient and satisfactory manner to the public.
The honorable member considered it as another insuperable objection, that uniform laws could not be made for thirteen states, and that dissonance would produce inconvenience and oppression. Perhaps it may not be found, on due enquiry, to be so impracticable as he supposes. But were it so, where is the evil of different states, to raise money for the general government? Where is the evil of such laws? There are instances in other countries, of different laws operating in different parts of the country, without producing any kind of opposition. The revenue laws are different in England and Scotland in several respects. Their laws relating to customs excises and trade, are similar; but those respecting direct taxation are dissimilar. There is a land tax in England, and a land tax in Scotland, but the laws concerning them are not the same. It is much heavier in proportion in the former than in the latter. The mode of collection is different—yet this is not productive of any national inconvenience. Were we to conclude from the objections against the proposed plan, this dissimilarity, in that point alone, would have involved those kingdoms in difficulties. In England itself, there is a variety of different laws operating differently in different places. I will make another observation on the objection of my honorable friend. He seemed to conclude, that concurrent collections under different authorities, were not reducible to practice. I agree that were they independent of the people, the argument would be good. But they must serve one common master. They must act in concert, or the defaulting party must bring on itself the resentment of the people. If the general government be so constructed, that it will not dare to impose such burdens, as will distress the people, where is the evil of its having a power of taxation concurrent with the states? The people would not support it, were it to impose oppressive burdens. Let me make one more comparison of the state governments, to this plan. Do not the states impose taxes for local purposes? Does the concurrent collection of taxes, imposed by the legislatures for general purposes, and of levies laid by the counties for parochial and county purposes, produce any inconvenience or oppression? The collection of these taxes is perfectly practicable, and consistent with the views of both parties. The people at large are the common superior of the state governments, and the general government. It is reasonable to conclude, that they will avoid interferences for two causes—to avoid public oppression, and to render the collections more productive. I conceive they will be more likely to produce disputes, in rendering it convenient for the people, than run into interfering regulations.
In the third place I shall consider, whether the power of taxation to be given the general government be safe: and first, whether it be safe as to the public liberty in general. It would be sufficient to remark, that they are, because I conceive, the point has been clearly established by more than one gentleman who has spoken on the same side of the question. In the decision of this question, it is of importance to examine, whether elections of representatives by great districts of freeholders be favorable to fidelity in representatives. The greatest degree of treachery in representatives, is to be apprehended where they are chosen by the least number of electors; because there is a greater facility of using undue influence, and because the electors must be less independent. This position is verified in the most unanswerable manner, in that country to which appeals are so often made, and sometimes instructively.
Who are the most corrupt members in parliament? Are they not the inhabitants of small towns and districts? The supporters of liberty are from the great counties. Have we not seen that the representatives of the city of London, who are chosen by such thousands of voters, have continually studied and supported the liberties of the people, and opposed the corruption of the crown? We have seen continually that most of the members in the ministerial majority are drawn from small circumscribed districts. We may therefore conclude, that our representatives being chosen by such extensive districts, will be upright and independent. In proportion as we have security against corruption in representatives we have security against corruption from every other quarter whatsoever.
I shall take a view of certain subjects which will lead to some reflections, to quiet the minds of those gentlemen who think that the individual governments will be swallowed up by the general government. In order to effect this, it is proper to compare the state governments to the general government, with respect to reciprocal dependence, and with respect to the means they have of supporting themselves, or of encroaching on one another. At the first comparison we must be struck with these remarkable facts. The general government has not the appointment of a single branch of the individual governments, or of any officers within the states, to execute their laws. Are not the states integral parts of the general government? Is not the president chosen under the influence of the state legislatures? May we not suppose that he will be complaisant to those from whom he has his appointment, and from whom he must have his re-appointment? The senators are appointed altogether by the legislatures.
My honorable friend apprehended a coalition between the president, senate, and house of representatives, against the states. This could be supposed only from a similarity of the component parts.
A coalition is not likely to take place, because its component parts are heterogeneous in their nature. The house of representatives is not chosen by the state governments, but under the influence of those who compose the state legislature. Let us suppose ten men appointed to carry the government into effect, there is every degree of certainty, that they would be indebted for their re-election to the members of the legislatures. If they derive their appointment from them, will they not execute their duty to them? Besides this, will not the people (whose predominant interest will ultimately prevail) feel great attachment to the state legislatures? They have the care of all local interests—those familiar domestic objects, for which men have the strongest predilection. The general government on the contrary, has the preservation of the aggregate interest of the union—objects, which being less familiar, and more remote from men’s notice have a less powerful influence on their minds. Do we not see great and natural attachments arising from local considerations? This will be the case in a much stronger degree in the state governments, than in the general government. The people will be attached to their state legislatures from a thousand causes; and into whatever scale the people at large will throw themselves, that scale will preponderate.
Did we not perceive, in the early stages of the war, when congress was the idol of America, and when in pursuit of the object most dear to America, that they were attached to their states? Afterwards the whole current of their affection was to the states, and would be still the case, were it not for the alarming situation of America.
At one period of the congressional history, they had the power to trample on the states. When they had that fund of paper money in their hands, and could carry on all their measures without any dependence on the states, was there any disposition to debase the state governments? All that municipal authority which was necessary to carry on the administration of the government, they still retained unimpaired. There was no attempt to diminish it.
I am led by what fell from my honorable friend yesterday to take this supposed combination in another view. Is it supposed, that the influence of the general government will facilitate a combination between the members? Is it supposed, that it will preponderate against that of the state governments? The means of influence consist in having the disposal of gifts and emoluments, and in the number of persons employed by, and dependent upon a government. Will any gentleman compare the number of persons, which will be employed in the general government, with the number of those which will be in the state governments? The number of dependants upon the state governments will be infinitely greater than those on the general government. I may say with truth, that there never was a more economical government in any age or country, nor which will require fewer hands, or give less influence.
Let us compare the members composing the legislative, executive and judicial powers in the general government, with these in the states, and let us take into view the vast number of persons employed in the states; from the chief officers to the lowest, we will find the scale preponderating so much in favor of the states, that while so many persons are attached to them, it will be impossible to turn the balance against them. There will be an irresistible bias towards the state governments.
Consider the number of militia officers, the number of justices of the peace, the number of the members of the legislatures, and all the various officers for districts, towns and corporations, all intermixing with, and residing among the people at large. While this part of the community retains their affection to the state governments, I conceive that the fact will be, that the state governments, and not the general government, will preponderate. It cannot be contradicted that they have more extensive means of influence. I have my fears as well as the honorable gentleman—but my fears are on the other side. Experience, I think, will prove (though there be no infallible proof of it here) that the powerful and prevailing influence of the states, will produce such attention to local considerations, as will be inconsistent with the advancement of the interest of the union. But I choose rather to indulge my hopes than fears, because I flatter myself, if inconveniences should result from it, that the clause which provides amendments, will remedy them. The combination of powers vested in those persons, would seem conclusive in favor of the states.
The powers of the general government relate to external objects, and are but few. But the powers in the states relate to those great objects which immediately concern the prosperity of the people. Let us observe also, that the powers in the general government are those which will be exercised mostly in time of war, while those of the state governments will be exercised in time of peace. But I hope the time of war will be little, compared to that of peace. I should not complete the view which ought to be taken of this subject, without making this additional remark, that the powers vested in the proposed government, are not so much an augmentation of powers in the general government, as a change rendered necessary, for the purpose of giving efficacy to those which were vested in it before. It cannot escape any gentleman, that this power in theory, exists in the confederation as fully as in this constitution. The only difference is this, that now they tax states, and by this plan they will tax individuals. There is no theoretic difference between the two. But in practice there will be an infinite difference between them. The one is an ineffectual power: the other is adequate to the purpose for which it is given. This change was necessary for the public safety.
Let us suppose, for a moment, that the acts of congress requiring money from the states, had been as effectual as the paper on the table—suppose all the laws of congress had complete compliance, will any gentleman say, that as far as we can judge from past experience, the state governments would have been debased, and all consolidated and incorporated in one system? My imagination cannot reach it. I conceive, that had those acts that effect which all laws ought to have, the states would have retained their sovereignty.
It seems to be supposed, that it will introduce new expenses and burdens on the people. I believe it is not necessary here to make a comparison between the expenses of the present and of the proposed government. All agree that the general government ought to have power for the regulation of commerce. I will venture to say, that very great improvements, and very economical regulations will be made. It will be a principal object to guard against smuggling, and such other attacks on the revenue as other nations are subject to. We are now obliged to defend against those lawless attempts, but from the interfering regulations of different states, with little success. There are regulations in different states which are unfavorable to the inhabitants of other states, and which militate against the revenue. New York levies money from New Jersey by her imposts. In New Jersey, instead of cooperating with New York, the legislature favors violations on her regulations. This will not be the case when uniform regulations will be made.
Requisitions, though ineffectual, are unfriendly to economy. When requisitions are submitted to the states, there are near 2,500 or 3,000 persons deliberating on the mode of payment. All these, during their deliberation, receive public pay. A great proportion of every session, in every state, is employed to consider whether they will pay at all, and in what mode. Let us suppose 1500 persons are deliberating on this subject. Let any one make a calculation—it will be found that a very few days of their deliberation will consume more of the public money, than one year of that general legislature. This is not all, Mr. Chairman. When general powers will be vested in the general government, there will be less of that mutability which is seen in the legislation of the states. The eonsequence will be a great saving of expense and time. There is another great advantage which I will but barely, mention. The greatest calamity to which the United States can be subject, is a vicissitude of laws, and continual shifting and changing from one object to another, which must expose the people to various inconveniences. This has a certain effect, of which sagacious men always have, and always will make an advantage. From whom is advantage made? From the industrious farmers and tradesmen who are ignorant of the means of making such advantages. The people will not be exposed to these inconveniences under an uniform and steady course of legislation. But they have been so heretofore. The history of taxation of this country is so fully and well known to every member of this committee, that I shall say no more of it.
We have hitherto discussed the subject very irregularly. I dare not dictate to any gentleman, but I hope we shall pursue that mode of going through the business, which the house resolved. With respect to a great variety of arguments made use of, I mean to take notice of them when we come to those parts of the constitution to which they apply. If we exchange this mode, for the regular way of proceeding, we can finish it better in one week than one month.
JUNE 12—POWER TO LAY TAXES.
Mr. Chairman, finding, Sir, that the clause more immediately under consideration still meets with the disapprobation of the honorable gentleman over the way [Mr. Grayson] and finding that the reasons of the opposition as farther developed, are not satisfactory to myself and others who are in favor of the clause, I wish that it may meet with the most thorough and complete investigation. I beg the attention of the committee, in order to obviate what fell from the honorable gentleman. He set forth, that by giving up the power of taxation, we should give up everything, and still insist on requisitions being made on the states, and then, if they be not complied with, congress shall lay direct taxes, by way of penalty. Let us consider the dilemma which arises from this doctrine. Either requisitions will be efficacious or they will not. If they will be efficacious, then I say, Sir, we gave up every thing as much as by direct taxation.
The same amount will be paid by the people as by direct taxes. If they be not efficacious, where is the advantage of this plan? In what respect will it relieve us from the inconveniences which we have experienced from requisitions? The power of laying direct taxes by the general government is supposed by the honorable gentleman to be chimerical and impracticable. What is the consequence of the alternative he proposes? We are to rely upon this power to be ultimately used as a penalty to compel the states to comply. If it be chimerical and impracticable, in the first instance, it will be equally so when it will be exercised as a penalty. A reference was made to concurrent executions as an instance of the possibility of interference between the two governments.
(Here Mr. Madison spoke so low that he could not be distinctly heard.)
This has been experienced under the state governments without involving any inconvenience. But it may be answered, that under the state governments, concurrent executions cannot produce the inconvenience here dreaded, because they are executed by the same officer. It is not in the power of the general government to employ the state officers. Is nothing to be left to future legislation, or must every thing be immutably fixed in the constitution? Where exclusive power is given to the union, there can be no interference. Where the general and state legislatures have concurrent power, such regulations will be made, as shall be found necessary to exclude interferences and other inconveniences. It will be their interest to make regulations.
It has been said, that there is no similarity between petty corporations and independent states. I admit that in many points of view there is a great dissimilarity, but in others, there is a striking similarity between them, which illustrates what is before us. Have we not seen in our own country (as has been already suggested in the course of the debates) concurrent collections of taxes going on at once, without producing any inconvenience? We have seen three distinct collections of taxes, for three distinct purposes. Has it not been possible for collections of taxes, for parochial, county and state purposes, to go on at the same time? Every gentleman must know, that this is now the case, and though there be a subordination in these cases which will not be in the general government, yet in practice it has been found, that these different collections have been concurrently carried on, with convenience to the people, without clashing with one another, and without deriving their harmony from the circumstance of being subordinate to one legislative body. The taxes will be laid for different purposes. The members of the one government as well as of the other, are the agents of, and subordinate to, the people. I conceive that the collections of the taxes of the one will not impede those of the other, and that there can be no interference. This concurrent collection appears to me neither chimerical nor impracticable.
He compares resistance of the people to collectors, to refusal of requisitions. This goes against all government. It is as much as to urge, that there should be no legislature. The gentlemen who favored us with their observations on this subject, seemed to have reasoned on a supposition, that the general government was confined by the paper on your table to lay general uniform taxes. Is it necessary that there should be a tax on any given article throughout the United States? It is represented to be oppressive, that the states who have slaves and make tobacco, should pay taxes on these for federal wants, when other states who have them not, would escape. But does the constitution on the table admit of this? On the contrary, there is a proportion to be laid on each state according to its population. The most proper articles will be selected in each state. If one article in any state should be deficient, it will be laid on another article. Our state is secured on this foundation. Its proportion will be commensurate to its population. This is a constitutional scale, which is an insuperable bar against disproportion, and ought to satisfy all reasonable minds. If the taxes be not uniform, and the representatives of some states contribute to lay a tax of which they bear no proportion, is not this principle reciprocal? Does not the same principle hold in our state government in some degree? It has been found inconvenient to fix on uniform objects of taxation in this state, as the back parts are not circumstanced like the lower parts of the country. In both cases the reciprocity of the principle will prevent a disposition in one part to oppress the other. My honorable friend seems to suppose that congress, by the possession of this ultimate power as a penalty, will have as much credit and will be as able to procure any sums, on any emergency, as if they were possessed of it in the first instance, and that the votes of congress will be as competent to procure loans, as the votes of the British commons. Would the votes of the British house of commons have that credit which they now have, if they were liable to be retarded on their operation, and perhaps, rendered ultimately nugatory, as those of congress must be by the proposed alternative? When their vote passes, it usually receives the concurrence of the other branch, and it is known that there is sufficient energy in the government, to carry it into effect.
But here the votes of congress are in the first place dependent on the compliance of thirteen different bodies, and after non-compliance, are liable to be opposed and defeated, by the jealousy of the states against the exercise of this power, and by the opposition of the people which may be expected, if this power be exercised by congress after partial compliances. These circumstances being known, congress could not command one shilling. My honorable friend seems to think that we ought to spare the present generation and throw our burdens upon posterity. I will not contest the equity of this reasoning, but I must say that good policy as well as views of economy, strongly urge us even to distress ourselves to comply with our most solemn engagements. We must make effectual provision for the payment of the interest of our public debts. In order to do justice to our creditors, and support our credit and reputation, we must lodge power some where or other for this purpose. As yet the United States have not been able by any energy contained in the old system, to accomplish this end.
Our creditors have a right to demand the principal, but would be satisfied with a punctual payment of the interest. If we have been unable to pay the interest, much less shall we be able to discharge the principal. It appears to me that the whole reasoning used on this occasion shews, that we ought to adopt this system to enable us to throw our burdens on posterity. The honorable member spoke of the decemviri at Rome as having some similitude to the ten representatives who are to be appointed by this state. I can see no point of similitude here, to enable us to draw any conclusion. For what purpose were the decemviri appointed? They were invested with a plenipotentiary commission to make a code of laws. By whom were they appointed? By the people at large? My memory is not infallible, but it tells me they were appointed by the senate, I believe in the name of the people. If they were appointed by the senate, and composed of the most influential characters among the nobles, can any thing be inferred from that against our federal representatives? Who made a discrimination between the nobles and the people? The senate.
Those men totally perverted the powers which were given them for the purpose above specified, to the subversion of the public liberty. Can we suppose that a similar usurpation might be made, by men appointed in a totally different manner? As their circumstances were totally dissimilar, I conceive that no arguments drawn from that source, can apply to this government. I do not thoroughly comprehend the reasoning of my honorable friend, when he tells us, that the federal government will predominate, and that the state interest will be lost, when at the same time he tells us, that it will be a faction of seven states. If seven states will prevail, as states, I conceive that state influence will prevail. If state influence under the present feeble government has prevailed, I think that a remedy ought to be introduced, by giving the general government power to suppress it.
He supposed that my argument with respect to a future war between Great Britain and France was fallacious. The other nations of Europe have acceded to that neutrality, while Great Britain opposed it. We need not expect in case of such a war, that we should be suffered to participate in the profitable emoluments of the carrying trade, unless we were in a respectable situation. Recollect the last war. Was there ever a war in which the British nation stood opposed to so many nations? All the belligerent nations in Europe, with nearly one half of the British empire, were united against it. Yet that nation, though defeated, and humbled beyond any previous example, stood out against this. From her firmness and spirit in such desperate circumstances, we may divine what her future conduct may be.
I did not contend that it was necessary for the United States to establish a navy for that sole purpose, but instanced it as one reason, out of several, for rendering ourselves respectable. I am no friend to naval or land armaments in time of peace, but if they be necessary, the calamity must be submitted to. Weakness will invite insults. A respectable government will not only entitle us to a participation of the advantages which are enjoyed by other nations but will be a security against attacks and insults. It is to avoid the calamity of being obliged to have large armaments that we should establish this government. The best way to avoid danger, is to be in a capacity to withstand it.
The impost, we are told, will not diminish, because the emigrations to the westward will prevent the increase of population. He has reasoned on this subject justly to a certain degree. I admit that the imposts will increase, till population becomes so great, as to compel us to recur to manufactures. The period cannot be very far distant, when the unsettled parts of America will be inhabited. At the expiration of twenty-five years hence, I conceive that in every part of the United States, there will be as great a population as there is now in the settled parts. We see already, that in the most populous parts of the union, and where there is but a medium, manufactures are beginning to be established. Where this is the case the amount of importation will begin to diminish. Although the impost may even increase during the term of twenty-five years, yet when we are preparing a government for perpetuity, we ought to found it on permanent principles and not on those of a temporary nature.
Holland is a favorite quotation with honorable members on the other side of the question. Had not their sentiments been discovered by other circumstances, I should have concluded from their reasonings on this occasion, that they were friends of the constitution. I should suppose that they had forgotten which side of the question they were on. Holland has been called a republic, and a government friendly to liberty. Though it may be greatly superior to some other governments in Europe, still it is not a republic, or a democracy. Their legislature consists in some degree of men who legislate for life. Their councils consist of men who hold their offices for life, who fill up offices and appoint their salaries themselves. The people have no agency mediate or immediate in the government. If we look at their history we shall find, that every mischief which has befallen them, has resulted from the existing confederacy. If the stadtholder has been productive of mischiefs—if we ought to guard against such a magistrate more than any evil, let me beseech the honorable gentleman to take notice of what produced that, and those troubles which have interrupted their tranquillity from time to time. The weakness of their confederacy produced both.
When the French arms were ready to overpower their republic, and were feeble in the means of defence, which was principally owing to the violence of parties, they then appointed a stadtholder, who sustained them. If we look at more recent events, we shall have a more pointed demonstration that their political infelicity arises from the imbecility of their government. In the late disorders the states were almost equally divided, three provinces on one side, three on the other, and the other divided. One party inclined to the Prussians, and the other to the French. The situation of France did not admit of their interposing immediately in their disputes by an army, that of the Prussians did. A powerful and large army marched into Holland and compelled the other party to surrender. We know the distressing consequences to the people. What produced those disputes and the necessity of foreign interference, but the debility of their confederacy? We may be warned by their example, and shun their fate, by removing the causes which produced their misfortunes. My honorable friend has referred to the transaction of the federal council, with respect to the navigation of the Mississippi. I wish it was consistent with delicacy and prudence to lay a complete view of the whole matter before this committee. The history of it is singular and curious, and perhaps its origin ought to be taken into consideration.
I will touch on some circumstances, and introduce nearly the substance of most of the facts relative to it, that I may not seem to shrink from explanation. It was soon perceived, sir, after the commencement of the war with Britain, that among the various objects that would affect the happiness of the people of America, the navigation of the Mississippi was one. Throughout the whole history of foreign negotiation, great stress was laid on its preservation. In the time of our greatest distresses, and particularly when the southern states were the scene of war, the southern states cast their eyes around to be relieved from their misfortunes. It was supposed that assistance might be obtained for the relinquishment of that navigation. It was thought that for so substantial a consideration, Spain might be induced to afford decisive succour. It was opposed by the northern and eastern states. They were sensible that it might be dangerous to surrender this important right, particularly to the inhabitants of the western country. But so it was, that the southern states were for it, and the eastern states opposed to it. Since obtaining that happy peace, which secures to us all our claims, this subject has been taken again into consideration, and deliberated upon in the federal government. A temporary relinquishment has been agitated. Several members from the different states, but particularly from the northern, were for a temporary surrender, because it would terminate disputes, and at the end of the short period for which it was to be given, the right would revert, of course, to those who had given it up. And for this temporary surrender some commercial advantages were offered. For my part, I consider this measure, though founded on considerations plausible and honorable, was yet not justifiable, but on grounds of inevitable necessity. I must declare in justice to many characters who were in congress, that they declared that they never would enter into the measure, unless the situation of the United States was such as could not prevent it.
I suppose that the adoption of this government will be favorable to the preservation of the right to that navigation. Emigration will be made from those parts of the United States which are settled, to those parts which are unsettled. If we afford protection to the western country, we will see it rapidly peopled. Emigrations from some of the northern states have been lately increased. We may conclude, as has been said, by a gentleman on the same side [Mr. Nicholas], that those who emigrate to that country, will leave behind them all their friends and connections as advocates for this right.
What was the cause of those states being the champions of this right when the southern states were disposed to surrender it? The preservation of this right will be for the general interest of the union. The western country will be settled from the north as well as the south, and its prosperity will add to the strength and security of the union. I am not able to recollect all those circumstances which would be necessary to give gentlemen a full view of the subject. I can only add, that I conceive that the establishment of the new government will be the best possible means of securing our rights as well in the western parts, as elsewhere. I will not sit down till I make one more observation on what fell from my honorable friend. He says, that the true difference between the states lies in this circumstance—that some are carrying states, and others productive, and that the operation of the new government will be, that there will be a plurality of the former to combine against the interest of the latter, and that consequently it will be dangerous to put it in their power to do so. I would join with him in sentiments, if this were the case. Were this within the bounds of probability, I should be equally alarmed, but I think that those states, which are contradistinguished as carrying states, from the non-importing states, will be but few. I suppose the southern states will be considered by all, as under the latter description. Some other states have been mentioned by an honorable member on the same side, which are not considered as carrying states. New Jersey and Connecticut can by no means be enumerated among the carrying states. They receive their supplies through New York. Here then is a plurality of non-importing states. I could add another, if necessary. Delaware, though situated upon the water, is upon the list of non-carrying states. I might say that a great part of New Hampshire is so. I believe a majority of the people of that state receive their supplies from Massachusetts, Rhode Island, and Connecticut. Might I not add all those states which will be admitted hereafter into the union? These will be non-carrying states, and will support Virginia in case the carrying states will attempt to combine against the rest. This objection must therefore fall to the ground. My honorable friend has made several other remarks, but I will defer saying any more till we come to those parts to which his objections refer.
JUNE 12—POWER TO LAY TAXES—JEFFERSON’S VIEWS—RELIGIOUS FREEDOM—TREATY-MAKING POWER.
Mr. Chairman, pardon me for making a few remarks on what fell from the honorable gentleman last up [Henry]. I am sorry to follow the example of gentlemen in deviating from the rule of the house.—But as they have taken the utmost latitude in their objections, it is necessary that those who favor the government should answer them. But I wish as soon as possible to take up the subject regularly. I will therefore take the liberty to answer some observations which have been irregularly made, though they might be more properly answered when we come to discuss those parts of the constitution to which they respectively refer. I will, however, postpone answering some others till then. If there be that terror in direct taxation, that the states would comply with requisitions to guard against the federal legislature; and if, as gentlemen say, this state will always have it in her power to make her collections speedily and fully, the people will be compelled to pay the same amount as quickly and punctually as if raised by the general government.
It has been amply proved, that the general government can lay taxes as conveniently to the people as the state governments, by imitating the state systems of taxation. If the general government have not the power of collecting its own revenues, in the first instance, it will be still dependent on the state governments in some measure: and the exercise of this power, after refusal, will be inevitably productive of injustice and confusion, if partial compliances be made before it is driven to assume it. Thus, Sir, without relieving the people in the smallest degree, the alternative proposed will impair the efficacy of the government, and will perpetually endanger the tranquillity of the union.
The honorable member’s objection with respect to requisitions of troops will be fully obviated at another time. Let it suffice now to say, that it is altogether unwarrantable, and founded upon a misconception of the paper before you. But the honorable member, in order to influence our decision, has mentioned the opinion of a citizen [Jefferson] who is an ornament to this state. When the name of this distinguished character was introduced, I was much surprised. Is it come to this, then, that we are not to follow our own reason? Is it proper to introduce the opinions of respectable men, not within these walls? If the opinion of an important character were to weigh on this occasion, could we not adduce a character equally great on our side? Are we, who (in the honorable gentleman’s opinion) are not to be governed by an erring world, now to submit to the opinion of a citizen beyond the Atlantic? I believe, that were that gentleman now on this floor, he would be for the adoption of this constitution. I wish his name had never been mentioned. I wish every thing spoken here, relative to his opinion, may be suppressed if our debates should be published. I know that the delicacy of his feelings will be wounded, when he will see in print what has and may be said, concerning him on this occasion. I am, in some measure, acquainted with his sentiments on this subject. It is not right for me to unfold what he has informed me. But I will venture to assert, that the clause now discussed, is not objected to by Mr. Jefferson. He approves of it, because it enables the government to carry on its operations.—He admires several parts of it, which have been reprobated with vehemence in this house. He is captivated with the equality of suffrage in the senate, which the honorable gentleman [Mr. Henry] calls the rotten part of this constitution. But, whatever be the opinion of that illustrious citizen, considerations of personal delicacy should dissuade us from introducing it here.
The honorable member has introduced the subject of religion. Religion is not guarded—there is no bill of rights declaring that religion should be secure. Is a bill of rights a security for religion? Would the bill of rights, in this state, exempt the people from paying for the support of one particular sect, if such sect were exclusively established by law? If there were a majority of one sect, a bill of rights would be a poor protection for liberty. Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society. For where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment—I believe it to be so in the other states. There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it, would be a most flagrant usurpation. I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. It is better that this security should be depended upon from the general legislature, than from one particular state. A particular state might concur in one religious project. But the United States abound in such a variety of sects, that it is a strong security against religious persecution, and it is sufficient to authorise a conclusion, that no one sect will ever be able to outnumber or depress the rest.
I will not travel over that extensive tract, which the honorable member has traversed. I shall not now take notice of all his desultory objections. As occasions arise, I shall answer them.
It is worthy of observation, on this occasion, that the honorable gentleman himself, seldom fails to counteract the arguments of gentlemen on that side of the question. For example, he strongly complains that the federal government, from the number of its members, will make an addition to the public expense, too formidable to be borne, and yet he and other gentlemen on the same side, object that the number of representatives is too small, though ten men are more than we are entitled to under the existing system! How can these contradictions be reconciled? If we are to adopt any efficient government at all, how can we discover or establish such a system, if it be thus attacked? Will it be possible to form a rational conclusion upon contradictory principles? If arguments of a contradictory nature were to be brought against the wisest and most admirable system to the formation of which human intelligence is competent it never could stand them.
He has acrimoniously inveighed against the government, because such transactions as congress think require secrecy, may be concealed; and particularly those which relate to treaties. He admits that when a treaty is forming, secrecy is proper; but urges that when actually made, the public ought to be made acquainted with every circumstance relative to it. The policy of not divulging the most important transactions, and negociations of nations, such as those which relate to warlike arrangements and treaties, is universally admitted. The congressional proceedings are to be occasionally published, including all receipts and expenditures of public money, of which no part can be used but in consequence of appropriations made by law. This is a security which we do not enjoy under the existing system. That part which authorises the government to withhold from the public knowledge what in their judgement may require secrecy, is imitated from the confederation; that very system which the gentleman advocates.
No treaty has been formed, and I will undertake to say, that none will be formed under the old system, which will secure to us the actual enjoyment of the navigation of the Mississippi. Our weakness precludes us from it. We are entitled to it. But it is not under an inefficient government that we shall be able to avail ourselves fully of that right. I most conscientiously believe, that it will be far better secured under the new government, than the old, as we will be more able to enforce our right. The people of Kentucky will have an additional safeguard from the change of system. The strength and respectability of the union will secure them in the enjoyment of that right, till that country becomes sufficiently populous. When this happens, they will be able to retain it in spite of every opposition.
I can never admit that seven states are disposed to surrender that navigation. Indeed it never was the case. Some of their most distinguished characters are decidedly opposed to its relinquishment. When its cession was proposed by the southern states, the northern states opposed it. They still oppose it. New Jersey directed her delegates to oppose it, and is strenuously against it. The same sentiments pervade Pennsylvania: at least I am warranted to say so from the best information which I have. Those states, added to the southern states, would be a majority against it.
The honorable gentleman, to obviate the force of my observations with respect to concurrent collection of taxes under different authorities, said, that there was no interference between the concurrent collections of parochial, county, and state taxes, because they all irradiated from the same centre, but that this was not the case with the general government. To make use of the gentleman’s own terms, the concurrent collections under the authorities of the general government and state governments, all irradiate from the people at large. The people is their common superior. The sense of the people at large, is to be the predominating spring of their actions. This is a sufficient security against interference.
Our attention was called to our commercial interest, and at the same time the landed interest was said to be in danger. If those ten men who were to be chosen, be elected by landed men, and have land themselves, can the electors have any thing to apprehend? If the commercial interests be in danger, why are we alarmed about the carrying trade? Why is it said, that the carrying states will preponderate, if commerce be in danger? With respect to speculation, I will remark that stock-jobbing has prevailed, more or less, in all countries, and ever will, in some degree, notwithstanding any exertions to prevent it. If you judge from what has happened under the existing system, any change would render a melioration probable.
JUNE 13—MISSISSIPPI NEGOTIATIONS.1
Mr. Chariman, it is extremely disagreeable to me to enter into this discussion, as it is foreign to the object of our deliberations here, and may in the opinion of some, lead to sully the reputation of our public councils. As far as my memory will enable me, I will develope the subject. We will not differ with one another with respect to facts: perhaps we may differ with respect to principles. I will take the liberty to observe, that I was led before to make some observations, which had no relation to the subject under consideration, as relative to the western country, to obviate suggestions of gentlemen, which seemed to me to be groundless. I stated that there was a period when the southern states were advocates for the alienation or suspension of the right to the Mississippi (I will not say which), and the eastern states were against both. I mention this to shew, that there was no disposition in that part, to surrender that right or dispose of that country. I do suppose that the fishery had its influence on those states. No doubt it was the case.
For that, and other reasons, they still continue against the alienation. For it might lessen the security of retaining the fishery. From the best information, it never was the sense of the people at large, or the prevailing characters of the eastern states, to approve of the measure. If interest, Sir, should continue to operate on them, I humbly conceive, that they will derive more advantage from holding the Mississippi, than even the southern states. For if the carrying business be their natural province, how can it be so much extended and advanced, as by giving the encouragement to agriculture in the western country, and having the emolument of carrying their produce to market? The carrying trade must depend on agriculture for its support in a great measure. In what place is agriculture so capable of improvement and great extension, as in the western country? But whatever considerations may prevail in that quarter or any other, respecting their interest, I think we may fairly suppose that the consideration which the honorable member mentioned, and which has been repeated, I mean the emigrations which are going on to the westward, must produce the same effect as to them which it may produce with respect to us. Emigrations are now going on from that quarter as well as from this state.
I readily confess that neither the old confederation, nor the new constitution, involves a right to give the navigation of the Mississippi. It is repugnant to the law of nations. I have always thought and said so. Although the right be denied, there may be emergencies which will make it necessary to make a sacrifice. But there is a material difference between emergencies of safety in time of war, and those which may relate in mere commercial regulations. You might on solid grounds deny in peace, what you give up in war. I do not conceive, however, that there is that extreme aversion in the minds of the people of the eastern states, to emigrate to the westward, which was insinuated by my honorable friend. Particular citizens, it cannot be doubted, may be averse to it. But it is the sense of the people at large, which will direct the public measures. We find, from late arrangements made between Massachusetts and New York, that a very considerable country to the westward of New York, was disposed of to Massachusetts, and by Massachusetts, to some individuals, to conduct emigrants to that country.
There were seven states who thought it right to give up the navigation of the Mississippi for twenty-five years, for several reasons which have been mentioned. As far as I can recollect, it was nearly as my honorable friend said. But they had no idea of absolutely alienating it. I think one material consideration which governed them was, that there were grounds of serious negotiation between Great Britain and Spain, which might bring on a coalition between those nations, which might enable them to bind us on different sides, permanently withhold that navigation from us, and injure us in other respects materially. The temporary cession, it was supposed, would fix the permanent right in our favor, and prevent that dangerous coalition. It is but justice to myself to say, that however plausible the reasons urged for its temporary cession may have been, they never convinced me of its utility. I have uniformly disapproved of it, and do now.
With respect to the secretary of foreign affairs [Jay], I am intimately connected with him. I shall say nothing of his abilities and attachment to his country. His character is established in both respects. He has given a train of reasoning which governed him in his project. If he was mistaken, his integrity and probity, more than compensate for the error. I am led to think there is no settled disposition in seven states to give up that object, because New Jersey, on a further consideration of the subject, actually gave instructions to her delegates to oppose it. And what was the ground of this? I do not know the extent and particular reasons of her instructions. But I recollect, that a material consideration was, that the cession of that river, would diminish the value of the western country, which was a common fund for the United States, and would consequently, tend to impoverish their public treasury. These, Sir, were rational grounds.
Give me leave, Sir, as I am upon this subject, and as the honorable gentleman has raised a question, whether it be not more secure under the old than the new constitution—to differ from him. I shall enter into the reasoning which, in my mind, renders it more secure under the new system. Two thirds of the senators present, (which) will be nine states, (if all attend to their duty) and the president must concur in every treaty which can be made. Here are two distinct and independent branches, which must agree to every treaty; under the existing system, two thirds of the states must concur to form a treaty. But it is but one body. Gentlemen may reason and conclude differently on this subject. I own that as far as I have any rights, which are but trivial, I would rather trust them to the new, than the old government. Besides, let me observe, that the house of representatives will have a material influence on the government, and will be additional security in this respect: but there is one thing which he mentioned, which merits attention. If commercial policy be a source of great danger, it will have less influence in the new system, than in the old. For, in the house of representatives, it will have little or no influence. They are drawn from the landed interest; taken from the states at large, and many of them from the western country. Whereas the present members of congress have been taken from the Atlantic side of the continent. When we calculate the dangers that may arise in any case, we judge from the rules of proportion and chances of numbers. The people at large choose those who elect the president. The weight of population will be to the southward, if we include the western country. There will then be a majority of the people in favor of this right. As the president must be influenced by the sense and interest of his electors, as far as it depends on him (and his agency in making treaties is equal to that of the senate) he will oppose the cession of that navigation. As far as the influence of the representative goes, it will also operate in favor of this right.—The power of treaties is not lodged in the senators of particular states. Every state has an equal weight. If ten senators can make a treaty, ten senators can prevent one from being made. It is from a supposition, that all the southern delegates will be absent, that ten senators or two thirds of a majority, can give up this river. The possibility of absence operates equally as much against the northern states. If one fifth of the members present think the measure erroneous the votes of the states are to be taken upon it, and entered on the journals. Every gentlemen here ought to recollect, that this is some security, as the people will thereby know those who advocate iniquitous measures. If we consider the number of changes in the members of the government, we will find it another security. But after all, Sir, what will this policy signify, which tends to surrender the navigation of the Mississippi? Resolutions of congress to retain it, may be repeated, and re-echoed from every part of United States. It is not resolutions of this sort, which the people of this country wish for. They want an actual possession of the right, and protection in its enjoyment. Similar resolutions have been taken under the existing system, on many occasions. But they have been, heretofore, and will be hereafter, in my opinion, nugatory and fruitless unless a change takes place, which will give energy to the acts of the government.
I will take the liberty to touch once more on the several considerations which produced the question, because perhaps the committee may not yet thoroughly comprehend it. In justice to those gentlemen who concluded in favor of the temporary cession, I mention their reasons, although I think the measure wrong. The reasons for so doing under the old system, will be done away by the new system. We could not, without national dishonor, assert our right to the Mississippi, and suffer any other nation to deprive us of it. This consideration, with others before mentioned, influenced them. I admit it was wrong. But it is sufficient to prove that they acted on principles of integrity. Will they not be bound by honor and conscience, when we are able to enjoy and retain our right, not to give it up, or suffer it to be interrupted? A weak system produced this project. A strong system will remove the inducement. For may we not suppose it will be reversed by a change of system? I was called up to say, what was its present situation. There are some circumstances within my knowledge, which I am not at liberty to communicate to this house. I will not go farther than to answer the objections of gentlemen. I wish to conceal no circumstance, which I can relate consistently with my duty. As to matters of fact, I have advanced nothing which I presume will be contradicted. On matters of opinion, we may differ. Were I at liberty, I could develope some circumstances, which would convince this house, that this project will never be revived in congress, and that therefore no danger is to be apprehended.
JUNE 14—ELECTION OF SENATORS AND REPRESENTATIVES.
Mr. Chairman, the reason of the exception was, that if congress could fix the place of choosing the senators, it might compel the state legislatures to elect them in a different place from that of their usual sessions, which would produce some inconvenience, and was not necessary for the object of regulating the elections. But it was necessary to give the general government a control over the time and manner of choosing the senators, to prevent its own dissolution.
With respect to the other point, it was thought that the regulation of time, place, and manner, of electing the representatives, should be uniform throughout the continent. Some states might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some states, particularly South Carolina, with respect to Charleston, which is represented by thirty members. Should the people of any state, by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government. It was found impossible to fix the time, place, and manner, of the election of representatives in the constitution. It was found necessary to leave the regulation of these, in the first place, to the state governments, as being best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity, and prevent its own dissolution. And considering the state governments and general governments as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former, and the general regulations to the latter. Were they exclusively under the control of the state governments, the general government might easily be dissolved. But if they be regulated properly by the state legislatures, the congressional control will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the constitution.
[Mr. Monroe wished to hear an explanation of the clause which prohibits either house, during the session of congress, from adjourning for more than three days without the consent of the other.]
Mr. Madison wondered that this clause should meet with a shadow of objection. It was possible, he observed, that the two branches might not agree concerning the time of adjournment, and that this possibility suggested the power given the president of adjourning both houses to such time as he should think proper, in case of their disagreement. That it would be very exceptionable to allow the senators, or even the representatives, to adjourn without the consent of the other house, at any season whatsoever, without any regard to the situation of public exigencies. That it was possible, in the nature of things, that some inconvenience might result from it; but that it was as well secured as possible.
JUNE 14—COMPENSATION OF CONGRESS.
Mr. Chairman, I most sincerely wish to give a proper explanation on this subject, in such a manner as may be to the satisfaction of every one. I shall suggest such considerations as led the convention to approve of this clause. With respect to the right of ascertaining their own pay, I will acknowledge, that their compensations, if practicable, should be fixed in the constitution itself, so as not to be dependent on congress itself, or on the state legislatures. The various vicissitudes, or rather the gradual diminution of the value of all coins and circulating medium, is one reason against ascertaining them immutably, as what may be now an adequate compensation, might by the progressive reduction of the value of our circulating medium, be extremely inadequate at a period not far distant.
It was thought improper to leave it to the state legislatures, because it is improper that one government should be dependent on another: and the great inconveniences experienced under the old confederation, show the states would be operated upon by local considerations, as contradistinguished from general and national interests.
Experience shows us that they have been governed by such heretofore, and reason instructs us that they would be influenced by them again. This theoretic inconvenience of leaving to Congress the fixing their compensations is more than counterbalanced by this in the Confederation—that the state legislatures had a right to determine the pay of the members of Congress, which enabled the states to destroy the general government. There is no instance where this power has been abused. In America, legislative bodies have reduced their own wages lower, rather than augmented them. This is a power which cannot be abused without rousing universal attention and indignation. What would be the consequence of the Virginia legislature raising their pay to four or five pounds each per day? The universal indignation of the people. Should the general Congress annex wages disproportionate to their services, or repugnant to the sense of the community, they would be universally execrated. The certainty of incurring the general detestation of the people will prevent abuse.
It was conceived that the great danger was in creating new offices, which would increase the burdens of the people; and not in a uniform admission of all meritorious characters to serve their country in the old offices. There is no instance of any state constitution which goes as far as this. It was thought to be a mean between two extremes. It guards against abuse by taking away the inducement to create new offices, or increase the emolument of old offices; and it gives them an opportunity of enjoying, in common with other citizens, any of the existing offices which they may be capable of executing; to have precluded them from this, would have been to exclude them from a common privilege to which every citizen is entitled, and to prevent those who had served their country with the greatest fidelity and ability from being on a par with their fellow-citizens. I think it as well guarded as reason requires; more so than the constitution of any other nation.
JUNE 14—COMPENSATION OF CONGRESS.
Mr Chairman, let me ask those who oppose this part of the system, whether any alteration would not make it equally, or more liable to objections? Would it be better to fix their compensations? Would not this produce inconveniences? What authorises us to conclude, that the value of coins will continue always the same? Would it be prudent to make them dependent on the state governments for their salaries—on those who watch them with jealous eyes, and who consider them as encroaching, not on the people, but on themselves? But the worthy member supposes, that congress will fix their wages so low, that only the rich can fill the offices of senators and representatives. Who are to appoint them? The rich? No, sir, the people are to choose them. If the members of the general government were to reduce their compensations to a trifle, before the evil suggested could happen, the people could elect other members in their stead, who would alter that regulation. The people do not choose them for their wealth. If the state legislatures choose such men as senators, it does not influence the people at large in their election of representatives.—They can choose those who have the most merit and least wealth. If Congress reduce their wages to a trifle, what shall prevent the states from giving a man of merit, so much as will be an adequate compensation? I think the evil very remote, and if it were now to happen, the remedy is in our own hands, and may, by ourselves, be applied.
Another gentleman seems to apprehend infinite mischief from a possibility that any member of congress may be appointed to an office, although he ceases to be a member the moment he accepts it. What will be the consequence of precluding them from being so appointed? If you have in your country, one man whom you could in time of danger trust above all others, with an office of high importance, he cannot undertake it till two years expire if he be a representative; or till the six years elapse, if a senator. Suppose America was engaged in war, and the man of the greatest military talents and approved fidelity, was a member of either house—would it be right that this man, who could lead us to conquer, and who could save his country from destruction, could not be made general till the term of his election expired? Before that time, we might be conquered by our enemies. This will apply to civil as well as military officers. It is impolitic to exclude from the service of his country, in any office, the man who may be most capable of discharging its duties, when they are most wanting.
The honorable gentleman said, that those who go to Congress, will look forward to offices as a compensation for their services, rather than salaries. Does he recollect that they shall not fill offices created by themselves? When they go to congress, the old offices will be filled.—They cannot make any probable calculation that the men in office will die, or forfeit their offices. As they cannot get any new offices, one of those contingencies must happen, before they can get any office at all. The chance of getting an office is, therefore, so remote, and so very distant, that it cannot be considered as a sufficient reason to operate on their minds, to deviate from their duty.
Let any man calculate in his own mind, the improbability of a member of the general government getting into an office, when he cannot fill any office newly created, and when he finds all the old offices filled at the time he enters into congress. Let him view the danger and impolicy of precluding a member of congress from holding existing offices, and the danger of making one government dependent on another, and he will find that both clauses deserve applause.
The observations made by several honorable members, illustrate my opinion, that it is impossible to devise any system agreeable to all.—When objections so contradictory are brought against it, how shall we decide? Some gentlemen object to it, because they may make their wages too high—others object to it, because they may make them too low. If it is to be perpetually attacked by principles so repugnant, we may cease to discuss. For what is the object of our discussion? Truth, sir. To draw a true and just conclusion. Can this be done without rational premises, and syllogistic reasoning?
As to the British parliament, it is nearly as he says. But how does it apply to this case? Suppose their compensations had been appointed by the state governments, or fixed in the constitution—would it be a safe government for the union, if its members depended on receiving their salaries from other political bodies at a distance, and fully competent to withhold them? Its existence would, at best, be but precarious. If they were fixed in the constitution, they might become extremely inadequate, and produce the very evil which gentlemen seem to fear.—For then a man of the highest merit could not act unless he were wealthy. This is the most delicate part in the organization of a republican government. It is the most difficult to establish on unexceptionable grounds. It appears to me most eligible as it is. The constitution has taken a medium between the two extremes, and perhaps with more wisdom than either the British or the state governments, with respect to their eligibility to offices. They can fill no new offices created by themselves, nor old ones of which they increased the salaries. If they were excluded altogether, it is possible that other disadvantages might accrue from it, besides the impolicy and injustice of depriving them of a common privilege. They will not relinquish their legislative, in order to accept other offices. They will more probably confer them on their friends and connections. If this be an inconvenience, it is incident to all governments. After having heard a variety of principles developed, I thought that on which it is established the least exceptionable, and it appears to me sufficiently well guarded.
JUNE 14—ORIGINATING OF MONEY BILLS.
Mr. Chairman, the criticism made by the honorable member, is, that there is an ambiguity in the words, and that it is not clearly ascertained where the origination of money bills may take place. I suppose the first part of the clause is sufficiently expressed to exclude all doubts. The gentlemen who composed the convention divided in opinion, concerning the utility of confining this to any particular branch. Whatever it be in Great Britain, there is a sufficient difference between us and them to render it inapplicable to this country. It has always appeared to me, to be a matter of no great consequence, whether the senate had a right of originating, or proposing amendments to money bills or not. To withhold it from them would create disagreeable disputes. Some American constitutions make no difference. Virginia and South Carolina, are, I think, the only states, where this power is restrained. In Massachusetts, and other states, the power of proposing amendments is vested, unquestionably, in their senates. No inconvenience has resulted from it. On the contrary, with respect to South Carolina, this clause is continually a source of disputes. When a bill comes from the other house, the senate entirely rejects it, and this causes contentions. When you send a bill to the senate, without the power of making any alteration, you force them to reject the bill altogether, when it would be necessary and advantageous that it should pass.
The power of proposing alterations, removes this inconvenience, and does not appear to me at all objectionable. I should have no objection to their having a right of originating such bills. People would see what was done, and it would add the intelligence of one house to that of the other. It would be still in the power of the other house to obstruct any injudicious measure proposed by them. There is no land mark or constitutional provision in Great Britain, which prohibits the house of lords from intermeddling with money bills; but the house of commons have established this rule. Yet the lords insist on their having a right to originate them, as they possess great property, as well as the commons, and are taxed like them. The house of commons object to their claim, lest they should too lavishly make grants to the crown, and increase the taxes. The honorable member says, that there is no difference between the right of originating bills, and proposing amendments. There is some difference, though not considerable. If any grievances should happen in consequence of unwise regulations in revenue matters, the odium would be divided, which will now be thrown on the house of representatives. But you may safely lodge this power of amending with the senate. When a bill is sent with proposed amendments to the house of representatives, if they find the alterations defective, they are not conclusive. The house of representatives are the judges of their propriety, and the recommendation of the senate is nothing. The experience of this state justifies this clause. The house of delegates has employed weeks in forming a money bill; and because the senate had no power of proposing amendments, the bill was lost altogether; and a new bill obliged to be again introduced, when the insertion of one line by the senate would have done. Those gentlemen who oppose this clause will not object to it, when they recollect that the senators are appointed by the states, as the present members of congress are appointed. For, as they will guard the political interests of the states in other respects, they will attend to them very probably in their amendments to money bills. I think this power, for these considerations, is useful and necessary.
JUNE 14—POWER OVER THE MILITIA.
Mr Chairman, I most cordially agree with the honorable member last up [Mason], that a standing army is one of the greatest mischiefs that can possibly happen. It is a great recommendation for this system, that it provides against this evil more than any other system known to us, and particularly more than the old system of confederation. The most effectual way to guard against a standing army, is to render it unnecessary. The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the union when necessary. Thus you will furnish the people with sure and certain protection, without recurring to this evil; and the certainty of this protection from the whole, will be a strong inducement to individual exertion. Does the organization of the government warrant a belief, that this power will be abused? Can we believe that a government of a federal nature, consisting of many coequal sovereignties, and particularly having one branch chosen from the people, would drag the militia unnecessarily to an immense distance? This, Sir, would be unworthy the most arbitrary despot. They have no temptation whatever to abuse this power; such abuse could only answer the purpose of exciting the universal indignation of the people, and drawing on themselves the general hatred and detestation of their country.
I cannot help thinking that the honorable gentleman has not considered in all its consequences, the amendment he has proposed. Would this be an equal protection, Sir? Or would it not be a most partial provision? Some states have three or four states in contact. Were this state invaded, as it is bounded by several states, the militia of three or four states would, by this proposition, be obliged to come to our aid; and those from some of the states would come a far greater distance than those of others. There are other states, which if invaded, could be assisted by the militia of one state only, there being several states which border but on one state. Georgia and New-Hampshire would be infinitely less safe than those of the other states. Were we to adopt this amendment, we should set up those states as butts for invasions, invite foreign enemies to attack them, and expose them to peculiar hardships and dangers. Were the militia confined to any limited distance from their respective places of abode, it would produce equal, nay, more, inconveniences. The principles of equality, and reciprocal aid, would be destroyed in either case.
I cannot conceive that this constitution, by giving the general government the power of arming the militia, takes it away from the state governments. The power is concurrent, and not exclusive. Have we not found from experience, that while the power of arming and governing of the militia has been solely vested in the state legislatures, they were neglected and rendered unfit for immediate service? Every state neglected too much this most essential object. But the general government can do it more effectually. Have we not also found, that the militia of one state were almost always insufficient to succour its harrassed neighbor? Did all the states furnish their quotas of militia with sufficient promptitude? The assistance of one state will be of little avail to repel invasion. But the general head of the whole union can do it with effect, if it be vested with power to use the aggregate strength of the union. If the regulation of the militia were to be committed to the executive authority alone, there might be reason for providing restrictions. But, Sir, it is the legislative authority that has this power. They must make a law for the purpose.
The honorable member is under another mistake. He wishes martial law to be exercised only in time of war, under an idea that congress can establish it in time of peace. The states are to have the authority of training the militia according to the congressional discipline; and of governing them at all times, when not in the service of the union.—Congress is to govern such part of them as may be employed in the actual service of the United States; and such part only can be subject to martial law. The gentlemen in opposition have drawn a most tremendous picture of the constitution in this respect. Without considering that the power was absolutely indispensible, they have alarmed us with the possible abuse of it, but have shewn no inducement or motive to tempt them to such abuse. Would the legislature of the state drag the militia of the eastern shore to the western frontiers, or those of the western frontiers to the eastern shore, if the local militia were sufficient to effect the intended purpose? There is something so preposterous, and so full of mischief in the idea of dragging the militia unnecessarily from one end of the continent to the other, that I think there can be no ground of apprehension. If you limit their power over the militia you give them a pretext for substituting a standing army. If you put it in the power of the state governments to refuse the militia, by requiring their consent, you destroy the general government, and sacrifice particular states. The same principles and motives which produce disobedience to requisitions, will produce refusal in this case.
The restrictions which the honorable gentleman mentioned to be in the British constitution, are all provisions against the power of the executive magistrate. But the house of commons may, if they be so disposed, sacrifice the interest of their constituents in all those cases. They may prolong the duration of mutiny bills, and grant supplies to the king to carry on an impolitic war. But they have no motives to do so. For they have strong motives to do their duty. We have more ample security than the people of Great Britain. The powers of the government are more limited and guarded, and our representatives are more responsible than the members of the British house of commons.
JUNE 14—POWER OVER PURSE AND SWORD.
Mr Chairman, the honorable gentleman has laid much stress on the maxim, that the purse and sword ought not to be put in the same hands, with a view of pointing out the impropriety of vesting this power in the general government. But it is totally inapplicable to this question. What is the meaning of this maxim? Does it mean that the sword and purse ought not to be trusted in the hands of the same government? This cannot be the meaning. For there never was, and I can say there never will be an efficient government, in which both are not vested. The only rational meaning, is, that the sword and purse are not to be given to the same member. Apply it to the British government, which has been mentioned. The sword is in the hands of the British king. The purse in the hands of the parliament. It is so in America, as far as any analogy can exist. Would the honorable member say, that the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether? If he says so, it will violate the meaning of that maxim. This would be a novelty hitherto unprecedented. The purse is in the hands of the representatives of the people. They have the appropriation of all monies. They have the direction and regulation of land and naval forces. They are to provide for calling for the militia—and the president is to have the command; and, in conjunction with the senate, to appoint the officers. The means ought to be commensurate to the end. The end is general protection. This cannot be effected without a general power to use the strength of the union.
We are told that both sides are distinguished by these great traits, confidence and distrust. Perhaps there may be a less or greater tincture of suspicion on one side, than the other. But give me leave to say, that where power can be safely lodged, if it be necessary, reason commands its cession. In such case it is imprudent and unsafe to withhold it. It is universally admitted that it must be lodged in some hands or other. The question then is, in what part of the government it ought to be placed; and not whether any other political body independent of the government should have it or not. I profess myself to have had an uniform zeal for a republican government. If the honorable member, or any other person, conceives that my attachment to this system arises from a different source, he is greatly mistaken. From the first moment that my mind was capable of contemplating political subjects, I never, till this moment, ceased wishing success to a well regulated republican government. The establishment of such in America was my most ardent desire. I have considered attentively (and my consideration has been aided by experience) the tendency of a relaxation of laws, and a licentiousness of manners.
If we review the history of all republics, we are justified by the supposition, that if the bands of the government be relaxed, confusion will ensue. Anarchy ever has, and I fear ever will, produce despotism. What was the state of things that preceded the wars and revolutions in Germany? Faction and confusion. What produced the disorders and commotions of Holland? The like causes. In this commonwealth, and every state in the union, the relaxed operation of the government has been sufficient to alarm the friends of their country. The rapid increase of population in every state is an additional reason to check dissipation and licentiousness. Does it not strongly call for the friends of republican government to endeavor to establish a republican organization? A change is absolutely necessary. I can see no danger in submitting to practice an experiment which seems to be founded on the best theoretic principles.
But the honorable member tells us, there is not an equal responsibility delineated on that paper, to that which is in the English government. Calculations have been made here, that when you strike off those entirely elected by the influence of the crown, the other part does not bear a greater proportion to the number of their people, than the number fixed in that paper, bears to the number of inhabitants in the United States. If it were otherwise, there is still more responsibility in this government. Our representatives are chosen for two years. In Great Britain they are chosen for seven years. Any citizen may be elected here. In Great Britain no one can be elected to represent a county, without having an estate of the value of £600, sterling a year, nor to represent a corporation without an annual estate of £300. Yet we are told, there is no sympathy or fellow-feeling between the people here, and their representatives; but that in England they have both:—A just comparison will show, that if confidence be due to the government there, it is due ten fold here.
(Mr Madison made many other observations, but spoke so very low that he could not be distinctly heard.)
JUNE 14—POWER OVER ELECTIONS.
Mr Chairman, I cannot think that the explanation of the gentleman last up, is founded in reason. It does not say that the militia shall be called out in all cases, but in certain cases. There are cases in which the execution of the laws may require the operation of militia, which cannot be said to be an invasion or insurrection. There may be a resistance to the laws which cannot be termed an insurrection.
My honorable friend over the way has opened a new source of argument. He has introduced the assertions of gentlemen out of doors. If we thus depart from regularity, we will never be able to come to a decision.
If there be any gentleman who is a friend to the government, and says, that the elections may, or ought to be held in one place, he is an enemy to it on that ground. With respect to the time, place, and manner of elections, I cannot think, notwithstanding the apprehensions of the honorable gentleman, that there is any danger, or if abuse should take place, that there is not sufficient security. If all the people, of the United States should be directed to go to elect in one place, the members of the government would be execrated for the infamous regulation. Many would go to trample them under foot for their conduct—and they would be succeeded by men who would remove it. They would not dare to meet the universal hatred and detestation of the people, and run the risk of the certain dreadful consequences. We must keep within the compass of human probability. If a possibility be the cause of objection, we must object to every government in America. But the honorable gentleman may say, that better guards may be provided. Let us consider the objection. The power of regulating the time, place, and manner of elections, must be vested some where. It could not be fixed in the constitution without involving great inconveniences. They could then have no authority to adjust the regulation to the changes of circumstances. The question then is, whether it ought to be fixed unalterably in the state governments, or subject to the control of the general government. Is it not obvious, that the general government would be destroyed without this control? It has already been demonstrated that it will produce many conveniences. Have we not sufficient security against abuse? Consider fully the principles of the government. The sum of the powers given up by the people of Virginia is divided into two classes: One to the federal and the other to the state government. Each is subdivided into three branches. These may be kept independent of each other in the one as well as the other. In this system they are as distinct as is consistent with good policy. This, in my opinion, instead of diminishing, increases the security of liberty more than any government that ever was. For the powers of government which in every other country are given to one body, are here given to two; and are favorable to public liberty. With respect to secrecy, if every thing in which it is necessary, could be enumerated, I would have no objection to mention them. All the state legislatures can keep secret what they think ought to be concealed. The British house of commons can do it. They are in this respect under much less restraint than congress. There never was any legislative assembly without a discretionary power of concealing important transactions, the publication of which might be detrimental to the community. There can be no real danger as long as the government is constructed on such principles.
He objects also to the clause respecting adjournment that neither house shall, without the consent of the other, adjourn for more than three days. It was before remarked, that if a difference should take place between the houses about the time of adjournment, the president could still determine it: from which no danger could arise, as he is chosen in a secondary degree by the people, and would consequently fix no time which would be repugnant to the sense of the representatives of the people. Another, and more satisfactory answer is this: suppose the senate wished to chain down the house of representatives, what is to hinder them from going home? How bring them back again? It would be contrary to the spirit of the constitution to impede the operations of the government, perhaps at a critical period. I cannot conceive that such difference will often happen. Were the senate to attempt to prevent an adjournment, it would but serve to irritate the representatives, without having the intended effect, as the president could adjourn them. There will not be occasion for the continual residence of the senators at the seat of government. What business have they more than the house of representatives? The appointment of officers and treaties. With respect to the appointment of officers, a law may be made to grant it to the President alone. It must be supposed there will be but few and subordinate officers to be appointed, as the principal offices will be filled. It is observed that the President, when vacancies happen during the recess of the senate, may fill them till it meets. With respect to treaties, the occasions of forming them will not be many, and will mean but a small proportion of the time of session.
JUNE 16—POWER OVER THE MILITIA.
Mr Chairman, I will endeavor to follow the rule of the house; but must pay due attention to the observations which fell from the gentleman. I should conclude, from abstracted reasoning, that they were ill founded. I should think, that if there were any object, which the general government ought to command, it would be the direction of the national forces. And as the force which lies in militia is most safe, the direction of that part ought to be submitted to, in order to render another force unnecessary. The power objected to is necessary, because it is to be employed for national purposes. It is necessary to be given to every government. This is not opinion, but fact. The highest authority may be given that the want of such authority in the government, protracted the late war, and prolonged its calamities.
He says, that one ground of complaint at the beginning of the revolution, was, that a standing army was quartered upon us. This was not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America. As to the exclusion of standing armies in the bill of rights of the states, we shall find that though in one or two of them, there is something like a prohibition, yet in most of them it is only provided, that no armies shall be kept without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying that we shall have an army, if necessary? Does not the notoriety of this constitute security? If inimical nations were to fall upon us when defenceless, what would be the consequence? Would it be wise to say, that we should have no defence? Give me leave to say that the only possible way to provide for standing armies, is to make them unnecessary.
The way to do this, is to organize and discipline our militia, so as to render them capable of defending the country against external invasions, and internal insurrections. But it is urged that abuses may happen. How is it possible to answer objections against possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against. I really thought that the objection in the militia was at an end. Was there ever a constitution, in which, if authority was vested, it must not have been executed by force, if resisted? Was it not in the contemplation of this state, when contemptuous proceedings were expected, to recur to something of this kind? How is it possible to have a more proper resource than this? That the laws of every country ought to be executed, cannot be denied. That force must be used if necessary, cannot be denied. Can any government be established, that will answer any purpose whatever, unless force be provided for executing its laws? The constitution does not say that a standing army shall be called out to execute the laws. Is not this a more proper way? The militia ought to be called forth to suppress smugglers. Will this be denied? The case actually happened at Alexandria. There were a number of smugglers, who were too formidable for the civil power to overcome. The military quelled the sailors, who, otherwise would have perpetrated their intentions. Should a number of smugglers have a number of ships, the militia ought to be called forth to quell them. We do not know but what there may be combinations of smugglers in Virginia hereafter. We all know the use made of the Isle of Man. It was a general depository of contraband goods. The parliament found the evil so great, as to render it necessary to wrest it out of the hands of its possessor.
The honorable gentleman says that it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty, or not as he pleases, would be a new species of government, or rather no government at all. The ingenuity of the gentleman is remarkable, in introducing the riot act of Great Britain. That act has no connection, or analogy, to any regulation of the militia; nor is there any thing in the constitution to warrant the general government to make such an act. It never was a complaint in Great Britain, that the militia could be called forth. If riots should happen, the militia are proper to quell it, to prevent a resort to another mode. As to the infliction of ignominious punishments, we have no ground of alarm, if we consider the circumstances of the people at large. There will be no punishments so ignominious as have been inflicted already. The militia law of every state to the north of Maryland, is less rigorous than the particular law of this state. If a change be necessary to be made by the general government, it will be in our favor. I think that the people of those states would not agree to be subjected to a more harsh punishment than their own militia laws inflict. An observation fell from a gentleman on the same side with myself, which deserves to be attended to. If we be dissatisfied with the national government, if we should choose to renounce it, this is an additional safeguard to our defence. I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect us. If there be a particular discrimination between places in America, the southern states are, from their situation and circumstances, most interested in giving the national government the power of protecting its members.
(Here Mr Madison made some other observations; but spoke so very low, that his meaning could not be comprehended.)
An act passed a few years ago in this state, to enable the government to call forth the militia to enforce the laws when a powerful combination should take place to oppose them. This is the same power which the constitution is to have. There is a great deal of difference between calling forth the militia, when a combination is formed to prevent the execution of the laws, and the sheriff or constable carrying with him a body of militia to execute them in the first instance; which is a construction not warranted by the clause. There is an act also in this state, empowering the officers of the customs to summon any persons to assist them when they meet with obstruction in executing their duty. This shews the necessity of giving the government power to call forth the militia when the laws are resisted. It is a power vested in every legislature in the union, and which is necessary to every government. He then moved, that the clerk should read those acts—which were accordingly read.
JUNE 16—POWER OVER THE MILITIA.
Mr Chairman, let me ask this committee, and the honorable member last up [Henry], what we are to understand from this reasoning? The power must be vested in congress, or in the state governments. Or there must be a division or concurrence. He is against division—It is a political monster. He will not give it to congress, for fear of oppression. Is it to be vested in the state governments? If so, where is the provision for general defence? If ever America should be attacked, the states would fall successively. It will prevent them from giving aid to their sister states. For as each state will expect to be attacked, and wish to guard against it, each will retain its own militia for its own defence. Where is this power to be deposited then, unless in the general government, if it be dangerous to the public safety to give it exclusively to the states. If it must be divided, let him shew a better manner of doing it than that which is in the constitution. I cannot agree with the other honorable gentleman, that there is no check. There is a powerful check in that paper. The state governments are to govern the militia, when not called forth for general national purposes; and congress is to govern such part only as may be in the actual service of the union. Nothing can be more certain and positive than this. It expressly empowers congress to govern them when in the service of the United States. It is then clear, that the states govern them when they are not. With respect to suppressing insurrections, I say that those clauses which were mentioned by the honorable gentleman, are compatible with a concurrence of the power. By the first, congress is to call them forth to suppress insurrections and repel invasions of foreign powers. A concurrence in the former case, is necessary, because a whole state may be in insurrection against the union. What has passed, may perhaps justify this apprehension. The safety of the union and particular states, requires that the general government should have power to repel foreign invasions. The fourth section of the fourth article, is perfectly consistent with the exercise of the power by the states. The words are, “The United States shall guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.” The word invasion here, after power had been given in the former clause to repel invasions may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by other states. A republican government is to be guaranteed to each state, and they are to be protected from invasion from other states, as well as from foreign powers: And on application by the legislature or executive as the case may be, the militia of the other states are to be called to suppress domestic insurrections. Does this bar the states from calling forth their own militia? No; but it gives them a supplementary security to suppress insurrection and domestic violence.
The other clause runs in these words, “No state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” They are restrained from making war, unless invaded, or in imminent danger. When in such danger, they are not restrained. I can perceive no competition in these clauses. They cannot be said to be repugnant to a concurrence of the power. If we object to the constitution in this manner, and consume our time in verbal criticism, we shall never put an end to the business.
JUNE 16—POWER OVER SEAT OF GOVERNMENT.
Mr Chairman, I did conceive, sir, that the clause under consideration, was one of those parts which would speak its own praise. It is hardly necessary to say any thing concerning it. Strike it out of the system, and let me ask, whether there would not be much larger scope for those dangers? I cannot comprehend that the power of legislating over a small district, which cannot exceed ten miles square, and may not be more than one mile, will involve the dangers which he apprehends. If there be any knowledge in my mind, of the nature of man, I should think it would be the last thing that would enter into the mind of any man, to grant exclusive advantages in a very circumscribed district to the prejudice of the community at large. We make suppositions, and afterwards deduce conclusions from them, as if they were established axioms. But after all, bring home this question to ourselves. Is it probable that the members from Georgia, New Hampshire, &c., will concur to sacrifice the privileges of their friends? I believe, that whatever state may become the seat of the general government, it will become the object of jealousy, and of the envy of the other states. Let me remark, if not already remarked, that there must be a cession by particular states, of the district to congress, and that the states may settle the terms of the cession. The states may make what stipulation they please in it, and if they apprehend any danger, they may refuse it altogether. How could the general government be guarded from the undue influence of particular states, or from insults, without such exclusive power? If it were at the pleasure of a particular state to control the cession and deliberations of congress, would they be secure from insults, or the influence of such state? If this commonwealth depended for the freedom of deliberation, or the laws of any state where it might be necessary to sit, would it not be liable to attacks of that nature (and with more indignity) which have been already offered to congress? With respect to the government of Holland, I believe the states general have no jurisdiction over the Hague. But I have heard that mentioned as a circumstance which gave undue influence to Holland over the rest. We must limit our apprehensions to certain degrees of probability. The evils which they urge must result from this clause, are extremely improbable: nay, almost impossible.
JUNE 16—POWER OVER SEAT OF GOVERNMENT.
Mr Chairman, I am astonished that the honorable member should launch out into such strong descriptions without any occasion. Was there ever a legislature in existence that held their sessions at a place where they had not jurisdiction? I do not mean such a legislature as they have in Holland; for it deserves not the name.—Their powers are such as congress have now; which we find not reducible to practice. If you be satisfied with the shadow and form instead of the substance, you will render them dependent on the local authority. Suppose the legislature of this country should sit in Richmond, while the exclusive jurisdiction of the place was in some particular country, would this country think it safe that the general good should be subject to the paramount authority of a part of the community?
The honorable member asks, why ask for this power, and if the subsequent clause be not fully competent for the same purpose? If so what new terrors can arise from this particular clause? It is only a superfluity. If that latitude of construction which he contends for, were to take place with respect to the sweeping clause, there would be room for those horrors. But it gives no supplementary power: It only enables them to execute the delegated powers. If the delegation of their powers be safe, no possible inconvenience can arise from this clause. It is at most but explanatory. For when any power is given, its delegation necessarily involves authority to make laws to execute it. Were it possible to delineate on paper, all those particular cases and circumstances in which legislation by the general legislature would be necessary and leave to the states all the other powers, I imagine no gentleman would object to it. But this is not within the limits of human capacity. The particular powers which are found necessary to be given, are therefore delegated generally, and particular and minute specification is left to the legislature.
(Here Mr Madison spoke of the distinction between regulation of police and legislation; but so low he could not be heard.)
When the honorable member objects to giving the general government jurisdiction over the place of their session, does he mean that it should be under the control of any particular state, that might at a critical moment seize it? I should have thought that this clause would have met with the most cordial approbation. As the consent of the state in which it may be, must be obtained, and as it may stipulate the terms of the grant, should they violate the particular stipulations, it would be an usurpation: So that if the members of congress were to be guided by the laws of their country, none of those dangers could arise.
(Mr Madison made several other remarks, which could not be heard.)
JUNE 17—IMPORTATION OF SLAVES.
Mr Chairman, I should conceive this clause [permitting importation of slaves] to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The southern states would not have entered into the union of America, without the temporary permission of that trade. And if they were excluded from the union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The union in general is not in a worse situation. Under the articles of confederation, it might be continued forever: but by this clause an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances. A tax may be laid in the meantime, but it is limited, otherwise congress might lay such a tax as would amount to a prohibition. From the mode of representation and taxation, congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws. For the laws of the states are uncharitable to one another in this respect. But in this constitution, “no person held to service, or labor, in one state, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.” This clause was expressly inserted to enable owners of slaves to reclaim them.
This is a better security than any that now exists. No power is given to the general government to interpose with respect to the property in slaves now held by the states. The taxation of this state being equal only to its representation, such a tax cannot be laid as he supposes. They cannot prevent the importation of slaves for twenty years; but after that period they can. The gentlemen from South Carolina and Georgia argued in this manner: “We have now liberty to import this species of property, and much of the property now possessed, had been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we would be obliged to go to your markets. I need not expatiate on this subject. Great as the evil is, a dismemberment of the union, would be worse. If those states should disunite from the other states, for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.
JUNE 17—IMPORTATION OF SLAVES.
Mr. Madison replied, that even the southern states, who were most affected, were perfectly satisfied with this provision, and dreaded no danger to the property they now hold. It appeared to him, that the general government would not intermeddle with that property for twenty years, but to lay a tax on every slave imported, not exceeding ten dollars; and that after the expiration of that period, they might prohibit the traffic altogether. The census in the constitution was intended to introduce equality in the burdens to be laid on the community. No gentleman objected to laying duties, imposts, and excises, uniformly. But uniformity of taxes would be subversive to the principles of equality: for that it was not possible to select any article which would be easy for one state, but what would be heavy for another. That the proportion of each state being ascertained, it would be raised by the general government in the most convenient manner for the people, and not by the selection of any one particular object. That there must be some degree of confidence put in agents, or else we must reject a state of civil society altogether. Another great security to this property, which he mentioned, was, that five states were greatly interested in that species of property; and there were other states which had some slaves, and had made no attempt, or taken any step to take them from the people. There were a few slaves in New York, New Jersey, and Connecticut: these states would, probably, oppose any attempts to annihilate this species of property. He concluded, by observing, that he would be glad to leave the decision of this to the committee.
JUNE 17—THE VICE PRESIDENCY.
Mr Chairman, I think there are some peculiar advantages incident to this office [the Vice Presidency], which recommend it to us. There is in the first place a great probability this officer will be taken from one of the largest states, and if so, the circumstance of his having an eventual vote will be so far favorable. The consideration which recommends it to me, is, that he will be the choice of the people at large.—There are to be ninety-one electors, each of whom has two votes: if he have one fourth of the whole number of votes, he is elected vice-president. There is much more propriety in giving this office to a person chosen by the people at large, than to one of the senate who is only the choice of the legislature of one state.—His eventual vote is an advantage too obvious to comment upon. I differ from the honorable member in the case which enables congress to make a temporary appointment. When the president and vice-president die, the election of another president will immediately take place, and suppose it would not, all that congress could do, would be to make an appointment, between the expiration of the four years and the last election, and to continue only to such expiration. This can rarely happen. This power continues the government in motion, and is well guarded.
JUNE 18—ELECTION OF PRESIDENT.1
Mr Chairman, I will take the liberty of making a few observations, which may place this in such a light as may obviate objections. It is observed, that none of the honorable members objecting to this, have pointed out the right mode of election. It was found difficult in the convention, and will be found so by any gentleman who will take the liberty of delineating a mode of electing the president, that would exclude those inconveniences which they apprehend. I would not contend against some of the principles laid down by some gentlemen if the interests of some states only were to be consulted. But there is a great diversity of interests. The choice of the people ought to be attended to. I have found no better way of selecting the man in whom they place the highest confidence, than that delineated in the plan of the convention—nor has the gentleman told us. Perhaps it will be found impracticable to elect him by the immediate suffrages of the people. Difficulties would arise from the extent and population of the states. Instead of this, the people chose the electors.
This can be done with ease and convenience, and will render the choice more judicious. As to the eventual voting by states, it has my approbation. The lesser states, and some large states, will be generally pleased by that mode. The deputies from the small states argued, (and there is some force in their reasoning) that when the people voted, the large states evidently had the advantage over the rest, and without varying the mode, the interest of the little states might be neglected or sacrificed. Here is a compromise.—For in the eventual election, the small states will have the advantage. In so extensive a country, it is probable that many persons will be voted for, and the lowest of the five highest on the list may not be so inconsiderable as he supposes. With respect to the possibility, that a small number of votes may decide his election, I do not know how, nor do I think that a bare calculation of possibility ought to govern us.—One honorable gentleman has said, that the eastern states may, in the eventual election, choose him. But in the extravagant calculation he has made, he has been obliged to associate North Carolina and Georgia, with the five smallest northern States. There can be no union of interest or sentiments between states so differently situated.
The honorable member last up has committed a mistake in saying there must be a majority of the whole number of electors appointed. A majority of votes, equal to a majority of the electors appointed, will be sufficient. Forty-six is a majority of ninety one, and will suffice to elect the president.
JUNE 18—TREATY-MAKING POWER.
Mr. Chairman, I am persuaded that when this power comes to be thoroughly and candidly viewed, it will be found right and proper. As to its extent, perhaps it will be satisfactory to the committee, that the power is precisely in the new constitution, as it is in the confederation. In the existing confederacy, congress are authorized indefinitely to make treaties. Many of the states have recognised the treaties of congress to be the supreme law of the land. Acts have passed within a year, declaring this to be the case. I have seen many of them. Does it follow, because this power is given to congress, that it is absolute and unlimited? I do not conceive that power is given to the president and senate to dismember the empire, or to alienate any great essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.
One objection against the amendment proposed, is this; that by implication, it would give power to the legislative authority to dismember the empire—a power that ought not to be given, but by the necessity that would force assent from every man. I think it rests on the safest foundation as it is. The object of treaties is the regulation of intercourse with foreign nations, and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which congress could exercise this authority? The definition might, and probably would be defective. They might be restrained by such a definition, from exercising the authority where it would be essential to the interest and safety of the community. It is most safe, therefore, to leave it to be exercised as contingencies may arise.
It is to be presumed, that in transactions with foreign countries, those who regulate them, will feel the whole force of national attachment to their country. The contrast being between their own nation and a foreign nation, is it not presumable they will, as far as possible, advance the interest of their own country? Would it not be considered as a dangerous principle in the British government, were the king to have the same power in internal regulations, as he has in the external business of treaties? Yet, as among other reasons, it is natural to suppose he will prefer the interest of his own, to that of another country, it is thought proper to give him this external power of making treaties. This distinction is well worthy the consideration of gentlemen. I think the argument of the gentleman who restrained the supremacy of these to the laws of particular states, and not to congress, is rational. Here the supremacy of a treaty is contrasted with the supremacy of the laws of the states. It cannot be otherwise supreme. If it does not supersede their existing laws, as far as they contravene its operation, it cannot be of any effect. To counteract it by the supremacy of the state laws would bring on the union the just charge of national perfidy, and involve us in war.
Suppose the king of Great Britain should make a treaty with France, where he had a constitutional right; if the treaty should require an internal regulation, and the parliament should make a law to that effect, that law would be binding on the one, though not on the other nation. Suppose there should be a violation of right by the exercise of this power by the president and senate; if there was apparent merit in it, it would be binding on the people: for where there is a power for any particular purpose, it must supersede what may oppose it, or else it can be no power. For instance, where there is a power of declaring war, that power as to declaring war supersedes every thing. This would be an unfortunate case, should it happen; but should it happen, there is a remedy; and there being a remedy, they will be restrained against abuses.
But let us compare the responsibility in this government to that of the British government. If there be an abuse of this royal prerogative, the minister who advises him, is liable to impeachment. This is the only restraint on the sovereign. Now, Sir, is not the minister of the United States under restraint? Who is the minister?—The president himself, who is liable to impeachment. He is responsible in person. But for the abuse of the power of the king, the responsibility is in his advisers. Suppose the constitution had said, that this minister alone could make treaties, and when he violated the interest of the nation, he would be impeached by the senate; then the comparison would hold good between the two governments. But is there not an additional security by adding to him the representatives and guardians of the political interest of the states? If he should seduce a part of the senate to a participation in his crimes, those who were not seduced would pronounce sentence against him; and there is this supplementary security, that he may be convicted and punished afterwards, when other members come in the senate, one-third being excluded every second year. So that there is a two-fold security. The security of impeachment and conviction by those senators that they may be innocent, should no more than one-third be engaged with the president in the plot; and should there be more of them engaged in it, he may be tried and convicted by the succeeding senators, and the upright senators who were in the senate before.
As to the case of the Russian ambassador, I shall say nothing. It is as inapplicable as many other quotations made by the gentleman. I conceive that as far as the bills of rights in the states, do not express any thing foreign to the nature of such things, and express fundamental principles essential to liberty, and those privileges which are declared necessary to all free people, these rights are not encroached on by this government.
(Mr. Madison added other remarks which could not be heard.)
JUNE 20—POWER OF JUDICIARY.1
Mr Chairman, permit me to make a few observations which may place this part in a more favorable light than the gentleman placed it in yesterday. It may be proper to remark, that the organization of the general government for the United States was in all its parts, very difficult. There was a peculiar difficulty in that of the Executive. Every thing incident to it must have participated of that difficulty. That mode which was judged most expedient was adopted, till experience should point out one more eligible. This part was also attended with difficulties. It claims the indulgence of a fair and liberal interpretation. I will not deny that according to my view of the subject, a more accurate attention might place it in terms which would exclude some of the objections now made to it. But if we take liberal construction, I think we shall find nothing dangerous or inadmissible in it. In compositions of this kind, it is difficult to avoid technical terms which have the same meaning. An intention to this may satisfy gentlemen, that precision was not so easily obtained as may be imagined. I will illustrate this by one thing in the constitution. There is a general power to provide courts to try felonies and piracies committed on the high seas. Piracy is a word which may be considered as a term of the law of nations. Felony is a word unknown to the law of nations, and is to be found in the British laws, and from thence adopted in the law of these states. It was thought dishonorable to have recourse to that standard. A technical term of the law of nations is therefore used that we should find ourselves authorised to introduce it into the laws of the United States. The first question which I shall consider, is whether the subjects of its cognizance be proper subjects of a federal jurisdiction. The second will be, whether the provisions respecting it be consistent with safety and impropriety, will answer the purposes intended, and suit local circumstances.
The first class of cases to which its jurisdiction extends, are those which may arise under the constitution; and this is to extend to equity as well as law. It may be a misfortune, that in organizing any government, the explication of its authority should be left to any of its co-ordinate branches. There is no example in any country where it is otherwise. There is a new policy in submitting it to the judiciary of the United States. That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies. With respect to the laws of the union, it is so necessary and expedient that the judicial power should correspond with the legislative, that it has not been objected to. With respect to treaties, there is a peculiar propriety in the judiciary expounding them.
These may involve us in controversies with foreign nations. It is necessary therefore, that they should be determined in the courts of the general government. There are strong reasons why there should be a supreme court to decide such disputes. If in any case uniformity be necessary, it must be in the exposition of treaties. The establishment of one revisionary superintending power, can alone secure such uniformity. The same principles hold with respect to cases affecting ambassadors, and foreign ministers. To the same principles may also be referred their cognizance in admiralty and maritime cases. As our intercourse with foreign nations will be affected by decisions of this kind, they ought to be uniform. This can only be done by giving the federal judiciary exclusive jurisdiction. Controversies affecting the interest of the United States ought to be determined by their own judiciary, and not be left to partial local tribunals.
The next case, where two or more states are the parties, is not objected to. Provision is made for this by the existing articles of confederation, and there can be no impropriety in referring such disputes to this tribunal.
Its jurisdiction in controversies between a state and citizens of another state, is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that if a state should wish to bring suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens on whom a state may have a claim, being dissatisfied with the state courts. It is a case which cannot often happen, and if it should be found improper, it will be altered. But it may be attended with good effects. This may be illustrated by other cases. It is provided, that cases of citizens of different states may be carried to the federal courts.
But this will not go beyond the cases where they may be parties. A femme covert may be a citizen of another state, but cannot be a party in this court. A subject of a foreign power having a dispute with a citizen of this state, may carry it to the federal court; but an alien enemy cannot bring suit at all. It appears to me, that this can have no operation but this—to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.
As to its cognizance of disputes between citizens of different states, I will not say it is a matter of such importance. Perhaps it might be left to the state courts. But I sincerely believe this provision will be rather salutary, than otherwise. It may happen that a strong prejudice may arise in some states, against the citizens of others, who may have claims against them. We know what tardy, and even defective administration of justice, has happened in some states. A citizen of another state might not chance to get justice in a state court, and at all events he might think himself injured.
To the next clause there is no objection.
The next case provides for disputes between a foreign state, and one of our states, should such a case ever arise; and between a citizen and a foreign citizen or subject. I do not conceive that any controversy can ever be decided in these courts, between an American state and a foreign state, without the consent of the parties. If they consent, provision is here made. The disputes ought to be tried by the national tribunal. This is consonant to the law of nations. Could there be a more favorable or eligible provision to avoid controversies with foreign powers? Ought it to be put in the power of a member of the union to drag the whole community into war? As the national tribunal is to decide, justice will be done. It appears to me from this review, that, though on some of the subjects of this jurisdiction, it may seldom or never operate, and though others be of inferior consideration, yet they are mostly of great importance, and indispensably necessary.
The second question which I proposed to consider, was, whether such organization be made as would be safe and convenient for the states and the people at large. Let us suppose that the subjects of its jurisdiction had only been enumerated, and power given to the general legislature to establish such courts as might be judged necessary and expedient, do not think that in that case any rational objection could be made to it, any more than would be made to a general power of legislation in certain enumerated cases. If that would be safe, this appears to me better and more restrictive, so far as it may be abused by extension of power. The most material part is the discrimination of superior and inferior jurisdiction, and the arrangement of its powers; as, where it shall have original, and where appellate cognizance. Where it speaks of appellate jurisdiction, it expressly provides, that such regulations will be made as will accommodate every citizen; so far as practicable in any government. The principal criticism which has been made, was against the appellate cognizance, as well of fact as law. I am happy that the honorable member who presides, and who is familiarly acquainted with the subject, does not think it involves any thing unnecessarily dangerous. I think that the distinction of fact as well as law, may be satisfied by the discrimination of the civil and common law. But if gentlemen should contend, that appeals, as to fact, can be extended to jury cases, I contend, that by the word regulations, it is in the power of congress to prevent it, or prescribe such a mode as will secure the privilege of jury trial. They may make a regulation to prevent such appeals entirely: or they may remand the fact, or send it to an inferior contiguous court, to be tried; or otherwise preserve that ancient and important trial.
Let me observe, that so far as the judicial power may extend to controversies between citizens of different states, and so far as it gives them power to correct by another trial, a verdict obtained by local prejudices, it is favorable to those states who carry on commerce. There are a number of commercial states, who carry on trade, for other states.—Should the states in debt to them make unjust regulations, the justice that would be obtained by the creditors, might be merely imaginary and nominal. It might be either entirely denied, or partially granted. This is no imaginary evil. Before the war, New York was to a great amount a creditor of Connecticut: while it depended on the laws and regulations of Connecticut, she might withhold payment. If I be not misinformed, there were reasons to complain. These illiberal regulations and causes of complaint, obstruct commerce. So far as this power may be exercised, Virginia will be benefitted by it. It appears to me from the most correct view, that by the word regulations, authority is given them to provide against the inconveniences, and so far as it is exceptionable, they can remedy it. This they will do if they be worthy of the trust we put in them. I think them worthy of that confidence which that paper puts in them. Were I to select a power which might be given with confidence, it would be judicial power. This power cannot be abused, without raising the indignation of all the people of the states. I cannot conceive that they would encounter this odium. Leaving behind them their character and friends, and carrying with them local prejudices, I cannot think they would run such a risk. That men should be brought from all parts of the union to the seat of government, on trivial occasions, cannot reasonably be supposed. It is a species of possibility; but there is every degree of probability against it. I would as soon believe, that by virtue of the power of collecting taxes or customs, they would compel every man to go and pay the money for his taxes with his own hands to the federal treasurer, as I would believe this. If they would not do the one, they would not the other.
I am of opinion, and my reasoning and conclusions are drawn from facts, that as far as the power of congress can extend, the judicial power will be accommodated to every part of America. Under this conviction, I conclude, that the legislation, instead of making the supreme federal court absolutely stationary, will fix it in different parts of the continent, to render it more convenient. I think this idea perfectly warrantable. There is an example, within our knowledge which illustrates it. By the confederation, congress have an exclusive right of establishing rules for deciding in all cases, what captures should be legal, and establishing courts for determining such cases finally. A court was established for that purpose, which was at first stationary.—Experience, and the desire of accommodating the decision of this court to the convenience of the citizens of the different parts of America, had this effect—it soon became a regulation, that this court should be held in different parts of America, and was held accordingly. If such a regulation was made, when only the interest of the small number of people who are concerned with captures was affected, will not the public convenience be consulted, when that of a very considerable proportion of the people of America will be concerned? It will be also in the power of congress to vest this power in the state courts, both inferior and superior. This they will do, when they find the tribunals of the states established on a good footing.
Another example will illustrate this subject further. By the confederation, congress are authorized to establish courts for trying piracies and felonies committed on the high seas. Did they multiply courts unnecessarily in this case? No, sir, they invested the admiralty courts of each state with this jurisdiction. Now, sir, if there will be as much sympathy between congress and the people, as now, we may fairly conclude, that the federal cognizance will be vested in the local tribunals.
I have observed, that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorized to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: nor do I go on the grounds mentioned by gentlemen on the other side—that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.
Having taken this general view on the subject, I will now advert to what has fallen from the honorable gentleman who presides. His criticism is, that the judiciary has not been guarded from an increase of the salary of the judges. I wished myself, to insert a restraint on the augmentation, as well as diminution, of their compensation: and supported it in the convention. But I was overruled. I must state the reasons which were urged. They had great weight. The business must increase. If there was no power to increase their pay, according to the increase of business, during the life of the judges, it might happen that there would be such an accumulation of business as would reduce the pay to a most trivial consideration. This reason does not hold as to the president, for in the short period which he presides, this cannot happen. His salary ought not, therefore, to be increased. It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen, that a trial would be impracticable in the country. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America.—There are deviations of it in England; yet greater deviations have happened here since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be, therefore, left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer.
It was objected, that this jurisdiction would extend to all cases, and annihilate the state courts. At this moment of time it might happen, that there are many disputes between citizens of different states. But in the ordinary state of things, I believe that any gentlemen will think that the far greater number of causes—ninety-nine out of an hundred, will remain with the state judiciaries. All controversies directly between citizen and citizen, will still remain with the local courts. The number of cases within the jurisdiction of these courts are very small when compared to those in which the local tribunals will have cognizance. No accurate calculation can be made but I think that any gentleman who will contemplate the subject at all, must be struck with this truth. [Here Mr Madison spoke too low to be understood.)
As to vexatious appeals, they can be remedied by congress. It would seldom happen that mere wantonness would produce such an appeal, or induce a man to sue unjustly. If the courts were on a good footing in the states, what can induce them to take so much trouble? I have frequently, in the discussion of this subject, been struck with one remark. It has been urged, that this would be oppressive to those who by imprudence, or otherwise are under the denomination of debtors. I know not how this can be conceived. I will venture one observation. If this system should have the effect of establishing universal justice, and accelerating it throughout America, it will be one of the most fortunate circumstances that could happen for those men. With respect to that class of citizens, compassion is their due. To those, however, who are involved in such incumbrances, relief cannot be granted. Industry and economy are the only resources.—It is vain to wait for money, or temporise. The great desiderata are public and private confidence. No country in the world can do without them. Let the influx of money be ever so great, if there be no confidence, property will sink in value, and there will be no inducements or emulation to industry. The circulation of confidence is better than the circulation of money. Compare the situations of nations in Europe, where the justice is administered with celerity, to that of those where it is refused, or administered tardily. Confidence produces the best effects in the former. The establishment of confidence will raise the value of property, and relieve those who are so unhappy as to be involved in debts. If this be maturely considered, I think it will be found that as far as it will establish uniformity of justice, it will be of real advantage to such persons. I will not enter into those considerations which the honorable gentleman added. I hope some other gentleman will undertake to answer.
JUNE 24—NECESSITY FOR RATIFICATION.1
Mr. Chairman, nothing has excited more admiration in the world, than the manner in which free governments have been established in America. For it was the first instance from the creation of the world to the American revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon, and give effect to it. But why has this excited so much wonder and applause? Because it is of so much magnitude, and because it is liable to be frustrated by so many accidents. If it has excited so much wonder, that the United States have in the middle of war and confusion, formed free systems of government, how much more astonishment and admiration will be excited, should they be able, peaceably, freely and satisfactorily, to establish one general government, when there is such a diversity of opinions, and interests, when not cemented or stimulated by any common danger? How vast must be the difficulty of concentrating in one government, the interests, and conciliating the opinions of so many different heterogeneous bodies?
How have the confederacies of ancient and modern times been formed? As far as ancient history describes the former to us, they were brought about by the wisdom of some eminent sage. How was the imperfect union of the Swiss Cantons formed? By danger. How was the confederacy of the United Netherlands formed? By the same. They are surrounded by dangers. By these and one influential character, they were stimulated to unite. How was the Germanic system formed? By danger in some degree, but principally by the overruling influence of individuals.
When we consider this government, we ought to make great allowances. We must calculate the impossibility that every state should be gratified in its wishes, and much less that every individual should receive this gratification. It has never been denied by the friends of the paper on the table, that it has effects. But they do not think that it contains any real danger. They conceive that they will in all probability be removed, when experience will shew it to be necessary. I beg that gentlemen in deliberating on this subject, would consider the alternative. Either nine states shall have ratified it or they will not. If nine states will adopt it, can it be reasonably presumed or required, that nine states having freely and fully considered the subject, and come to an affirmative decision, will, upon the demand of a single state, agree that they acted wrong, and could not see its defect—tread back the steps which they have taken and come forward and reduce it to uncertainty, whether a general system shall be adopted or not? Virginia has always heretofore spoken the language of respect to the other states, and she has always been attended to. Will it be that language, to call on a great majority of the states to acknowledge that they have done wrong? Is it the language of confidence to say, that we do not believe that amendments for the preservation of the common liberty and general interests of the state, will be consented to by them? This is neither the language of confidence nor respect. Virginia when she speaks respectfully, will be as much attended to, as she has hitherto been when speaking this language.
It is a most awful thing that depends on our decision—no less than whether the thirteen states shall unite freely, peaceably, and unanimously, for security of their common happiness and liberty, or whether every thing is to be put in confusion and disorder. Are we to embark in this dangerous enterprise, uniting various opinions to contrary interests, with the vain hope of coming to an amicable concurrence?
It is worthy of our consideration, that those who prepared the paper on the table, found difficulties not to be described, in its formation—mutual deference and concession were absolutely necessary. Had they been inflexibly tenacious of their individual opinions they would never have concurred. Under what circumstances was it formed? When no party was formed, or particular proposition made, and men’s minds were calm and dispassionate. Yet under these circumstances, it was difficult, extremely difficult, to agree to any general system.
Suppose eight states only should ratify, and Virginia should propose certain alterations, as the previous condition of her accession. If they should be disposed to accede to her proposition, which is the most favorable conclusion, the difficulty attending it will be immense. Every state, which has decided it, must take up the subject again. They must not only have the mortification of acknowledging that they had done wrong, but the difficulty of having a reconsideration of it among the people, and appointing new conventions to deliberate upon it. They must attend to all the amendments, which may be dictated by as great a diversity of political opinions, as there are local attachments. When brought together in one assembly, they must go through, and accede to every one of the amendments. The gentlemen who, within this house, have thought proper to propose previous amendments, have brought no less than forty amendments—a bill of rights which contains twenty amendments, and twenty other alterations, some of which are improper and inadmissible. Will not every state think herself equally entitled to propose as many amendments? And suppose them to be contradictory, I leave it to this convention, whether it be probable that they can agree, or agree to any thing, but the plan on the table; or whether greater difficulties will not be encountered, than were experienced in the progress of the formation of the constitution.
I have said that there was a great contrariety of opinions among the gentlemen in the opposition. It has been heard in every stage of their opposition. I can see from their amendments, that very great sacrifices have been made by some of them. Some gentlemen think that it contains too much state influence: others, that it is a complete consolidation, and a variety of other things. Some of them think that the equality in the senate, is not a defect; others, that it is the bane of all good governments. I might, if there were time, show a variety of other cases, where their opinions are contradictory. If there be this contrariety of opinions in this house, what contrariety may not be expected, when we take into view, thirteen conventions equally or more numerous? Besides, it is notorious from the debates which have been published, that there is no sort of uniformity in the grounds of the opposition.
The state of New York has been adduced. Many in that state are opposed to it from local views. The two who opposed it in the general convention from that state, are in the state convention. Every step of this system was opposed by those two gentlemen. They were unwilling to part with the old confederation. Can it be presumed then, sir, that gentlemen in this state, who admit the necessity of changing, should ever be able to unite in sentiments with those who are totally averse to any change.
I have revolved this question in my mind, with as much serious attention, and called to my aid as much information as I could, yet I can see no reason for the apprehensions of gentlemen, but I think that if Virginia will agree to ratify this system, I shall look upon it as one of the most fortunate events that ever happened for human nature. I cannot, therefore, without the most excruciating apprehensions, see a possibility of losing its blessings. It gives me infinite pain to reflect, that all the earnest endeavors of the warmest friends of their country, to introduce a system promotive of our happiness, may be blasted by a rejection, for which I think with my honorable friend, that previous amendments are but another name. The gentlemen in opposition seem to insist on those amendments, as if they were all necessary for the liberty and happiness of the people. Were I to hazard an opinion on the subject, I would declare it infinitely more safe in its present form, than it would be after introducing into it that long train of alterations, which they call amendments.
With respect to the proposition of the honorable gentleman to my left [Mr. Wythe] gentlemen apprehend, that by enumerating three rights, it implied there were no more. The observations made by a gentleman lately up, on that subject, correspond precisely with my opinion. That resolution declares, that the powers granted by the proposed constitution, are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby, remains with the people, and at their will. It adds likewise, that no right of any denomination, can be cancelled, abridged, restrained or modified, by the general government, or any of its officers, except in those instances in which power is given by the constitution for these purposes. There cannot be a more positive and unequivocal declaration of the principles of the adoption, that every thing not granted, is reserved. This is obviously and self-evidently the case, without the declaration.—Can the general government exercise any power not delegated? If an enumeration be made of our rights, will it not be implied, that every thing omitted, is given to the general government? Has not the honorable gentleman himself, admitted, that an imperfect enumeration is dangerous? Does the constitution say that they shall not alter the law of descents, or do those things which would subvert the whole system of the state laws? If he did, what was not excepted, would be granted. Does it follow from the omission of such restrictions, that they can exercise powers not delegated? The reverse of the proposition holds. The delegation alone warrants the exercise of any power.
With respect to the amendments, proposed by the honorable gentleman, it ought to be considered how far they are good. As far as they are palpably and insuperably objectionable, they ought to be opposed. One amendment he proposes is, that any army which shall be necessary, shall be raised by the consent of two-thirds of the states. I most devoutly wish, that there may never be an occasion for having a single regiment. There can be no harm in declaring, that standing armies in time of peace, are dangerous to liberty, and ought to be avoided, as far as it may be consistent with the protection, of the community. But when we come to say, that the national security shall depend not on a majority of the people of America, but that it may be frustrated by less than one-third of the people of America, I ask if this be a safe or proper mode? What part of the United States are most likely to stand in need of this protection? The weak parts, which are the southern states. Will it be safe to leave the United States at the mercy of one-third of the states, a number, which may comprise a very small proportion of the American people? They may all be in that part of America which is least exposed to danger. As far as a remote situation from danger, would render exertions for public defence less active, so far the southern states would be endangered.
The regulation of commerce, he further proposed, should depend on two-thirds of both houses. I wish I could recollect the history of this matter; but I cannot call it to mind with sufficient exactness. But I recollect the reasoning of some gentlemen on that subject. It was said, and I believe with truth, that every part of America, does not stand in equal need of security. It was observed, that the northern states were most competent to their own safety. Was it reasonable, asked they, that they should bind themselves to the defence of the southern states, and still be left at the mercy of the minority for commercial advantages? Should it be in the power of the minority to deprive them of this and other advantages, when they were bound to defend the whole union, it might be a disadvantage for them to confederate.
These were his arguments. This policy of guarding against political inconveniences, by enabling a small part of the community to oppose the government, and subjecting the majority to a small minority is fallacious. In some cases it may be good; in others it may be fatal. In all cases it puts it in the power of the minority to decide a question which concerns the majority.
I was struck with surprise when I head him express himself alarmed with respect to the emancipation of slaves. Let me ask, if they should even attempt it, if it will not be an usurpation of power? There is no power to warrant it, in that paper. If there be, I know it not. But why should it be done? Says the honorable gentleman, for the general welfare—it will infuse strength into our system. Can any member of this committee suppose, that it will increase our strength? Can any one believe, that the American councils will come into a measure which will strip them of their property, discourage, and alienate the affections of five-thirteenths of the union. Why was nothing of this sort aimed at before? I believe such an idea never entered into any American breast, nor do I believe it ever will enter into the heads of those gentlemen who substitute unsupported suspicions for reasons.
I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say with a great deal of propriety—“It is not proper, decent, or right in you, to demand that we should reverse what we have done. Do as we have done—place confidence in us, as we have done in one another—and then we shall freely, fairly and dispassionately consider and investigate your propositions, and endeavour to gratify your wishes; but if you do not do this, it is more reasonable that you should yield to us, than we to you. You cannot exist without us—you must be a member of the union.”
The case of Maryland, instanced by the gentleman, does not hold. She would not agree to confederate, because the other states would not assent to her claims of the western lands. Was she gratified? No—she put herself like the rest. Nor has she since been gratified. The lands are in the common stock of the union.
As far as his amendments are not objectionable, or unsafe, so far they may be subsequently recommended. Not because they are necessary, but because they can produce no possible danger, and may gratify some gentlemen’s wishes. But I never can consent to his previous amendments, because they are pregnant with dreadful dangers.
TO GEORGE WASHINGTON
Richmond, June 4, 1788
Your favor of the 2d Ulto was not recd till my arrival here on monday evening. I found contrary to my expectation that not only a very full house had been made on the first day, but that it had proceeded to the appointment of the President & other officers. Mr. Pendleton was put into the chair without opposition. Yesterday little more was done than settling some forms and Resolving that no question general or particular should be propounded till the whole plan should be considered & debated, clause by clause. This was moved by Col. Mason, and contrary to his expectations, concurred in by the other side. Today the discussions commenced in Committee of the whole. The Governor has declared the day of previous amendments passed, and thrown himself fully into the federal scale. Henry & Mason made a lame figure & appeared to take different and awkward ground. The federalists are a good deal elated by the existing prospect. I dare not however speak with certainty as to the decision. Kentucky has been extremely tainted, is supposed to be generally adverse, and every piece of address is going on privately to work on the local interests & prejudices of that & other quarters. In haste I am
Dr Sir yrs affecty.—Wash MSS.
The proceedings of the Convention were reported by Robertson and published at Petersburg, Va., 1788, under the title: “Debates and other Proceedings of the Convention of Virginia, convened at Richmond on Monday the 2d day of June, 1788, for the purpose of deliberating on the Constitution recommended by the Grand Federal Convention.” Elliot’s Debates (1836), vol. iii., inaccurately reprints this volume. Hugh Blair Grigsby’s “Virginia Convention of 1788,” Virginia Historical Collections IX., is a skilful and valuable narrative account of the principal characters in the convention and the debates. The MS. “Journal of the Convention of Virginia” is in the Virginia State Library, but it contains none of the debates. Madison’s speeches, as given by Robertson and reproduced in the text of this volume, were, he declared in after life, reported with reasonable accuracy.
[2 ]He was first on his feet the day before (June 4), when he briefly replied to Mason, merely asserting that power to lay taxes was just, that the Constitution would not eventuate in consolidation and that representation was sufficient.
[1 ]The notes for this speech are found in the Mad. MSS.:
TO GEORGE WASHINGTON.
Richmond, June 13th, 1788.
Your favor of came to hand by the mail of Wednesday. I did not write by several late returns for two reasons: one the improbability of your having got back to Mount Vernon; the other a bilious indisposition which confined me for several days. I am again tolerably well recovered.
Appearances at present are less favorable than at the date of my last. Our progress is slow and every advantage is taken of the delay, to work on the local prejudices of particular sets of members. British debts, the Indiana claim, and the Miippi are the principal topics of private discussion & intrigue, as well as of public declamation. The members who have served in Congress have been dragged into communications on the first, which could not be justifiable on any other occasion if on the present. There is reason to believe that the event may depend on the Kentucky members; who seem to lean more agst than in favor of the Constitution. The business is in the most ticklish state that can be imagined. The majority will certainly be very small on whatever side it may finally lie; and I dare not encourage much expectation that it will be on the favorable side.
Oswald of Philada, has been here with letters for the anti federal leaders from N. York and probably Philada. He staid a very short time here during which he was occasionally closeted with H—y M-s-n &c. I learn from N. York that the elections have proved adverse to the Constitution.
Yours affecty.—Wash. MSS.
TO GEORGE WASHINGTON
Richmond, June 18, 1788.
No question direct or indirect has yet been taken by which the state of parties could be determined, of course each is left to enjoy the hopes resulting from its own partial calculations. It is probable the majority on either side will not exceed 3, 4, 5 or 6. I indulge a belief that at this time the friends of the Constitution have the advantage in point of number. Great moderation as yet marks our proceedings. Whether it be the effect of temper, or of the equality of forces and the uncertainty of victory, will be seen by the event. We are at present on the Executive Department. Mr. H—y has not made any opposition to it, though it was looked for. He may however still mean to make one; or he may lay by for an exertion against the Judiciary. I find myself not yet restored and extremely feeble.
With my affecte regards I remain, Yrs.—Mad. MSS.
TO JAMES MADISON.
Richmd June 20, 1788.
No question has yet been taken by which the strength of parties can be determined. The calculations on different sides do not accord; each making them under the bias of their particular wishes. I think however the friends of the Constitution are most confident of superiority, and am inclined myself to think they have at this time the advantage of 3 or 4 or possibly more in point of number. The final question will probably decide the contest in a few days more. We are now on the Judiciary Department, against which the last efforts of the adversaries seem to be made. How far they will be able to make an impression, I cannot say. It is not probable that many proselytes will be made on either side. As this will be handed to you at Court you can make its contents known to Majr Moore and other friends to whom I have not time separately to write. With my regards to my mother & the family I remain yr affec. Son.—Mad. MSS.
TO GEORGE WASHINGTON.
Richmond, Tuesday, June 25 We got through the Constitution by paragraphs today. Tomorrow some proposition for closing the business will be made. On our side a ratification involving a few declaratory truths not affecting its validity will be tendered. The opposition will urge previous amendments. Their conversation today seemed to betray despair. Col. Mason in particular talked in a style which no other sentiment could have produced. He held out the idea of civil convulsions as the effects of obtruding the Government on the people. He was answered by several and concluded with declaring his determination for himself to acquiesce in the event whatever it might be. Mr. H—y endeavored to gloss what had fallen from his friend, declared his aversion to the Constitution to be such that he could not take the oath; but that he would remain in peaceable submission to the result. We calculate on a majority, but a bare one. It is possible nevertheless that some adverse circumstance may happen. I am, Dr Sr in haste Yrs entirely.—Wash. MSS.
TO AMBROSE MADISON.
Richmd June 24, 
Yesterday carried us through the discussion of the constitution by paragraphs. Today will probably carry forward some proposition and debates relative to the final step to be taken. The opposing party will contend for previous amendments. On the other side a conciliatory declaration of certain fundamental principles in favor of liberty, in a form not affecting the validity and plenitude of the ratification, will be proposed. The final question is likely to be decided by a small majority. I do not know that either party despairs absolutely. The friends of the Convention seem to be in the best spirits; and I hope have the best reason to be so. At the same time it is not impossible they may miscalculate their number, and that accidents may reduce it below the requisite amount, two members on that side, who went away with a purpose of returning are still absent, it is said; and a third is so ill as to render his vote somewhat precarious. It may be questioned whether on any estimate this loss if it shd. continue may not endanger the results.
Yours affy. —N. Y. Pub. Lib. MSS.
TO GEORGE WASHINGTON.
Richmond, June, 25 1788.
On the question to-day for previous amendments, the votes stood 80 ays—88 noes. On the final question the ratification passed 89 ayes—79 noes. Subsequent amendments will attend the act; but are yet to be settled. The temper of the minority will be better known to-morrow. The proceedings have been without flaw or pretext of it; and there is no doubt that acquiescence if not cordiality will be manifested by the unsuccessful party. Two of the leaders however betray the effect of the disappointment, so far as it is marked in their countenances.
In haste, Yrs.