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“A Freeman” [Tench Coxe] Essays: I-III - Colleen A. Sheehan, Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788 
Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788, edited by Colleen A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1998).
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“A Freeman” [Tench Coxe]
Pennsylvania Gazette, Philadelphia, 23 and 30 January and 6 February 1788
Tench Coxe (1755-1824) was a leading defender of the proposed Constitution and is best remembered for his work in the area of political economy. After ratification of the Constitution, he served as Assistant Secretary of the Treasury from 1789 to 1792.
To the Minority of the Convention of Pennsylvania.1
Gentlemen, The great question which at this time engages the attention of the United States calls for the fairest and most dispassionate discussion. Mistakes in taking up the subject must lead to erroneous conclusions, and men of pure intentions, both among yourselves and the people at large, should misconceptions have arisen, may continue averse to the system, after it has received the fiat of all the conventions. Well intended attempts to throw light upon the interesting subject cannot, therefore, be unpleasing to you. Without further introduction, then, I will proceed to a point of considerable importance in itself and in its consequences, on which I conceive your opinions have been erroneously formed, and on which I earnestly hope we shall finally concur.
The consolidation of the United States into one government by the operation of the proposed constitution (in contradistinction from a confederacy) appears to you to be the consequence of the system, and the intention of its framers.2 This is the point of difference which I mean to treat of, and for the present I shall confine my observations to it alone.
Were the parts of the fœderal government which you have particularized as much of the nature of consolidation as you seem to suppose, real nature and design, and the state sovereignties, would indeed be finally annihilated. The appearances which have misled you I shall remark on in the course of these papers, and I shall endeavour to exhibit clear and permanent marks and lines of separate sovereignty, which must ever distinguish and circumscribe each of the several states, and prevent their annihilation by the fœderal government, or any of its operations.
When the people of America dissolved their connexion with the crown of Britain, they found themselves separated from all the world, but a few powerless colonies, the principal of which indeed they expected to induce into their measures. The crown having been merely a centre of union, the act of independence dissolved the political ties that had formerly existed among the states, and it was attended with no absolute confederacy; but many circumstances conspired to render some new form of connexion desirable and necessary. We wished not to continue distinct bodies of people, but to form a respectable nation. The remains of our ancient governments kept us in the form of thirteen political bodies, and from a variety of just and prudent considerations, we determined to enter into an indissoluble and perpetual union. Though a confederacy of sovereign states was the mode of connexion which was wisely desired and actually adopted, yet in that feeble and inadequate bond of union to which we assented, articles strongly partaking of the nature of consolidation are observable.
We see, for example, that the free inhabitants of each state were rendered, to all intents and purposes, free citizens of all the rest. Persons fleeing from justice in one state were to be delivered up by any other in which they might take refuge, contrary to the laws prevailing among distinct sovereignties, whereby the jurisdiction of one state pervaded the territories of all the rest, to the effectual length of trial, condemnation and punishment. The right to judge of the sums that should be expended for the use of the nation lies, even under the old confederation, solely with Congress, and after the demand is fixed by them, and formally made, the states are bound, as far as they can be bound by any compact, to pay their respective quotas into the fœderal treasury, by which the power of the purse is fully given to them; nor can the states constitutionally refuse to comply. It is very certain that there is not in the present fœderal government vigor enough to carry this actually delegated power into execution; yet, if Congress had possessed energy sufficient to have done it, there is no doubt but they would have been justifiable in the measure, though the season of invasion was unfavorable for internal contests.
We shall also find, that the right to raise armies and build navies is also vested in Congress by the present confederation, and they are to be the sole judges of the occasion, and the force required. The state, therefore, that refuses to fulfil the requisitions of Congress on either of these articles, acts unconstitutionally. It appears, then, that it was thought necessary at the time of forming the old fœderal constitution, that Congress should have what is termed “the powers of the purse and the sword.” That constitution contained a delegation of them, because the framers of it saw that those powers were necessary to the perpetuity and efficiency of the union, and to obtain the desirable ends of it. It is certainly very true, that the means provided to enable Congress to apply those powers, which the constitution vested in them, were so liable to opposition, interruption and delay, that the clauses containing them became a mere dead letter. This however was not expected or desired by any of the states at the time, and their subsequent defaults are infringements of the letter and spirit of the confederation. On these circumstances I entreat your most dispassionate and candid consideration. I beg leave to remark, however, that as in the present constitution they are only appearances of consolidation, irrefragably contradicted by other facts and circumstances, so also are the facts and observations in your address merely appearances of a consolidation, which I hope to demonstrate does not exist. The matter will be better understood by proceeding to those points which shew, that, as under the old so under the new fœderal constitution, the thirteen United States were not intended to be, and really are not consolidated, in such manner as to absorb or destroy the sovereignties of the several states. In order to [have] a perfect understanding of each other, it may be proper to observe here, that by your term consolidation I understand you mean the final annihilation of separate state government or sovereignty, by the nature and operations of the proposed constitution. Among the proofs you adduce of such consolidation being the intention of the late convention, is the expression of—“We the People.”—Tho’ this is a mere form of words, it will be well to see what expressions are to be found in the constitution in opposition to this, and indicative of the intentions of the convention, before we consider those things, which, as I conceive, secure the states from a possibility of losing their respective sovereignties.
First, then, tho’ the convention propose that it should be the act of the people, yet it is in their capacities as citizens of the several members of our confederacy—for they are expresly declared to be “the people of the United States”—to which idea the expression is strictly confined, and the general term of America, which is constantly used in speaking of us as a nation, is carefully omitted: a pointed view was evidently had to our existing union. But we must see at once, that the reason of “the People” being mentioned was, that alterations of several constitutions were to be effected, which the convention well knew could be done by no authority but that of “the people,” either determining themselves in their several states, or delegating adequate powers to their state conventions. Had the fœderal convention meant to exclude the idea of “union,” that is, of several and seperate sovereignties joining in a confederacy, they would have said, we the people of America; for union necessarily involves the idea of component states, which complete consolidations exclude. But the severalty of the states is frequently recognized in the most distinct manner in the course of the constitution. The representatives are to be inhabitants of the state they represent—each state is to have a representative—the militia officers are to be appointed by the several states—and many other instances will be found in reading the constitution. These, however, are all mere expressions, and I should not have introduced them, but to overbalance the words you have mentioned by a superior weight of the same kind. Let us, then, proceed to evidences against consolidation, of more force than the mere form of words.
It will be found, on a careful examination, that many things, which are indispensibly necessary to the existence and good order of society, cannot be performed by the fœderal government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.
1st. Congress, under all the powers of the proposed constitution, can neither train the militia, nor appoint the officers thereof.
2dly. They cannot fix the qualifications of electors of representatives, or of the electors of the electors of the President or Vice-President.
3dly. In case of a vacancy in the senate or the house of representatives, they cannot issue a writ for a new election, nor take any of the measures necessary to obtain one.
4thly. They cannot appoint a judge, constitute a court, or in any other way interfere in determining offences against the criminal law of the states, nor can they in any way interfere in the determinations of civil causes between citizens of the same state, which will be innumerable and highly important.
5thly. They cannot elect a President, a Vice-President, a Senator, or a fœderal representative, without all of which their own government must remain suspended, and universal Anarchy must ensue.
6thly. They cannot determine the place of chusing senators, because that would be derogatory to the sovereignty of the state legislatures, who are to elect them.
7thly. They cannot enact laws for the inspection of the produce of the country, a matter of the utmost importance to the commerce of the several states, and the honor of the whole.
8thly. They cannot appoint or commission any state officer, legislative, executive or judicial.
9thly. They cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.
10thly. They cannot interfere with, alter or amend the constitution of any state, which, it is admitted, now is, and, from time to time, will be more or less necessary in most of them.
The proper investigation of this subject will require more of your time than I can take the liberty of engaging at present. I shall therefore leave what I have now written to your honest and cool reflection.
To the Minority of the Convention of Pennsylvania.
Gentlemen, The principal object of my last paper was to point out a variety of instances, in which the agency and power of the state governments are absolutely necessary to the existence of civil society, and to the execution of the fœderal constitution itself. I therein shewed that certain important matters, which must be done from time to time, cannot be attempted or performed by the general government. Here, then, we find, not only that the state powers will not be annihilated, but that they are so requisite to our system, that they cannot be dispensed with.
Having seen what Congress cannot do, let us now proceed to examine what the state governments must or may do.
First, then, each state can appoint every officer of its own militia, and can train the same, by which it will be sure of a powerful military support attached to, and even part of itself, wherein no citizen of any other state can be a private centinel, much less have influence or command.
2dly. Every regulation relating to religion, or the property of religious bodies, must be made by the state governments, since no powers affecting those points are contained in the constitution.
3dly. The state legislatures and constitutions must determine the qualifications of the electors for both branches of the fœderal government; and here let us remember to adhere firmly within our respective commonwealths to genuine republican principles. Wisdom, on this point which lies entirely in our hands, will pervade the whole system, and will be a never failing antidote to aristocracy, oligarchy and monarchy.
4thly. Regulating the law of descents, and forbidding the entail of landed estates, are exclusively in the power of the state legislatures. A perfect equality, at least among the males, and possibly among the females, should be established, not only in the strict line of descent, but in the most remote collateral branches. If a man omits to make a will, the public should distribute his property equally among those who have equal pretensions, and who are able to render equal services to the community. By these means, poverty and extreme riches would be avoided, and a republican spirit would be given to our laws, not only without a violation of private rights, but consistently with the principles of justice and sound policy. This power with that mentioned under the last head, if exercised with wisdom and virtue, will preserve the freedom of the states beyond any other means.
5thly. The elections of the President, Vice President, Senators and Representatives, are exclusively in the hands of the states, even as to filling vacancies. The smallest interference of Congress is not permitted, either in prescribing the qualifications of electors, or in determining what persons may or may not be elected.
The clause which enables the fœderal legislature to make regulations on this head, permits them only to say at what time in the two years the house of representatives shall be chosen, at what time in the six years the Senate shall be chosen, and at what time in the four years the President shall be elected; but these elections, by other provisions in the constitution, must take place every two, four and six years, as is declared in the several cases respectively.
6thly. The states elect, appoint and commission all their own officers, without any possible interference of the fœderal government.
7thly. The states can alter and amend their several constitutions, provided they do not make them aristocratical, oligarchic or monarchical—for the fœderal constitution restrains them from any alterations that are not really republican. That is, the sovereignty of the people is never to be infringed or destroyed.
8thly. The states have the power to erect corporations for literary, religious, commercial, or other purposes, which the fœderal government cannot prevent.
9thly. Every state can always give its dissent to fœderal bills, as each has a vote in the Senate secured by the constitution. Hence it appears, that the state governments are not only intended to remain in force within their respective jurisdictions, but they are always to be known to, and have their voices, as states, in the fœderal councils.
10thly. The states not only elect all their own officers, but they have a check, by their delegates to the Senate, on the appointment of all fœderal officers.
11thly. The states are to hold separate territorial rights, and the domestic jurisdiction thereof, exclusively of any interference of the dœderal government.
12thly. The states will regulate and administer the criminal law, exclusively of Congress, so far as it regards mala in se, or real crimes; such as murder, robbery, &c. They will also have a certain and large part of the jurisdiction, with respect to mala prohibita, or matters which are forbidden from political considerations, though not in themselves immoral; such as unlicenced public houses, nuisances, and many other things of the like nature.
13thly. The states are to determine all the innumerable disputes about property lying within their respective territories between their own citizens, such as titles and boundaries of lands, debts by assumption, note, bond, or account, mercantile contracts, &c. none of which can ever be cognizable by any department of the fœderal government.
14thly. The several states can create corporations civil and religious; prohibit or impose duties on the importation of slaves into their own ports; establish seminaries of learning; erect boroughs, cities and counties; promote and establish manufactures; open roads; clear rivers; cut canals; regulate descents and marriages; licence taverns; alter the criminal law; constitute new courts and offices; establish ferries; erect public buildings; sell, lease and appropriate the proceeds and rents of their lands, and of every other species of state property; establish poor houses, hospitals, and houses of employment; regulate the police; and many other things of the utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.
In addition to this enumeration of the powers and duties of the state governments, we shall find many other instances under the constitution, which require or imply the existence or continuance of the sovereignty and severalty of the states.—The following are some of them:—
All process against criminals and many other law proceedings will be brought by and run in the name of that commonwealth, in which the offence or event has taken place.
The senate will be representatives of the several state sovereignties.
Every state must send its own citizens to the senate and to the house of representatives. No man can go thither, but from the state of which he is a complete citizen, and to which, if they choose, he shall be sworn to be faithful.
No state shall on any pretence be without an equal voice in the senate.
Any state may repel invasions or commence a war under emergent circumstances, without waiting for the consent of Congress.
The electors of the President and Vice-President must not nominate more than one person of the state to which they belong: so careful is the fœderal constitution to preserve the rights of the states.
In case of an equality of votes in the election of the President or Vice-President, a casting voice is given to the states from a due attention to their sovereignty in appointing the ostensible head of the fœderal government.
The President of the United States may require written communications from the governors of the states.
Provision is made for adjusting differences between two states—or one state and the citizens of another. New states may be admitted into the union. As all the territory of each state is already in the union, it is clear that any district will stand on different ground when erected into a state, from what it did when it composed a number of counties, or a part of an already existing member of the confederacy.
Two states may not become one without the consent of Congress, which proves clearly that the convention held the severalty of the states necessary. This is directly opposed to your idea, that consolidation was intended. Each state and the fœderal justiciary are to give faith and credit to the records and proceedings of every other state.
The states have, in the fœderal constitution, a guarantee of a separate republican form of government.
Two thirds of the states in the proposed confederacy can call a convention.
Three fourths of those states can alter the constitution.
From this examination of the proposed constitution for the United States, I trust it will appear, that though there are some parts of it, which, taken separately, look a little like consolidation, yet there are very many others of a nature, which proves, that no such thing was intended, and that it cannot ever take place.
It is but since the middle of the present century, that the principles and practice of free governments have been well understood, political science having been much slower in its progress than any other branch. Perhaps this has been caused by the greater degree of passion, to which, from its nature, this department of knowledge is subjected. The principles on which free sovereignties ought to confederate is quite a new question, and a new case. It is difficult to take it up at once in the proper way. One circumstance has exceedingly obscured the subject, and hid the truth from the eyes of many of us. Most of the states being in the possession of free governments, have looked for the same forms in a confederating instrument, which they have justly esteemed in their several social compacts. Recommending this distinction as necessary to be taken home to your minds when you examine the great subject before you, I shall cease to trespass on your time.
To the Minority of the Convention of Pennsylvania.
Gentlemen, In my former letters I endeavoured to point out certain provisions of the new Constitution, and several circumstances that must result from the proposed frame of government and the state constitutions, which might demonstrate, that there is no ground to apprehend a consolidation of the states, that shall join in the depending confederacy, into one government.
An observation of the honorable Mr. Wilson’s has been adduced, among other arguments, to prove, that despotism would follow such a general government. I believe with him and with you that such would be the consequence of a single national constitution, in which all the objects of society and government were so compleatly provided for, as to place the several states in the union on the footing of counties of the empire.—But permit me to ask you, gentlemen, will such be the condition of the states? Where is the county that can independently train its own militia, appoint its civil and militia officers, establish a peculiar system of penal laws, issue criminal process in its own name, erect corporations, impose direct taxes, excises and duties, hold lands in its own right, commence war on any emergency, regulate descents, prescribe the qualifications of electors, alter its constitution or the principles of its government, divide itself into separate and independent parts, join itself to another state, issue writs for elections, and regulate the same, enact inspection laws, erect courts, appoint judges, commission all its officers, create new offices, sell and give away its lands, erect fortifications, and, in short where is the county in the union, or in the world, that can exercise in any instance independent legislative, executive or judicial powers?
Those three gentlemen3 who with-held their names from the act of the fœderal convention could not have apprehended the annihilation of the state governments, while that house was sitting, or they would, under the influence of such a fear, certainly have pressed for a bill of rights.4 It appears they did not think one so necessary, as to concert a single motion to obtain it: A conclusive proof, in my mind, that they saw no symptoms of a design to consolidate in the framers of the plan, and that they had no apprehensions of the kind themselves.
The construction of the senate affords an absolute certainty, that the states will not lose their present share of separate powers. No state is to lose its voice therein without its own consent. Governor Randolph justly observes, that the force of the constitution of any state can only be lessened by the absolute grant of its own citizens. Whatever therefore is now possessed will remain, unless transferred by new grants. The state legislatures too being the immediate representatives and guardians of their respective constituents, and being the powerful creators of the senators, it cannot be apprehended, either that they will give away their own powers, or that they will chuse men who are unfriendly to them; nor is it at all probable that a senator would hazard the displeasure of the people, or the vengeance of so potent a body as a state legislature, by sacrificing their interests or powers. Rather may it be expected, that his interest and connexions in the state will too partially attach him to it, to the injury of national objects; or that he may neglect general concerns, from a desire to please a legislature or a people, who will be to him the source of honors, emolument and power.
So independent will the state governments remain, that their laws may, and in some instances will, be severer than those of the union. Treason against the United States, for instance, cannot be attended with confiscation and corruption of blood; but by the existing laws of all the states, the unoffending families of attainted persons, stripped of all hereditary rights, and condemned to the bitter portion of extreme poverty, are left without their friend and parent, to meet the trials of the world alone: an awful monument of the sovereign and avenging power of their native state. Let the Representative or Senator who may meditate the annihilation of the government of his state duly consider this, before it be too late.
You apprehend the power of Congress to lay direct taxes will tend to produce consolidation. But the several states possess that power also, and by an early, wise and faithful exercise of it, can always supercede the use of it by Congress. For example; if ten thousand pounds were apportioned to Pennsylvania, to make up the interest on our foreign debts by the end of 1788, a tax for which would be laid in July, our legislature might proceed in the most easy and expeditious way to raise the money, against the time when the fœderal government must necessarily proceed, and by paying our quota into the fœderal treasury would fulfil the requisitions of the law. A fœderal government, that shall possess the least degree of policy or virtue, would never attempt to interfere with such honest, wise and effectual arrangements of any state. It cannot be reasonably feared that a fœderal legislature, chosen by the equal voices of all our citizens, the poor, as well as the rich, will ever wrest from the hands of the people and states, who respectively appoint them, powers so wisely placed and so honestly applied.
The check of the Senate on the appointment of officers will exceedingly favor the preservation of the state governments. Let us suppose an expedition on foot, which requires a number of general officers, whom a President might be inclined to appoint from the state to which he belongs, or for which several persons are nominated, that are too partially attached to the fœderal government, or desirous of lessening the powers of the separate states. The Senate can reject them all, and independently give their reasons to the people and the legislatures. That they will often do so, we cannot doubt, when we remember where their private interests, affections and connexions lie, to whom they will owe their seats—to whom they must look for future favors of the same kind.
The lordship of the soil is one of the most valuable and powerful appendages of sovereignty—This remains in full perfection with every state. From them must grants flow, to them must be paid the annual acknowledgment, whether it be a mere compliance with form in the rendering of a pepper corn, or a solid revenue in the payment of a quite-rent. To them also, as original and rightful proprietaries and lords of the soil, will the estates of extinct families revert.
Independent revenues and resources are indubitable proofs of sovereignty. The states will possess many of those which now exist, and which may hereafter be created. Taxes on state offices, fees for grants of lands, and various licences, tolls on rivers, canals, and roads not being post-roads, rents of public buildings, escheats, the mighty fund of quit-rents, and sales of lands; these and many others are (exclusively of Congress) within the power of the several states, besides their having access, in common with the fœderal government, to every source of revenue, but the duties on foreign merchandize and ships.
Impeachments within the several states will afford them opportunities of exerting the most dignified and aweful powers of sovereignty. The people of every state, by their constitutional representatives, may impeach the public officer, however great or daring, that shall presume to violate their exclusive rights, or offend against the peace and dignity of their commonwealth, and may punish him, on conviction, by fine, imprisonment or death, without any possible interference of Congress.
But, Gentlemen, the subject is inexhaustible. Every section in the fœderal constitution, as we peruse it, affords new ideas opposed to consolidation: Every moment’s reflexion, on the operation and tendency of the proposed government, adds to their number. I will not therefore trespass longer on your time. I will rest the matter on your own good sense and candor, confidently trusting that the removal of your apprehensions on this important point will render the new Constitution more agreeable to you. Thinking, as you did, consolidation was intended and would take place, and that it must produce a despotism, you would have been criminal in assenting to the plan proposed; but I will hope that the consideration of this point which we have taken together, will remove your fears, and open the door to comfortable hopes, rather than to apprehensions, from the great measure now waiting the Fiat of the people of the United States.
[1. ]The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents was published in the Pennsylvania Packet and the Daily Advertiser on 18 December 1787 because the minority could not use the official journal of the convention for disseminating its views. According to Storing, Samuel Bryan, identified as Centinel, probably wrote this. See Storing, 3:11; Allen, 53-70.
[2. ]The fear of consolidation was a major concern of most Anti-Federalists. While Publius in The Federalist could argue that the Constitution represented a “judicious modification of the federal principle,” to the Anti-Federalists the modification had been anything but judicious. For the differences in the meanings of “federalism” and “confederalism” during the period, see Martin Diamond, “What the Framers Meant by Federalism,” in Robert A. Goldwin, ed., A Nation of States (2d ed.; Chicago: Rand-McNally, 1974). For the best expression of the Anti-Federalist fears, see the essays of Brutus, Storing, 2:9; Allen, 269-74, 201-23, 102-11. See also the Letters from the Federal Farmer to the Republican, Storing, 2:8; Allen, 75-93, 177-201, 261-69.
[3. ]George Mason, Edmund Randolph, and Elbridge Gerry.
[4. ]See Robert Rutland, The Birth of the Bill of Rights (Boston: Northeastern University Press, 1991); and Herbert J. Storing, “The Constitution and the Bill of Rights,” in M. Judd Harmon, ed., The Constitution of the United States (Port Washington, N.Y.: Kennikat Press, 1978).